Safe Stall Sex: The Larry Craig Defense

Taking a position that will delight horny, late-night bar patrons everywhere, the American Civil Liberties Union is arguing that people who have consensual sex in bathroom stalls in public places have a reasonable expectation of privacy and thus a 1st Amendment right to engage in a little sumpin'-sumpin'.

Citing a 38-year-old case as precedent, the ACLU took this position in the Sen. Larry Craig (R-Idaho) toe-tap case. The ACLU filed a brief yesterday on Craig's behalf in Minnesota, the scene of Craig's infamous sex-sting adventure last year. The senator (yes, he is still in office despite promising to resign last year) is fighting to overturn his own guilty plea on disorderly conduct charges and now has card-carrying ACLU lawyers helping to argue his case. What a country!

I don't know what's richer: that the political future of an archly conservative Republican senator is now in part dependent on an organization that has provided cheap punchlines for Republicans for a generation, or that Minnesota actually has case law that holds that sex in a public restroom bestows upon its participants some sort of privacy right. In any event, I can't wait for Craig to be "ungagged" by his lawyers so he may share his views on the matter.

Of course, the ACLU's motives differ from Craig's: The organization argues that the "sting" operation that ensnared Craig is itself unconstitutional because it seeks to criminalize private conduct (stall sex). Anthony Romero, executive director of the ACLU, said last September: "If the police really want to stop people from having sex in public bathrooms, they should put up a sign banning sex in the restroom and send in a uniformed officer to patrol periodically. That works."

Let the late-night jokes begin.

By Andrew Cohen |  January 16, 2008; 8:02 AM ET
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Did you really just used the word "ungagged" in this posting?

Posted by: David | January 16, 2008 11:09 AM

So that's what the condom dispensers in the mens room are for!
Wait a minute, if the restrooms are for homosexual rendezvous, where are we supposed to go to the bathroom?

Posted by: Dijetlo | January 16, 2008 11:36 AM

This is how you know that the modern rightwing in this country is based on lies and deceit. The anti-gay party populated with homosexuals many of them married. There was another belligerent, nationalistic movement who also had a problem with gay people publically, but that was populated with many closeted tough talking anti-gay leaders. IF YOU NEED A HINT THEY WOULD WEAR BROWN SHIRTS, THEY RESIDED IN GERMANY, AND THEY HAD LOVE OF THEATRICAL PARADES.

I am liberal but the idea that someone has an expectation of privacy that includes soliciting prostitutes in public restrooms is absurd, but is it really any more absurd in not believing in evolution, thinking that man and dinosaurs lived at the same time, or that we are winning in Iraq? The modern rightwing lives in a hateful bizarro world totally divorced and hostile to facts and reality. Ministers who denounce homosexuality in public and then cheat on their wives with male prostitutes and who ask the male prostitutes to hook up meth for them. THIS IS IT PEOPLE, THEY ARE BIGOTS AND HYPOCRITS THE WHOLE LOT OF THEM.

Posted by: Farzad | January 16, 2008 12:35 PM

Once again Andrew misrepresents the case here in his blog in an annoying way to present a dishonest position, based on the story he sites as reference, and presumably as origin for this posting.

He says that Craig now has ACLU lawyers arguing his case; this is not true. The article clearly refers to a "Friend of the Court" brief filed by the ACLU. This means that they are not taking a position for or against Mr. Craig, but for their own view point. Apparently that there is a presumption of privacy when soliciting sex in public places.

For those who are deceived by Andrew into assuming that this means they may engage in sex in the (locked) stall, the article clearly states that the ACLU argues against entrapment, not for public sexual activities. That is, the police would have to prove that Craig intended to have sex in the bathroom, rather than adjourn to some more private place, perhaps a nearby taxiway or runway?

The entrapment argument, which is rational, takes the stance that if the authorities really wanted to reduce the sexual activity in the bathroom, they could send in uniformed police at regular (or probably irregular) intervals. Anything less is entrapment; I assume that latter is the referenced case of thirty years ago.

Here from the ACLU brief:

"Sex is a constitutionally protected liberty interest. Thus, the government may make sex a crime only where it has a constitutionally sufficient justification for doing so. The government does not have a constitutionally sufficient justification for making private sex a crime. It follows that an invitation to have private sex is constitutionally protected and may not be made a crime. This is so even where the proposition occurs in a public place, whether in a bar or in a restroom."

I don't agree with this because I believe there is a difference (as to purpose) between a bar and a bathroom. One is a point for socializing, the other for elimination. It is no more appropriate to strike up a conversation in a bathroom than it is to urinate in a bar.

Read the ACLU brief for yourself:

Posted by: Constitutionalist | January 16, 2008 03:09 PM

Am I the only one that is surprised the ACLU hasn't filed a brief on behalf of stall users everywhere who would prefer not to be peeped upon while trying to use the facilities for their intended purpose? Sen Craig is alleged to have spent nearly two minutes peering into an occupied stall (in which the officer sat) prior to entering the neighboring stall. Surely the ACLU would agree that the user of a stall has a reasonable expectation of privacy that overrides whatever right the Senator (or another) has in propositioning another adult to engage in consensual behaviors.

Posted by: bsimon | January 16, 2008 05:16 PM

Something which the commentators overlooked because Craig was the biggest of fish, was the attitude of the arresting officer in the case.

If you listen to the tapes, you'll notice that the cop appears to be angry at Craig for "dissing" him as a cop more so than for breaking the law. As Craig tried to talk his way out of it, the cop got ever more testy about being dissed; not about Craig's illegal activity.

