ACLU Argues Sex in Bathroom Stalls Is Private

The American Civil Liberties Union filed an amicus brief on behalf of Sen. Larry Craig yesterday that argues people who have sex in bathroom stalls have an expectation of privacy.

The ACLU's brief, filed with the Minnesota Court of Appeals, says the government cannot prove Craig was inviting an undercover officer to have sex when he tapped his foot in a restroom stall, the Associated Press reports. But if the state can prove there was a sex offer, it wouldn’t be illegal under a 38-year-old Minnesota Supreme Court ruling, the ACLU contends.

The ruling, State v. Bryant, reversed the conviction of two men engaged in sex in a department store restroom with the door closed. The court said in that case that the two men had an expectation of privacy.

If sex in a bathroom stall is lawful, it cannot be a crime to solicit it, the brief says. It also contends the disorderly conduct law, to which Craig pleaded guilty, is unconstitutionally overbroad since it makes offensive speech a crime and punishes the solicitation of private sex.

The ACLU also filed a brief (PDF) in support of Craig last September. Post was updated at 8:15 PM to correct a link.