Right Question, Wrong Answer

June 2003

Last month, commenting on the Texas sodomy case currently before the Supreme Court, US Senator Rick Santorum (R- Pennsylvania) noted, “If the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy… to polygamy… to incest… to adultery. You have the right to anything.”

Predictably, gay groups indignantly condemned Santorum. Without exception, the message of local and national homo organizations was, “How dare he compare us to real perverts!”

Such knee-jerk responses underscore that our political groups have devolved into respectability-seeking public relations campaigns, devoid of any fundamental understanding of the principles they trumpet.

The same groups that object to Santorum comparing sodomy laws to prohibitions against bigamy and polygamy uniformly profess support for “the freedom to marry.” But how can homosexual couples lobby for marriage rights as a matter of equity–and then demand that households of three-somes or more-somes be excluded from those very same benefits? It seems our “spokespeople” have more in common with defenders of “traditional” marriage than they realize.

Similarly, there have been many objections to Santorum’s suggestion that broadening sexual privacy rights might bar criminal sanction for incest. But such objections are ill-founded. There is indeed no legitimate state interest in prohibiting homosexual consensual incest, and the only possible reason to ban heterosexual incest would be to prevent arguably higher rates of birth defects in children parented by close blood relatives. But anyone who believes in reproductive freedom understands that we must not yield to the government the right to issue pregnancy licenses based on supposed genetic compatibility. As with abortion, such intimate choices must be left to the individuals directly involved, not relinquished to the state.

And neither is adultery a legitimate concern of criminal law. The state should not be able to proclaim one person the sexual property of another. Having an affair with someone’s husband might violate etiquette or some people’s understanding of their wedding vows, but it most assuredly should not be a matter for the District Attorney.

Of course, Santorum–no friend of civil liberties–meant his remarks derogatorily. To him, sexual freedom is bad; he wants the state to enforce rules about who can have sex with whom.

But trying to prove that we are respectable by touting legal condemnation for other people’s personal sexual choices is foolhardy. We would be better served by demonstrating a more profound understanding of privacy rights and sexual freedom: sex between or amongst consenting individuals is not a legitimate concern of the law–the gender, or age, or race, or marital status, or family relation of those involved is no business of the government.

Imagine if a conservative fundamentalist Senator were to note, “If the Supreme Court says you have the right to practice Roman Catholicism, then you have the right to Quakerism… to Judaism… to Hinduism…. You have the right to anything.” Then imagine how you’d feel if a Catholic group were to say in response, “We deplore being compared to whackos like Quakers and Jews and cow-lovers!” You’d rightly conclude that such a group has a poor understanding of religious freedom.

It is an old trick to try to saddle defenders of civil liberties with each and every choice made by free people. But just as supporting freedom of expression does not mean agreeing with everything published by a free press, supporting sexual freedom does not require that we personally laud every choice made by others. It means, rather, that we–unlike Senator Santorum–prefer a society wherein those choices are left to individuals, not enforced by sex police.

Pasted from <http://guidemag.com/magcontent/invokemagcontent.cfm?ID=F5364E6C-DA28-4CB3-88447CC89FFDCA41>