Scalia and Santorum Were Right
Family
Research Council, December 5, 2003
Those who warned that the Supreme Court decision in June
2003 overturning the Texas sodomy law would lead to attempts to legalize other
outlawed sexual relationships were dismissed as biased by conservative
ideology, or worse, accused of advocating bigotry. Those concerns have now
been realized in the case of a man suing to legalize his polygamous lifestyle.
In his dissenting opinion in Lawrence
vs. Texas, Justice Antonin Scalia stated that if sodomy laws were
struck down, it would open the door to the legalization of all manner of
sexual activity: “State laws against bigamy, same-sex marriage, adult
incest, prostitution, masturbation, adultery, fornication, bestiality, are
likewise sustainable only in light of Bowers
validation of laws based on moral choices. Every single one of these laws is
called into question by today’s decision.”
Two months before the decision, Pennsylvania Senator Rick
Santorum waded into a firestorm when he stated that if the court struck down
the Texas sodomy law, it would lead to a slippery slope where virtually any
sexual activity would be legalized. Said Santorum: “Whether it’s polygamy,
whether it’s adultery, whether it’s sodomy, all of those things are
antithetical to healthy, stable, traditional families.” Pressed by outraged
liberals and homosexual rights activists to respond, Republican leaders in
Congress and White House spokesman Ari Fleischer vacillated for days before
expressing tepid support for Santorum’s continued role in the Senate’s
Republican leadership.
Lost in the flurry of indignant liberal reactions was the
fact that Santorum was simply pointing out the potential legal ramifications
of the ruling. Those ramifications were spelled out in a friend-of-the-court
brief filed by the Human Rights Campaign, which asserted “the right to be
free from governmental intrusion into, and criminalization of, private sexual
relations between consenting adults.”
Similarly, the petitioners in the case declared in their
legal brief: “Among the liberties protected by the Constitution is the right
of an adult to make choices about whether and in what manner to engage in
private consensual sexual intimacy with another adult . . . . [C]onsent is a
critically important dividing line in legal and societal views about
sexuality. . .”.
Justice Scalia and Rep. Santorum correctly argued that if
the only criterion for defining a sexual behavior as a constitutional
“right” is that it be private, consenting, and between adults, then on
what legal basis can constitutional protection be denied to a person because
of the number of sexual partners (i.e., polygamy), the marital status of
sexual partners (i.e., adultery), or the blood relationship between sexual
partners (i.e., incest)?
The concerns raised by Scalia and Santorum have now come
home to roost. In the first of what will undoubtedly be many efforts to
overturn laws regulating sexual relationships, a Utah man with five wives has
appealed the court to have his bigamy conviction overturned on the basis of
the Supreme Court’s sodomy law ruling. Polygamist Tom Green, who has 30
children by five “wives,” argues that his conviction is invalid under the
Supreme Court ruling on sodomy.-TJD
[Home] [Editorials] [Lawrence
v. Texas] [Santorum] [Spreading
Santorum]
