IGF CultureWatch

THERE ARE TWO THINGS all reasonable people can agree on. First, Democrats are better than Republicans on gay issues. Much better. Even when you find a gay-friendly Republican, his Democrat opponent is almost always better. Wherever there's an anti-gay initiative brewing, Republicans are stirring it. And when something idiotic is said about gays, it almost always comes from a Republican mouth.

The second thing reasonable people can agree on is that we'd be much better off if none of the above were true.

The real question has always been, how do we get from here to there?

One side says we should cozy up to the GOP, work from the inside to undermine homohaters, dispel stereotypes through our open participation in the party, and reward small Republican nods to equality in order to encourage more such progress.

The other side says we should just beat the GOP into submission.

Into this old debate walks Rick Santorum, the third-highest ranking Republican in the U.S. Senate. Ruminating on the constitutionality of anti-gay sodomy laws, Santorum recently told the Associated Press, "If the Supreme Court says that you have the right to consensual [gay] sex within your home, then you have the right to bigamy, you have the right to incest, you have the right to adultery."

Santorum quickly attempted to clarify these remarks, saying in a press release, "My discussion with The Associated Press was about the Supreme Court privacy case, [and] the constitutional right to privacy in general. ... My comments should not be misconstrued in any way as a statement on individual lifestyles."

The first Santorum statement suggests, "Courts will be unable to distinguish between gays and others, like polygamists and adulterers." It is a slippery-slope argument that says, in effect, "We must refuse to make a sound decision today for fear of having to make a sensible distinction tomorrow."

Santorum's second statement implies, "I, however, am personally able to distinguish gays from these others."

Does Santorum really believe that he can make simple distinctions while judges trained in making them cannot? The law is not a completely foreign thing. The kinds of arguments you make to your friends are often made, in specialized language, to courts.

One could persuasively argue to a person of sound mind that gay sex in itself is not socially harmful and so can safely be protected as a "right" against the nosy preferences of other citizens. But polygamy, incest, and adultery are socially harmful and shouldn't be similarly protected as "rights." (That's not to say they should necessarily be criminalized.) Plural marriage in modern times in our country would be unstable and would leave many people without a potential partner to care for and civilize them. Incest threatens to sexualize family relations. Adultery undermines a state-sanctioned and -supported union. And so on. It's not as if judges, unlike normal people, can't understand these arguments.

There's just no excuse for what Santorum said.

So what's the GOP's excuse for him? Critics of the Republican Party have made much of the fact that he could say such things and keep his job. Democrats called it proof that Republicans are all bigots. Indeed, although a handful of prominent Republicans criticized Santorum, most Republican leaders offered at least tepid support. Through his spokesperson, President Bush belatedly called Santorum "inclusive."

Still, the GOP is improving, incrementally. It's noteworthy that no Republican leader (other than the execrable Tom DeLay) has endorsed the substance of Santorum's actual comments, as opposed to defending the man's political position. I suspect they privately think his comments were ill-advised but were loath to lose a second top Senate leader over casual remarks in the space of six months.

The White House has taken no public stand on the pending Supreme Court sodomy case, though it could have, and in earlier era would have. While Bush doesn't have the gay-rights zeal of a PFLAG parent, he's done some positive things, like hiring openly gay people and retaining an executive order banning anti-gay discrimination in federal employment. The only people critical of him for this within his party are religious conservatives. Bush needs their support to win re-election and he's doing about as much as he can on gay issues without completely alienating that political base.

So how does the Santorum controversy affect the old debate about strategy between gay Republicans and gay GOP-bashers? The fact is, not much, because it doesn't alter two basic truths.

Both sides ignore that what is moving the Republican Party in the right direction more than anything else is a culture that's evolving to accept gays. The pace may seem slow but the overall direction has been one way. We might be able to nudge the party a little faster through one method or another, but whatever we do the GOP can't forever stay mired in a discredited past and hope to win elections in the future.

The other thing both sides ignore is that there is room for both strategies. We needn't put all our eggs in one political basket. Those of us who generally favor less regulation, lower taxes, and a strong national defense should stay and work inside the GOP, despite these occasional troglodyte eruptions. Those gays who favor "social justice" and worldwide peace through marches should throw stones at the GOP, despite gradual improvements.

