Jumping To Conclusions

I suspect it's not very hard to find people who agree with Senator Santorum. I don't agree with him or the law in this case, but that doesn't change the fact that it is the law in a number of states, it's been on the books for a long time, and it's been upheld by the courts before.

While I haven't read Santorum's quotes in detail, I think he's voiced what is really the only [somewhat] logical defense of such laws. Since they're still on the books, either a lot of people agree with him, or else they just haven't thought about it, or else they're anti-gay and not ashamed to admit it.

What Santorum said is totally logical. Either acts of consentual sex in private are protected by the constitution, or they are not. In the former case, the sodomy laws would have to go, but so would, for example, laws against incest. In the latter case, the anti-sodomy law would have to be upheld.

The point he was going for here, that laws against incest, polygamy, and whatnot are obviously appropriate, I happen to disagree with. But the larger point remains valid.

I'm no lawyer, but I've read the constitution and can't find anything that protects the right to private consentual sex. Neither could the dissenting supreme court justices in all of the relevent cases. So I'm in the latter camp. But I'm still against sodomy laws. (Likewise, I'm pro-choice but disagree with Roe v Wade.) In a democracy, policy should be decided by voters and legislation, not courts. The Supreme Court should only rule against unconstitutional laws, not bad laws. As Santorum said in the same interview:

"I would put it back to...the democratic process. If New York doesn't want sodomy laws, if the people of New York want abortion, fine.... But I don't agree with the Supreme Court coming in."

http://www.sfgate.com/cgi-bin/article.cgi?file=/news/archive/2003/04/22/national1737EDT0668.DTL

Yes, what he's saying jives with the law as it stands. Sodomy laws may be Constitutional--I've never really studied Constitutional law so I don't know.

But the thing is, he thinks these laws are a good thing, regardless of whether they're Constitutional or not. If they weren't Constitutional, he'd want to change the Constitution. He thinks that private, homosexual sex between consenting adults represent a threat to the family and "the fabric of our society" that heterosexual sex does not.

He thinks that if you allow homosexual sex between consenting adults, it would be inconsistent to ban bigamy, polygamy, incest, and adultery--even though it's very clear that there are direct, third-party victims in those latter cases that you do not have in the case of homosexual sex. That is where, in my opinion, he is being illogical.

You can say that acts of consentual sex in private should be allowed as long as they do not hurt other people. Such a rule would not prevent homosexual sex, but it could prevent bigamy and bestiality and even, if you want, adultery (all of which, at points, Santorum compares to homosexuality, either explicitly or implicitly).

If you want to make the argument that homosexual sex should be illegal because it indirectly threatens the family structure, I think you've got a hard task of showing why homosexual sex represents more of a threat than pre-marital or adulterous heterosexual sex. Unless you want to make the all heterosexual sex out of wedlock a criminal act, too.

I give him credit for being somewhat logical, because he may have somehow justified the point described in that last paragraph in his mind, in which case his support for the laws would follow logically. But he certainly did not make a logical case for it in the interview.

Apologies for the length of my reply.

Thanks Dave, I hadn't seen the rest of the interview... When I said he's "totally logical" I was a wee bit off. The "bigamy, polygamy, incest, adultery" line is one for four (the first two are marriage law, not privacy, and the last, as you point out, hurts a third party). It does ring true though, since he's basically saying that the phoney right to privacy is a potentially dangerous precedent. The last paragraph, about deciding matters through legislation rather than judicial fiat, I totally agree with. The rest is absurd, and I didn't mean to endorse it.

More (and better) Mohammed Said Al-Sahaf humor: http://www.somethingawful.com/articles.php?a=1402

FYI, though I haven't agreed with Josh Marshall all that much lately, I think he hits this topic pretty much dead-on.