If there is one thing you can count on, it is salacious sex stories to explode all over the internet ; especially so if those stories seem to involve a politician. Leave it to David Corn at the ever so not reliable Mother Jones to find a way to take a 10th Amendment versus Interstate Commerce case that Ted Cruz did not author, and make it appear he wrote every word within it.
http://www.motherjones.com/politics/2016/04/ted-cruz-dildo-ban-sex-devices-texas In 2004, Reliable Consultants Inc and Phe Inc brought suit against the State of Texas over its ban of the sale of sex toys and paraphernalia. This half-century old law was mostly written to restrict opening sex-toy shops in neighborhoods. The law, however, didn’t anticipate businesses finding a new distribution method for its wars- ‘toy parties’ women would put on in their homes similar to Tupperware parties. The State of Texas immediately clamped down on these parties, and the main promoter, Reliable Consultants took the State to court.
As a caveat before we go deeper into this case, the author does find this ban still a government over-reach, but that is actually a detailed discussion one can argue without getting into the misdirected outrage of the case.
As is with thousands of other cases each year, this case was submitted to the Texas Attorney General’s office for defense of the State’s position. At the time, the Texas Attorney General was now Governor Gregg Abbot and Ted Cruz was the State Solicitor General. As is all cases filed through the Attorney General’s office, all members of the staff are listed in the document, in this case twice. However, the presiding attorney who wrote the defense and argued the case actually signs the document signifying who owned this case file. In this particular case, it was not Abbot or Cruz but Bill Davis, Attorney of Record for the AG’s office. A scan of the entire document can be found here:
https://www.scribd.com/doc/308509051/Reliable-Consultants-v-Abbott-Defendant-Appellee-BriefAs one can see, Ted Cruz is only listed twice in this document, in both cases, just listed as a member of the Attorney General’s office, not as the attorney of record, authoring attorney, nor attorney who argued the case. At the time, although tabloid fodder, this case did not fit under Cruz’s office role. Cruz’ office, Solicitor General, was the chief appellate attorney for criminal cases brought before the Texas and US Supreme Court. Not a civil commerce case.
Even knowing this, it should be understood exactly what the Attorney General’s office role was in this case. No matter their personal opinions of the law in question, their role is to defend the State of Texas based on the law as written. Just like a defense attorney will speak on behalf of an accused criminal even if he or she may not believe the criminal’s innocence. The AG’s office does not make law, nor change law.
To get into the nuts and bolts of the case, to put it simply, Reliable Consultants argued that, one, Texas did not have the right to restrict commerce of said devices, and two, possession of said devices is Constitutionally protected. The AG’s argument based on Texas law at the time was that under the tutelage of the 10th Amendment, the State did have the power to restrict the commerce and ownership of said devices.
Corn, in his original Mother Jones’ article took it upon himself to find every steamy sentence, remove the context of why it was used, and then paint it as though these were Cruz’s own words. Without repeating the pull quotes Corn pulled out of the document, the statements came down to two points, one, lawyers attempting to legally define what a sex toy was in typical lawyer fashion, and two, and probably the more humorous of the statements if read out of the document context, if the Constitution protected ownership of said devices like it does the ownership of arms as protected by the 2nd Amendment. The thirteen thousand words of the case goes into even more legal arguments around 1st Amendment protection of advertising and the ‘parties’, as well as the legality to ship the devices across State lines.
In the end, Texas lost this case and did not appeal, which says even more about the Attorney General’s office position on this case.
All of the static aside, reviewing the documents from a legal, versus political tabloid perspective, one can conclude:
1. Ted Cruz did not author this brief, argue this brief, or sign off as the attorney of record on this brief.
2. The State Attorney General’s office role was not to make a judgment of opinion on the law itself, but to defend the law as currently written until the State Legislature changes it.
3. Much of the tabloid salaciousness presented in articles about this brief were merely lawyers attempting to somehow write legal and Constitutional context into what would be a touchy subject.
Maybe if David Corn had his mind more on the truth and less on political tabloid hits, he would have presented a more honest assessment of this non-issue.
