Last week at the Federalist Society annual lawyers’ convention, Texas Senator-elect Ted Cruz made the following remarks (beginning at 23:05 on the video):
The President, every Democrat, went throughout this campaign, saying, “Republicans want to take away contraceptives.” What utter and complete nonsense. I don’t know a single Republican on the face of the globe who wants to take away anybody’s contraceptives. Look, my wife and I have two little girls. I’m thrilled we don’t have seventeen.
This got a deserved laugh from the audience. But can it really be the case that Sen.-elect Cruz doesn’t “know a single Republican on the face of the globe who wants to take away anybody’s contraceptives”?
Perhaps the editors of National Review could introduce him to some. Less than two weeks ago NR published an article by Robert P. George, probably the most ubiquitous Catholic intellectual on the Right these days, and David L. Tubbs, denouncing on its 40th anniversary Eisenstadt v. Baird, the decision by which the U.S. Supreme Court struck down as a violation of the right to personal privacy a Massachusetts law against the sale of contraceptives to unmarried persons. With unmistakable distaste, George and Tubbs blast the Court for embracing “a right of unmarried persons to have their lifestyle choices facilitated by the legal availability of contraceptives.” They complain that until Eisenstadt, such laws had been in force “since the 1870s as a straightforward exercise of the ‘police power’ — a state legislature’s broad constitutional authority to promote public health, safety, and morals.”
Now, it would be possible — it happens regularly in arguments about constitutional law — to criticize the logic and derivation of a decision like Eisenstadt without actually defending the wisdom of the law being struck down. Justice Clarence Thomas, for example, dissenting from the Lawrence v. Texas decision, famously described laws against consensual private sodomy as “uncommonly silly” even while agreeing with Justice Antonin Scalia that the U.S. Constitution does not bar such laws.
But that doesn’t appear to be George-and-Tubbs’s game at all. Far from including any “to be sure, we don’t favor such a law as policy” disclaimers, they praise laws like the one struck down as ways for legislators “to discourage people from engaging in sexual relations outside the matrimonial bond” and “reinforce cultural norms about the undesirability of having sex and children outside of marriage.” Robert George, who teaches at Princeton and is visiting at Harvard Law this year, has written an entire book revealingly titled Making Men Moral, praising and defending “morals laws” applying criminal sanctions to what was once called victimless crime, such as consensual private homosexual activity and the sale of contraceptives.
We know that the two must be acquainted, since in a NYT profile Prof. Robert George is described as “Mr. Cruz’s adviser at Princeton in the early 1990s.” Perhaps we should read the relevant sentence in a slightly amended way, to say that the Senator-elect doesn’t know a single elected Republican on the face of the globe who favors (or at least publicly favors) taking away anyone’s contraceptives. Prof. Robert George can afford to promote misplaced nostalgia about 1950s morals legislation, but GOP candidates who hope to be elected these days cannot. [Corrected to remove a sentence that left a misleading implication about Cruz’s own religious affiliation, which is Southern Baptist.]