Quoth Rick Santorum:

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,

The media and blogosphere have been all over this one, including James Lileks, whose writing and contributions to the blogosphere I greatly enjoy. But I feel he's missed the clue train big-time on this particular one:

We're not talking about granting a new right here - this is about removing something that shouldn't have been there in the first place. It does not encourage behavior that isn't going on now - for heaven's sake, if they repealed a law against riding dogs while naked and slathered with Crisco, would you strip down, grease up and find a pliant Schnauzer?

There are several points being implied in these discussions, and I'd like to confront them openly here:

These are stupid old laws. Sure, some are: There are laws in certain towns against parking an elephant on main street. There are stupid old laws of every conceivable kind. But the solution which is being sought here isn't to repeal the elephant law: it's to say that states have no right to regulate traffic, ever, period.

Those laws shouldn't have existed in the first place. Interesting: Lileks claims the problem is with people who want public policy to reflect their personal feelings. How does he counter this? By suggesting public policy should reflect his personal feelings instead, rather than legal reasoning. Those laws shouldn't exist... It's also worth noting that those laws came into being, along constitutional lines, because they reflected the values of the majority. Would the "tyrrany of the minority" been preferable?

It's all about religion... James and others seem to imply the only reason to care about the states' ability to regulate sex is grounded in religion. He is wrong: there are other compelling reasons to continue to believe some private sexual behavior should be regulated, including polygamy, prostitution, and incest.

Even if we assume this is 100% correct, there's nothing criminal about a legislator or voter having religious convictions and supporting laws in line with those. If it was, we'd have to throw out most of our body of law, including the constitution and bill of rights. Instead, we have a first ammendment which guarantees full liberty of religious conviction, including speaking, suggesting laws, and voting. (Even laws which relate to sex!)

The check we have is that people who do things which fly in the face of the desires of the majority won't survive long, and bad laws can be repealed. Religious sentiment can be a fine motivator, as long as it's widely held, or as long as the end result has broad appeal. (Consider that the main opposition to pornography is from fundamentalist Christians and feminists.)

In contrast, there are those who argue if 90% of the populace is for something, but that support can be linked in some way to religious sentiment, the 10% irreligious minority should rule. Consider the example of other countries which have banned religion from the public square and then come back and report.

What Santorum said is bigoted. It's a sad, sad day when we don't actually consider whether a Senator's opinon on a legal matter is correct, but reflexively resort to name calling and ad hominem argument instead. And let's not forget, people, that Santorum was singled out for this treatment because he is a conservative. (There are plenty of stupid liberal quotes which are "submarined" each day -- I see some of them on C-SPAN.)

What Santorum said, from a legal point of view, is not at all stupid -- instead, is in fact correct. The argument he cited -- legalizing all private sexual conduct -- isn't his idea -- it's the one of the primary arguments being put forth by the plaintiff's laywers. And the last Supreme Court ruling on the topic in 1986 concluded (emphasis mine):

Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home... And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, 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. We are unwilling to start down that road.

So why attempt to demonize a man for pointing out the actual implications -- indeed the exact examples raised by the Supreme Court itself?

Concerned we might think about it too much?

Lileks himself skirts the legal issues, but in doing so, he tacitly agrees with Santorum, admitting, yes, indeed, these things would be legal. Why isn't he brave enough to come out say this? C'mon James: Say it: "Yes, I want all private sexual behavior, including adultery, incest, and prostitution, legalized!" Have the courage of your convictions, man!

Just because it's legal doesn't mean it's encouraged. Really? Why do we make things illegal? To discourage them. If legality doesn't change behavior, then why have laws? It's like the TV executive who says sex and violence in his shows doesn't shape the public view, and then turns around to sell TV time to advertisers, saying it will shape the public view.

Nobody does this stuff anyway. Really? Study Utah a bit on the polygamy issue. Prostitution? Don't kid yourself -- a change in law would indeed encourage the world's oldest profession. And consider the Romanov family if you want to look for problems associated with incest. And don't be caught telling redneck jokes.

How can you spot the parties on the wrong side of an issue? Look for the greatest degree of dissonance between rhetoric and reality. And also look for a failure to put forth their core arguments. It doesn't always mean the parties are wrong, but it does mean they want to de-emphasize their core issues, and this should be a red flag.

James says this won't do well in the polls. As long as you buy into his and the media's spin on it, he's right. But the choice is really up to you -- your voice and actions make a difference. Think about the issue. Consider it from all sides. Should all private sexual acts be legalized by an unchangeable federal judicial decision? What do you think?

For my part, I can understand wanting to repeal certain sodomy laws. Some seem a tad silly to me. If enough of the population thinks this or that 'sodomy law' is inappropriate, they should organize to support candidates who will repeal those laws. But if this doesn't happen, it's probably because there isn't support from the majority. Which probably explains why a small group is taking this other approach...

Further, I think this federal/constitutional/activist-judicial approach, of trying to always change all law all over the country at once, without input from our duly elected officials, is usually a bad approach. I like having different states which are able to have different character. I like that San Franciso can legalize a behavior, and Texas can ban it, and we can all watch to see how it works out -- or vote with our feet and dollars (and in the booth) to support the system that works best. In short, I'm a fan of philosophical diversity.

Last, I think its a shame that the level of vitriol in this discussion, and a near-reflexive loathing of anything that seems to be associated with or stem from religious morals seems to have hindered rational discussion on this important topic. I had hoped for better.