There is an intense irony to the fact US senator Ted Cruz’s verified Twitter account “liked” a porn video posted by a feed called @SexuallPosts late on Monday night. This is the same Ted Cruz who argued in federal court that the government can ban masturbation.
When Cruz was the solicitor general of Texas, the chief appellate lawyer for the state, selling sex toys was a criminal offence. And the prohibition was no mere unenforced relic – Texas went so far as to conduct a sex toy sting in 2003. Two undercover cops, posing as a couple, “infiltrated” a passion party (like tupperware parties, but for sex toys) and busted a mother of three for selling a vibrator. The charge carried a maximum penalty of a $4,000 fine and one year in jail, although prosecutors eventually dropped the case.
Three years later, the ban on selling what the law euphemistically called “obscene devices” was challenged in federal court by two sex toy purveyors, ie companies with pockets deep enough to pay lawyers to argue about dildos. Most people find court filings boring, and I’ll happily concede they can be downright dull. But the ensuing litigation in Reliable Consultants, Inc v Earle produced some very illuminating reading.
After losing at the district court, the state of Texas, through the office of its solicitor general, Ted Cruz, argued before the appeals court, “[t]here is no substantive-due-process right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship”.
Translated from legalese to English, Cruz asserted that the people of Texas have the right to get off only if doing so for a medical reason, or for procreation (eg IVF), or if doing so with another person. That’s right, in Cruz’s view mutual masturbation is protected by the constitution but solo orgasms are not. Unless you have a note from your doctor. Or you’re at a fertility clinic.
This absurd argument was rejected by the three-judge panel of the appeals court, and Cruz’s office lost. But Cruz wasn’t done. When a party loses before a three-judge panel, they can ask all of the judges in that circuit to rehear the case. Litigants are not entitled to this sort of exceptional do-over. They must persuade a majority of the judges that it is worth clogging their already overburdened dockets even further to review the work of their colleagues.
It’s an uphill fight and usually only the most compelling petitions are granted. Good lawyers know they need strong arguments to succeed. I can only assume that’s why Cruz argued that allowing people to get off with toys would lead to the parade of horribles of “consensual adult incest and bigamy”.
I couldn’t help but notice there were three people in that porn clip Cruz’s Twitter account “liked” (he later told reporters it had been a mistake and blamed a “staffing issue”.)
The truth is, Ted, masturbation is normal and healthy. Likewise, sex toys, whether for use with a partner or for solo play, are normal.
And your inclusion of a medical exception notwithstanding, you defended a profoundly ableist position. For lots of ill or disabled people, the only way to orgasm is with the help of a toy. For example lots of medications, including antidepressants, chemo drugs, and painkillers, can make orgasming more difficult. Do you really think an 18-year-old chronically ill boy is going to get a prescription from his GP for lube and a vibe? I can assure you, having once been a chronically ill teenage boy, bodies can feel embarrassing enough without creepy politicians like you regulating masturbation.
Ted, I also realise your record on LGBTQ rights will go down in the history books under “civil rights, politicians on wrong side of”. So it wouldn’t surprise me one bit if you learned, from watching porn at the Supreme Court, that all sorts of people who don’t fit into your pathetic, confining little box of acceptable sexualities use the sex toys you argued should be illegal in order to explore and express and live their wonderful, full, diverse sexualities. (Yes, you read that right. When Ted Cruz was a law clerk for then US Supreme Court Chief Justice William Rehnquist, he watched porn with the justices as part of deciding an obscenity case.)
Was that it, Ted? Did you think about hurting LGBTQ people, or did that only occur to you after that trash-fire of a brief was filed? There are more of us than there are of you, Ted. We will not let you drag us backwards. LGBTQ folks matter. Accessibility and inclusion matter. And they matter all the more in sex because people like you try to impose your shaming, theocratic worldview on the rest of us.
The fact is Ted, you’ve already lost. The pathetic part is that you don’t even seem to know it.
Matthew Cortland is an attorney and campaigner for disability and patient rights
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