January 18, 2008

The ACLU and 'public' sex

Posted by: Chris

The American Civil Liberties Union kindly forwarded me the brief they filed in Larry Craig's lewd conduct appeal, after I posted about it a couple of times yesterday.

Some confusion arose over the ACLU's position because an Associated Press account made it appear the venerable civil liberties lobby was arguing that sex in a bathroom stall is "private" and constitutionally protected. The ACLU later clarified that it was the Minnesota Supreme Court -- not the ACLU -- that had reached that fairly outrageous conclusion.

Well, sort of. As I expected, the Minnesota Supreme Court never said that sex inside toilet stalls is covered by the U.S. Constitution's "right to privacy."  Instead, the court ruled in a 1970 case (State v. Bryant, 287 Minn. 205, 177 N.W.2d 800) that the police could not surreptitiously videotape bathroom stalls in a department from above to see if people were having sex.

It is one thing to conclude, as the Minnesota court did back in 1970, that people have a "reasonable expectation of privacy" in a bathroom stall -- meaning the government has to have their consent or "probable cause" before engaging in surveillance.  It is quite another to conclude that this "privacy" rises to such a level of constitutional protection that sexual conduct taking place there is protected from criminal prohibition.

The ACLU knows the difference and nonetheless stretches the definition of "privacy" way beyond its original scope in a string of U.S. Supreme Court decisions, leading up to the landmark Lawrence vs. Texas sodomy ruling.

Remember that the prohibition against unreasonable searches and surveillance is explicit in the Constitution's Fourth Amendment, and the "right to privacy" at issue in Lawrence (and Roe vs. Wade) is "unenumerated" -- meaning judge-made. The ACLU does no one any favors by arguing for such an extreme extension of the right to privacy, especially when it was unnecessary in the case.

The ACLU -- and Larry Craig, actually -- would be better off arguing that his non-verbal cues -- toe-tapping, hand-waving, etc. -- could not be read to communicate one way or another about where he wanted the sex to take place, assuming they could be read to communicate that he wanted sex at all.

The really troubling police and prosecutorial abuses would be dealt a punishing blow if the courts rule that actual communication of intent to have sex in public -- which would include inside a bathroom stall. The rest is an overreach that risks what would be a real victory for civil liberties.

Tags: ACLU, Larry Craig