I have to wonder if ascending to a leadership post in the Senate requires contracting Tourette’s syndrome. The latest moron: Rick Santorum (R-PA), whose attitude toward homosexuality is (and I quote, believe me I wish I was making this shiz-nit up):

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 most charitable interpretation of this quote (which apparently refers to the Supreme Court’s upcoming case that might overturn the unfortunately-named Bowers v. Hardwick, Lawrence v. Texas—no relation) is… scratch that, there is no charitable interpretation. The dude’s a moron, or high, or something. Compare this made-up quote:

If the Supreme Court says that you have the right to drink alcohol within your home, then you have the right to do blow, you have the right to deflower virgin cheerleaders, you have the right to drink bongwater, you have the right to sunbathe naked on your front lawn. You have the right to do anything.

It makes about as much logical sense. Possibly more.

James Joyner has more; he finds a bit more logical consistency in Santorum’s statement than I give him credit for.

You can read a more benign intent into the quote from the more recent article that most have linked from; however, the original wire story (linked above) puts a bit more context around it—and Santorum’s definitely staking out a vehemently anti-gay position. Also: Matthew Yglesias, along with most of the blogospheric left, isn’t particularly surprised.

Eugene Volokh thinks it’s a faux controversy. Just to be clear, my objection isn’t so much to the position Santorum stakes out as it is to the choice of activities he implicitly compares homosexuality to. For example, heterosexual sodomy, premarital cohabitation, and the sale of sex toys are sexual acts whose constitutional protection might follow from overturning Texas’ sodomy statute, yet Santorum doesn’t complain about them—even though those acts are considered morally questionable in some quarters and remain technically illegal in certain states, including Mississippi; see e.g. Mississippi Code 97-29-105 (distribution of sex toys illegal—up to a year in jail, plus fines), 97-29-59 (“unnatural intercourse”—up to ten years at Parchman, where presumably more “unnatural intercourse” would take place) and 97-29-1 (cohabitation illegal—up to six months in jail, plus fines).

Via John Cole. A bit of surfing with Lexis-Nexis failed to turn up the original source for this quote; it apparently came directly from an interview with this reporter.

As mentioned previously, Rick Santorum (R-Pa.) has been getting a fair amount of defense from the libertarian parts of blogdom. However, the Left Leaner has dug up the transcript of the interview (via a Feedster search that led me to Atrios—I always knew he’d be good for something), and in some ways it’s even more damning. The actual text of what Santorum says:

AP: OK, without being too gory or graphic, so if somebody is homosexual, you would argue that they should not have sex?

SANTORUM: 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, they undermine 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.

The italicized part is the commonly-excerpted part. The reporter originally added the word (gay) to the statement, but Santorum is clearly coming out here in opposition to the Supreme Court stating that there’s a “right to consensual sex within your home.” Or, to clarify for those who haven’t had my civil liberties lecture, he thinks it ought to be constitutional (syn: legal, permissible) for a state to outlaw sex between consenting adults—any consenting adults.

But wait—it gets better. Let’s continue on the magical mystery tour of Rick Santorum’s constitutional philosophy:

It all comes from, I would argue, 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—Griswold was the contraceptive case—and abortion. And now we’re just extending it out. And the further you extend it out, the more you—this freedom actually intervenes and affects the family. 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. Whether it’s polygamy, whether it’s adultery, where it’s sodomy, all of those things, are antithetical to a healthy, stable, traditional family.

That’s right. Your personal liberty is less important than the government’s compelling interest in creating “strong, healthy families” like Rick’s. (Insert your own joke about social capital and communitarianism here. No offense, Bob Putnam.)

Then it just gets plain weird:

Every society in the history of man has upheld the institution of marriage as a bond between a man and a woman. Why? Because society is based on one thing: that 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. That’s not to pick on homosexuality. It’s not, you know, man on child, man on dog, or whatever the case may be. It is one thing. And when you destroy that you have a dramatic impact on the quality…

AP: I’m sorry, I didn’t think I was going to talk about “man on dog” with a United States senator, it’s sort of freaking me out.

I’m freaked out, and I’m only reading this sludge.

SANTORUM: And that’s sort of where we are in today’s world, unfortunately. 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. And we’re seeing it in our society.

Let’s zoom in on this part: “The idea is that the state doesn’t have rights to limit individuals’ wants and passions.” Chew on that for a while. Now let’s compare and contrast with a different view of what the state’s role should be:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

The fundamental purpose of our government is to secure individuals’ God-given rights to life, liberty, and the pursuit of happiness. Not to decide what people get healthcare, figure out who’s more worthy of an air-conditioned house, or—for that matter—dictate what two consenting adults are allowed to do in their bedroom. Perhaps Sen. Santorum should think about that for a while.