Some see these divergent strategies as evidence of "division" when we need "unity." I say it's smart politics.

First published April 30, 2003, in the Chicago Free Press.

IN A LONG APRIL 7 INTERVIEW, U.S. Senator Rick Santorum (R-Pa.) told the Associated Press he supports sodomy laws criminalizing homosexual sex and that if the Supreme Court ruled that sodomy laws violated a Constitutional right to sexual privacy, "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."

Not that I want to prejudice you, but does the term "raving loony" come to mind?

It is worth pointing out first of all that by supporting sodomy laws, Santorum seriously believes homosexuals can and should by required to live as lifelong celibates. Now if anyone dared to suggest that all heterosexuals should lead sexless lives - reproducing, say, by artificial insemination - the idea would be laughingly condemned as preposterous, physically impossible, and deeply offensive. Not even all Catholic clerics manage to live chastely - although they promise to do so, whereas gays never promised that to anyone. Yet Santorum seriously wants to require this for gays.

Homosexual acts are wrong, Santorum goes on to say, because "society is based on the future of the society. And that's what? Children. Monogamous relationships. In every society, the definition of marriage has not ever to my knowledge included homosexuality."

So many errors, so little time! No doubt society's continuance depends on some people having children, but not everyone need have two or more children, only a majority - or else old maids would be jailed, families with only one child would be fined, and celibate religious orders would be banned as criminal conspiracies. In any case, worldwide the risk is overpopulation not the continuance of society.

Nor is there any evidence that decriminalizing sodomy increases the number of gays or decreases the number of babies. Birth rates fall, as in post-war Europe, because heterosexuals decide to have fewer children, not because there are any more homosexuals. Moreover, as psychologist C.A. Tripp points out in "The Homosexual Matrix," societies with high rates of homosexuality frequently have high birth rates as well.

Santorum is right that no legal definition of marriage has included "homosexuality," but the issue is not gay marriage but decriminalizing sodomy. Many states have managed to decriminalize sodomy without instituting gay marriage. So arguing against gay marriage raises an irrelevant issue designed to obscure Santorum's utter lack of arguments for preserving sodomy laws themselves.

Santorum tries to claims that if we assert a right to sexual privacy for sodomy, then there is no available argument against a Constitutional right to bigamy, polygamy, incest and adultery. Let's call this the "Cry havoc!" argument. His claim echoes some Supreme Court justices during the Hardwick deliberations that a Constitution doctrine of gay-inclusive sexual privacy has "no limiting conditions." But, like the justices, he is badly confused. Or dishonest.

First off, sexual privacy has nothing to do with bigamy or polygamy. In the absence of laws against fornication, unmarried heterosexuals can already form private sexual liaisons with any number of adults of the other sex.

But the legal definitions of bigamy and polygamy involve having two or more legal, state recognized relationships, with their attendant legal rights and entailments. That removes bigamy and polygamy from the realm of private sexual conduct into the realm of public (state) approval. Ending sodomy laws gets rid of state involvement; multiple-partner marriage requires state involvement.

As for incest or adultery, most people agree that governments have the right or obligation to prevent specific discernible harms to non-consenting parties. It is one of the few legitimate tasks of government. That is an easily recognizable "limiting condition."

To the extent that incest involves the sexual exploitation of minors or the abuse of authority, governments can legitimately prohibit it. Although laws against adultery seem on the decline and are seldom enforced, adultery may involve harm to the non-participant spouse. To that extent, governments can provide for remedies.

But Santorum goes beyond denying sexual privacy for gays to deny all sexual privacy, including sexual privacy rights already asserted by the Supreme Court, including abortion, the use of birth control even by married couples, and, arguable, the private possession of pornography (primarily used for masturbation).

For Santorum, there is "no limiting condition" to the reach of state intrusion and any sort of privacy goes out the window entirely: "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" (the birth control case). So what Santorum clearly wishes to do is to read Vatican moral doctrines into U.S. Constitutional jurisprudence.

