Don't frighten the horses: What Larry Craig tells conservatives about ourselves.

Don't frighten the horses; what Larry Craig tells conservatives about ourselves.

Seems to me that confusing politics and Law has led many posters into a welter of contradictions. The Supreme Court has created a problem for conservatives who view this matter from a law perspective alone when it declared that homosexual sex between consenting adults in private is a constitutionally protected right of privacy. In effect, the Supreme Court wrecked the conservative position for those of us who see the question of homosexuality exclusively or largely through a legal prism. So we conservatives have a problem: Many of us have been left behind by the Supreme Court, many of us simply do not accept that homosexual sex under any circumstances is anything but a repugnant act which every state should have the right to criminalize. So we, or at lease many of us, are out of sync with the law.

The homosexual sex that we presume that Senator Craig sought would have been perfectly legal had it been conducted in a private dwelling. But it was not, rather it was to be conducted in a public toilet. The next problem to deal with in the Craig matter arises because the Supreme Court has legitimatized homosexual sex, and since there is no criminal offense involved in soliciting heterosexual sex in a public place (it is certainly constitutionally protected free speech in places much more public than a public toilet with private stalls, solicitation of prostitution, of course, excepted), how can it be a criminal act to solicit homosexual sex in quasi-public or quasi-private environments such as the adjoining stalls of a public toilet?

Are we to conclude that it is proper to make criminal a solicitation of homosexual sex but not the solicitation of homosexual sex? Are we to presume that the solicitation generates a high likelihood of actual sex being conducted in the public toilet? Then do we properly conclude that such a solicitation should be criminal and not protected constitutionally because of the danger of the public stumbling upon the act and being affronted? But does not the solicitation of heterosexual sex pose the same danger of afronting the public? Or should the law acknowledge that the sight of coupled homosexuals is far more disconcerting than the image of coupled heterosexuals? If the law admits that much, is it not saying that homosexuality is somehow depraved? How can that be squared with the Supreme Court's ruling that the homosexual sex act itself, if private and done between consenting adults, is constitutionally protected?

We criminilize the solicitation of one kind of sex which is legal if private, and do not criminalize solicitation of another kind which is also legal if private (and not commercialized). Why? We criminalize both kinds if conducted in public. Why is one solicitation more obnoxious than the other?

This is an example of the trouble the law gets into what it attempts to criminalize a tool or means of a crime instead of, or, at least as well as, the criminal behavior itself. So we attempt to make guns illegal to prevent gun violence instead of concentrating on prosecuting the violence itself. We criminalize public Intoxication and possession of illegal drugs rather than prosecuting the antisocial behavior which they might produce. We go one step further with drugs when we criminalize the possesion of paraphernalia because the possession of the stuff might lead to the use of drugs which in turn, might lead to antisocial or criminal behavior. I suppose we must ultimately stop this chain of causation when we get to Original Sin.

The next problem with the Craig case, of course, is that no sex whatsoever occurred, no verbal solicitation of sex is even alleged to have occurred. One must infer the solicitation from such abstract and arcane clues as hand signals and foot tapping. Surely these actions in and of themselves carry no danger to the public, no innocent child would be debauched as a result of encountering such hand signals and foot tappings, the public would be in no danger of being affronted by the solicitation itself. So now we have been brought to a place where perfectly innocuous gestures have been criminalized. Can this anomaly be explained on any basis other than that society, despite the Supreme Court and despite political correctness, is still very much ambivalent about homosexuality?

Let's be honest, conservatives tend viscerally to draw a sharp demarcation between heterosexual and homosexual sex because they find the latter utterly repugnant. Liberals on the other hand have striven these last few decades to make a virtue of the perversion. Indeed, in politically correct circles it is now incorrect to refer to homosexuality in anything like those terms. So we conservatives have been abandoned by the law and by the elites and so many conservatives are frankly frustrated and angry. These anomalies are even harder for conservatives to accept than for the public in general because, as conservatives, we should be very concerned for the integrity of the law. And whatever else you feel about the Craig case, or about the Fort Lauderdale public toilet matter, or San Francisco bathhouses, or private consensual sex between consenting adult homosexuals in Texas, every thinking conservative must agree that the structure of law concerning homosexuality is a shambles.