Jacob Levy at the Volokh Conspiracy has more; he’s much less sanguine about Santorum’s comments than Eugene was (although in the latter’s defense, I don’t think Eugene had seen the interview transcript at the time).

Andrew Sullivan makes the same point in the midst of flooding the zone on Santorum. The sad thing is that if Santorum were talking about economic policy in the same terms (hypothetical: the state ought to have the right to limit people’s income to $100,000 per year), the usual suspects on the left would be cheering him on… which nicely dovetails with Eugene Volokh’s point here about why libertarians can’t be Democrats either.

Radley Balko (The Agitator) is equally unimpressed—and by that, of course, I mean thoroughly disgusted with the illiberal bullshit coming out of Santorum’s mouth.

Apropos of the Massachusetts Supreme Court’s latest salvo in the Bay State’s same-sex marriage war, I suppose I should have something to say about the topic.

From a sort of policy-wonkish point of view, I tend to agree with Steven Taylor that it’s probably going to affect the presidential campaign in all sorts of nasty ways—not just because it raises the stakes by virtually ensuring there will be a DOMA challenge sometime during the election season, but also because it makes the ongoing judicial nominations battle even more intense, especially since this natural court* is waaaay overdue for someone to either retire or kick the bucket.

From the point of view of being someone who believes in democratic accountability, the idea of four justices in Massachusetts deciding the issue of same-sex marriage—based on their own state constitution alone, mind you—for the rest of the country is profoundly disturbing. The comparison to Loving v. Virginia (388 US 1; 1967) doesn’t wash, because that case was a decision reached by the U.S. Supreme Court. In practice, of course, much economic regulation is carried out this way—the product liability standards of the most plaintiff-friendly jurisdiction in Mississippi are de facto the product liability standards of the nation. That doesn’t mean I have to particularly care for its extension into other areas of law.

On the other hand, though, there’s a great deal of legislation that is outmoded, overly intrusive, or downright pure garbage on the books—and legislatures full of spineless creatures who are loath to stand up to excise these laws from the statute books. Sure, they could do the right thing and repeal Mississippi’s idiotic law that makes cohabitation by unmarried couples illegal (you can go to jail for six months), but why risk grief from Donald Wildmon and his dwindling band of morals police? These laws may be “uncommonly silly,” to borrow from Justice Thomas’ dissent in Lawrence v. Texas, but that silliness was obviously not evident enough to the Texas legislature for that state’s sodomy statute to be repealed. And, in the meantime, people go to jail or are fined on the basis of a law that most observers would concede is “uncommonly silly.” Ends do not justify means, but neither do means inherently justify ends.

Now, unlike the aforementioned cohabitation statute, or Texas’ sodomy statute, prohibitions against same-sex marriage are not necessarily “uncommonly silly.” They may not even be silly. If you’re someone concerned about the free association and free exercise rights of coreligionists, you might reasonably conclude that legalization of same-sex marriage might soon lead to judicial requirements that a church perform the sacraments of marriage for same-sex couples, even if such sacraments would be contrary to its doctrine. Marriage remains an important institution to millions of Americans; for every Britney Spears or J-Lo who makes a mockery of the institution, there are thousands of responsible, but sometimes imperfect, people who make their best effort to uphold it. It is not an institution to be altered lightly.

Nor do I personally find outcome-based arguments in favor of (or for that matter, in opposition to) same-sex marriage persuasive. As a matter of principle, I believe fundamental liberties should not be subject to cost-benefit analysis. Questions of whether gay marriage will “civilize homosexual men” or lead to higher divorce rates miss the point.

In the end, I don’t have an easy answer. My gut feeling, proponent of individual liberty that I am, is that if two people want to be married and they are consenting adults, that’s just fine with me. But I can see where reasonable people can differ, and I don’t know what I could say to make them think differently.

John “Don’t Call Me Juan” Cole notes that the ACLU is challenging a 1805 North Carolina statute forbidding cohabitation by unmarried couples in court. For those considering living in sin elsewhere, the Tar Heel State is not alone in its opprobrium toward cohabitors:

North Carolina is one of seven states that still have laws on the books prohibiting cohabitation of unmarried couples. The others are Virginia, West Virginia, Florida, Michigan, Mississippi and North Dakota.

As a longtime opponent of such “uncommonly silly” laws, I offer the ACLU my unqualified support in this matter.