# Posted 6:53 PM by Ariel David Adesnik  

SANTORUM DECORUM: CF writes in to say

I think that Sen. Santorum raises a valid point: if the U.S. Supreme Court finds a new "sexual privacy" right or other emanation under a penumbra that guarantees government non-interference in private sexual matters, how can we avoid applying that to consensual incest or adultery?...At worst, I think, you can accuse [Santorum] of being insufficiently supportive of the rights of gays to have private sexual freedom.

I agree with the first half of CF's argument. Once the Court extends the right to privacy to homosexuals, it will have to extend it to all other forms of consenting sex between adults. Now, since I don't really know anything about constitutional law, I suggest you go read Eugene Volokh's explanation of why this is so. Gene, of course, would like to see the right of privacy extended to all forms of consenting sex. (Gene writes as if he has no personal interest in the matter, but don't you ever wonder about him and Sasha being so close? ;) )

Now, regardless of the fact that Santorum is correct from a legal perspective, that doesn't mean he isn't a homophobe. Consider Santorum's statement (while answering the same quesiton in which he made his constitutional argument) that the constitutional right to privacy

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.

How, I ask, is sodomy "antithetical to a healthy, stable, traditional family"? I know many loving gay parents who have raised wonderful children. Some are married. Some are not. But the important point is that parents' sexual practices have no apparent impact on their children. (And if you consider that state laws often define oral sex as sodomy, I'd have to imagine that the number of loving parents who practice sodomy must number in the millions.)

If Santorum were really worried about those things which "destory the basic unit of our society", he would spend his time worrying about spousal violence, child abuse and divorced parents who renege on child welfare payments. But for some reason, Santorum thinks that having less-than-traditional sexual preferences is a greater threat to one's children than beating them or refusing to buy them food and clothing. You know why? Santorum is a bigot.

Of course, you could have figured that out pretty easily from Santorum's strictly consitutional argument that

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.

Would anyone actually place homosexuality in the same context as incest and adultery if they weren't a bigot? If you or I were to argue against the existence of a right to privacy, we could draw on a wide array of valid arguments, none of which rest on immature fears about a right to privacy resulting in widespread incest or adultery.

Whatever the legal similarities between homosexuality, incest and adultery, the sociological differences are profound. And if one happens to accept a realist approach to the law -- as Jack Balkin recommends in this instance -- social behavior has significant legal ramifications. As Balkin points out, there was a time when Americans thought of pre-marital sex as no less offensive than homosexuality and would have felt comfortable with state regulation of pre-marital behavior. Today, of course, any such regulation would be struck down without a second thought.

As Balkin argues, the most persuasive explanation for the Court's changing attitude is that it accepts social norms as a legitimate source of constitutional interpretation. Thus, the real question isn't whether the protection of gay rights might provide a constitutional foundation for the protection of incest and adultery. The question is whether social acceptance of homosexuality will result in social acceptance of incest and adultery.

As Gene points out, adultery has already become so widespread that the prosecution of adulterers is now unheard of, even if there is no effort underway to legalize such behavior. Once again, if Santorum's real interest were protecting the family, he would be speaking out against the adulterers, not the homosexuals. If anything, Santorum should be arguing that adultery promotes homosexuality and not vice versa. But that kind of logic might undermine the Senator's mindless campaign against gay marriage.

So what about incest? Is there anyone out there who will take advantage of a Court ruling in favor of homosexuality to advance the cause of incest? [Insert West Virginia joke here.] As Dan Simon asks, why do Santorum's critics, OxBlog included,

find it outrageous and offensive that anyone would compare gay sex with (presumably consensual) polygamy, incest and adultery, because the latter are all.....uh, what? Icky and disgusting? Prohibited by the Bible? Just not done, you know, by Our Sort of People?

I admit, of course, that there is no rational case to be made against consensual polygamy, adultery or incest. If it turns out that all sorts of well-adjusted adult siblings (say, Gene and Sasha) have been hiding their love for one another until now, I might be willing to hear them out. But for the moment, incest tends to be associated with predatory and often violent behavior. Polygamy often entails abuse as well. And adultery is almost always associated with deception. Santorum knows that. If he thinks homosexuality belongs in the same category, then he is a bigot.

Now, the fact that Santorum has refused to apologize suggests that he really is a bigot. According to the Senator, "My comments should not be construed in any way as a statement on individual lifestyles." Especially not those lifestyles that "destory the basic unit of society," right? What a hypocrite.

No less absurd is Bill Frist's statement that "Rick is a consistent voice for inclusion and compassion in the Republican Party and in the Senate, and to suggest otherwise is just politics." Of course, the politics here are actually Frist's. He's not a bigot. But sure as hell isn't going to let the Republicans suffer the same sort of embarrassment they did because of Trent Lott.

At the same time, I don't really agree with Rep. Barney Frank's (D-MA) statment that "This kind of gay-bashing is perfectly acceptable in the Republican Party." Acceptable only in the sense that Bill Frist would rather defend Santorum than sacrifice him to Democratic critics such as John Kerry and Howard Dean. I have no doubt that most Republican politicians recognize the right of homosexuals to full and equal protection under the law, even if many of them harbor private doubts about its morality. What there is now is a struggle between those who want to leave the party's gay-bashing rhetoric behind and those embarrassing few like Santorum who just won't let go.

So enough of all this Santorum bashing. Let's remember the nice things he's said about homosexuals. For example:

"In every society, 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 might be."

Damn. And I was about to propose to Rover.

UPDATE: Unsurprisingly, Andrew Sullivan is all over Santorum, both on his website and in Salon. (0) opinions -- Add your opinion