Late Edition: The Real Offense

Concerning the recent assault by gay-rights activists against Senator Rick Santorum, a few observations: The senator, you will recall, revealed in an Associated Press interview that as a practicing Roman Catholic—stop press!—he embraced Catholic moral teaching on the subject of marriage, family, and sexual behavior. Concerning the case now before the Supreme Court on the constitutionality of homosexual sodomy statutes, Santorum indicated his general support for such laws on both policy and constitutional grounds. For this, he was accused of all manner of incivility, even bigotry. Some critics took particular offense at the following: “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.”

This is mean-spiritedness? In fact, all Santorum did was repeat, almost in haec verba, the argument made by the late Justice Byron White in 1986 when the Supreme Court upheld Georgia’s sodomy law. “It would be difficult, except by fiat,” White wrote, “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. We are unwilling to start down that road.” Was the 1986 Supreme Court majority also composed of gay-bashing bigots?

It doesn’t take a Ph.D. in moral philosophy to follow the logic of the White/Santorum argument. If a state may not constitutionally ban consensual sexual activity between adults of the same sex, by what reasoning may it ban such activity when it occurs between adults of the opposite sex? What, then, of bigamy and adultery laws? Similarly, if consent is said to be the controlling constitutional principle, by what reasoning is consent to be limited to two, and only two, persons? What, then, of laws against polygamy? Again, if consent is what chiefly matters, why should it make a constitutional difference if one or more of the adult consenting parties happens to be a close blood relative? What, then, of laws against incest?

These are perfectly legitimate questions, and one ought to be able to ask them without being labeled misanthropic, homophobic, or any of the other opprobrious terms hurled by gay-rights advocates. People of conservative moral disposition can and do differ on the prudential desirability of criminalizing adult homosexual activity, but that’s a different issue. The important question is whether that activity can be legitimated without embracing a logic that undercuts the argument against other forms of prohibited sexual behavior. That question deserves an answer, and those who ask it deserve more than ad hominem bombast.

Senator Santorum’s real offense, one suspects, is that he made no bones about being on the wrong side of the sexual Zeitgeist. We happen to live in an age of almost unparalleled sexual license, and woe betide those who dare to criticize the claims of sexual autonomy. As is often the case with public figures, one might fault the senator’s choice of words in his wide-ranging interview, but after all is said and done, what appeared to offend was not so much an ill-chosen turn of phrase as the mere fact of his opposition to the idea of consensual sex per se. For Santorum, as for orthodox Catholics generally, the only licit form of sexual activity occurs between a man and a woman within the sacred bond of marriage. Advancing that argument in these days is not likely to win you friends.

Whether or not Senator Santorum’s argument acquires immediate popular purchase, he was correct to point out the logic that runs through legal prohibitions against certain forms of sexual activity. Those prohibitions are for the most part designed to shore up the family as the most desirable of social institutions. Our legal codes are chock-full of penalties and privileges designed to encourage and protect marriage—marriage being understood as the union of one man and one woman. It is not enough for gay-rights advocates to castigate the White/Santorum argument as a parade of horribles that might occur only to the mind of gay-bashers. They need to tell us why the logic of their position on homosexual sex can’t or won’t be applied as well to bigamy, adultery, polygamy, and incest. In short, they need to tell us how they can get what they want without undermining the family.

Michael M. Uhlmann

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Michael Martin Uhlmann (1939-2019) served as professor of government in the department of politics and policy at Claremont Graduate University and Claremont McKenna College. Prior to teaching at Claremont, Dr. Uhlmann was a senior fellow at the Ethics and Public Policy Center, Vice President for Public Policy Research at the Bradley Foundation in Milwaukee, Wisconsin, and taught at the George Mason University Law School.

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