A nifty rhetorical trick (SANTORUM IS RIGHT)

This was the week that Democrats in Washington had been awaiting since last November's elections. The end of war in Iraq was supposed to mark a return to "normal" politics, permitting an airing of long-neglected economic and social issues and allowing Democrats to press what they assumed would be their natural advantage. But a bizarre spat over gay rights that has obsessed much of Washington in recent days indicates that America's domestic policy, like its foreign policy, may be following new rules.

The controversy started with Rick Santorum of Pennsylvania, who is the third-ranking Republican in the Senate. Mr Santorum is rightwing (he took his seat in the Newt Gingrich landslide of 1994), faintly absurd (he used to work as a lobbyist for the World Wrestling Federation), and unloved ("Santorum?" Bob Kerrey, the former Nebraska senator once remarked. "Isn't that Latin for asshole?") Interviewed about family values by the Associated Press, Mr Santorum alluded to a case now being argued before the US Supreme Court. In Lawrence v Texas, gay-rights groups are seeking to overturn Texas's laws against homosexual sodomy. Texas is one of only four states with such laws still on the books, and Mr Santorum rose to their defence. "If the Supreme Court says that you have the right to consensual sex within your home," he said, "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."

In any western democracy at any moment over the past decade, to invoke homosexuality and incest in the same breath would have had a predictable sequel. First, denunciation for insensitivity. Second, grovelling apologies accompanied by claims of misquotation. And finally, punishment of the sort meted out to Trent Lott, the former Senate Republican leader, in December (after he expressed nostalgia for Southern segregation) and to Jim Moran, a Democratic congressman, in March (after he alleged that the US had been led into war by the machinations of powerful Jews).

The denunciations duly came. Barney Frank, a gay Congressman, accused Mr Santorum of "outright bigotry". The Democratic Senatorial Campaign Committee called on Mr Santorum to resign his leadership post. David Smith, a lawyer for the gay Human Rights Campaign (HRC), which had filed an amicus curiae brief in the Lawrence case, complained that "putting homosexuality on the same moral plane as incest is repulsive".

But there the story line faltered. Mr Santorum did not apologise or claim that he had been misquoted. So far, there is little sign that his job is in danger. There are even indications that he is winning the argument in the eyes of the public, as Will Saletan, the left-leaning political correspondent for the online magazine Slate was first to remark. The HRC, Mr Saletan noted, had a hard time distinguishing homosexuality from other consensual conduct on neutral principles. It resorted instead to moral claims. The group argued, for instance, that the state has a "compelling interest" in preventing incest, but was unable to say what that interest was. "I think Santorum is wrong," Mr Saletan concluded. "But I can't explain why, and so far, neither can the Human Rights Campaign."

As a result, the attacks on Mr Santorum sounded sanctimonious. The Democrats' best-funded presidential candidate, Senator John Kerry, said: "Every day in our country, gay and lesbian Americans get up, go to work, pay their taxes, support their families and contribute to the nation they love." But so do countless prostitutes and (in the south-west, at least) a good number of polygamists.

Mr Santorum's arguments are rooted in an unfortunate quirk of American constitutional development. Alone among major democracies, America lacks comprehensive abortion legislation. Congress has been too cowardly to take that bull by the horns. Instead it has a Supreme Court precedent, Roe v Wade, which relies on a controversial "privacy-rights doctrine" advanced in the 1965 Griswold birth-control case. Many subsequent claims to sexual rights have been advanced under the privacy rubric, and the campaign against Texas's sodomy laws is one of them. As the HRC's brief puts it, "We think it manifestly clear that Texas's sodomy law infringes on a fundamental right shared by the entire community, the right to be free from governmental intrusion into, and criminalisation of, private sexual relations between consenting adults."

In embracing the privacy doctrine, the HRC fell into a trap. Whether someone wants to create a moral hierarchy of sexual comportment - one that would place homosexuality above, say, incest - is constitutionally speaking off the point. The Supreme Court has consistently used the privacy doctrine to shield sexual rights from moral criticism; all that matters under the privacy doctrine is consent. Mr Santorum took exquisite care to respect this distinction. "Not to pick on homosexuality," he explained. "It's not, you know, man-on-child, man-on-dog, or whatever the case may be."

What a nifty rhetorical trick! Homosexuality is indeed in a different category from sex with children and animals. But, as Mr Santorum implied, it falls in the same category as many disreputable forms of sex such as prostitution, incest between adults, and polygamy - all of which are consensual. His argument was the one now being made by defenders of Texas's sodomy laws: the Supreme Court cannot open the door to gay rights without establishing other rights that Americans would find repugnant.

A question remains: if these conservative arguments are so constitutionally strong, why has it taken until now for a conservative politician to make them? It is tough to say. It could be that Mr Santorum is just a brave, or reckless, man. It could be that following President George W. Bush's successful war, Americans are extending their indulgent good feeling to his entire party, even its right wing. Or that, energised by war, they are simply airing an abiding national discomfort with homosexuality, which 55 per cent consider "morally wrong", according to Gallup. Whatever the cause of the change, Democrats must feel rather like Balzac's Colonel Chabert, trudging back from war to declare he is still alive, and finding that no one wants to hear it.

But, as Mr Santorum implied, it falls in the same category as many disreputable forms of sex such as prostitution, incest between adults, and polygamy - all of which are consensual

Precisely.

What is the argument that allows prostitution to be criminalized? Incest? Polygamy?

If it is "fear" of the larger society being harmed in some way, then the same rationale should apply to homosexuality.

If it is "demonstration" of types of harm to the greater society -- medical costs, welfare costs, biological costs, social costs -- then the same rationale should apply to homosexuality.

If there is a demonstrable danger to the general welfare, then there is a rationale for controlling the behavior.

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