Most of us find the contemplation of anonymous sex-especially anonymous homosexual sex in a dirty public toilet- to be utterly abhorrent. But is it right to write laws which make otherwise innocent behavior (nonconfrontational solicitation) criminal ? Is it right to send our cops into public toilets with instructions to skate on the edge of entrapment? Is it right to condone our police when they extort a plea of guilty by exploiting the public obliquy which will come down upon a homosexual who defends himself against a flawed case in a public hearing? Is all of this moral corruption worth the price to avoid the potential that we might be affronted by homosexual acts in a public toilet? Have we lost our soul and our quest for decency? Have we compromised a far more precious possession, the rule of law?

The actual outworking of the legal process in the Larry Craig case is a perfect illustration of this mess. Craig pleaded guilty not to a homosexual act in public, not to the solicitation of homosexual sex in public, but to a disorderly conduct rap. Worse, most observers agree that the state had an extremely weak case if it attempted to prove its original charge of solicitation. Why did Craig plead? Obviously to avoid the stigma and the public disgrace implicit in the charges against him. I have no doubt that Senator Craig was actually looking for homosexual sex in a public toilet. In my view, the police were shameful and exploiting his vulnerability in this area.They knew perfectly well that they did not have a righteous bust for overt conduct such as public lewdness, or even solicitation. . Actually, I do not think the cop had even made a case of disorderly conduct! I also think Craig got a damn raw deal when the cop exploited his vulnerability. But my concern is not for this pathetic Senator, it is for the integrity of the law and for the political implications which this affair raises for the Republican Party, and the conservative movement, in 2008. Larry Craig himself obviously desperately needs to come to Jesus, but the Republican Party and the conservative movement better look to the state of its own soul as well.

What should be the proper conservative perspective on laws concerning homosexuality?

First, we must acknowledge that the Supreme Court decision in the Texas case exists. Second, we deplore the decision because it is a departure from states' rights-but I think it would be a very serious blunder to deplore the decision because we find homosexuality icky. The world has moved beyond the point where our society arrogates the right to criminalize unseemliness in private, consensual, adult sex. We like to think of ourselves as far more enlightened than the Victorians and we regard them as being a culture locked in irrational sexual taboos. But it was Lady Astor, very much a Victorian, who said, "you can do anything you like in public providing you don't frighten the horses."

Second, we must recognize the tides of jurisprudence, culture, and public consensus are flowing against us. The Supreme Court opinion is very unlikely to be reversed, so the law has already moved substantially against the traditional "conservative" position. Concurrently, the legal and social advances of homosexuals in our society are unlikely to be reversed. The homosexual community is an exceedingly active and effective lobby who can only be expected to campaign vigilantly for their own perceived rights. They are winning the battle. Conservatives who stand against them are impotently standing athwart history and must expect an unrelenting series of Larry Craig type incidents which increasingly alienate us from the general public. I think a truly conservative approach to the issue of homosexuality is to distinguish between that which is tolerable and that which is not because it conflicts with a competing higher value. For example, private homosexual sex between consenting adults is something that a true conservative who respects individual liberty should have little trouble concluding that is an area not for the Lawgiver but for the Redeemer. The flagrant, obnoxious, in your face primping and even soliciting, should be outlawed because it is repugnant to a higher value, which is the welfare of our children. Likewise proselytizing of our children in the school system. Homosexual marriage can be opposed because it degrades a higher institution, heterosexual marriage. Civil unions, on the other hand, should be easy for a conservative to tolerate because he believes in the freedom of contract.

Third, as conservatives we fear, above all things, intrusive government. We should be wary lest we tolerate government peccadilloes against homosexuals because we are disgusted by them. As conservatives we are rightly or reluctant to turn to the government for solutions to social problems. To the degree that we regard homosexuality as a "problem" we should be very reluctant to look to the criminal law system as the solution. That means that we must be careful not to criminalize or even stigmatize homosexuality because we find it repugnant. Conversely, we must not be intimidated by political correctness from insisting that the law protect our children from physical, psychological and educational abuse. We must be careful to punish acts where appropriate, but not the status. Neither should we tolerate that the status be exalted. We should act only when the horses are frightened.

