Bathroom sex and choosing judges: Legal goings-on today

1. Sen. Larry Craig (R-ID) again found an unlikely friend in the ACLU, which filed its second amicus brief supporting Craig’s motion to withdraw his guilty plea for… what was the charge, again? Oh, yes: “Interference with Privacy” (see subsection (c)1) and disorderly conduct. The ACLU has called the privacy law “unconstitutionally overbroad.”

2. The Supreme Court has upheld New York’s patronage-laden system of selecting state Supreme Court justices, saying that while the method might not be ideal, it’s also not unconstitutional. (Note: Counterintuitively, in New York the Supreme Court is actually the lowest-level trial court.) The issue here was the First Amendment right of political association. Justice Scalia wrote: “A political party has a First Amendment right to limit its membership as it wishes.” On a somewhat related note, this ambitious piece from two years ago suggests New York has a similarly questionable selection process for town and village judges. And this profile delves into the challenges facing the state’s aggressive and reform-minded governor, whose Board of Elections hired none other than former solicitor general Ted Olson to represent it on the state Supreme Court issue.


3 Responses to Bathroom sex and choosing judges: Legal goings-on today

  1. laurabethnielsen says:

    So the ACLU is saying that the police were vilating his privacy when they observed him in the bathroom?

  2. jeffaregularworkinglawyer says:

    I’ve had an interest in the Larry Craig case ever since the afternoon several months ago when I was sitting at the gate in the Minneapolis airport waiting for my flight home and an old guy was on CNN stating emphatically “I have never in my life done anything improper in the Minneapolis airport!” I said to the guy sitting next to me, “Me, neither! So why is this guy on TV talking about it?” Now we know.

    Couple of thoughts. First, Sen. Craig was in fact charged with interference with privacy and discon, but pleaded guilty to discon only. Next, the NYT article you link to discusses a 1970 Minnesota Supreme Court case, State v. Bryant; there seems to be an idea floating around the net that this case establishes that in Minnesota, people have a right to have sex in public bathrooms. So, the argument goes, if it’s OK to do it, it has to be OK to solicit it. Not quite. In a 4-3 decision, the Bryant court found that it was an unreasonable search under the Fourth Amendment for a police officer to look down through a ventilator in a ceiling in the men’s room of a St. Paul Montgomery Ward’s (a defunct department store chain that had its headquarters in Chicago, for all you youngsters out there) at two men having oral sex through a hole in the partition between the stalls. The court seemed disturbed by the fact that the store’s security chief had known about the hole for two weeks, had a pretty good idea of what it was being used for, and didn’t try to repair it.

    Couple of differences. The ACLU isn’t arguing that the evidence against Mr. Craig is inadmissible on Fourth Amendment grounds — it’s arguing that the statute is overbroad. Well, discon statutes are awfully broad, but they’re supposed to be — they are the default, we-can’t-charge-you-with-anything-in-particular-but-we’re-still-gonna-charge-you-anyway tool in the police and prosecutor’s toolkit. Courts usually (but not always) uphold them anyway, because it’s pretty useful to give the cops a tool like that. I mean, do you really want the streets full of goofballs doing (fill in your least favorite anti-social behavior here). And Sen. Craig didn’t stay in the stall (what happens in the stall stays in the stall) — he stuck his hand and foot into his neighbor’s. Not what most judges would like to see on their next trip to the airport.

    The cop’s behavior in Bryant was offensive enough to creep out four Minnesota judges in 1970 even more than homosexual oral sex (read the opinion, and you’ll see that they were pretty creeped out by that, too). The cop’s behavior in the Craig case strikes many (including me) as creepy, too, but not as bad as spying on citizens from a bathroom ceiling. In short, I don’t think that a court intent on upholding Sen. Craig’s guilty plea (and the procedural posture is tremendously important — arguments that might have been winners before he pleaded will be met with much less patience now) will be deterred by Bryant.

  3. lbsmom says:

    You guys are really over my head in most of these discussions, but does that silence me? Yes, sometimes. Here’s my comment anyway: Mr. Craig has been tried & convicted in the public’s opinion. Why can’t he just slunk quietly away? Must be his principles……….

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