Posted on 04/24/2003 7:31:58 AM PDT by William McKinley
This week, the Associated Press published an interview with Rick Santorum, the third-highest ranking Republican in the U.S. Senate. Referring to a pending case involving sodomy laws, Santorum argued, "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."
David Smith, the communications director of the Human Rights Campaign, the nation's leading gay rights organization, accused Santorum of "disparaging an entire group of Americans." "He's advocating that a certain segment of American society be disavowed from constitutional protection," Smith charged. "The outrageous thing … is he put being gay on the same legal and moral plane as a person who commits incest. That is repugnant in our view and not right."
Why not?
Let's leave adultery and polygamy out of it for the moment. Let's set aside morality and stick to law. And let's grant that being attracted to a gender is more fundamental than being attracted to a family member. Santorum sees no reason why, if gay sex is too private to be banned, the same can't be said of incest. Can you give him a reason?
The easy answer—that incest causes birth defects—won't cut it. Birth defects could be prevented by extending to sibling marriage the rule that five states already apply to cousin marriage: You can do it if you furnish proof of infertility or are presumptively too old to procreate. If you're in one of those categories, why should the state prohibit you from marrying your sibling?
On Wednesday, I asked Smith that question. "We're talking about people; they're talking about specific acts," he said. "It has nothing to do with these other situations that are largely frowned upon by the vast majority of Americans." Is being frowned upon by the vast majority of Americans an acceptable standard for deciding which practices shouldn't be constitutionally protected? "It's not part of the discussion," Smith replied. I asked whether it was constitutionally OK for states to ban incest. "Yes," he said. Why? "There's a compelling interest for the state to ban that practice," he said. What's the compelling interest? For that, Smith referred me to HRC General Counsel Kevin Layton.
Layton pointed out that laws against incest "already exist side by side" with the Supreme Court's current right-to-privacy doctrine. From this, he inferred that the doctrine doesn't cover those laws. But laws against gay sex also exist side by side with the privacy doctrine. If coexistence implies compatibility, then Santorum wins on both counts: States can ban incest and gay sex.
I asked Layton whether states should be allowed to ban incest. "They have a right to do that, as long as they have a rational basis," he said. Do they have such a basis? "It's not my point to argue what a state's rational basis would be for regulating cousin marriage," Layton replied. "The only way the court's decision in [the sodomy] case would go down the slippery slope to incest is if legally they were the same thing, which they're not." Why not? Essentially, Layton reasoned that it isn't his job to explain why incest and gay sex are different. It's Santorum's job to explain why they're similar.
But HRC's own arguments hint at similarities. Like Smith, a defender of brother-sister incest could accuse Santorum of "disparaging an entire group of Americans" and "advocating that a certain segment of American society be disavowed from constitutional protection." In its brief to the Supreme Court in the sodomy case, HRC maintains that "criminalizing the conduct that defines the class serves no legitimate state purpose," since gays "are not less productive—or more dangerous—members of the community by mere dint of their sexual orientation." They sustain "committed relationships" and "serve their country in the military and in the government." Fair enough. But couldn't the same be said of sibling couples? Don't laugh. Cousin couples are already making this argument.
I'm a lifestyle conservative and an orientation liberal. The way I see it, stable families are good, homosexuality isn't a choice, and therefore, gay marriage should be not just permitted but encouraged. Morally, I think incest is bad because it confuses relationships. But legally, I don't see why a sexual right to privacy, if it exists, shouldn't cover consensual incest. I think Santorum is wrong. But I can't explain why, and so far, neither can the Human Rights Campaign.
But it would be done "in the privacy of their OWN home." So it couldn't be illegal, right?
You have just MADE the POINT of Santorum's statement!!!!! Just because something is done "in the privacy of your OWN home," THERE CAN STILL BE A LAW AGAINST IT!!!!!
Thank you for making Santorum's (and my) point.
What my wife and I do with Mr. Winky, in the privacy of my own home is none of your business. Never has been, never will be. You seem awfully sure that you have the ability to control what other people do with their Mr. Winkies. Is it envy? Jealousy? Or an overwhelming need to feel important? This article is not about abortion, at home surgury, drugs, or anything remotely linked to these topics. It's about adults doing things with their genitalia that are simply none of your business. If you don't want to participate, fine. But, the gov't can keep the heck out of my bedroom.
No one mentioned the ages of those involved.
Murder *usually* involves that. Would Hodar support making it legal for a sadist to kill a masochist "in the privacy of their own home?"
After all, such a scenario meets the criteria of consent and of privacy. And, as usual, the progressives have no answer.
Thank you for illustrating that point. You seem to equate sodomy with murder. Funny isn't it? Sodomy equals murder? Please take your medication, as these two are no more equivalent than sexual intercourse and murder, or posting inane comparisons and murder.
But didn't he say that if gays can have sex and not get arrested then incest (among others) should be 'legal' too?No, that's not what he said.
What he was talking about is the legal foundation for such laws. He said nothing about what should or should not be legal.
If the Supreme Court finds that there exists a right to privacy in the home that means that sodomy laws must be thrown out, then the same ruling would mean the end of all those other laws, since they have the same legal foundation.
Obviously, he thinks that would be a very bad thing, which is why he is making the argument that striking down the legal foundation for the sodomy laws would be a very bad thing.
You might want to read this article if you haven't, because the author actually examines the very point Santorum is making, and concedes that Santorum's point is not easily answered.
As for your point that if sodomy is considered legal the others will be, that is very close to what he is pointing out. He is pointing out that if the legal foundation for sodomy laws is declared unconstitutional, then those other laws can be successfully challenged as well since they rely on the same foundation.
As for incest, many (if not most) states have laws against incest.
Because my sister can't keep a secret. just kidding
Now that is damn funny. I nominate it for quote of the day!
What you seem to be reading is that he said 'if there is a right to gay sex within the home, then there is a right to bigamy, polygamy, adultery, and so on'. But what he said was 'if there is a right to consensual sex [by anyone] within the home, then there is a right to bigamy, polygamy, adultery, [and sodomy]'.
The legal underpinning for each type of these laws regarding the limits on sexuality is that the state can write legislation regarding sexuality. The case in question challenges that foundation, and if it succeeds any such laws are vulnerable to the same legal challenge.
It is a fine distinction, but an important one.
Yup, just like they used to have laws against "sodomy".
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