So all of this brings us to the political implications of the Craig scandal. I have posted in another context as recently as a few days ago my concern about Republicans who throw their fellows to the enemy as soon as storm clouds gather. In fact, I make reference to this deplorable tendency in my about page. I do not think it is necessary to consider what to do about Senator Larry Craig, he is a problem in the process of resolving itself and I have no doubt that he will not be the Senator from Idaho on January 2, 2008. His senatorial career is virtually over. But I dodge the issue, what should be done about Senator Larry Craig if he does not go voluntarily? He should be shunned by the party and all support for him should be withdrawn not because he is a homosexual but because he is a damn hypocrite. Craig did not do much of anything legally wrong-he did not frighten the horses-if but he brings disgrace to the party by his flagrant hypocrisy. And the party must rid itself of him because failure to do so would lay it open to the charge of hypocrisy. He represented the party in the United States Senate for the state of Idaho and he lied to us about matters of morality and "family values." It is one thing to have a rot in the body of the party and to remove that rotten apple from the barrel and quite another thing to regularize perversity as the Democrats have done in similar circumstances.

What to do about other homosexuals? Do we welcome them into the party? I should think so, so long as they are open and otherwise comport themselves in sync with conservative values. That is, when they are not hypocrites.

Ironically, the remarks of Barney Frank seemed to me to be the best placed of this controversy. Of course he did not object to Craig's homosexuality and thought he should remain in the Senate. But he did criticize the man's hypocrisy. In this Barney Frank struck home. So long as we as conservatives attack homosexuals for their status as homosexuals rather than for their overt acts which are repugnant to a higher value, we are open to the hypocrisy charge. And every time a Republican homosexual is outed, we will become a laughingstock. We are open to the charge that we are hypocrites when we invoke the criminal law to enforce our predilections about sex because we are the party which says it stands for individual liberty and limited government. The Democrats say we intrude government into the bedroom and in this case they are right. So, when they say the same thing about abortion, we cannot effectively deny the charge even though a much higher value-a baby's life-is at stake.

We fall into this hypocrisy trap when we make the fundamental mistake respecting the nature of homosexuality vis-à-vis society. Democrats accuse us of hypocrisy because closet homosexuals within our ranks preach "family values." Why do we let the Democrats conflate these two issues? Because we have done so ourselves. Homosexual activity in private between consenting adults who are not married constitute no threat to my marriage. Nor do they constitute a threat to the institution of marriage. Adultery poses a threat to the adulterer's marriage whether the adultery is homosexual or heterosexual. The adulterer is not a greater hypocrite because his adultery is homosexual. I submit that no-fault divorce is a far graver threat to the institution of marriage than is the fact of homosexuality in our society.

Let us clear out all this underbrush so that we should ourselves not be accused of hypocrisy. Let us resist homosexual expansionism in defense of higher values but let us not confuse homosexuals with the devil. Let us come clear in our thinking about how we want the law to work and how we want our politicians to behave. Let us reject utterly those who demagogue this issue.

Frankly; (and I say this with respect); you are a compromiser my friend.

I (as a principled conservative)/Christian/Traditionalist/Victorian Era Male (not born then, but..!) still stand against homosexuality as abhorant. I do believe it should be criminilized and don’t care what the elites or the “law”-as if the Supreme Court ever really legally has the standing of Legislative “law” says. This must be opposed on all levels (not that we have any ill will toward homosexuals themselves, but we should not stop opposing it legally). To do so would be to go down the ‘slippery-slope’, and I do not conceede that homosexual perverts will eventually win this war against our society~! To compromise at all, especially where the law concerns, we abandon all premise of a “higher-law” that our laws in the US have traditionally been based upon (and also which we oppose abortion- as you so elequently make this point..). To abandon a higher law, gives the un-repentent homosexual the imputus to impose their will completely upon society. Forget Parental rights-which because of the truely aborhant nature of homosexuality conflicts with the real homosexual agenda.