Santorum, alas, is not alone in thinking citizens have absolutely no rights unless the Constitution or the court states them. But this is to get things exactly backwards. Citizens should have the right to live their lives however they wish free of government intrusion. Governments should not be able to intrude unless they can demonstrate some specific Constitutional right to do so, such as to prevent direct harms to others. And, in this instance, any such right is clearly absent.

Originally appeared April 30, 2003, in the Chicago Free Press. This is a slightly revised version.

THE RECENT FLAP about anti-gay comments made by U.S. Sen. Rick Santorum, R-Pa., is misleading.

Santorum's remarks aren't just heinous because they smear gays and lesbians.

Sure, he did engage in obvious gay baiting, ingenuously comparing gay sex to bigamy, polygamy, adultery and uh, "man on dog."

But that's just garden-variety conservative bigotry. By saying such things, Santorum insured - intentionally or not - that his real agenda would be hidden by the ensuing controversy about whether his comments were anti-gay enough to force him to step down.

Certainly his comments are slurs on gays and lesbians. But he's a religious conservative, so that's not a surprise. What's really shocking is that Santorum didn't attack only gays and lesbians. He attacked every adult woman and man in America.

Because what he really said in that Associated Press interview is that he's against an American right to privacy.

That's right. Santorum wants to peer into your bedroom. Or at least he wants the government to regulate what happens there - whether you're gay or straight.

As Santorum himself says, he has no problems with gays. What he doesn't like is sex, unless it happens with a man, a woman and a wedding ring.

This is what he said to an apparently shocked AP reporter in an April 7 interview published last week, when asked about his views of the scandals that occurred within the Catholic Church:

"Again, it goes back to this moral relativism, which is very accepting of a variety of different lifestyles. And if you make the case that if you can do whatever you want to do as long as it's in the privacy of your own home, this "right to privacy," then why be surprised that people are doing things that are deviant within their own home? If you say, there is no deviant as long as it's private, as long as it's consensual, then don't be surprised what you get...."

But it gets worse. In the transcript of the interview, provided by AP, Santorum then made a reference to Lawrence vs. Texas, the sodomy case currently before the U.S. Supreme Court.

He said, "...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."

I won't get into his fallacy of comparing consensual sex with adultery, etc. But notice Santorum didn't say, "right to consensual gay sex." He said "right to consensual sex." And I don't think it's a slip of the tongue. I think that Santorum, and others like him, really mean it. To them, sex and sexuality in any form other than a rigid husband-and-wife definition is dangerous. If a sexual relationship isn't solemnized by the state or the church (and preferably both) than it has no right to exist.

Since just over half of Americans are married, Santorum is basically saying that the rest of us should be celibate. Not just gays and lesbians - everybody.

As Tom Ferrick, Jr., of the Philadelphia Inquirer, noted in a column, Santorum doesn't like the right to privacy because the Supreme Court has (with a few notable exceptions, like Bowers vs. Hardwick) fairly consistently ruled that an American's right to make his or her own decisions about his or her body and relationships surpasses the religious, conservative impulse to regulate morality.

Hence, abortion is legal, as is contraception. African-Americans can marry Caucasians without fear of fines or imprisonment. Children aren't compelled to attend government schools. People can buy pornography for their personal use. We have much of the personal freedoms we take for granted because the state assumes that Americans have the right to privacy (well, at least the state assumed that before U.S. Attorney General John Ashcroft came along).

Yet Santorum went on to explain that the right to privacy is a dangerous fiction. "It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution," he said.

"...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.... The idea is that the state doesn't have rights to limit individuals' wants and passions. I disagree with that. I think we absolutely have rights because there are consequences to letting people live out whatever wants or passions they desire."

Santorum and other advocates of banishing the right to privacy don't explain how regulating personal, consensual behavior at this level will strengthen families. They just assume it will. They don't see that putting the finer points of individual and family life in control of the state practically ensures unhappiness - and pushes us closer to a dictatorship than to a democracy.

That's why Santorum is frightening. He's not just after gays and lesbians - if he were, maybe enough lobbying, positive contact, and pro-gay polling in his home state would eventually being him around. He's after all of us who want to right to be in charge of our own lives and relationships.