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Thoughtful Commentary on Senator Craig: TalkingPointsMemo has it in this post by Josh Marshall and this post by David Kurtz.

Related Posts (on one page):

  1. The elephant in the room:
  2. What was Craig's crime?
  3. Thoughtful Commentary on Senator Craig:
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What was Craig's crime?

There is a long list of public figures whose personal motto seems to be: "Hate the sinner, love the sin."

It's hard to work up much sympathy for Sen. Larry Craig (R-Idaho). He had a perfect legislative score from traditional-values groups, a zero rating from gay civil-rights groups, supported the Federal Marriage Amendment, and refused even to commit to non-discrimination on the basis of sexual orientation in hiring for his own Senate staff. But what exactly was criminal about his conduct in that Minneapolis airport bathroom?

From the arrest report, here's what Craig allegedly did: (1) put a duffel bag at the front of his stall; (2) peered through a crack into an adjoining stall; (3) tapped his foot; (4) moved his shoe over until it touched an officer's; and (5) ran his fingers along the underside of the stall divider. That's it.

Given the long history of police fabrication of evidence and entrapment of gay men in these sting operations, there should be no presumption that the officer's version of events is correct. But assuming for the sake of argument that Craig did everything the officer alleged, how was it the basis for a criminal charge that could get him a $1,000 fine and/or ten days in jail?

Disorderly conduct is a notoriously nebulous crime, allowing police wide discretion in making arrests and charges for conduct or speech that is little more than bothersome to police or to others. The "disorderly conduct" statute to which Craig pleaded guilty provides that one who knowingly “[e]ngages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others” is guilty of the misdemeanor of disorderly conduct. Minn. Stat. § 609.72, subd. 1(3) (2004).

More specific criminal charges were not advanced. A charge of interference with privacy was dismissed. Craig was not charged with any other crime, like public lewdness, indecent exposure, public sexual conduct, solicitation of prostitution, harassment, resisting arrest, or assault.

People should not have to tolerate actual sexual conduct in public places, but that's not what happened here. Craig's conduct was not obscene, abusive, boisterous, or noisy. The officer might have considered Craig's actions "offensive . . . conduct . . . tending reasonably to arouse alarm, anger, or resentment in others." But if that's so, it seems a pretty thin basis for charging him. A reasonable person faced with Craig's alleged behavior would have moved his foot away and/or muttered a simple "no thanks" or "stop that," which likely would have brought an end to it. A continuation of the unwelcome behavior might then have been enough to charge him with something, but again, that didn't happen. In fact, the officer tapped his own foot in response, indicating the interest was mutual.

At most, Craig was implicitly inviting another adult to engage in some kind of sexual behavior in a public place. I'm not a Minnesota criminal lawyer, but I don't think asking a stranger for sex in a public place, while vulgar and rude under many circumstances, would by itself be a crime under state law. At any rate, Craig wasn't charged with that.

What really seems to have happened is that the airport police had received complaints about sexual activity and were acting over-zealously to deter it, regardless of the niceties of state criminal law. Many gay men throughout our history have felt the sting of these public decency campaigns, have been arrested for alleged sex crimes, and have pleaded guilty at unusually high rates in order to avoid the embarrassment and other consequences of being outed. When newspapers print their names, as they often do, the consequences can be devastating. Like them, Craig probably wanted to avoid publicity and pleaded guilty to "disorderly conduct" in a futile effort to save his reputation and his job. Whatever we think of Craig's views on gay rights, or of the cosmic justice in this particular Senator being ensnared in these particular circumstances, it's difficult to see how he's a criminal.

UPDATE: Professor Ted Sampsell-Jones (William Mitchell), who has far more knowledge than I of Minnesota criminal law, writes:

Minn. Stat. 617.23, the indecent exposure statute, covers lewd or lascivious conduct in a public place. Sex and masturbation count as lewd and lascivious acts. There is, however, some Minnesota case law suggesting that public restrooms aren't "public places" once you close the door to your stall. State v. Bryant, 177 N.W.2d 800, 803-04 (Minn. 1970).

Even if the completed act would be a crime, it's doubtful that merely asking for sex in the restroom would be a crime.

Minnesota, unlike some jurisdictions, does not have a general solicitation statute. Mere solicitation of a crime is not a crime. State v. Lowrie, 54 N.W.2d 265, 266 (Minn. 1952); State v. Johnson, 2005 Minn. App. Unpub. LEXIS 352 at *9. Minnesota does of course have an attempt statute, 609.17, but that requires a substantial step toward completion of the crime, plus the specific intent to commit the crime. I think it's possible but doubtful that Craig's acts would count as a substantial step, and it's also possible but doubtful that you could infer such a specific intent. Or rather — there's some inference there, but it's not strong enough to support guilt beyond a reasonable doubt.

The elephant in the room:

Whenever one of these morality scandals comes up – whether it involves homosexuality, adultery, or being on a list compiled by someone the media calls a “Madam” – it often involves a Republican. Critics love to charge Republicans with hypocrisy – preaching traditional family values to the rest of us by day while trolling bathrooms and pressing sweaty palms to computer keyboards by night.

Whatever explains these other public moral dramas, hypocrisy doesn’t fully capture the GOP’s plainly dysfunctional relationship to homosexuality. Believe it or not, there are plenty of traditional-values Republicans who are not secretly gay. They might be wrong about homosexuality, but they’re not hypocrites.

