Friday, 25 April 2003

The Santorum Fury

Dan Drezner has caught up with the Santorum debacle today; as usual, he has good points, pithily stated.

TV punditry, on the other hand, seems rather disconnected from what IMHO is the real issue here. Now, granted, as CalPundit says, “virtually every single paragraph has something to shake your head at.” But it’s odd that much of the head-shaking is still directed at the statement produced with the reporter’s inserted (gay) in the most famous quote in the interview, which reads in the transcript as follows:

We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose. Because, again, I would argue, [sodomy] undermine[s] the basic tenets of our society and the family. 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’ve cleaned up the second sentence because it’s fairly clear he’s talking about the act of sodomy, even though the original quote reads “they undermine”—a less charitable interpretation might read it as “[homosexuals] undermine,” but I don’t think a reading in context supports that interpretation; the word “homosexuals” only appears in the reporter’s question, and isn’t even mentioned in this paragraph of his response. But as Glenn Reynolds points out, the quote’s very incoherent.)

He’s clearly talking about “the right to consensual sex” here, not just between homosexuals, transsexuals, bisexuals, or what-have-you, but everyone. Most Americans—whether the Supreme Court thinks so or not—almost certainly think they have such a right. (Of course, most Americans also think they have the right to choose the members of the Electoral College, despite the plain text of the Constitution indicating the contrary, so maybe we should take this argument with a grain of salt.)

Now some of Santorum’s defenders, including those on Special Report with Brit Hume today, have trotted out Justice White’s 5-4 majority opinion in the unfortunately-named Bowers v. Hardwick (478 U.S. 186, 1986), which is the Supreme Court’s controlling precedent in Lawrence v. Texas (no relation). Justice White writes:

And if respondent’s submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road. (195-96)

The statute at issue in Lawrence, unlike that in Bowers, only applies to “deviate sexual intercourse” between individuals of the same gender. It is distinctly possible that the Supreme Court will overturn it on equal protection grounds, as the current justices did in another gay rights case by a 6-3 margin in Romer v. Evans (517 U.S. 620, 1996), without even reaching the “right to consensual sex” question; however, that would not strike down existing state laws like Mississippi’s that do not restrict the statute to a particular gender. But how far-reaching would a “right to consensual sex” be?

  1. Adultery and pre-marital sex would almost certainly have to be legalized. However, statutes against these acts, like those against heterosexual and homosexual sodomy, are basically unenforced, so the practical impact of this right on legislative authority would be minimal.

  2. Incest among sterile adults would probably be protected by the right. However, incest involving minors would almost certainly not be (a law prof would have the citations to cases); the same goes for statutory rape laws. Forbidding incest involving the possibility of procreation among adults would be more problematic with a “right to consensual sex,” but I’d imagine it’s doable as a public health issue.

  3. Polygamy (including bigamy), as distinguished from polyamory, involves more than a “right to consensual sex.”

Of course, the scope of this “right” largely depends on how broadly the Supreme Court decides to draw it and what sort of scrutiny they want to employ. My gut feeling is that the Griswold and Stanley lines will be augmented with Romer to produce a fairly narrowly-drawn decision that focuses on the 4th Amendment interest in personal privacy in one’s home, while arguing that the strict scrutiny standard applies as much to that 4th Amendment interest as it did to the 1st, 14th, and 15th Amendment interests at stake in Romer. It may open the door for challenges against laws like those Santorum cites, but I doubt the Court will go beyond the Texas statute in the case at hand.

Radley Balko has a spirited defense of the 9th Amendment that basically reflects my own views on the matter. And Pieter at Peaktalk points out the sticky position George Bush is in:

The GOP has to maneuver very carefully here in order to ensure that as many people as possible stay under the Republican umbrella and going out to bat for gay Americans just does not make electoral sense at this point in time. Yet, Bush may have lost some valuable voters over this issue and he will need to mend some fences over the next few months otherwise this issue will come back to haunt him during the campaign trail. By not disapproving Santorum’s comments, Bush will open himself to criticism that he believes that the government does have a role to play in people’s private lives and that may cost him more than just a few gay votes.