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.
CLEARCASE_GUY RESPONDED: "Exactly so. And I don't see why everyone has to focus on sex. Is unlicensed surgery between consenting adults a private matter? Gambling? Drugs? Just because you do something in the privacy of your own home does not mean that society no longer has an interest. This whole privacy thing REALLY throws out all the rules."
You are exactly right, William McKinley and ClearCase_Guy.
The WHOLE POINT is that just because you do something "in the privacy of your own home," DOESN'T MAKE IT LEGAL!
Which gets back to the point that the legislature is the proper place for such risk and value measures to be weighed and debated. Not the courts.
How do you enforce it without bedroom police?Now we are into discussing the utility and practicality of the law, which is fine. That is a legislative question, and the purvey of the legislature of the states to decide. This is not a matter for the courts to decide.
I'm not suggesting that we can ever truely legislate morality, or even that we should. A major premise of Christianity is "free moral agency," or the responsibility of the individual to choose of his own free will to follow the teachings of Christ.
As a Christian, I believe homosexual sex to be sinful as are any other sexual relations outside of heterosexual marriage. But because I am a Christian, I treat homosexuals with dignity and with the love of a Savior who loves me in spite of the ugliness of my sin. Yet, there are many people, like myself, who are fearful of the agenda of homosexual activists. We will use every legal means to protect our families and communities from examples of behavior that we honestly believe to be harmful.
Senator Santorum should not apologize for his remarks. Others can disagree with him and attack him, but he must stand his ground. This situation is not like Trent Lott's. This is an argument that deserves to be debated on the merits. Senator Santorum must stand up against political correctness run amuck, and conservatives must stand with him.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.Hypothetical case. Imagine a state where incestual relations between consenting siblings is illegal. Could anyone ever be charged with a crime under such a law, without there being some violation of the 4th amendment? Certainly. Continue the hypothetical to where a gardener witnessed the copulation. So did a neighbor. And a friend overheard them talking about it. Witness testimony, no need for any searches or seizures or cameras in the bedroom.
Same hypothetical. Does the law in question violate the 5th amendment?
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.Nope, still doesn't.
Heroin use is illegal. If one does it in one's home, is that constitutionally protected? Nope. That right to privacy does not exist. Do we need bedroom cameras to ensure someone isn't shooting up in there? Nope. The Constitution prevents the state from doing things like that or from busting in at random to check. The Constitution does not prevent the government of a state from making the act illegal.
But that is why it was a non sequitur. That isn't what the issue is here, nor does it follow logically from what is being discussed.
The judiciary is merely supposed to ensure that the constraints on the legislature as described in the Constitution are being adhered to. Nothing more, nothing less.
2) What a great thread this has been in the debate of logic and constitutionality.
3) I love FreeRepublic.com
Mark
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