Yes, there are many prominent Republicans whose private actions are inconsistent with their traditional-values personas. Sen. Larry “I am Not a Gay American” Craig is the latest of them, assuming the various allegations against him are true. Jim West had an aggressively anti-gay record both as a Washington state legislator and as mayor of Spokane, yet cruised for gay sex and anonymously told an online acquaintance that he hated the “sex Nazis” who try to regulate people’s private lives. There are many other examples.

But there are also many closeted gay Republicans not closely associated with the party’s religious right. Mark Foley, of last year's congressional page scandal, was not an anti-gay member of Congress. While he didn’t support everything I wish he had, his rating from national gay-rights groups was usually quite good and I’d take his record on gay issues over many Democrats’.

There’s an entire website devoted to outing (mostly) Republican politicos. That site does not hurt for news and information. Its working list of closeted gay Republicans — whether officeholders, staffers, or party officials — is a very, very long one. I can tell you the website does not even come close to listing all of the gay Republicans working in prominent positions in Washington and elsewhere.

And not nearly all of these gay Republicans are anti-gay, or work directly for anti-gay causes. Many despise the party’s anti-gay rhetoric and actions. They are Republicans because they are pro-life, or support low taxes, or want a strong national defense, or desire an exciting job in public policy, or for any of a hundred other reasons. You could call it hypocrisy to be gay and work for a generally anti-gay political party, regardless of the gay person's own views or what she does within the party to oppose its anti-gay policy positions, but if so, this is surely a watered-down form of the vice.

What unites these cases is not really hypocrisy. It’s two other things. First, nearly all the gay Republicans working in Washington or elsewhere are to one degree or another closeted. Second, at a personal level, very few Republican officials around them care whether someone is gay.

From the top of the party to the bottom, few Republicans personally and viscerally dislike gay people. President Bush has had friends he knew were gay. So has Vice President Cheney. Even the most prominently and vigorously anti-gay Republican, Sen. Rick “Man on Dog” Santorum, had a gay spokesperson whom he defended when his homosexuality became known.

The big, open secret in Republican politics is that everyone knows someone gay these days and very few people – excepting some committed anti-gay activists – really care. It’s one of the things that drives religious conservatives crazy because it makes the party look like it’s not really committed to traditional sexual morality.

So to keep religious conservatives happy the party has done two things. First, it has steadfastly resisted efforts to ease anti-gay discrimination in public policy, even when Republican politicians know better. I can’t tell you how many Republican staffers told me, for example, that their bosses privately opposed the Federal Marriage Amendment but would be voting for it anyway.

Second, to keep the talent it needs and simply to be as humane and decent as politically possible toward particular individuals, the party has come up with its own unwritten common-law code: you can be gay and work here, we don’t care, but don’t talk about it openly and don’t do anything to make it known publicly in the sense that either the media or the party’s religious base might learn of it. It's the GOP's own internal version of "Don't Ask, Don't Tell."

This uneasy mix of the public and the private is not exactly what I’d call hypocrisy. It’s perhaps better described as a form of ideological schizophrenia: private acceptance welded to public rejection. It’s a very unstable alloy.

For the closeted gay Republican, this alloy means a life of desperation and fear and loneliness, of expressing one's true feelings only in the anonymity of the Internet, of furtive bathroom encounters, of late nights darting in and out of dark bars, hoping not to be seen. It means life without a long-term partner, without real love.

Worst of all, it may mean a life of deceiving a spouse and children. It’s hardly surprising that most of the men caught cruising in parks, bathrooms, and other public places are deeply closeted and often married. They don’t see themselves as having many other options.

Nevertheless, it seems to work until the day you get caught tapping your toe next to a cop. Desperation sets in and you say things that bring everyone much mirth at your expense, like, “I’m not gay, I just have a wide stance.”

For the GOP, this alloy of public rejection and private acceptance means enduring more of these periodic public morality convulsions. How to end it? The private acceptance will continue and, I predict, become even more prevalent as young conservatives comfortable around gay people take over. There will be no purging the party of gays. There is no practical way to purge them, and even if there were, most Republicans would be personally repulsed by such an effort.

These closeted politicians, staffers, and party functionaries will occasionally be found out one way or another and again will come the shock, the pledges to go into rehab, the investigations, the charges of hypocrisy, the schadenfreude from Democrats and libertines, the sense of betrayal from the party’s religious conservatives.

This doesn’t happen to the Democrats because the party’s public and private attitudes toward homosexuality are fully consistent: acceptance of gays. Their homosexuals feel little need to remain closeted (with the recent exception of Jim “I am a Gay American” McGreevey). Notably, past sex scandals involving gay Democrats, like Rep. Barney Frank (with a prostitute) and Rep. Gerry Studds (with a congressional page), occurred some two decades ago, when the party was less accepting and the men themselves were still closeted.

The only practical way out of this for the GOP is to come to the point where its homosexuals no longer feel the need to hide. And that won’t happen until the party’s public philosophy is more closely aligned with its private one. That will be the day when the GOP greets its gay supporters the way Larry Craig, with unintended irony, greeted reporters yesterday at his news conference: “Thank you all very much for coming out today.”

UPDATE: I've re-opened comments after briefly closing them to let a few commenters cool off a bit. Please try to avoid rudeness and stay on the topic of the post. If someone responds poorly or stupidly to something brilliant you say, quietly declare victory and go home rather than repeating yourself or cleverly insulting them. I'll close comments permanently if things veer off again.

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