Time magazine reminds us of a little history.
When the Supreme Court struck down Texas’s law against sodomy in the summer of 2003, in the landmark gay rights case of Lawrence v. Texas, critics warned that its sweeping support of a powerful doctrine of privacy could lead to challenges of state laws that forbade such things as gay marriage and bigamy. “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are … called into question by today’s decision,” wrote Justice Antonin Scalia, in a withering dissent he read aloud page by page from the bench.
Rick Santorum was one of those critics.
“If the Supreme Court says you have the right to consensual sex within your home,” Santorum said at the time, “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. You have the right to anything.”
As [Boston Globe columnist Jeff] Jacoby noted, Santorum was given “holy hell” and handed “nail-spitting” by some critics.
Where are the folks now who gave conservatives such a hard time? Given what Time is reporting, they’re probably being very, very quiet.
It turns out the critics were right. Plaintiffs have made the decision the centerpiece of attempts to defeat state bans on the sale of sex toys in Alabama, polygamy in Utah and adoptions by gay couples in Florida. So far the challenges have been unsuccessful. But plaintiffs are still trying, even using Lawrence to challenge laws against incest.
The key phrase is “so far”. I’m glad to hear that lower courts are now expanding the Lawrence decision, but these attempts at overturning state laws (joined by the ACLU, unsurprisingly) are unprecedented, and the outcome is by no means assured.
The issue does not appear to have been challenged in federal court previously, though the 7th Circuit Court of Appeals ruled in 2005 that a Wisconsin law forbidding incest among blood relations (but not including step-relations) did not conflict with Lawrence’s ruling. But in upholding prison sentences for a brother-sister couple in that case, the court acknowledged that the language in Lawrence is all but certain to prompt more challenges to prosecutions for sex-related crimes on privacy grounds.
Hey there, liberals. Pandora left this box for you. Enjoy.
Doug Payton blogs at Considerettes.
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7 users commented in " Santorum Validated "
Follow-up comment rss or Leave a TrackbackAre you saying that personal freedom, even if no harm is done to other persons or property, is not a good thing? I thought conservatives were in favor of individual liberty.
Same-sex marriage is not a “personal freedom”, in the manner you seem to suggest. Neither are bigamy, prostitution and incest. There are consequences to certain actions, and society needs to understand those and make laws accordingly. Equating those things with the choice to, say, smoke a cigarette shows a lack of understanding of those consequences.
Each of your four examples obviously have individual and personal consequences to the principles involved, but if you exclude situations where harm is brought to another person or property, what are the societal consequences?
There is more to “consequences” than the immediate ones to person and property. There is also the issue of getting more of something that tears down societal foundations (marriage, the family, virtues like fidelity) when you allow it. States (and this is the crux of the case) should be allowed to determine what they wish to regulate within other laws, and within the Constitution, and not subject to certain privacy rights that don’t appear in it.
Your arguments are similar to the reasoning and logic used to justify slavery and succession 150 years ago; however, I won’t debate the issue that there is value to social institutions. Without the bonding effect of these and other institutions, society would degenerate into chaos and anarchy, but the influence of these institutions must be balanced against individual liberties. The consequence of allowing any institution to dominate society is the expense to individual freedom. Although personally I find some of theses activities repulsive; generally, I subscribe to the Jeffersonian logic of “it neither picks my pocket nor breaks my leg…”. Or in my own words, whatever happens behind closed doors, on private property, between consenting and responsible adults is not the business of the general public or the state.
The inconsistency, as I perceive it anyway, is that conservatism defends economic privacy by bristling at notions of tax increases on the wealthy that are motivated by the wealthy’s lack of need of some of their income. Barack Obama stated that he favors an increase in the income tax on the wealthiest 1% of income earners to pay for universal health care or some other large Federalized health care program, and he justified that by pointing out that the wealthy do not need their money as much as people need access to care. Rush Limbaugh rightly and roundly criticized that idea today because taxation should not be based on the taxpayers’ need for their own money. It is not the government’s money; my money is mine and taxation is an intrusion into my economic privacy. However, by the same token, laws that regulate sexual conduct between consenting adults, no matter what sort of conduct it may be, is an intrusion into one of the areas of deepest personal concern and least governmental concern. Yet, we are supposed to lament that Lawrence may somehow limit that intrusion, as if the real question is not whether government should intrude at all, but how much intrusion — be it into matters economic, sexual, or whatever — is palatable. In my own view, we are not even given the choice between liberty and death, but what manner of subjugation until death we prefer.
It takes a while to understand what scares Doug Payton. Then we learn in the comments of his fear that liberty will “tear down societal foundations.” Personally I will always err on the side of liberty. If a “societal foundation” is destroyed by the bug-a-boos that keep Mr. Payton awake at night, then they probably weren’t worth his preservation efforts. Homosexuals marry in Massachusetts, yet I’ve not noticed any ill-effects on my own marriage. If it threatens yours, then you probably shouldn’t be married in the first place.
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