April 23, 2003


SANTORUM AND THE CONSTITUTION: I'm not going to deal with the political and moral questions involved in this story just yet. Right now I have a question about his Constitutional argument. Quoth the Senator:

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. You have the right to anything. Does that undermine the fabric of our society? I would argue yes, it does. It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution, this right that was created, it was created in Griswold -- Griswold was the contraceptive case -- and abortion. And now we're just extending it out. And the further you extend it out, the more you -- this freedom actually intervenes and affects the family. You say, well, it's my individual freedom. Yes, but it destroys the basic unit of our society because it condones behavior that's antithetical to strong healthy families. Whether it's polygamy, whether it's adultery, where it's sodomy, all of those things, are antithetical to a healthy, stable, traditional family.
Eugene Volokh dismissed the controversy as, essentially, a tempest in a teapot:
Santorum's point is that if the Constitution is interpreted to secure a constitutional right to consensual gay sex, then it would be likely to be interpreted to secure a constitutional right to (presumably consensual on all sides) bigamy, polygamy, incest, and adultery. This is actually quite a plausible prediction...
Volokh concludes that he and Santorum simply disagree on how terrible this prospect is.

Now, unlike Professor Volokh or Senator Santorum, I didn't go to law school. Perhaps someone who did can answer my question: aren't they ignoring the specifics of the current sodomy case, Lawrence vs. Texas? Santorum is worried about the implications of the privacy right invoked in Griswold vs. Connecticut, as he made clear in the AP interview. In his town hall meeting today, when challenged by a gay constituent, Santorum said that he was simply using language almost identical to that in the majority opinion to the last sodomy case before the Supreme Court, Bowers vs. Hardwick. The relevant passage is:

And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct [478 U.S. 186, 196] while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.
Here's what puzzles me, though: Bowers vs. Hardwick was not decided on Equal Protection ground; it was argued within the privacy-right context of Griswold. Lawrence vs. Texas, on the other hand, is an Equal Protection case. It really only applies to those sodomy laws that only affect homosexuals (the red states here).

So my question for law school grads is: How could the Equal Protection principle for gays possibly be a slippery slope toward tolerating any consensual behavior, as long as gays and straights are treated equally under the law? The only thing I can think of that Santorum really has to worry about from Equal Protection for gays is gay marriage, and he's pushing the inimical Defense of Marriage Amendment to take care of that one.

Posted by John Tabin at April 23, 2003 11:04 PM