Last edited: February 06, 2005


Government Not Welcome in Bedroom

Atlanta Journal-Constitution, April 28, 2003
72 Marietta Street NW, Atlanta, GA 30303
Fax: 404-526-5746
Email: journal@ajc.com

By Jay Bookman

Ten years ago, the recent anti-gay remarks by U.S. Sen. Rick Santorum (R-Pa.) would have gone all but unnoticed. So the fact that the comments have now put Santorum on the political defensive is a remarkable sign of progress.

Just to review, Santorum told an interviewer that homosexuality endangers traditional families and ought to be prosecuted. “If 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 . . . It all comes from, I would argue, this right to privacy that doesn’t exist in my opinion in the United States Constitution.”

Gay-rights activists quickly accused Santorum of bigotry, a charge that the senator and others halfheartedly tried to refute. Santorum’s true feelings on the subject are too well documented to allow him to back away from the statement, and he doesn’t really want to, anyway. It’s what he believes; it’s what his political base finds appealing about him.

However, if you focus too much on Santorum’s anti-gay rhetoric, you miss what’s really important about his remarks:

He wants to use government as a tool to enforce that bigotry.

According to Santorum, Americans have no constitutional right to privacy. He believes that regulating the sexual practices of two consenting adults is a legitimate government concern, and that government has the right to arrest, prosecute and imprison people on that basis.

And to me, that’s just nuts. Attorney General John Ashcroft and Rick Santorum should stay in their own bedroom(s), and they should stay out of mine and yours.

It is true that the Constitution does not contain an explicit guarantee of privacy. But the Ninth Amendment to the Bill of Rights contains something more important. It states that the listing of certain rights in the Constitution “shall not be construed to deny or disparage others retained by the people.”

The understanding that people have natural rights not specifically listed in the Constitution is fundamental to our liberty. In fact, some of the Founding Fathers argued against including a Bill of Rights for just that reason. They feared that once you start listing rights, any rights not listed become fair game for government.

As one member of Congress warned in debate back in 1789, once you start listing rights, you might have to declare “that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.”

The right to privacy, then, is not some fabrication, but one of the “unalienable rights” mentioned in the Declaration of Independence. Nearly 40 years ago, for example, the U.S. Supreme Court cited the right to privacy in throwing out a Connecticut law making it a crime to use contraception. The court ruled that whether a couple conceived or not was none of government’s business.

More recently, the court threw out a Washington state law that required parents to allow visitation by grandparents and others. As long as the parent is competent and the children are not harmed, “there will normally be no reason for the State to inject itself into the private realm of the family,” Justice Sandra Day O’Connor wrote.

Again, the Constitution contains no explicit protection against that kind of interference. But practically every word of the document is infused with the concept that private things are none of the government’s business.

This year, the Supreme Court heard arguments in a Texas case that go directly to Santorum’s argument. When police officers broke into a Houston apartment responding to a false report of a gunman, they found two men engaged in sex. Rather than apologize and leave, the officers arrested the men, who were later convicted of engaging in gay sex.

As that case indicates, anti-gay prejudice remains fairly common in this country. And if Santorum and others want to cling to that bias, I guess they have a right to do so. They just can’t use the government to act out that hatred, and in the near future the Supreme Court will probably say so.

  • Jay Bookman is the deputy editorial page editor. His column appears Mondays and Thursdays.


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