Send In the Sex Police

The Colorado Freedom Report:  A libertarian journal of politics and culture.

The Colorado Freedom

Send In the Sex Police

by Ari Armstrong, April 23, 2003

It's almost as if some Republicans are trying to live down to the worst stereotypes about them.

In between watching the Avalanche slam the goal post with pucks and sit in the box as the Wild eliminated them in the first freakin' round, I watched Fox News reports about the latest political scandal, this one initiated by Senator Rick Santorum (R-PA).

The TV displayed the text of Santorum's recent comments, which I later picked off the internet: "If the Supreme Court says that you have the right to consensual [gay] 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."

My first reaction was, "Yes, he's exactly right. Consenting adults have the right to do whatever they damn well please in their own homes." I guess that just goes to show that one person's reductio ad absurdum is another person's logical conclusion.

Let's get right to the point. What Senator Santorum advocates is sending armed agents of the state into people's bedrooms to arrest consenting adults for having sex of which Santorum disapproves. Santorum represents the scary wing of the conservative movement that refuses to differentiate between ethics and the law and that puts the enforcement of religious beliefs above freedom.

If you agree with Santorum that armed police should enforce laws regulating sex, then you have absolutely no basis to complain when other people with different ethical beliefs send in armed police to take your money, your guns, your religious literature, or whatever. Either we have individual property rights, or we don't. If we don't then we're merely arguing about who gets to force their will on other peaceable people.

Santorum apparently cannot imagine the possibility of distinguishing legal rights from personal ethics. Thus, he assumes that either we admit "moral relativism," or we legally enforce the dominant religious code. Santorum's view, of course, is nonsense. A free society depends upon the separation of the ethics essential to laws, and the ethics properly left up to the individual. For instance, murder is ethically wrong, and it is also properly illegal. On the other hand, whether or not a given sexual practice is ethical, it is not properly proscribed by law.

Thus, opposition to laws regulating sex (among consensual adults) not only is not based on moral relativism (or moral subjectivism), as Santorum argues, it is based on the objective moral principle that it's wrong to use physical force to interfere with consenting adults acting within their own property. In short, Senator Santorum is a moral reprobate and an enemy of human liberty.

Santorum is clearly bigoted against homosexuals. The comment repeated on the television news program is not the worst thing he said by far. Long excerpts of the AP's interview with Santorum are filled with bizarre remarks.

When Santorum was asked about the scandal in the Catholic Church, he replied, "In this case, what we're talking about, basically, is priests who were having sexual relations with post-pubescent men. We're not talking about priests with 3-year olds, or 5-year olds. We're talking about a basic homosexual relationship. Which, again, according to the world view sense is a a perfectly fine relationship as long as it's consensual between people. If you view the world that way, and you say that's fine, you would assume that you would see more of it."

Santorum misrepresents the church scandal: the main concern was that priests may indeed have been having sex with children, not only with "men." Consent is not possible without the intellectual capacity to consent, which children are not regarded as having developed. Another concern was that some priests misused their authority.

So let's focus only on Santorum's comments as they apply to consenting adults. Clearly, he's saying that homosexuality is not "perfectly fine." He adds:

I have no problem with homosexuality. I have a problem with homosexual acts. As I would with acts of other, what I would consider to be, acts outside of traditional heterosexual relationships. And that includes a variety of different acts, not just homosexual. I have nothing, absolutely nothing against anyone who's homosexual. If that's their orientation, then I accept that. and I have no problem with someone who has other orientations. The question is, do you act upon those orientations? So it's not the person, it's the person's actions. And you have to separate the person from their actions.

Santorum's comments express the view, "hate the sin, love the sinner." Santorum only has a problem with practicing homosexuals, you see. By analogy, some militant religious zealots don't have a problem with practitioners of other faiths, only with the actual practice of other faiths. The upshot is that Santorum thinks sex between homosexuals is wrong and may be stopped by force.

Obviously, I do not believe there's anything wrong with homosexual relationships. But the moral question is not directly relevant to the legal question. Santorum could logically hold homosexual acts are wrong, but that politicians have no business sending the police to invade people's bedrooms. Those who believe homosexual acts are ethically wrong have a moral responsibility to tolerate those acts as far as the law goes. Tolerance, in the appropriate context, is necessary for the preservation of freedom. Thus, we should be decidedly intolerant of politicians who would violate people's rights.

Moral tolerance is distinct from legal tolerance. For example, I morally condemn Santorum's bigotry, but I may not properly use force to get him to change his views. I tolerate his views at the legal level, though not at the moral one. By the same token, liberty requires Santorum to tolerate homosexual acts at the legal level. He is legally free to morally condemn homosexual acts (even though he is morally wrong in doing so).

What about the other "deviant" sexual practices on Santorum's list? He lists polygamy, and we might as well consider polyandry, too. Is marrying more than one consenting partner at a time inherently wicked? I don't see why. It might be impractical, but that's a different argument. The Mormons were polygamists until the federal government forced them to change their religion (officially, God told the Mormons they should drop the practice). Robert Heinlein discusses the possibility of group marriages in his novel, The Moon is a Harsh Mistress. Quite a few people in the Christian Old Testament were polygamists.

