Santorum
Makes a Valid Point on Sex
Ruling can be seen as a slippery slope.
Philadelphia
Inquirer, April 28, 2003
P.O. Box 8263, Philadelphia, PA 19101
Fax: 215-854-4483
Email: Inquirer.opinion@phillynews.com
By Mitchell Sommers
My support for gay rights, including the right to
marry—and I use the term marriage, not the separate but lesser status of
civil unions very deliberately here—is unwavering.
So it kills me to admit that Rick Santorum has a point.
Sen. Santorum made a series of comments to an Associated
Press reporter during an April 7 interview in which he discussed
homosexuality. Some of the comments were ludicrous, such as suggesting that
“I have no problem with homosexuality. I have a problem with homosexual
acts,” which essentially says that gays are all right so long as they accept
a life of sexual abstinence. Some of his comments, such as linking
homosexuality with “man on child, man on dog, or whatever the case may
be,” go well beyond ludicrous and head straight into vile.
But it’s the following quote, the one he’s received
the most heat for, where he makes a point.
“And if the Supreme Court says that you have the right
to consensual 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.”
Gay groups have reacted with anger to the linking of
consensual homosexual sex to these concepts. But it’s worth noting how we
got to the current legal state of affairs to understand that this statement is
not totally outlandish.
Someone looking for the right of privacy, either in the
bedroom or elsewhere, will not find it in the text of the Constitution.
Despite this, the U.S. Supreme Court found that right to exist, notably in a
1962 decision that prohibited banning birth control for married couples.
That right has expanded, and may expand yet again,
because in March the Supreme Court heard arguments in the case of Lawrence
v. Texas, in which the plaintiff asks to have the state ban on consensual
homosexual acts prohibited. Such a ruling from the court could, in whole or in
part, overturn a 1986 decision that refused to outlaw the banning of
homosexual acts.
Note the timeline here: Before 1962—no constitutional
right to consensual sexual activity by married heterosexual couples. Today,
the court is poised to grant constitutional protection to the acts of
homosexual couples. That is a tectonic shift in attitude in 42 years. Indeed,
if the court overturns or limits the 1986 decision, it’s a huge shift in 17
years.
The text of the Constitution did not change in those 42,
or those 17 years. But American sexual mores surely did, and in a direction
that is a lot more sane, in my opinion. And the Supreme Court recognized that.
But here’s the tricky part, the part that Sen.
Santorum, however inarticulately, touched on. If the argument for allowing any
of these activities is, essentially, that the government can’t stop it
because it’s consensual and we’re all adults here, it’s not hurting
anyone else, so stay out of our bedroom, then it is logical that someone
seeking, say, to justify polygamy or even incest will say exactly the same
thing.
Indeed, Justice Antonin Scalia, who has never
particularly warmed to the concept of the “living” Constitution in the
first place, made exactly that point in the Lawrence v. Texas oral
argument, in questioning the attorney who argued that the Constitution cannot
prohibit consensual homosexual sex. Said Scalia: “You can make it sound very
puritanical... the laws against bigamy. I mean, who are you to tell me that I
can’t have more than one wife, you blue-nose bigot?”
I know, I know. Saying that the Constitution cannot
prohibit something—consensual sex—is not the same as saying the
Constitution mandates that states place their approval on something, that
being allowing the licensing of polygamous marriages. But the germ of the
argument for allowing polygamy and incest is contained in the arguments that
came before it. If the case before the Supreme Court results in the
overturning of Texas’ law against sodomy, and some day a guy and six women
walk into a Salt Lake City clerk’s office and demand a marriage license, you
can bet that the first case their lawyer will cite when they appeal their
denial will be Lawrence v. Texas. That’s how the law works; inching
along, taking the case before you and trying to push the boulder a little
farther up the hill.
None of this is a reason to deny homosexuals the intimacy
and human connection that Santorum would withhold from them. But that
doesn’t mean we should ignore the question he posed. Because someone will
ask it. And unlike Santorum, someone will ultimately ask in a way and in a
forum that makes not answering impossible.
Argument for Santorum’s View Is Invalid
Philadelphia
Inquirer, May 2, 2003
P.O. Box 8263, Philadelphia, PA 19101
Fax: 215-854-4483
Email: Inquirer.opinion@phillynews.com
Letters
As a lawyer, Mitchell Sommers should know better than to
suggest that U.S. Sen. Rick Santorum has a valid point in suggesting that if
gay consensual sex is legal, then bigamy, polygamy, adultery, and incest must
also be legal (“Santorum makes a valid point on sex,” April 28.) There are
many examples to indicate that this is not true. The most obvious is that laws
banning prostitution, also a private, consensual act, remain effective.
If there is a fear that the right to privacy would wreak
havoc with other laws, then the Texas sodomy laws must be struck down for
reasons of equal protection. This would surely be much more unnerving to
religious conservatives like Sen. Santorum because it would mean that
homosexuals and heterosexuals are equal under the law. The inescapable result
would be the right for gays to marry. (They would, of course, be subject to
whatever privacy laws apply to heterosexuals—as long as they’re enforced
fairly.)
—Jim Fredricksen, Charlotte, N.C., J.Fredricksen@att.net
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