ACLU and Larry Craig agree: bathroom time is private time

The American Civil Liberties Union has upped the ante on the Larry Craig affair by suggesting that people who have sex in closed restroom stalls can expect a certain level of privacy [1].

Larry Craig, as you know, has changed his mind following his October guilty plea after being accused of soliciting sex from an undercover police officer. Now it seems he finally has someone in his corner besides various internet bloggers (many of whom are from the gay and lesbian community, interestingly enough). Even though Craig, like many conservative politicians, has thumbed his nose at the ACLU, the group is arguing his side.

The ACLU's argument centers on the fact that the government admitted that Craig was charged with interference with privacy [2]. When Craig pleaded guilty to this, he in fact pleaded guilty to crossing a border that should not be crossed in reasonable situations -- a border that someone should respect and expect to be respected by other members of society -- for the purpose of initiating sex in a public place.

In the eyes of the ACLU, this is a paradoxical stance held by the government. If a restroom stall is a private area, then what people intend to do in it is none of the law's business. After all, it's illegal for law enforcement to place video surveillance in public restroom stalls, isn't it?

Here's a portion of the twelve-page brief [3] the ACLU filed earlier this month.

"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."

The ACLU is arguing that if Craig was arrested because his alleged proposition was a crime, then any sexual proposition would be also a crime, regardless of location.

The topic is being hotly debated many places on the net, especially pro- and anti-civil liberties forums and blogs. The question that keeps on surfacing: just what WAS his crime? But parents are up in arms about what they consider to be the ridiculous nature of the ACLU's stance on public sex, just as liberals were upset about Craig swimming in a sea of seeming homophobic intentions when he defended his own "stance" months before. Which means it's shaping up to be a much more interesting case that I expected it to be last fall.

As of yet, Craig has not resigned as promised, and has decided to finish his term as an Idaho senator.