Along the Tracks

Wednesday, April 23, 2003
 

Santorum clause


The controversy over Senator Rick Santorum’s statement on the Texas anti-sodomy appeal is a little overblown, and aimed at the wrong issue.

Howard Kurtz’s overview of news reports and opinions gives a pretty clear indication the way liberals would like to see this argument go: GOP = anti-gay.

Kurtz jumps in with both feet, saying Santorum’s remark is no different - and may in fact be worse - than Trent Lott’s praise of a segregationist presidential run by Strom Thurmond 50 years ago.

Before everyone hops on that merry sleigh ride, let’s look at what Santorum said, courtesy of the Philadelphia Inquirer:

“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 polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.”

The accusations flying against Santorum accuse him of equating gay sex with incest. The truth, as you can see, is larger than that. Santorum is equating all forms of sexual activity which are not monogamous and heterosexual. It is meant to be one of those “slippery slope” arguments against crossing some legal barrier. This is par for the course for a wide range of social policy advocates - the pro-choice extremists do the same thing with abortion when they claim outlawing the partial-birth procedure will lead to forcing women to wear a burka. Such arguments are usually emotional, and never very convincing.

What they do display is a level of consistency on the part of the person making the argument. Such people believe the issue is very well defined, and base their support or opposition on that strict definition. Santorum’s definition of “proper” sexual activity is limited to acts between a man and woman inside of marriage. His definition may be even more strict, concerning specific acts, places, use of contraceptives, etc., but for our discussion here, that is not relevant.

Where Santorum runs into trouble is not so much his moral viewpoint, with which a substantial minority of Americans probably agree, but in attempting to apply it as a legal standard (in Salon, Andrew Sullivan makes this same point). The “right to privacy” is a construct woven by drawing together several threads in the Constitution and Bill of Rights. Many conservatives remain opposed to this “right” even after 30 years of case law - and their justifications are in many ways compelling. That, however, is a fairly involved argument to make, while the “slippery slope” position is easily understood, especially by those who agree with it.

Nevertheless, this morally consistent “slippery slope” exposes legal inconsistencies which negate its conclusion. In particular, putting “adultery” in the list - which it certainly has to be, based on the definition of acceptable sexual activity we infer Santorum is using - destroys the “hold the line” position. Adultery is legal (lying about it in court is not, but that is a different posting!). And unless Santorum is advocating rolling back 350 years of post-“Scarlett Letter” legislation and case law, its very acceptance endorses the more general argument that all adult, consensual sexual activity is legal in non-public environments. This standard maintains proscriptions against bigamy/polygamy (no legislative recognition of multiple partners), incest, pedophilia and statutory rape (lack of consent and age of consent).

However, all marital and non-marital, consensual sex between adults must be considered legal (if not moral) according to this standard. Thus, when the Supreme Court rules on the Texas anti-sodomy law, it will abolish such legislation - if it is consistent with previous court rulings and legislative actions.

Getting back to Santorum’s political trouble, I think Andrew has it right: The issue really isn’t Santorum’s slight of homosexuals and adulterers. The issue is whether Santorum really believes the power of government should be used to enforce strictures on adult, consensual activity behind closed doors. And as Andrew writes, this split is really inside the Republican Party, not between the GOP and Democrats.

All in all, I’m not so sure Santorum needs to apologize for his statement or his position; rather, I think limited-government conservatives and libertarians within the Republican Party need to decide if they really want Santorum pushing his point of view from the No. 3 post in the Senate.


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