Along the Tracks

Wednesday, April 30, 2003

Santorum’s sharia - revised extended version

From Saturday’s edition of the Bryan Times:

By Paul A. Miller
Leader Enterprise
NOTE: Although in no way graphic, this opinion piece discusses the regulation of sexual activity. Be forewarned.

The intersection of politics and morality can be difficult to navigate. After all, if there is no morality, political disagreements degenerate into squabbles of power and purse, and the unrestricted accumulation of each. If there is no politics, morality becomes singular, directed from above; there is no freedom of conscience.

Balancing freedom (upon which politics is based) with morality (upon which government authority is based) has been a constant theme since the beginning of civilization.

The Founding Fathers sought to establish that balance by rooting political freedom in a fundamental moral principle: All people are equal, endowed with inalienable rights to life, liberty and the pursuit of happiness. Their organizational politics are predicated on a government established with the consent of its members, and limited to activities specified in a charter agreement - the Constitution.

Recently, Pennsylvania Sen. Rick Santorum, the third-ranking Republican in the U.S. Senate, made a rather controversial statement. Unfortunately, the outrage trumpeted in the media over “insulting” aspects of his words glosses over much deeper - and much more troubling - opinions Santorum expressed.

Here is Santorum, in his own words:

“[I]f 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. It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution ....”

First, let’s knock down the most specious legal argument. Quoting the Ninth Amendment to the U.S. Constitution: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In other words, “this right to privacy” does not have to “exist” in the Constitution to be a fully recognized right. The entire purpose of the Ninth Amendment was to avoid the danger that government oppression could occur due to an oversight.

Nevertheless, ignore the privacy rights issue and look more specifically at what Santorum suggests should be regulated: “Consensual sex within your home.” In particular, he points out the very telling infraction of “adultery.” This term is understood to mean consensual, extra-marital, heterosexual activity. The appeal of the Texas anti-sodomy law which spurred Santorum’s statement and his focus on “this right to privacy” (first enunciated to establish the right to use contraceptives) indicate further limits the senator would set on “consensual sex”: non-procreative sexual acts, including use of contraceptives. Consistency in his basic assertion makes advocacy of such limitations inevitable.

The measure by which restrictions against certain activities are deemed reasonable is, generally, that there is a “victim” of the proposed crime. Santorum believes “society” is the victim. How society is victimized by private, consensual sexual activity between adults is hard to quantify, to say the least. A far stronger case could be made against the societal depredations of alcohol, lotteries and “The Bachelor.” Similarly, liberals can (and do) point to corporate power, globalization and the accumulation of wealth in the upper class as “crimes against society.” But time and again, the Constitution halts efforts to impose their will. For a remedy to be legitimized, the “victim” needs a name.

Were Santorum’s sharia to become law of the land, citations, fines, perhaps even jail time would be imposed on all sorts of private, consensual acts - including some within marriages. Police could gain search warrants to enter homes if they discovered, based on drugstore receipts, that the wife was using “the pill.” Frisky young adults caught on private country lanes could be wearing orange jump suits for a week. I’ll spare the reader a recital of potentially criminal acts occurring on one’s own bed; suffice it to say, if the act could not result in a child, it could result in prosecution.

Turn now to the moral question of sin, and the response to it. Santorum’s definition of sexual iniquity is quite justifiable on biblical grounds. The “case law” on this includes both the Old Testament (Torah) and New. The question is: How should the deeply religious respond politically to the sin occurring around them?

This question is more difficult than it may appear. The Law of Moses, which established the original Israeli theocracy, sets clear standards of right and wrong, along with proper punishments for the offenders; most sexual crimes are considered capital offenses - and most non-procreative and non-marital acts are considered sex crimes.

Yet, America is not a theocracy; neither was Israel for most of its post-Babylonian-exile history. The “occupation” governance so typical of the Second Temple period resulted in many different interpretations of the proper understanding of Mosaic law. It was into this mix that Jesus arrived.

There are two stories about Jesus from the Gospels which seem particularly applicable to question of sexual sin and enforcement authority.

First, Jesus told his disciples sin and impurity come from within; actions merely confirm what was already in the heart. Therefore, if one lusts for another in his or her heart, that person has already committed adultery - a sin.

Second, there was the case of a woman, caught in the act of adultery, brought before Jesus by a group of legitimate Jewish authorities. They asked if she should be stoned according to the Law of Moses. Jesus famously said, “Let he who is without sin cast the first stone.” The clear implication was that outside the theocracy created by Moses, morality is a personal issue, answerable to God; public officials (or individuals in general) are not qualified or authorized to claim the political roles of judge and enforcer in cases of sexual transgression.

Morality is important to the social fabric. Moral behavior should be encouraged, immoral denounced - indeed, it should be done from the rooftops. It is the duty of the religious to convince those they see faltering to change their ways. After her accusers left, Jesus told the adulterous woman, “Your sins are forgiven. Go and sin no more.”

However, as He made clear, the state’s power of coercion is too strong to be placed in the hands of morality police. To suggest doing so goes against what He taught.

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