OP-EDS

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April 29, 2003

Santorum I: Privacy violated

In an AP interview that has now become somewhat infamous, Senator Rick Santorum complained about the possibility of a Supreme Court decision overturning anti-sodomy laws. "If the Supreme Court says that you have the right to consensual sex within your home," he said, "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."

That comment, and some later comments about bestiality, clearly unsettled his interviewer, whose next response was "I'm sorry, I didn't think I was going to talk about 'man on dog' with a United States senator, it's sort of freaking me out."

Santorum's homophobia is wrong, and there is no excuse for it. If you agree with me that homosexuality is not a sin, and you vote in Pennsylvania, then don't vote for Santorum when he comes up for re-election. It's that simple.

Some of his defenders have argued that since Santorum's religious beliefs mandate that homosexuality is wrong, he ought not be challenged for espousing them. They say that vilifying his beliefs would disqualify many serious Christians from holding office.

I'm not convinced. Our society has to recognize a difference between sin and sanctioned conduct. I have a friend whose religion forbids eating shellfish, but he has never lobbied to criminalize oyster-eating. The 9/11 hijackers were religiously motivated too. Clearly the ground rules of constitutional democracy require that some basic rights come before religion. We can argue about whether privacy ought to be one of those rights, but religious belief is not a political trump card. Even if the Constitution does not mandate it, a division between religious sin and criminal law is necessary for our society.

Santorum's remarks are not particularly shocking. Like it or not, the debate over the status of homosexuals has broken down along party lines. Those few vocal gay advocates who try to cross the aisle (like conservative pundit Andrew Sullivan) often find themselves estranged and alone, unable to find gay allies or conservative ones. Santorum's remarks represent a frighteningly large constituency in the country, and--on this score--it's a constituency that must be fought.

If the Constitution tells the government to get out of the bedroom, great. Where consenting adults in private are concerned, it's nobody's business what they do. But while many people embrace this libertarian principle for themselves, they are more hesitant to extend it to other disfavored groups.

The outrage against Santorum hasn't just been against his homophobia but against the fact that he dared compare homosexuality to other uncommon sexual practices. There's something a little hypocritical about the rush on the left to distance the constitutionality of homosexuality from polygamy and adultery. It is understandable--gay-rights advocates don't wish to squander their precious political capital fighting for groups even less popular than they are. But as a constitutional matter, Santorum is probably right: taken to its logical legal conclusion, a right to privacy that protects homosexual intercourse might protect consensual adult incest. And well it should.

Santorum's remarks also attempted to blur the line between consensual and non-consensual sex. In a single breath he likened consensual sodomy to bestiality to proscribable pedophilia. This is a mistake. But there has been little attempt by Santorum's critics to differentiate sex between adult, consenting cousins from sex between father and daughter. His critics should not commit his error.

Privacy's a great thing. If it's wrong for the government to criminalize your sex life (within the bounds of consent and adulthood) then it's wrong for the government to criminalize your neighbor's sex life, no matter how special you think your own sexual practices are. I think incest and polygamy and necrophilia are decidedly creepy. If you think so too, then don't do them. You don't even have to talk to people who do. But don't throw them in jail unless somebody is actually hurt.

The right to sexual privacy is not the sole province of mainstream and marginal groups. It should be extended even to those poor souls with no group whatsoever to protect them.