There are a couple of points about the Santorum controversy that are worth re-examining. The first is his problem with the Constitutional right to privacy. As I said yesterday, this is a perfectly respectable position, and one with which I have some sympathy. My preference would be for Texas voters to throw out this invasive and discriminatory law. My second choice would be for the Court to strike down the law on the grounds of equal protection, in as much as it criminalizes the same “offense” for one group of people (gays) but not for another (straights). But as a simple matter of constitutional fact, the right to privacy is very well entrenched. More to the point, one critical precedent for it, as Santorum concedes, is the Griswold ruling, protecting couples from state interference in their use of contraception. Now what is the real difference – in Santorum’s moral universe – between contraception and non-procreative sex, i.e. sodomy? I don’t see any myself. From a Catholic viewpoint, they are morally indistinguishable. So the question emerges: if Santorum believes, for religious reasons, that people should be jailed for private gay sex, why does he not think people should be jailed for the use of contraception? If his goal, for civil reasons, is “strong, healthy families,” then contraception might even be more problematic than gay sex. It actually prevents heterosexuals from forming families at all. Does Santorum therefore endorse making contraception illegal? Would he allow the cops to police this in people’s bedrooms? Will anyone ask him these obvious questions? Of course not.
SLIPPERY, SLIPPERY: The second issue is whether his point about a “slippery slope” from non-procreative sex to incest to polygamy, and so on, is valid. Where do we draw the line in policing private sexual behavior? My golden rule in matters of limited government is an old and simple one. It is that people should be free to do within their own homes anything they want to, as long as it is consensual, adult and doesn’t harm anyone else. Bigamy and polygamy are therefore irrelevant here. Bigamy means being married to more than one woman; polygamy, likewise, means being married to more than two women. There’s nothing inconsistent between saying you don’t want such marriages to be legal (I don’t) and also saying that what people do sexually in their own homes should be their own business, and not the government’s. Do I think it should be a crime for a man to have sex with two women at once? Or an orgy? Nope. It’s none of mine or the state’s business. And that applies to having live-in long-term girlfriends, or any other type of consenting private relationship people might want. The only relevant issue is if a child – an involuntary participant in this private set-up – is the result of such relationships, in which case, we have another party involved, who might be harmed in some way. (This is also, for many, the issue with abortion and privacy.) That changes the equation, and makes some state interference defensible. Incest is more complicated, but it also fails the test because it involves the possibility of a child, in this case subject to physical problems as well as severe emotional ones. What these cases show is that the state’s interest in policing private sex should only be related, and then only at some considerable distance, to the protection of children. But all this shows is that the case of private gay sex is perhaps the relationship that the government should be least concerned about. Why? Because it’s the one least likely to involve children. In fact, as a sexual act, it’s the only one that will never lead to children. So why, one wonders, is it the relationship that Santorum most wants to police? Hmmm.
CRIMINALIZING ADULTERY? Now let me turn the slippery slope argument around. Santorum argues that I should be jailed for having private consensual sex with my boyfriend in my own home. (He lets it slip at the end of the interview when he says: ” If New York doesn’t want sodomy laws, if the people of New York want abortion, fine. I mean, I wouldn’t agree with it, but that’s their right…” [My italics.]) Why does he believe this? Because, somehow, my relationship prevents others from forming “strong, healthy families.” I have no idea how my relationship has such a bad effect on others – but leave that for a moment. If that is the criterion for the government to police our bedrooms, then why should not adultery be criminal? It has a far, far more direct effect on “strong, healthy families”. It’s far, far more common than gay sex – hurts children, destroys families, wounds women, and on and on. To argue that gay sex should be illegal but adultery shouldn’t be, makes no sense at all. Again, Santorum must be asked if he believes adultery should be criminalized. Will anyone ask that? Not on Fox News.
The Dish 