My dictionary defines "bigamy" as "the crime of marrying while one has a legal wife or husband still living." I've heard of cases in which a person married others without bothering to tell the first spouse. That's morally wrong, obviously. If it violates the marriage contract, then that's a matter for law -- but civil law rather than criminal law. The same goes for adultery. (Marriage is properly a matter of contract, not a matter of state licensing.) I don't know anybody who thinks incest is a good idea, but it's a not properly a legal matter. (It might be possible to argue incest that risks conceiving a child with birth defects should be a legal matter, but there's no need to explore that subject here. That's not a problem with the other forms of sex under consideration.)

Santorum, then, can't get beyond his simplistic view of right and wrong. If it's right, the state should support it. If it's wrong, the state should stop it. He hasn't figured out ethics is a broader category than the law, or that contractual matters are best left to contract law rather than the morality police.

Santorum's election to the U.S. Senate makes me think the Seventeenth Amendment was a bad idea. This is our vaunted "democracy," folks, and it ain't pretty. Of course, Santorum likes democracy, and he thinks majority rule can rightly trump individual rights. I'm including a long quote from Santorum's AP interview, as it contains a number of key comments. Note especially his explicit denouncement of "individual freedom" and his explicit invocation of state rights:

And if you make the case that if you can do whatever you want to do, as long as it's in the privacy of your own home, this "right to privacy," then why be surprised that people are doing things that are deviant within their own home? If you say, there is no deviant as long as it's private, as long as it's consensual, then don't be surprised what you get. You're going to get a lot of things that you're sending signals that as long as you do it privately and consensually, we don't really care what you do... We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose. because, again, I would argue, they undermine the basic tenets of our society and the family. 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. It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution, this right that was created, it was created in Griswold - Griswold was the contraceptive case - and abortion. And now we're just extending it out. And the further you extend it out, the more you - this freedom actually intervenes and affects the family. You say, well, it's my individual freedom. Yes, but it destroys the basic unit of our society because it condones behavior that's antithetical to strong healthy families. Whether it's polygamy, whether it's adultery, where it's sodomy, all of those things, are antithetical to a healthy, stable, traditional family. Every society in the history of man has upheld the institution of marriage as a bond between a man and a woman. Why? Because society is based on one thing: that society is based on the future of the society. And that's what? Children. Monogamous relationships. In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be. It is one thing. And when you destroy that you have a dramatic impact on the quality - [At this point, the AP reporter interrupted, "I'm sorry, I didn't think I was going to talk about 'man on dog' with a United States senator, it's sort of freaking me out." Santorum continues...] And that's sort of where we are in today's world, unfortunately. The idea is that the state doesn't have rights to limit individuals' wants and passions. I disagree with that. I think we absolutely have rights because there are consequences to letting people live out whatever wants or passions they desire. And we're seeing it in our society... The right to privacy is a right that was created in a law that set forth a (ban on) rights to limit individual passions. And I don't agree with that. So I would... put it back to where it is, the democratic process. If New York doesn't want sodomy laws, if the people of New York want abortion, fine. I mean, I wouldn't agree with it, but that's their right. But I don't agree with the Supreme Court coming in.

Note here that Santorum is NOT arguing for state-level democracy in order to preserve federalism and the separation of powers. Such a position is intellectually defensible. Instead, Santorum is making the case that the *state* has "rights" to control peaceable people.

Ayn Rand wrote an essay titled "Collectivized 'Rights'" in which she argues, "The principle of individual rights is the only moral base of all groups or associations... The notion that 'Anything society does is right because *society* chose to do it,' is not a moral principle, but a negation of moral principles and the banishment of morality from social issues." So, while Santorum wallows in his moral self-righteousness, he in fact undermines the basis of moral law.

Perhaps what is most disturbing is that Santorum is getting beat up mostly for a relatively benign comment, not for his most reprehensible remarks.

For example, Patrick Guerriero of the Log Cabin Republicans said, "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." I guess I don't understand the argument. Is Guerriero arguing homosexuality is okay, but polygamy is not? That doesn't strike me as a very tolerant point of view. I think homosexuals will have a hard time arguing their sexual relationships should be legal but other kinds (among consenting adults) should not.

The problem is that Santorum is a bigot and a collectivist. When critics focus on the single line about the Supreme Court, he can offer a pretty good response: "I was not equating one to the other. There is no moral equivalency there. What I was saying was that if you say there is an absolute right to privacy for consenting adults within the home to do whatever they want, this has far reaching ramifications, which has a very serious impact on the American family and that is what I was talking about." Santorum misses the point because some of his critics do, too.

I'm stunned, really. Santorum's critics are only asking he apologize and be removed from Republican leadership. They should be asking for his resignation from the U.S. Senate. If the Republicans had a lick of sense, they'd at least demand he resign from their party. Santorum champions the causes of bigotry, collectivism, and the police state. A free society demands and deserves better.

The Colorado Freedom