In all of the discussion of Senator Larry Craig’s sexual inclinations and actions in the Minneapolis airport in June, there has been surprisingly little objection to police sergeant Dave Karsnia’s action in arresting him. Yet the bigger scandal is not Senator Craig’s actions, however repulsive or pitiful some of us might find them. The bigger scandal lies in Karsnia’s actions and in the very existence of the law he enforced.
What did Senator Craig do? Consider the facts. He solicited sex from another adult and then tried to use his status as a U.S. Senator to get a break from the policeman. The more serious action is the second one. No one should be above the law by reason of his profession, and Craig was wrong to try to get out of trouble that way. Those who judge Craig badly for that are justified in doing so. They, and the rest of us, would also be justified in outrage at Karsnia if we hear that Karsnia, like many other policemen, flashes his badge when a traffic cop pulls him over for speeding. Policemen shouldn’t be above the law either, although many of them are.
But back to Craig’s first action, which is what got him in trouble with the law. Craig was charged with "disorderly conduct" and "interference with privacy." What he had done was make sexual overtures to the person in the bathroom cubicle next to him, namely police Sergeant Dave Karsnia. Although Karsnia did not lead Craig on, neither did Karsnia communicate clearly that he was not interested in having sex with Craig. Think about that. Craig makes sexual overtures and doesn’t get turned down. How unreasonable and, more important, how "disorderly" or "interfering" is it to continue soliciting sex when the person you are soliciting hasn’t committed either way? And if solicitation is illegal because it interferes with privacy, does that mean homeless people who ask me for money are breaking the law? They’re certainly interfering with my privacy.
We can argue about whether there should be laws against soliciting sex from those who have clearly turned you down. I think there shouldn’t be; we have many peaceful options for discouraging people from soliciting sex from us. For example, the one time a homosexual man persisted with me beyond all good taste, I angrily picked up my sleeping bag (this happened while I was sleeping on a friend’s living room floor) and left the room. Had he persisted and forced himself on me, then and only then would I have been justified in using force against him. And I would have punched him.
But even if you think there should be laws against soliciting sex from those who have said no, that doesn’t matter for this case. By his own admission, Sergeant Karsnia never said no.
Many people, including me, find it disgusting that some people solicit sex from others in public bathrooms. That hardly implies that it should be illegal. Should soliciting sex in bars be illegal while soliciting sex in bathrooms is not? If so, what is the difference in principle?
Especially disappointing in the discussion of the Larry Craig affair have been the views expressed by prominent liberals and prominent homosexuals. Take Stephanie Miller, the left/liberal talk show host on Air America. A caller to her show told her that she feared for her 8-year-old son if people like Larry Craig were not held accountable for soliciting sex. Here was Miss Miller’s perfect opportunity to explain that there’s an important difference between soliciting sex from another adult who has the power to say no and soliciting sex from a vulnerable 8-year-old. But did she do that? No. Instead, she piled on and stoked her caller’s fear. Now, unless I’m wrong, Miss Miller favors allowing sex between consenting adults. And for there to be sex, one person usually solicits another. But Miss Miller did not defend Senator Craig’s right to do so.
And where was the gay community? At least some of their prominent members were AWOL also. Consider Andrew Sullivan, one of the most articulate defenders in America of the right to have homosexual sex. Yet on his web site, Sullivan focused entirely on Larry Craig’s hypocrisy. Interestingly, he didn’t establish Craig’s hypocrisy. Instead Sullivan pointed out that Craig supported a Constitutional amendment to ban gay marriage and was against laws to ban job discrimination on the basis of sexual orientation. But one could favor both of these political views and still engage in gay sex without being hypocritical. What if, for example, one believes that marriage is between a man and a woman? One could be a homosexual, closeted or otherwise, and believe that. As to laws that ban job discrimination, there is nothing in being homosexual per se that would make one opposed to freedom of association. And freedom of association means the right of each person to work with or not work with other people. An employer has the right not to hire someone because that person has a particular sexual orientation just as a potential employee has the right not to work for someone who has a particular sexual orientation. It’s just that the employer’s right is not honored in this country while the potential employee’s right still is.
Moreover, even if Craig were a hypocrite, while that speaks badly of him, it doesn’t address the issue of whether soliciting other adults for sex should be illegal. Is Sullivan saying that the only people who should have the right to sexually solicit adults of the same gender are those who are not hypocrites on the issue? Are one’s rights conditional on one’s views or are they, as the Declaration of Independence states, unalienable? And remember that Sullivan is not a random gay spokesman but is possibly the most articulate gay spokesman of his generation. If even he can’t see the larger issue of rights here, what hope do we believers in freedom have?
One of the government’s favorite games is to cook up controversies that create conflict among normal people who would normally get along. This is what the Nixon, Ford, and Carter governments did with price controls on oil and gasoline, which led to line-ups for gasoline and occasional violence among people lining up. This is what George W. Bush is doing with the Iraq war, creating conflict between the U.S. military and many innocent Iraqis. This is what governments do with the drug war, creating conflict between otherwise-peaceful drug retailers and the people in low-income neighborhoods. We shouldn’t fall for it. And it is especially troublesome to see bright people like Andrew Sullivan and Stephanie Miller fall for it. The villain of the piece is Dave Karsnia. Let’s not forget it.
David R. Henderson [send him mail] is a research fellow with the Hoover Institution and an associate professor of economics at the Graduate School of Public Policy, Naval Postgraduate School, in Monterey, California. His latest book, co-authored with Charles L. Hooper, is Making Great Decisions in Business and Life (Chicago Park Press, 2006.)