The story of Larry Craig is well known now. In late August 2007 the story broke about Senator Craig’s arrest and subsequent pleading of guilty to charges stemming from an arrest in a public restroom in a Minneapolis airport. “Sen. Larry E. Craig pleaded guilty earlier this month to misdemeanor disorderly-conduct charges stemming from his June arrest by an undercover police officer in a men's restroom at Minneapolis-St. Paul International Airport, a court spokeswoman and the senator's office said yesterday. Craig issued a statement confirming his arrest and guilty plea, which were reported in the Capitol Hill newspaper Roll Call. But the Idaho Republican maintained that he had not engaged in any "inappropriate conduct" and that the airport police misunderstood his behavior.” GOP Senator Pleaded Guilty After Restroom Arrest, The Washington Post, Aug. 28, 2007.
But the story has deeper roots. The Washington Post reported that “Sen. Larry Craig (R-Idaho) has been publicly denying assertions that he's gay since at least 1982, when a whisper campaign implicated him in a House page scandal. Back then he called allegations of homosexual conduct "despicable." Last year he called new charges brought by notorious gay-rights activist Mike Rogers "completely ridiculous." On Monday, Craig denied "any inappropriate conduct" in a men's room at the Minneapolis airport (even after he pleaded guilty). And today, he declared "I am not gay and never have been."” Mary Ann Akers, The Sleuth: Larry Craig: Still Not Gay, The Washington Post, Aug. 28, 2007.
The conduct at issue was brought out nicely in the transcripts of the post arrest interview of Senator Larry Craig. See Transcript of Police Interview of Sen. Larry Craig, CNN.com-Politics (Aug. 30, 2007)
LC: I sit down, urn, to go to the bathroom and ah, you said our feet bumped. I believe they did, ah, because I reached down and scooted over and urn, the next thing I knew, under the bathroom divider comes a card that says Police. Now, urn, (sigh) that's about as far as I can take it, I don't know of anything else. Ah, your foot came toward mine, mine came towards yours, was that natural? I don't know. Did we bump? Yes. I think we did. You said so. I don't disagree with that.Transcript, supra.
Larry Craig’s story has not only deep but broad roots. Larry Craig has spent a lifetime preaching to others. And he has been quite vocal in his opposition to the political agendas of the Gay/Lesbian/Transgender/Bisexual community. “This story would not matter if Craig had never used his position to advance the Republican Party's officially homophobic agenda. But he has. Over and over. In November, 2006, Craig flamboyantly endorsed Idaho's successful anti-gay constitutional amendment, HJR 2, which banned gay marriage, civil unions and domestic partnerships in his state.” Opinion, Sen. Larry Craig Caught With His Pants Down, The Nation, Aug. 27, 2007 (inviting inspection of Senator Craig’s voting record in this regard at two sites, one and two) .
Thereafter betrayed by his colleagues, urged to quickly fade form view by his political party friends, Senator Craig agreed to resign from his position in the Senate and disappear. But then had a change of mind. In a letter to the Senate Ethics Committee dates September 5, 2007, available Senator Craig’s counsel asserted that the Committee had no jurisdiction over “any complaint related to this matter.” On September 11, 2007, newspapers reported that Senator Craig “filed court papers yesterday asking that he be allowed to withdraw his guilty plea to disorderly conduct in a Minnesota airport sex sting.” Duff Wilson, Craig Asks Court to Let Him Withdraw His Plea of Guilty, The New York Times, Sept. 11, 2007.
The senator, they wrote, was panicked that the arrest would be made public and allow The Idaho Statesman to publish a “baseless article” about his sexuality. The newspaper had conducted a five-month investigation and had interviewed Mr. Craig four weeks before his arrest at the airport.
“While in this state of intense anxiety,” the lawyers wrote, “Senator Craig felt compelled to grasp the lifeline offered to him by the police officer; namely, that if he were to submit to an interview and plead guilty, then none of the officer’s allegations would be made public.”
The officer said Mr. Craig had peeped into his stall, entered the adjacent stall, touched the officer’s foot with his own and made hand signals known to be silent code for soliciting sex in the restroom. Mr. Craig denied all charges in the interview, conducted minutes after the arrest, and said the officer had solicited him and entrapped him.
