Bias
Masked as ‘Inclusion’
Boston
Globe, May 2, 2003
Box 2378, Boston, MA 02107
Fax: 617-929-2098
Email: letter@globe.com
By Scot Lehigh
We now know exactly what Senator Rick Santorum of
Pennsylvania thinks of homosexuality—and what President Bush supposedly
thinks of Santorum. The president, according to spokesman Ari Fleischer,
“believes the senator is an inclusive man.”
If so, the president has this exactly backwards. When it
comes to privacy or (what might be called) sexual liberty or autonomy,
Santorum is anything but inclusive. Rather, he would continue the exclusion of
gays from the sphere of sexual privacy the US Supreme Court has established
for consenting heterosexual adults.
As Santorum put it in the now famous AP interview: “I
have no problem with homosexuality. I have a problem with homosexual acts.”
Although people are certainly more than the sum of their sexuality, it’s
just as true that tolerating homosexuals in the abstract but denying the same
tolerance to homosexual sex is a self-negating proposition.
In the context of Lawrence v. Texas, the sodomy case now
before the Supreme Court, it’s akin to saying this: “Though I say I have
no problem with homosexuals, I support their prosecution if they are
discovered having sex, even in the privacy of their own homes.” Viewed that
way, Santorum’s stated dualism isn’t an embrace of inclusiveness; it’s a
disguise for discrimination.
In contemplating whether a state should be able to
prosecute the consensual gay sex at the heart of Lawrence v. Texas, it helps
to look to history. Just four decades ago there were still thought to be moral
and philosophical reasons to forbid contraception to both married and single
heterosexuals, to ban interracial marriage, and, of course, to prohibit
abortion.
One by one, the US Supreme Court struck those
prohibitions down. In the 1965 case of Griswold v. Connecticut, the court
invalidated laws prohibiting the use of contraception even by married couples.
In the 1967 case of Loving v. Virginia, the court nullified miscegenation
statutes, saying that forbidding interracial marriage violated equal
protection and due process guarantees.
In 1972, in Eisenstadt v. Baird, the court expanded
sexual privacy rights to unmarried people, ruling that a Massachusetts law
that prohibited single people access to contraception was unconstitutional.
The best known of those decisions—and the only one that remains
controversial—was Roe v. Wade, in 1973, which granted women the right to
abortion. Thus the court, in less than a decade, extended unprecedented
privacy rights to US citizens.
That done, however, the court’s privacy principle
seemed to falter. Its 5-4 decision in Bowers v. Hardwick, the 1986 Georgia
case that upheld sodomy laws as applied to homosexuals, was a detour based
mostly on society’s historical aversion to homosexuality. Justice Lewis
Powell, the swing vote in that case, later acknowledged almost as much, ruing
his own vote to uphold those laws and saying the court’s decision hadn’t
been in keeping with privacy theory of Roe.
Now, after nearly two decades in which societal
acceptance of homosexuality has increased markedly, the court has returned to
the issue. Reinforcing the principle of privacy is the theory of equal
protection. The Texas law in question bans only homosexual sodomy, not
nonvaginal sex between heterosexuals, which makes it a clear equal-protection
target. “There may be justices who vote against it not because they believe
that the state has no role in the bedroom but because they think that whatever
right the state has has to be applied equally and can’t discriminate against
gays,” says civil libertarian Harvey Silverglate.
All that makes it unlikely that today’s court will
embrace the old-fashioned world view of Senator Santorum. (Certainly his fear
that striking down sodomy laws will necessarily mean extending the privileges
and protections of marriage to bigamy and polygamy is, as a legal matter,
easily dismissed.)
If the court does strike down the Texas sodomy law,
justices will essentially be saying this: Times have changed, and our
understanding of consenting adult relationships has evolved sufficiently to
grant gays the same right to sexual privacy heterosexuals enjoy.
That imperative seems as obvious today as the court’s
landmark recognition of privacy in the 1960s and early 1970s does in
hindsight. Which makes it all the more a pity that neither George Bush nor
Rick Santorum can bring himself to a principled recognition of that kind of
legal inclusiveness.
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