Last edited: February 06, 2005

Scalia and Santorum Were Right

Family Research Council, December 5, 2003

Those who warned that the Supreme Court decision in June 2003 overturning the Texas sodomy law would lead to attempts to legalize other outlawed sexual relationships were dismissed as biased by conservative ideology, or worse, accused of advocating bigotry. Those concerns have now been realized in the case of a man suing to legalize his polygamous lifestyle.

In his dissenting opinion in Lawrence vs. Texas, Justice Antonin Scalia stated that if sodomy laws were struck down, it would open the door to the legalization of all manner of sexual activity: “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, are likewise sustainable only in light of Bowers validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision.”

Two months before the decision, Pennsylvania Senator Rick Santorum waded into a firestorm when he stated that if the court struck down the Texas sodomy law, it would lead to a slippery slope where virtually any sexual activity would be legalized. Said Santorum: “Whether it’s polygamy, whether it’s adultery, whether it’s sodomy, all of those things are antithetical to healthy, stable, traditional families.” Pressed by outraged liberals and homosexual rights activists to respond, Republican leaders in Congress and White House spokesman Ari Fleischer vacillated for days before expressing tepid support for Santorum’s continued role in the Senate’s Republican leadership.

Lost in the flurry of indignant liberal reactions was the fact that Santorum was simply pointing out the potential legal ramifications of the ruling. Those ramifications were spelled out in a friend-of-the-court brief filed by the Human Rights Campaign, which asserted “the right to be free from governmental intrusion into, and criminalization of, private sexual relations between consenting adults.”

Similarly, the petitioners in the case declared in their legal brief: “Among the liberties protected by the Constitution is the right of an adult to make choices about whether and in what manner to engage in private consensual sexual intimacy with another adult . . . . [C]onsent is a critically important dividing line in legal and societal views about sexuality. . .”.

Justice Scalia and Rep. Santorum correctly argued that if the only criterion for defining a sexual behavior as a constitutional “right” is that it be private, consenting, and between adults, then on what legal basis can constitutional protection be denied to a person because of the number of sexual partners (i.e., polygamy), the marital status of sexual partners (i.e., adultery), or the blood relationship between sexual partners (i.e., incest)?

The concerns raised by Scalia and Santorum have now come home to roost. In the first of what will undoubtedly be many efforts to overturn laws regulating sexual relationships, a Utah man with five wives has appealed the court to have his bigamy conviction overturned on the basis of the Supreme Court’s sodomy law ruling. Polygamist Tom Green, who has 30 children by five “wives,” argues that his conviction is invalid under the Supreme Court ruling on sodomy.-TJD

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