- The Washington Times - Friday, April 25, 2003

Republican Senator Rick Santorum of Pennsylvania is in hot water for remarks he made recently regarding a pending Supreme Court case challenging state anti-sodomy laws, and some gay groups are calling for his ouster as chairman of the Republican Conference, the third highest position in the Republican leadership. Is this another black eye for the GOP, akin to Mississippi Sen. Trent Lott’s embarrassing suggestions a few months ago that seemed to hearken back to the segregationist past? Or is it one more example of the dangers of speaking out on controversial issues in these politically correct times?

In an interview with the Associated Press, Mr. Santorum offered the opinion that “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. You have the right to anything.”

Mr. Santorum was referring to Lawrence vs. Texas, which was argued before the court last month and involves a case in which two men were charged under a Texas law prohibiting homosexual sodomy. The men were arrested when police came to investigate a neighbor’s complaint that someone was wielding a gun and “going crazy” in a nearby apartment and found the two men in flagrante delicto. Although the initial complaint turned out to be wrong the man filing it was later prosecuted for making a false report the two gay men spent the night in jail and were fined $200 each.

Only a few states 13 still outlaw consensual sodomy; and only four, including Texas, criminalize homosexual, but not heterosexual, sodomy. No state routinely enforces any of these laws, raising the question whether they all ought to be repealed. But the issue before the Supreme Court is not whether such laws are good policy but whether states have the right to make laws regarding private, consensual sex between adults in the first place.

You do not have to be a gay basher to believe, as Mr. Santorum argues, that striking down the Texas statute is problematic. Either the Constitution protects the rights of consenting adults to do whatever they desire in private or it does not. If the Constitution prohibits a state from regulating consensual sexual activities between adults of the same sex, why should it allow states to regulate such activities between adults of the opposite sex, which anti-incest, anti-bigamy, anti-polygamy and anti-adultery statutes certainly do? (Ironically, one of the arguments of the gay rights groups that brought this case is that homosexuals and heterosexuals ought to be treated the same.) Again, the issue is not whether these laws are good policy or bad, but whether the state should have the authority to pass such laws at all.

These laws reflect a moral consensus about the behaviors involved. But, for better or worse, that consensus is changing, especially with regard to homosexuality. There is far greater acceptance of gay men and women today than at any time in our nation’s history. Nonetheless, according to the most comprehensive study of sexual attitudes among Americans, the National Health and Social Life Survey conducted in the early 1990s, 65 percent of respondents said “same gender sex is always wrong.”

Believing homosexuality is wrong, however, does not translate into support for laws outlawing homosexual conduct. Most Americans 68 percent, according to a 2000 Los Angeles Times poll favor laws forbidding employment discrimination against gays. Half of all Americans favor giving gays’ inheritance rights, employer-provided benefits and other entitlements enjoyed by married couples (although an even larger 58 percent oppose allowing gay couples to “marry”).

These data suggest that most voters would favor repealing the few remaining state anti-sodomy laws, putting the power to make such decisions where it belongs, with the elected representatives of the people. If the Court disagrees and strikes down the Texas statute, not only will anti-bigamy and anti-incest laws be at risk, but so will others that interfere with private, consensual behavior, including gambling, prostitution, drug laws and others.

No doubt some Americans libertarians, for example would applaud such sweeping change. But most would not, which brings us back to Mr. Santorum’s statement. He wasn’t equating homosexual behavior with bigamy, incest, etc. as most of the media reports on the flap have suggested but rather asserting that the state has an interest in regulating some private behaviors. There’s nothing abhorrent about such a view, and he should not be pilloried for stating it.

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