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Rick’s Fix
by Lionel E. Deimel

Conservative Pennsylvania Senator Rick Santorum got himself into hot water this week by commenting on a case currently before the Supreme Court. The caseNo to Texas revolves around a Texas law outlawing homosexual acts, even those performed in private between consenting adults. Senator Santorum apparently fears that the Supreme Court will strike down the law as being an unconstitutional abridgement of the right to privacy, a right the senator believes, contrary to current Supreme Court decisions, is not conferred by the Constitution. He is quoted as saying, “If the Supreme Court says that you have the right to consensual [gay] sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.” Not surprisingly, the gay rights community took exception to this statement, but Senator Santorum has defended his remarks. Nothing has been heard from advocates for bigamists, adulterers, or practitioners of incest, though, by week’s end, a polygamist group had deplored the senator’s statement.

Senator Santorum equated gay sex—which can hardly be said to enjoy widespread support—with practices that are nearly universally condemned. This is a clever rhetorical ploy, but is he making a valid argument? I think not, and I believe that he is being disingenuous in raising the specter of laws against incest, say, being struck down should the Texas case be “wrongly” decided. Incest with a child, for example, is most certainly not a transaction between consenting adults, and one can argue that adultery and bigamy are not victimless either. “You have the right to anything” probably sounds good to libertarians, but it is a non sequitur.

I must grant, however, that Senator Santorum is probably right in suggesting that some laws governing sexual behavior could be reconsidered—and probably should be—if the Supreme Court invalidates the Texas law. These laws are quite variable from state to state, and their details can be surprising. (How many people know that, in many jurisdictions, one can receive jail time for adultery?) Interestingly, prostitution, the offense most easily excused as being victimless and private, at least in its purest form of selling sex, was not mentioned by the senator. Is it not illegal primarily because many people have religious scruples against it—arguably an insufficient justification for a law in this country? What is the harm of incest between adults if precautions against pregnancy are taken?

Polygamy is more complicated. In the sense the term was used, public behavior is probably as offensive to those favoring prohibition as is private behavior. This was bad example selection on the part of Senator Santorum. Although one can construct public-policy arguments against polygamy, the case for laws against it is weak, insofar as we are talking about relationships entered into willingly by adults. Marriage, on the other hand, confers certain legal advantages—in the area of taxes, for example—and one might argue that the government is under no obligation to subsidize polygamy, even if it were to be made legal. Personally, I find it hard to see the attraction of polygamy (as opposed to mere promiscuity), but I think the suppression of it among Mormons by Christians is a scandal. The Mormon “revelation” outlawing polygamy was equally scandalous for its cynicism.

The real question, of course, is will his statement harm the senator. Likely not. Most people agree with him but would not admit to doing so. Santorum’s enemies—they are legion but still an apparent minority—are upset along with the homosexual community, but the case that they would have to make to the public to have any real influence on the body politic is impractically complex and nuanced. Everyone else has long forgotten the incident.

— LED, 4/26/2003

Note: On June 26, 2003, the Supreme Court, in Lawrence v Texas, struck down the Texas Sodomy law, and similar laws across the nation. We now get to test Rick Santorum’s standing as a prophet. (See “Where Are the Politicians?” on the outcome of the case.)

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