Not exactly a shining moment for either our legislator or the Man in Blue (or whatever he had on in the stall).

Posted by: DC | January 16, 2008 05:45 PM

bsimon, while you or I may feel that it is an invasion of our privacy to have one of our fellow citizens "flirting" with us over and under the stall walls, I believe the ACLU has a different purpose and view of this.

First, the ACLU is not concerned with our individual privacy, but government's intrusion into it. Thus they will easily take the stance that a fellow citizen who is not a member of the government, or at least not acting with governmental authority and in its interest, is free to invade our privacy; we are to be mature enough in their (the ACLU's) view to ignore such behavior if it is unwanted.

Second, the ACLU will assume that most of us want to be solicited for sex. If, however, Senator Craig or a private citizen handed us a bible across the stall divide or asked us to pray together in the public rest room, we can be sure they would interced against religious solicitation.

Posted by: Constitutionalist | January 16, 2008 06:10 PM

Men did you know that you can increase your orgasm by 400%.

Please, click on .

Larry Craig should have tried this instead, the proper peg.

Posted by: Medical milk | January 17, 2008 08:30 AM

Does anyone but me see the irony in Craig being defended by the ACLU despite the fact that Republicans every where have always accused the ACLU of being unpatriotic at best? It does not matter who is defending Craig literally, it is the fact that the ACLU is involved at all and that Craig is a Republican who argues against gay rights and for family values. It just proves that Republicans are really more human than they care to admit. Craig should just pay the fine and shut up. Shutting up is what Republicans tell the rest of us to do when we are not in agreement with them but in this case the Senator should keep his mouth shut in the stall and in general.

Posted by: DaveBronx | January 17, 2008 12:19 PM

If, as the ACLU seems to be arguing, people have a reasonable right of privacy in a restroom stall to engage in activity that would not be illegal in private elsewhere, what if my brother and I took a portable TV into a restroom and watched an evening's worth of sitcoms? And what if we got some male friends to do the same in all the remaining stalls in the same restroom simultaneously? Or maybe all the restrooms in the entire town? Does the ACLU contend that individuals who wanted to use the stalls for their intended purpose, and were thus precluded, would have no legitimate complaint?

Posted by: Judgito | January 17, 2008 12:53 PM

Constitutionalist, thanks for offering your insight.

Posted by: bsimon | January 17, 2008 02:11 PM

Dirty... and hot.

Posted by: | January 17, 2008 04:26 PM

Good old safe sex Larry, going all the way with the ACLU. What if there had been children in that bathroom? then what? lmao. Throw the book at him Minnesota!

Posted by: Im_pro_rfid | January 17, 2008 10:57 PM

Isn't the "Right to Privacy in a Public Place" a paradox?

Posted by: | January 18, 2008 01:49 PM

I think the ACLU's point is that the hand gestures, etc. are insufficient to clearly prove an intention to engage in sex right there in the stall. Hooking up to go elsewhere is a possible meaning of these gestures, and they do not violate any statute.

The prolonged peeping, on the other hand, if it happened, would be objectionable and could be considered "disorderly conduct" if there was reason to believe the "victim" found it objectionable. Although most "victims" of peeping would say something loudly to try to dislodge the peeper if they found it objectionable, the undercover cop admittedly played along with Craig. Craig could reasonably conclude that the officer did not find it offensive. This is a crucial element of the charge of disorderly conduct, and once missing, that charge must fail.

Posted by: | January 18, 2008 03:00 PM

So the ACLU is liberal AND gay!

Posted by: | January 18, 2008 11:28 PM

Who says the writers are on strike? You can't make this stuff up.

Posted by: widestance | January 19, 2008 08:35 AM

Republicans from around the nation will soon be flying into the Larry Craig Airport for the upcoming Republican National Convention. Anyone who will be in the Minneapolis/St. Paul area at the time is advised to keep their children at least 500 feet away from any Republican.

Posted by: Singing Senator | January 20, 2008 10:21 PM

Why is everyone so surprised? He's a "white" republican, of course he did nothing wrong.

Posted by: Kathy | January 22, 2008 10:43 AM

Kathy - why the focus on "white"?

That's a little ironic coming the day after we celebrate MLK's birthday.

Posted by: DC | January 22, 2008 12:12 PM

Why dosen't the press seek Barney Frank's opinion on the case? Do you think the press would ride Hussein Obama about this? They would probably claim he was simply on his knees rolling out his prayer rug to face Mecca! Or preparing to kill a goat!

Posted by: 102060 | January 22, 2008 06:17 PM

102060, the press would be on Barack H. Obama in a heartbeat.

It's the hypocrisy which too many of the new GOPer's keep getting caught in that feeds the press.

Posted by: | January 23, 2008 06:55 PM

Am I the only mom out here who remembers the first time her son went to use the men's room without anyone with him?

Are we really to suppose that anyone would have the right to peer into a stall their young son may be using, or to be engaging in a sex solicitation with a stranger while their young son is trying to go to the bathroom?


Is this what mom's can worry about now, that their son might walk in on a sex solicitaion because they need to go to the bathroom - and that their right to go into a public bathroom without witnessing that is superceded by someone else's right to solicit sex in a public place never intended for that purpose?

If overtly soliciting sex in a public place is a right, than what public place, if any, would be considered exempt?

Posted by: roooth | January 29, 2008 11:23 AM

Now that the ACLU has declared that the public has "a right to privacy in a public place" (what happened to public decency laws?), I want the franchise on all stalls in public restrooms. To pee or not to pee will define the price!

Posted by: stageleft | January 30, 2008 07:38 PM

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