Posted on April 30, 2003

by

Daniel Clark

When did gay activists become so judgmental about the sexual behavior of others? Patrick Guerriero, the executive director of a gay GOP lobbying group called the Log Cabin Republicans, has called for Sen. Rick Santorum (R, Pa.) to step down from his position as Chairman of the Senate Republican Conference, because of remarks the senator made last week about homosexuality and constitutional privacy claims.

"We have laws in states, like the one at the Supreme Court right now, that has sodomy laws [sic] and they were there for a purpose, because, again, I would argue, they undermine the basic tenets of our society and the family," Santorum said. "And if the Supreme Court says that you have the right to consensual 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. Does that undermine the fabric of our society? I would argue, yes it does."

Guerriero responded that, "If you ask most Americans if they compare gay and lesbian Americans to polygamists and folks who are involved in incest and the other categories he used, I think there are very few folks in the mainstream who would articulate those views." Despite the fact that Santorum had made no such comparison in his interview with an Associated Press reporter, subsequent reports from the AP referred to "Sen. Rick Santorum's comparison of homosexuality to bigamy, polygamy, incest and adultery."

"It is stunning -- stunning in its insensitivity," says David Smith, spokesperson for a gay activist group which misrepresents itself as The Human Rights Campaign. "Putting homosexuality on the same moral plane as incest is repulsive." Moral plane? Repulsive? Just who does this guy think he is, Jesse Helms?

Okay, let's pretend for the moment that Santorum made such a comparison, which he didn't. Let's also entertain Guerriero's suggestion that most Americans would find that comparison objectionable, which is, to put it mildly, doubtful. The question is, why would gay and lesbian groups be so upset by it? By what rationale do they make moral judgments about these other forms of sexual behavior, but condemn Santorum as unfit for office for doing the same to theirs?

When Santorum was asked to spell out his beliefs, he argued that the purpose of sexual relations is to produce children in stable families, for the continuity of society. Lots of people will disagree with that, but it's coherent, and he applies it consistently. We know that this is what he thinks because the reporter who interviewed him wouldn't leave him alone until he answered. There has been no similar insistence by the press that his critics explain themselves.

As long as Guerriero, Smith and others are moralizing about sex, they should be asked to explain what places these other behaviors on a lower moral plane than homosexuality, and why they think their judgments are more correct than Santorum's. Is it just because there's no major lobbying group for polygamists? Is it because there's no segment of society that calls itself the "incestuous community"? What, exactly, are the rules.

While Americans find incest revolting, it was common practice among European royalty. Queen Victoria married her first cousin, Prince Albert. Several European kings married their own nieces. As for polygamy, America's disapproval of it can be seen in the fact that outright bigamy is illegal in all fifty states, even Utah. But then, the Middle East and sub-Saharan Africa are another story. When American gay activists condemn these acts, isn't that xenophobic? Whatever happened to cultural relativism? If there are any incestuous polygamists in the Log Cabin Republicans, they should ask Guerriero why he doesn't step down, as long as he is demanding the same of Santorum.

It's all academic, though, because Sen. Santorum did not actually "compare" homosexuality to incest and polygamy. What he did was point out that all those things could legally be placed in the same context, depending on the outcome of the Lawrence v. Texas case now before the Supreme Court. The fact that he referenced the precedent of Griswold v. Connnecticut (1965) during the same interview leaves no doubt of his intention.

In Griswold, the Court ruled that a Connecticut law forbidding the use of contraceptives violated the First Amendment, which Justice William O. Douglas wrote, "has a penumbra where privacy is protected from governmental intrusion." He determined this because the Court had previously held that freedom of association was implicit in "the right of the people peaceably to assemble," and that the use of contraception was indicative of an "association" between two people. The first step in this progression makes sense, since people must have freedom of association if they are to have the right to assemble. But only Groucho Marx could view "the right of the people peaceably to assemble" as somehow related to contraception. Justice Douglas and his colleagues had no constitutional mandate, but they disagreed with the Connecticut law, so they assumed the authority to repeal it.

Had the Log Cabin Republicans existed in those days, they presumably would have scoffed at anyone who suggested that this same "right to privacy" might also be applied to abortion. How could anyone "compare" contraception with abortion, they might wonder. Yet, in Roe v. Wade (1973), the Supreme Court declared abortion to be a "fundamental constitutional right," based on a "right to privacy" implied by the "penumbra of liberty" which it believed emanated from the First, Fourth and Fifth Amendments, and whatever else might lend their wobbly argument the appearance of a foundation.

Justice Harry Blackmun, who wrote the majority opinion in Roe v. Wade, also wrote a dissent in the 1986 Bowers v. Hardwick case, in which he argued that this same "right to privacy" should be used to strike down Georgia's sodomy law. The majority opinion in that case, which was written by Justice and former Pittsburgh Steeler Byron White, noted that, "it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home." If this sounds familiar, it should. Sen. Santorum later explained that his words had been a paraphrasing of Justice White's opinion from that case.

The Log Cabin Republicans and other gay activists could have disagreed with Santorum on other grounds, by arguing that none of the aforementioned acts, when done in private, is any of a state government's business, and that the people of Texas should repeal the law in question. Had they done this, they might have been surprised to find a great number of conservative Republicans, this one included, in agreement with them. But instead, they've demanded that the Supreme Court overstep its constitutional authority in order to invent a new "fundamental constitutional right" which would apply only to homosexual acts, and not to other acts like polygamy. If what they are arguing for is a "right to privacy," then on what basis should two men be able to claim that right, but not a man and two women? We don't know, because people like Guerriero and Smith have not had to explain themselves.

Since the Griswold and Roe decisions, state and federal courts have repeatedly held that "privacy rights" to contraception and abortion should be extended to minors. If the Supreme Court rules in Lawrence v. Texas that there is a fundamental "right to privacy" that encompasses sexual acts, then it only logically follows that minors will have a "right" to engage in those same acts. If Sen. Santorum had pointed this out, gay activists would surely have protested that he was "comparing" homosexuality to pedophilia. The validity of the analysis wouldn't have mattered, because their criticism of it wouldn't have been challenged by the press, just as nothing they've said has been up until now.

Maybe this is all a misunderstanding, and the Log Cabin Republicans don't really mean to distort Sen. Santorum's remarks. Maybe they don't really want the Supreme Court to further usurp legislative power, and create a precedent so ill-defined that it could be used to strip away legal protection for minors. But if not, then they should have taken the time to analyze what the senator said before releasing an official response.

For an organization that identifies itself with a political party to demand that one of that party's senators resign his post is a serious matter. If the Log Cabin Republicans want to be taken seriously as Republicans, they should reserve such spectacles for situations that warrant them, instead of tossing around the sort of emotionally-driven, factually-impaired rhetoric that one might expect from Barbra Streisand.

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