BOISE – The American Civil Liberties Union of Minnesota has filed legal arguments backing Idaho Sen. Larry Craig in his Minnesota court case, in which Craig is seeking to withdraw his guilty plea in an airport restroom sex solicitation sting.
“The actions of police in this restroom, the sting operations, are things that have been conducted against gay men forever,” said Chuck Samuelson, executive director of the Minnesota ACLU. “The object of the exercise, fundamentally, was never really to stop solicitation of sex but rather to ‘out’ gay males.”
Craig has denied being gay and said a police officer misconstrued his foot-tapping and hand gestures in the airport restroom. He pleaded guilty to a misdemeanor disorderly conduct charge in the June incident, but after the news came to light in late August, began working to withdraw his plea. Craig faces a court hearing in Minnesota on Sept. 26.
Samuelson, whose group filed its “friend of the court” brief Monday morning in 4th District Court in Minneapolis, said, “Frankly, I could care less what the senator’s sexual proclivities are. But from a First Amendment point of view, the ACLU hates to see this stuff happen. … Our client is not Sen. Craig, but rather freedom of speech.”
District Judge Charles Porter could rule as soon as today on whether to allow the ACLU’s arguments to be considered in the case, said court spokeswoman Jamie Smith.
Craig’s lead attorney in the case, Billy Martin, said Monday, “We welcome the ACLU’s filing today and their involvement in this case.”
He noted, “We have argued to the court that the facts which Sen. Craig admits happened on that day do not constitute a crime. The ACLU’s legal position is that Sen. Craig’s arrest may have violated his constitutional rights. Furthermore, the ACLU’s position is the sting conducted by the airport police may also violate the protection the United States Constitution provides all of us.”
The legal brief argues that the law under which Craig pleaded guilty unconstitutionally makes speech and private sexual solicitation into crimes. “Sex is a constitutionally protected liberty interest,” the brief states.
“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.”
It notes that one 1970 Minnesota Supreme Court case held that two men engaged in sexual activity in a department store restroom with the stall door closed had a reasonable expectation of privacy. “They were, the court held, therefore acting in a private, not a public place,” the brief states. It also says that posting a sign that the restroom was patrolled would have been a better deterrent to public sex than a sting operation.
Said Samuelson, “The entire sting is constitutionally suspect.”
He added, “The law in Minnesota is that solicitation for sex is not illegal. Solicitation of sex in a public space is illegal and solicitation for the sale of sex is illegal. But between consenting adults, it’s legal. … He didn’t commit a crime in Minnesota. It hadn’t gotten to that point. … And furthermore, we’re contending that he was charged improperly.”
The ACLU filed a motion along with its brief, asking the court to consider its arguments in the case. In the motion, the group said it has more than 10,000 members in Minnesota who “share a commitment to the defense of the rights that are guaranteed by the United States Constitution.
Among the most fundamental of these rights are the right to due process and the right to free expression.”
The motion said, “The outcome of this case will have a broader impact on the constitutional rights of other individuals facing prosecution” under Minnesota laws.