January 17, 2008
What Larry Craig has wrought
Posted by: Chris
The American Civil Liberties Union has jumped back into Larry Craig's "lewd conduct" case with an even more aggressive defense of toilet cruising than the last time around. How ironic if the anti-gay GOP senator's longest lasting influence on the law is to establish that sex inside toilet stalls is protected by the U.S. Constitution.
The first time around, when Craig was trying to withdraw his guilty plea to challenge the constitutionality of his Minneapolis airport restroom arrest, the ACLU filed a brief arguing that the First Amendment protects "solicitation," so long as the act being solicited is constitutionally protected.
So a man in a bar asking a woman (or, after Lawrence vs. Texas, another man) to go home and have sex with him would be protected by the First Amendment -- because sex inside the man's home is private and between consenting adults, and therefore constitutionally protected as well. Because Craig never spoke, the police can't prove that he was soliciting sex to take place in the airport, as opposed to some other, private location either at that time or some future date.
This time around, as Larry Craig appeals his conviction, the ACLU appears to have extended that argument signficantly, to argue that public sex -- so long as it's "hidden" within a toilet stall -- is also constitutionally protected, meaning the solicitation of it is as well. "People who have sex in closed stalls in public restrooms 'have a reasonable expectation of privacy,'" the ACLU claimed.
If the ACLU is right, then all the back and forth about Craig's toe-tapping and non-verbal "cues" is irrelevant. The Constitution would protect his right to speak out with a clear voice in the Minneapolis-St. Paul Airport and say, "Would you like to come into my stall and have sex with me?"
I think that goes too far. Yes, the police waste resources on toilet stings and too often entrap or pressure men into pleading guilty when they have not committed a crime. But Anthony Kennedy's eloquent description in the Lawrence decision about "the right to privacy" -- meaning certain personal decisions so intimate that the Constitution protects against governmental interference -- does not extend to sexual conduct taking place in public -- even semi-secluded.
The ACLU didn't have to go as far as it did in Larry Craig's case; the stance it took in the lower court would have vindicated the First Amendment right to solicit private sexual conduct. That would be victory enough and once on the books would eliminate the broad police discretion that allows the kind of abusive techniques employed against Craig, when the police can claim all sorts of information was "communicated" by non-verbal means.
Once solicitation is clearly protected by the Constitution, enforcement would be limited to what's actually being done in public; not what's being said.
Still, I would love to hear the court press Craig's lawyers on whether he agrees with the ACLU about constitutionally protected toilet sex, since up until now he is benefiting from civil libertarian support without taking a clear position himself.
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