I don’t have any ill will toward homosexuals personally (but I do for their sexual sin, and they are sinners in need of Jesus just as others that are trapped in sin are). To abandon our opposition of homosexuality (while we should not as Christians oppose them) would be to give up on them; to say ‘it’s ok’..’it’s all-right’ you’re gay, and really gives up hope for them.

I do insist that homosexuality is of the devil, and one of the most distructive infectious diseases of the soul/mind that our society has ever seen (but I believe through Christ-even the most ardent can be forgiven, repent, and change; there is HOPE).

I equate it to alcoholism: we don’t tell the alcoholic their adiction is ok becuase there are REAL harmful (as well as spiritually harmful-sinful) effects from this..should we do the same to the sexual addict?

As for the Craig case: He pleads innocent (and that the cop was mistaken/mishonest- I agree we republicans throw our own under the bus too quickly, I am not prepared to ‘throw him under the bus’ or to say he’s guilty untill the real facts come out that show it’s true. He shouldn’t resign unless actually shown to have really committed this act, otherwise Republicans are only doing this to presumptively ‘save their own hide’. I don’t think the public is going to buy it; and I could care less about party leadership-(they’re pretty much worthless, see as what they’ve done over this last year..).

Instead of worrying about what the democrats call us “hypocrites” there has got to be a better-more Biblical way to stand against this, I shall be praying for God’s guidence to find it..!

The right to privacy does exist as a matter of common law, and as a legal principle. For example, the Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, ..." The Third Amendment exists because of a right to private enjoyment of one's property. The Fifth Amendment respects the privacy of individuals accused of a crime. And so on.

That the Court has erroneously expanded the common law principle to protect abortion does not diminish that principle, nor its applicability in this case. There is little if any compelling interest on the part of the state to regulate sexual behavior between consenting adults in the privacy of their own quarters. There is a HUGE implication to ruling otherwise, namely that no citizen can act, even if no harm arises and he is within the precincts of his own home, in a manner the state disapproves.

I don't need or want the state approving or disapproving of my private sexual behavior. It is none of the state's business. The Court wisely found this to be true.

You ask:

--- should the law acknowledge that the sight of coupled homosexuals is far more disconcerting than the image of coupled heterosexuals?

No, our legal system should not make that type of distinction. -- It would violate 'equal protection', imo.

If the law admits that much, is it not saying that homosexuality is somehow depraved? How can that be squared with the Supreme Court's ruling that the homosexual sex act itself, if private and done between consenting adults, is constitutionally protected?

You've answered your own question. It's not our legal systems function to say that homosexuality "is somehow depraved".

'Legally speaking' they aren't; -- and can't be, - under equal protection..

Well put. -- By saying that States have a 'right' to criminalize private non-harmful sexual behaviors, -- we in effect are saying that States have a 'right' to criminalize private non harmful behaviors regarding the carrying of arms, for instance.

Without getting more graphic than this thread deserves they're quite a bit worse if those acts take place in public.

Bill, you don't need to worry about my sensibilities. I'm board-certified in Infectious Diseases and have dabbled (and on occasion more than dabbled) in Public Health for thirty years.

Your opinion is common, but not, I think, correct.

Sex with strangers, sodomy, multiple partners, exposure to excrement, serial viral and bacterial infections are every bit as bad in the privacy of one's bedroom as they are in the toilets at MSP. The risk to third parties from letting it all hang out is vastly overstated, especially now that the Mexicans and Haitians who clean up after these guys use bleach and wear gloves.

The "public health" case for re-instituting antihomosexual laws and codes is strong enough, but it's equally strong at home as it is in the airport - and it isn't going to happen in either place.

If I may inflict this on you here is a rather long post which has some relevance to this idea of prohibiting one behavior to get at another:

I found your tutorial on American civics to be edifying, however, I do not argue that to prohibit the use of drugs is unconstitutional, merely that the prohibition is unwise. I concede that laws restricting the use or of drugs are, absent other constitutional flaws, not per se unconstitutional. The American experiment prohibiting alcohol, however, was constitutional-we know that because we had an amendment to that effect -but it certainly was not wise. I think we are skating dangerously close to disrupting our republican constitutional government which you have described when we are dictated to by a Supreme Court which can rule on the one hand that a state may constitutionally pass all sorts of laws restricting our access to guns, but can rule on the other hand that a state may not pass laws prohibiting buggery. If living in our constitutional republic means that we are all entitled to carry on merrily buggering one another in the privacy of our homes (a pastime which I am told encourages the spread of AIDS and thus generates many antisocial results), why cannot we merrily consume illicit drugs in our homes? Here we probably both agree that this is a decision which is best made in our legislatures, and not in our courts.

