And, honestly, probably still is.

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Before Ted Cruz was the much-detested Sen. Cruz, he was the off-putting Texas Solicitor General Cruz from 2003 to 2008. During his tenure, he fought a number of ideological and religious wars (including defending the phrase “under God” in the Pledge of Allegiance and a ban on late-term abortions). He also, fittingly, defended a law criminalizing dildo sales.

In 2004, according to Mother Jones, several Austin-based stores that sold sex toys challenged a law banning the sale of “obscene” devices, arguing that it violated individuals’ right to privacy.

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When a federal judge ruled that selling sex toys was not a Constitutionally-protected right, and the plaintiffs appealed, it was Cruz’s offices’ job of defending the law. That resulted in a 76-page brief arguing to the US Court of Appeals for the Fifth Circuit to uphold the law.

In the brief, Cruz’s team referenced the Texas Penal Code, which, at the time, prohibited “the advertisement and sale of dildos, artificial vaginas, and other obscene devices,” but did not forbid the use of those items.

Mother Jones reports:

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The brief insisted that Texas in order to protect “public morals” had “police-power interests” in “discouraging prurient interests in sexual gratification, combating the commercial sale of sex, and protecting minors.” There was a “government” interest, it maintained, in “discouraging...autonomous sex.” The brief compared the use of sex toys with “hiring a willing prostitute or engaging in consensual bigamy,” and it equated advertising these products with the commercial promotion of prostitution. In perhaps the most noticeable line of the brief, Cruz’s office declared, “There is no substantive-due-process right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.” That is, the pursuit of such happiness had no constitutional standing. And the brief argued there was no “right to promote dildos, vibrators, and other obscene devices.” The plaintiffs, it noted, were “free to engage in unfetterednoncommercial speech touting the uses of obscene devices” but not speech designed to generate the sale of these items.

The court promptly rejected Cruz’s plea, noting that the case wasn’t, as he had argued, about controlling sex-related commerce or public sex. Instead, “It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct.”

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“Just as in Lawrence, the state here wants to use its laws to enforce a public moral code by restricting private intimate conduct,” the judges wrote, according to CBS News. “The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the state is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification after Lawrence.”


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