It can be fairly argued that David Corn and Mother Jones changed the direction of the 2012 election with their publication of the audio of Mitt Romney’s “47 percent” audio. It seems very doubtful that the same will happen their sudden discovery that Ted Cruz defended Texas law as Solicitor General — even when the law in question turned out to be arguably silly, and certainly titillating. Corn tells the tale of the efforts by Texas to impose a ban on the sale of sex toys, and the effort Cruz put into representing the state in court:
In 2007, Cruz’s legal team, working on behalf of then-Attorney General Greg Abbott (who now is the governor), filed a 76-page brief calling on the US Court of Appeals for the Fifth Circuit to uphold the lower court’s decision and permit the law to stand. The filing noted, “The Texas Penal Code prohibits the advertisement and sale of dildos, artificial vaginas, and other obscene devices” but does not “forbid the private use of such devices.” The plaintiffs had argued that this case was similar to Lawrence v. Texas, the landmark 2003 Supreme Court decision that struck down Texas’ law against sodomy. But Cruz’s office countered that Lawrence“focused on interpersonal relationships and the privacy of the home” and that the law being challenged did not block the “private use of obscene devices.” Cruz’s legal team asserted that “obscene devices do not implicate any liberty interest.” And its brief added that “any alleged right associated with obscene devices” is not “deeply rooted in the Nation’s history and traditions.” In other words, Texans were free to use sex toys at home, but they did not have the right to buy them.
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 unfettered noncommercial speech touting the uses of obscene devices” but not speech designed to generate the sale of these items.
The appeals court eventually ruled against Texas in the case, citing Lawrence as its precedent. It almost seems quaint to recall a case from nine years ago regarding sex toys in light of that Supreme Court decision, and Corn milks the dissonance for all its worth. However, this is basically a non-sequitur, as Creuz had no control over the policy in the first place.
What exactly is a Solicitor General? Basically, it’s an attorney who represents a state or federal government in appellate courts. Usually they work with attorneys general, as Corn notes in this instance, in order to give their clients the best representation of their position possible. They often are called to argue positions that might not represent their own beliefs or agendas as part of that effort — just like any other attorney, they have a duty to prioritize the interests of their clients first over their own. In this case, the legislature passed a law that the governor had signed, and the state decided they wanted to defend the law in court on appeal. It was Cruz’ job to come up with the most compelling argument he could craft to serve his client’s interest.
As part of his pitch for the presidency, Cruz does use his successes as Solicitor General in defending liberty interests. Doesn’t that make this case fair game to paint Cruz as somehow anti-sex and anti-sex-toy? Er, no, not really. Being a successful Solicitor General demonstrates how well Cruz can make the sale on those issues, with which he has explicitly aligned himself. At best, one could look at his loss in this case as perhaps an imputation that his powers of persuasion have some limits, but that’s about all. That, however, doesn’t allow people to ask in essence, “But what about the dildos?”
A parting thought: I wonder if and when Corn and MoJo will discover how Hillary Clinton represented an alleged rapist by painting his teenage victim as a slut. At that point, I’d expect the “every client has the right to the best representation” argument to emerge.