But we have not so far argued constitutionality here, we have talked about the problem from a public policy point of view. In this public-policy context, you seem to state the graveman of your arguments here:

"Disruptive behaviors which are damaging to the ongoing function of society (such as drug use) were singled out long ago, based on hard learned lessons and that's why many laws were made for the good of society as a whole to restrict such indulgences which erode the freedom of society in general. Individual freedom to take drugs, turn into a thief and murderer due to the effects of thse drugs on the human mind do not over ride the freedom of society to walk without fear on the street."

Here I suggest you are conflating "disruptive behaviors", ie the frequently observed results of drug taking (or alcohol consumption for that matter) such as street muggings, with the drug taking itself which is, of course, not "disruptive" since the addict usually mellows out and sleeps - although psychotic episodes do occur. As a society we have learned to legally disassociate the drinking from drunken behavior and generally criminalize only the latter. When the potential for harm becomes too great, as in drunken driving, we cease to distinguish between the drinking and the crime. In fact we criminalize the drinking even where the defendant has capably driven, saying that we conclusively presume the inebriate to be driving drunk when his blood-alcohol exceeds a certain level even though he may actually have been otherwise driving legally.You would extend this principle across the board when it comes to drugs usage, presumably because you believe the instrumentality itself is so dangerous because drugs will convert a user into a "thief and murderer due tho the effects of these drugs on the human mind..." and criminalize the use without taking account whether it has acturally produced "disruptive behaviors."

Such is an inversion of our liberties and should not be resorted to by the state absent compelling proof of the potential evil with a probability so high that the state must eradicate this behavior. Futhermore, there should be near certainity that the loss of liberties will produce the conduct desired. Finally, the cure must not be worse than the disease, that is, the state must not engage in wholesale deprivation of human rights and become itself corrupt in the process. Remember, we went down this route in prohibition and the experiment failed all of these tests. This is exactly the road that the gun grabbers want us to go down today, they claim that the instrumentality is so dangerous and the carnage in our homes and streets is so insupportable that we must outlaw the guns themselves rather than punish their improper use. That is what you have just claimed about drugs. I acknowledge that drugs do not enjoy explicit constitutional protection as do guns, I even acknowledge that the state may act constitutionally in banning drugs, but is it wise to do so?

Those of us on my side of this argument believe that a drug user is converted into a "thief and murderer" not due to the effects of these drugs on the human mind-although I concede that they tend to erace conscience-but rather due to the craving which cannot be satisfied at reasonable expense. The state in its efforts to eradicate the drugs has only made them more expensive thus tempting the addict to engage in thievery and even murder to obtain his next dose. I say, let them have the drugs at minimal cost so that the addict can satisfy his habit without resort to crime. He might kill himself, but he leaves me and my family alone and we will be able, in your words, "to walk without fear on the street."

Why should there be a greater right to have privacy in one's home than in one's body? And if you cannot tell me why, then I think you have to reverse your position on abortion.

There are several subtleties you're missing in oversimplifying the argument that way. For one, "sodomy" doesn't harm anyone. One key component in rejecting the state's oversight of sexual behavior is that no one be injured by the activity. And that doesn't mean "injured" in some vague, idealistic way. It means in a demonstrable, empirical fashion. Abortion is not harmless; a person DIES whenever one is performed.

Secondly, the right to privacy has NEVER been absolute. No one has ever defended the right to murder or rape on private property based on a privacy precedent. Where the state can demonstrate a compelling interest in regulating behavior, it can justify its intrusion into the private precincts of its citizens. Butting into a person's bedroom is the ultimate intrusion, yet the state has little or no justifiable interest in doing so other than the imposition of an arbitrary morality on the subjects.

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