who appears to be a liberatian:

Santorum's point is that if the Constitution is interpreted to secure a constitutional right to consensual gay sex, then it would be likely to be interpreted to secure a constitutional right to (presumably consensual on all sides) bigamy, polygamy, incest, and adultery. This is actually quite a plausible prediction; if two gay men are constitutionally entitled to have sex (as I think they should be), then adult siblings would similarly be constitutionally entitled to have sex (as I think they should be); one could draw a legally viable distinction, but there's a good chance that the courts wouldn't be persuaded by such a distinction, and conclude that the two should be treated equally.



Bigamy, polygamy, and adultery are a bit more of a stretch, but not by much, if they are consensual and fully informed on all sides -- if the current wife, for instance, consents to the husband bringing on more wives, or having sex with a mistress. (This of course goes only to whether the conduct would be decriminalized, as adultery for instance has been by law in many states; it doesn't go to whether, for instance, the state has to recognize gay marriages, bigamous marriages, or polygamous marriages, which is a different matter.)

[NOTE: I realize Santorum spoke in more definite terms -- "you have" rather than "you may have" -- but I think it's pretty clear that he meant that courts may well treat the different practices the same way, not that they are guaranteed to do so. I also realize that he didn't repeat the term "consensual" when mentioning bigamy, polygamy, incest, and adultery, and if he were speaking more carefully, he should have; but in context, this seems to be likely what he was referring to. First, at least one of the terms, polygamy, usually refers to consensual behavior. Second, courts could obviously distinguish nonconsensual incest (violence), bigamy without notice to the new wife or consent with the first one (fraud), or adultery without consent from the first wife (breach of contract) from consensual homosexuality; Santorum's argument clearly only works if it's understood as referring to consensual behavior. Third, the nature of his criticism -- a concern with the health and stability of the traditional family -- is much more consistent with an objection to consensual behavior, not nonconsensual behavior. Few people would condemn nonconsensual incest on the grounds that it's inconsistent with traditional family values; they'd say that it's child molestation.]

Now as parades of horribles go, this one isn't so horrible. Perhaps the Constitution shouldn't be interpreted as constitutionally protecting all these rights; but if it is so interpreted, I won't lose any sleep. To the extent that consensual behavior like this hurts society, the harm is sufficiently indirect that the freedom of consentting adults to act in these ways should prevail. Again, perhaps this libertarian principle shouldn't be constitutionalized -- I don't want to get into the right of privacy / substantive due process / Ninth Amendment debates now -- but if it is constitutionalized, that's no big deal.

But it's quite a credible constitutional argument, and a good explanation of one objection to the courts' constitutionally protecting private homosexual conduct. It doesn't rest on the notion that homosexuality is morally tantamount to adultery, but only that it's plausible that if the courts protect one, their theory may be broad enough to also protect the other.



Remember, the law will always be pushed to its limits by some. As but one example, consider how the poorly written "Americans with Disabilities Act" has been used to justify all sorts of things like subsidizies to alcoholics and drug addicts.