Santorum on Sex: Where the Slippery Slope Leads
Santorum’s remarks are more plausible as legal
analysis than most critics have acknowledged
The
Atlantic, May 6, 2003
Email: letters@theatlantic.com
By Stuart Taylor Jr.
“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. You have the right to anything.... The definition of marriage has
not ever to my knowledge included homosexuality. That’s not to pick on
homosexuality. It’s not, you know, man on child, man on dog, or whatever the
case may be.”
For those words, Sen. Rick Santorum, R-Pa., has been
widely denounced by many Democrats and some moderate Republicans as a raving
homophobic bigot. And it was indeed offensive to so casually associate the
millions of decent people who happen to be gay with practices almost
universally condemned as immoral.
But Santorum’s remarks are more plausible as legal
analysis, in the context of a major gay-rights case now before the Supreme
Court, than most critics have acknowledged. Meanwhile, Santorum’s assertion
in the same April 7 interview that there should be no constitutional right to
privacy reveals an agenda that is more controversial than most of his
defenders seem to understand.
The issue in Lawrence
v. Texas, which the justices heard on March 26 and will probably
decide by late June, is whether to strike down as unconstitutional a Texas law
making it a crime to engage in homosexual sodomy. The answer should be yes,
and I think it will be. “To criminalize any enjoyment of their sexual powers
by a whole category of persons is either an imposition of a very great cruelty
or an exercise in hypocrisy inviting arbitrary and abusive applications of the
criminal law,” in the words of Harvard Law professor Charles Fried, a
conservative who was President Reagan’s solicitor general.
But there are at least two ways to strike down the Texas
law. And the narrower way would not lead toward the slippery slope of which
Santorum warns.
The broad way to strike down the Texas law would be to
hold that constitutionally protected privacy includes “the right to be free
from governmental intrusion into, and criminalization of, private sexual
relations between consenting adults,” as the Human Rights Campaign and more
than 25 other groups argue in an amicus brief.
Santorum has a point in asserting that such a ruling
could put us on a slippery slope toward legalizing some forms of incest, the
most repellent of the practices he listed. Indeed, by 5-4, the Supreme Court
held in 1986, in Bowers v. Hardwick,
that if the Court were to recognize an unqualified right to “voluntary
sexual conduct between consenting adults, it would be difficult, except by
fiat, to limit the claimed right to homosexual conduct while leaving exposed
to prosecution adultery, incest, and other sexual crimes” within the home.
To be sure, consensual sex does not violate laws against
adultery, bigamy, or polygamy unless it breaches a contract of marriage, which
is a state-created privilege conditioned upon a vow to have sex only with
one’s spouse and to have only one spouse at a time. And incest is not
consensual in the bulk of cases, which involve parental rape or seduction of
minor children.
But what about what one law professor delicately calls
“Lord Byron’s problem”—consensual sex between an adult brother and
sister? (In Byron’s case it was a half-sister.) While that practice would,
unlike gay sex, often risk producing children with serious birth defects, the
risk is non-existent for infertile women and can be eliminated for others by
vasectomy, sterilization, contraception, or abortion. Besides, privacy
advocates (and the Court) would surely reject the notion that states can bar
people with heritable defects from having children.
Might Lord Byron’s problem nonetheless be outlawed
because it has long been despised as repugnant and immoral? Not if there is an
unqualified constitutional right to consensual adult sex. And sodomy, no less
than sibling incest, has for centuries been subject to “condemnation ...
firmly rooted in Judeo-Christian moral and ethical standards,” as the late
Chief Justice Warren E. Burger stressed in a concurrence in Bowers v.
Hardwick. Public opinion is moving toward majority support for a right to
have gay sex. But it’s not there yet.
So Santorum’s legal analysis was not as outlandish as
many have suggested. Indeed, he would have been on the mark had he phrased it
like this: If the Supreme Court said you have the right to consensual sex
within your home, it would be a giant step toward a right to commit incest
with your adult brother or sister and (at least if you are unmarried) to have
group orgies.
Many libertarians would counter that the Court should
recognize such a broad freedom-of-consensual-sex principle, just as it has
long recognized freedom-of-speech principles broad enough to protect hard
pornography and hate speech. I would agree. But I suspect that the justices
will avoid such a sweeping expansion of the right to privacy, which is rooted
in the due process clause. One reason is that—because the Texas law forbids
gay couples from engaging in sexual practices that are lawful for heterosexual
couples—the Court can strike it down on narrower,
equal-protection-of-the-law grounds. Another is that headlines such as
“Court Legalizes Sodomy and Incest” would generate a more forceful
backlash than “Court Bans Discrimination Against Gay Sex.”
The narrow way of striking down the laws criminalizing
homosexual (but not heterosexual) sodomy in Texas and three other states would
be to rule that even though rarely enforced, they seek to condemn a whole
class of millions of gay Americans to lifelong, involuntary sexual abstinence,
and to stigmatize them as criminal deviants. Laws criminalizing Lord Byron’s
problem have no comparable effect, because few if any people can hope to find
sexual fulfillment only with their siblings. And such a ruling could avoid any
discussion of the laws in nine other states that ban heterosexual and
homosexual sodomy alike. (To be sure, these laws affect gays
disproportionately and could be struck down for that reason.)
The argument for striking down the Texas law is far
stronger than was the Court’s basis in 1996 for using the equal protection
clause to void a Colorado ballot referendum that would have barred enactment
of any state or local laws against anti-gay discrimination in employment,
housing, and public accommodations. (It would have also repealed all existing
gay-and-lesbian-rights laws.) That 6-3 decision, Romer v. Evans, held that
states cannot “make [gays] unequal to everyone else,” and that the
Colorado provision “lacks a rational relationship to legitimate state
interests” because it “seems inexplicable by anything but animus toward
the class that it affects.”
Santorum, a devout Roman Catholic, said in the April 7
interview that he is driven not by animus but by his conviction that “this
freedom”—which I read to mean the freedom to engage in any sex outside of
traditional marriage—is “antithetical to strong, healthy families.”
There may be a modicum of truth here. But in an era of rampant adultery,
divorce, unhappy marriages, spousal violence, child abuse, deadbeat dads,
premarital sex, birth control, out-of-wedlock births, and working couples
whose kids spend most waking hours in day care centers, it seems far-fetched
to list gay sex as one of the real threats to the traditional family.
Speaking of slippery slopes, Santorum’s assertion on
April 7 that the “right to privacy ... doesn’t exist in my opinion in the
United States Constitution” would take the law in a direction far more
objectionable than would the “right to anything” that he is so worried
about. By explicitly rejecting Griswold v. Connecticut, the 1965
decision that established the constitutional right of married couples to use
contraceptives, Santorum suggested that states should be free to ban
contraception, period. And his apparent goal of overruling the entire 80-year
line of right-to-privacy decisions would not only be a step toward allowing
states to criminalize all premarital and extramarital sex; Rick Santorum’s
America might also be a place in which states would be free to mandate
sterilization of convicts and retarded people.
Santorum did not mention those issues specifically. But
the right to privacy that he assails was the main basis for the Court’s
rulings in Skinner v. Oklahoma, in 1942, banning forced sterilization
of certain convicts; and Pierce v. Society of the Sisters, in 1925,
guaranteeing parents the right to choose private or religious schools for
their children. (Pierce could be, but was not, based on the First Amendment
independent of the right to privacy.) How would Americans like to see those
decisions overruled?
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