GFR has more details, concluding that under Minnesota law that signaling someone in a public place that you’d be interested in engaging in consensual lewdness is not, in fact, illegal. (To be clear, nobody is denying that if he was actually engaging in sexual relations in a public place the state could legitimately intervene, but as far as I can tell nobody’s claiming that he did that.)
And, of course, nor should such behavior be criminalized, with inevitably arbitrary enforcement being one obvious reason. I mean, do you seriously think that a law that essentially banned making creepy passes at someone in public places would be routinely enforced against heterosexual men hitting on women? Not bloody likely. There’s a reason why in Bowers v. Hardwick, the Supreme Court when evaluating a statute that 1)said absolutely nothing about gender or sexual orientation and 2)ostensibly banned sexual behaviors that heterosexuals routinely engage in framed the legal question as whether “the Constitution confers a fundamental right upon homosexuals to engage in sodomy” and (as Blackmun pointed out) displayed an “almost obsessive focus on homosexual activity.”
Another point from Garance:
But, again, I can find nothing in Minnesota state law that makes asking someone to hook up with you a crime, rather than a civil tort (as in sexual harassment law) regardless of the circumstances.
Why, then, do police continue to act as though it is? Because of the long and only-recently ended practice of firm legal discrimination against gay people. Until 2001, consensual sodomy was a crime in Minnesota, meaning that it was only six years ago that gay people in that state stopped being treated by the letter of the law as, quite literally, outlaws and criminals.
Meanwhile, in Idaho, the state Sen. Larry Craig has represented in Congress since 1981, consensual sodomy was a felony punishable as a “crime against nature” by five years to life in prison until 2003, when the Supreme Court ruled in Lawrence v. Texas that a similar statute in Texas was unconstitutional, thus striking down the state’s law. From 1996 until then, the state sex offender registry was written so as to add those convincted of even consensual sodomy to the sex offender rolls for life.
Right. Relatedly, Greenwald reminds us of one of my favorite ever manifestations of Instapunditry, in which Reynolds solemnley informed us that he was voting for the Republican in the Tennessee Senate race because…an obscure activist outed an Idaho politician who wasn’t up for re-election. (As I said at the time. “it would be considerably more embarrassing if he were telling the truth than if he was lying.”) At any rate, whatever one feels about outing it’s fairly obvious that Craig has nothing to complain about. To assert that a claim of privacy should entirely shield acts that you believe should be prevented by state coercion backed up with substantial criminal penalties is absurd.
…yet more from Yglesias, replying to a point that I’ve seen a lot in comments: “Weisberg & Plotz are also making sense here. The idea that the real crime was the peering into the cop’s stall doesn’t make sense. The cop was in the bathroom specifically to try to arrest cruisers. He arrested Craig not after the alleged peeping, but after this foot-tap-signal business.”