Mildly Serious Analysis of Ted Cruz and the “Dildo Case”

Constitutional Law

You may have heard, in the last week, a story involving Ted Cruz, when he was solicitor general for Texas, defending an anti-“obscene devices” statute (more blithely referred to as the “anti-dildo” law).

The case is Reliable Consultants, Inv. d/b/a Dreamer’s and Le Rouge Boutique / PHE, Inc. d/b/a Adam and Eve, Inc. v. Ronnie Earle in his official capacity and the State of Texas.  It is a February 2008 case.

In short, Texas outlawed “obscene devices” and the Fifth Circuit held that it was a violation of substantive due process extending via the 14th Amendment.  The court generally concluded:

“An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right.”

It appears that the politically left publication, Mother Jones, first broke the story a week ago with the article, “The Time Ted Cruz Defended a Ban on Dildos.”

There have been other articles since, including this right-leaning National Review piece, “Ted Cruz’s Work on the Dildo Case Was Admirable, Not Creepy.”

Even the rumor-busting website, Snopes, got into the mix with its analysis in, “Broad Stroke: Several Online Items Have Misleadingly Claimed that Ted Cruz tried to Ban Dildoes in Texas.”

If you happen to believe that primary politics has not completed devolved, these articles, and the underlying comments, may change your view (that said, there was not one naughty reference to “penal” code to be found).

A few comments:

  •  Mr. Cruz was then solicitor general for the state and, as you can appreciate, was tasked with defending the state law.  In a recent radio interview, for what it may be worth, Mr. Cruz indicated his personal opinion was different than the legal position that Texas took in that case.  None of this is unusual or should serve as reason to question his legal knowledge or ethics.
  •  As a Florida-related note, the Fifth Circuit takes issue with a contrary result from the Eleventh Circuit in Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007).
  • For further Florida-based scholarly discussion, consider this November 2012 Florida Law Review Article, “Substantive Due Process: Sex Toys after Lawrence Williams v. Morgan.”
  • It appears that the plaintiff, Le Rouge Boutique, may still be in business in Austin, Texas.  Here’s the Yelp review.

photo credit: MTV.com

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