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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