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.