Source: Associated Press via Washington Blade and New York Times
People who have sex in public bathrooms have an expectation of privacy, the American Civil Liberties Union argues in a brief filed Tuesday on behalf of Sen. Larry Craig.

Craig, of Idaho, is asking the Minnesota Court of Appeals to let him withdraw his guilty plea to disorderly conduct stemming from a bathroom sex sting at the Minneapolis airport.

The Republican senator was arrested June 11 by an undercover officer who said Craig tapped his feet and swiped his hand under a stall divider in a way that signaled he wanted sex. Craig has denied that, saying his actions were misconstrued.

The ACLU brief cites a Minnesota Supreme Court ruling 38 years ago that found that people who have sex in closed stalls in public restrooms "have a reasonable expectation of privacy."

To prove its privacy point, the brief tries to turn the government's sword on itself. "When it charged the defendant with interference with privacy," -- the offense to which the senator pleaded guilty -- "it alleged that he had looked into a 'place where a reasonable person would have an expectation of privacy.'"

The ACLU argues that even if Craig was inviting the officer to have sex, his actions wouldn't be illegal.

"The government cannot prove beyond a reasonable doubt that Senator Craig was inviting the undercover officer to engage in anything other than sexual intimacy that would not have called attention to itself in a closed stall in the public restroom," the ACLU wrote in its brief.

The brief filed by the civil liberties union is based on a broad censure of the kind of sting operation in which Craig was arrested:

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.

The brief argues that no laws would have been broken even if Senator Craig had been caught having sex in the stall. That didn’t happen, of course, and Mr. Craig has denied that he made any of the sexual advances alleged in the police report.

Craig at one point said he would resign but now says he will finish his term, which ends in January 2009.

Full article: Washington Blade Online
In Larry Craig’s Corner, the ACLU | New York Times