Id. And thus the passion of Senator Craig, a passion that can only end in sacrifice—though the nature of that sacrifice and the grace obtained thereby is still a matter of conjecture.
Larry Craig has three real choices as he faces the legal tools to be used in his suffering and political demise. His lawyers seek to avoid these but I suspect that avoidance is impossible now.
1. Senator Craig could challenge the validity of the arrest on the grounds of entrapment. The techniques used in the sting suggest the possibility. Senator Craig would have to argue that he was following the lead of the officer and but for the prompting and lascivious conduct of the officer, would not have acted in turn. And there is probably some plausibility to this challenge. Certainly entrapment has been a common tactic of police in their century long battle against the public expression of same sex desire. But this is an impossible tack for the Senator. To pursue this choice of tactic would require Senator Craig to admit to the desire he has denied for much of his political career. The defense, in effect, would serve as a condemnation.
2. Senator Craig could challenge the validity of the conviction. Yet the basis for that challenge provides its own trap for the Senator. The agreement to plead to the “lesser” charge was ostensibly the product of fear, fear of the publication of the arrest. That fear was compounded by fear of simultaneous exposure by a local Idaho paper. Perhaps the arrest would have an effect on the “baselessness” of the media investigation. That suggests that the character of the arrest was founded on an expression of sexual desire. Clearly something the Senator hopes to avoid. Success in challenging the conviction, then, serves to indict the Senator as surely as the conviction overturned. The defense, in effect, serves to confirm the conduct. But even if successful, this choice poses its own dangers. On the one hand, Senator Craig could try to contradict the factual assertions on which the charges are based. But his post arrest interview makes that more difficult—“ Ah, your foot came toward mine, mine came towards yours, was that natural? I don't know. Did we bump? Yes. I think we did. You said so. I don't disagree with that.” Transcript, supra. And credibility issues in this case might be decided in favor of the officer and against the Senator. That result would compound the sin and intensify the condemnation. On the other hand, Senator Craig could seek to draw a different conclusion from these facts: that there was nothing sexual in the actions. But the context belies this conclusion. Again, condemnation is intensified.
3. Senator Craig could challenge the constitutionality of the statutes under which he was charged and convicted. That challenge can be asserted on an “as applied” basis, a sort of easy way out as focused on his own predicament, or “facially,” vindicating the rights of sexual nonconformists in their rights to exhibit their desire to the same extent as the expression of heterosexual desire is tolerated in public spaces. This choice is the moral choice. It would seek to push the boundaries of Lawrence v. Texas, 539 U.S. 558 (2003) but not in the conventional direction—as a step toward gay marriage and military participation by sexual non conformists. Instead it would push Lawrence where it might be said to naturally lie—in the vindication of a private space for the expression of a desire that is not decriminalized. The sexual solicitation laws now tend to do double duty, supplying a legal basis for the suppression of sexual non-conformity that had previously been served by the sodomy laws. Their legitimacy is founded on a fig leaf of sorts—the control of public sexual activity. See Larry Catá Backer, Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration, 45 U. FLA. L. REV. 755 (1993). But that function is equally addressable to conduct by any person regardless of orientation. And in Senator Craig’s case, there was no sex, just the expression of a sexual desire whose consummation was left hanging. Yet this is the worst of all worlds for Senator Craig. To take up this choice is not merely to “come out” in public—something unthinkable for the moment, but to also change a lifetime of political action from positive opposition to positive championing of the expression of same sex sexual desire. This position intimates not merely condemnation but transfiguration.
The Passion of Senator Craig reminds us of how little law moves even as it appears to gather speed in a particular direction. For all of the movement toward greater tolerance for sexual non-conformists, the legal environment for the expression of same sex desire remains firmly anchored in a socio-legal context in which suppression was the norm and expression of same sex desire was conflated with other vices—prostitution, lewdness, disorderly conduct. Senator Craig wants it both ways. He wants to preserve the opprobrium but find a way of having it not apply to him. He cannot escape the webs of legal consequences he has helped sustain.