A lot of people are asking, “Is solicitation a crime?” That is: Was there anything criminal about Sen. Larry Craig’s gestures if they suggested a desire for consensual lewd behavior of some kind with the man in the adjacent restroom stall?

The answer, as far as I can discern, is a clear no. (See University of Minnesota Law Professor and Independent Gay Forum contributor Dale Carpenter for more. And also, surprisingly, Captain’s Quarters.) It is not a misdemeanor in Minnesota to ask a person to have sex with you, whether by gesture or voice, and even if the person finds the request unwanted. Think about it: If it were, the women of that state would have a field day with creeps at bars and cat-callers on the street.

Solicitation of children to engage in sexual conduct is a crime (as it should be), as is solicitation of prostitution. But, again, I can find nothing in Minnesota state law that makes asking someone to hook up with you a crime, rather than a civil tort (as in sexual harassment law) regardless of the circumstances.

Why, then, do police continue to act as though it is? Because of the long and only-recently ended practice of firm legal discrimination against gay people. Until 2001, consensual sodomy was a crime in Minnesota, meaning that it was only six years ago that gay people in that state stopped being treated by the letter of the law as, quite literally, outlaws and criminals.

Meanwhile, in Idaho, the state Sen. Larry Craig has represented in Congress since 1981, consensual sodomy was a felony punishable as a “crime against nature” by five years to life in prison until 2003, when the Supreme Court ruled in Lawrence v. Texas that a similar statute in Texas was unconstitutional, thus striking down the state’s law. From 1996 until then, the state sex offender registry was written so as to add those convincted of even consensual sodomy to the sex offender rolls for life.

Until the sodomy laws were struck down by the Supreme Court, solicitation of sodomy was a crime in many of the states that had sodomy laws, and it was this “solicitation for sodomy” provision that allowed men who sought sex from other men to be targeted for arrest by police in, for example, public restrooms, under circumstances where there was no money or coercion involved. (More on which in a minute.)