The Larry Craig Affair
posted by Peter Smith
When Dan Solove inivted me to serve as a guest blogger several months ago, I was a bit concerned that I would have nothing to blog about. Fortunately, the Larry Craig Affair (pun only partially intended) took care of that problem. My initial response to the Affair was to feel unrestrained glee about the fact that another hypocrite had been exposed. Craig, after all, supported both the Federal Marriage Amendment and a similar state-law effort in Idaho. He also apparently had refused to pledge not to discriminate against gays in hiring staff for his office. Like many others, I looked forward to days of awkwardness for Senator Craig and for the Republican Party generally. But I must confess that after the initial glow wore off, I began to find the Affair — and particularly the nature of the charges — troubling.
Craig was arrested and charged with disorderly conduct and invasion of privacy. (The arrest report was titled “Lewd Conduct.”) The invasion of privacy charge apparently was based on the arresting officer’s allegation that Craig had stood outside his stall for several minutes, peering through the crack in the door. It is not difficult to understand the basis for that charge. In contrast, the disorderly conduct charge — the only charge to which he ultimately pleaded guilty — apparently was based on Craig’s actions while in the stall, when he allegedly tapped his foot, both on his side and the officer’s side of the stall divider, and then reached his hand underneath to the officer’s side. Friends who are gay have told me that these actions unambiguously were invitations to sex.
There is little doubt that a state or municipality can criminalize sexual activity in public places. If Craig’s invitation — perhaps to someone other than an undercover police officer — had been accepted, and they had engaged in sex in the public restroom at the airport, then Craig clearly could have been arrested and charged with disorderly conduct or public lewdness. But the “lewd conduct” with which Craig was charged was the mere invitation to consensual sex, with no explicit indication of where the sex — if the invitation had been accepted — would occur. If we assume for a moment that Craig intended not only to solicit sex, but also to engage in sex in the public bathroom, then perhaps it is permissible to charge him with something akin to an attempt to engage in disorderly conduct or public lewdness. Although charges under circumstances such as Craig’s are hardly unusual, this strikes me as a philosophically weak basis for criminal sanctions.
But that doesn’t really get to the core of my discomfort. Indeed, let’s assume further that the circumstances alleged in the complaint are sufficient for a charge of actual, as opposed to merely attempted, public lewdness or disorderly conduct. What is most troubling, I think, is that it is difficult to escape the conclusion that these charges are filed disproportionately, even if not exclusively, against gay people. If a man at the Minneapolis Airport had approached a woman he had never met before, told her that he found her attractive, and asked her — not explicitly, to make the analogy hold, but instead with the sorts of signals and oblique cues that people have been known to use — if she would like to have sex, it seems unlikely that he would have been arrested for lewd or disorderly conduct. To be sure, there may be some basis for such a charge, particularly if the manner of the request were sufficiently threatening, or even just really creepy. But charges would seem even less likely if in our analogy we have the woman invite the man to have sex. In that case, a charge of public lewdness or disorderly conduct seems highly unlikely to follow — even if the person propositioned were himself an undercover police officer. In all likelihood, Craig’s actions seemed lewd to the arresting officer because they were an invitation to gay sex.
Indeed, I think it is telling that when these stories hit the news, they are disproportionately about charges of homosexual “lewd” conduct. In fairness, perhaps there is something about the setting of the Craig Affair — a public men’s room — that makes it different from my proposed analogy; indeed, it is a setting for which, due to the single-sex nature of public bathrooms, we cannot create a satisfying hetersexual analogue. And, of course, a man who propositioned an undercover female police officer to have sex in a unisex bathroom might be arrested, as well. Perhaps, but those circumstances are sufficiently implausible — because of the lack of unisex bathrooms, not the efforts of hetersexual men — that they do not reveal very much about how these laws are actually enforced. In any event, I think the result in the Craig Affair probably would have been the same if Craig had propositioned the officer right outside, or even somehwere near the entrance to, the public restroom.
I am not a libertarian, and I am not particularly troubled by criminalizing sex in public places, or even by criminalizing the soliciting of sex in circumstances that are objectively threatening, shocking, or even offensive to the person propositioned. But the Craig Affair suggests, I think, that we still tend to treat gay relationships differently than we do heterosexual relationships. Of course, if Larry Craig — with his demonstrated hostility to gay rights — were to raise such a claim, I would have little sympathy. But that does not mean that he wouldn’t have a point.
September 4, 2007 at 10:25 am
Posted in: Blogging
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Responses (5)
nedu - September 4, 2007 at 4:30 pm
So does the Office of Personnel Management’s “Issue Characterization Chart”, also known as the federal employment “Suitability Matrix”. See (on p.9 in PDF) under 11. Loyalty and Security:
Note that Senator Craig’s budgetary and oversight responsibities included, among other things, programs at the Department of Energy’s Idaho National Laboratory. Further note, that in announcing his intent to resign, Senator Craig stated, “[C]learly my name is important to me”.
Clearly, someone who initiates a clandestine encounter in an airport men’s room —and then makes an incredible public denial— should not be in a position to compromise our national security.
DeeJay - September 4, 2007 at 4:48 pm
Is there any doubt that the good Senator would have also been arrested had he tried some clandestine hook-up in the woman’s rest room?
Anthony - September 4, 2007 at 9:20 pm
“My initial response to the Affair was to feel unrestrained glee about the fact that another hypocrite had been exposed. Craig, after all, supported both the Federal Marriage Amendment and a similar state-law effort in Idaho. He also apparently had refused to pledge not to discriminate against gays in hiring staff for his office.”
Assuming that Senator Craig is a deeply closeted gay man, how does his homosexuality make him a hypocrite regarding those particular issues? It’s not that difficult at all to reconcile being gay and being opposed to gay marriage, or being opposed to extending employment discrimination laws to gays. Saying that Craig is somehow required to support goals of the gay rights movement because he is gay is no different than arguing that women are obligated to support abortion, blacks are obligated to support affirmative action, immigrants are obligated to support amnesty for illegal immigrants, etc.
Hypocritical Oaf - September 5, 2007 at 10:15 am
I’m with anything on this point. Would Peter argue that the rich are somehow duty-bound to oppose progressive taxation and high tax rates? Or that the poor are duty-bound to support them?
Must smokers never support no-smoking zones?
Must Al Gore and John Edwards — both substantial polluters — never support environmental reform?
Hypocrisy is a fairly worthless “argument.” It tends to be what people point to when they don’t care to make a substantive argument for or against a policy. That Peter’s “initial response to the Affair was to feel unrestrained glee about the fact that another hypocrite had been exposed” makes me wonder how serious he really is on such subjects.
Besides, the “hypocrisy” argument fails by its own logic. Each has been hypocritical at some point in our lives. Thus, under Peter’s logic, none of us should ever criticize hypocrisy — after all, such criticism would only make us hypocrites on the subject of hypocrisy!
Hypocritical Oaf - September 5, 2007 at 2:28 pm
Whoops. “I’m with Anthony …”
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