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« They're Starting To Figure It Out | Main | Pop Up Some Corn »

Lott Versus Santorum And The Nature Of Homosexuality

Rebublican Pennsylvania Senator Rick Santorum made a comment about homosexuality and the upcoming Supreme Court decision in the Texas case the other day. Here's what he reportedly said:

"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," Santorum said in the interview, published Monday.

He is the chair of the Republican Conference, the third highest ranking position in the Senate. As a result, some of the Democrats think they have another Trent Lott moment, and have called on him to step down from his leadership position.

While I was one of the leading voices to get rid of Trent Lott, I'm having trouble getting very worked up over this, for a couple reasons. First, to be honest, part of the reason that I wanted Lott to step down is that I've always wanted Lott to step down--he was an incompetent boob, who gave the Democrats many needless victories. I'll never forgive him, in particular, for the sham impeachment trial, though, in retrospect, if Clinton had actually been removed, we'd probably have Mr. Gore as President today. Still I would have liked to have had a real trial, with real evidence and real witnesses. The best outcome might have been to show just how corrupt Mr. Clinton was, and for the Democrats to still refuse to remove him, which would have resulted in a more solid victory for the Republicans in 2000.

But I digress.

Despite the joy I took in the opportunity to remove him, what he said really was stupid and thoughtless, and indicative of someone who truly shouldn't be in a party leadership position. I'm not sure the same is true of Senator Santorum's comments.

I have to say, though I believe that homosexuals are born, not made, that what he said may be correct on its face, at least in a legal sense. If we must allow consensual gay sex, on what basis can we outlaw the other things he mentioned? Note that I am taking no position on the morality of any of those things, and in fact, not being a conservative, don't have particularly strong feelings about them. I've no problem with gay marriage, or bigamy, or polygamy, or gay polygamy, or even incest (other than the problematic genetic risks). Adultery I might put into a different category, insofar as it's a betrayal, but I still don't think that it's a matter for the law. Of course, he's also mixing apples and eggs, to a certain degree, because some of the categories are various types of marriage, while others are sexual behavior.

Now it's clear from context and his history that he thinks that not only is there something wrong with all of those things, but that he also thinks that they should be therefore illegal, and that not allowing laws against consensual gay sex shoves us down the hill on a slick road to perdition. That's not a position with which I agree, but I don't see any comparison of that to wistfully dreaming of a return to Jim Crow. I assume that, to the degree that the objectors have a sincere objection (disregarding the simple political and partisan opportunity), it is his lumping homosexuality in with the other things, unless they're proposing to make them all legal as well (no doubt some of them might).

The upset is over comparing homosexuality, which the modern liberal believes to be an innate characteristic over which one has no control, to other marital arrangements and behaviors that are presumably dictated by choice rather than genetics. (As another digression, I find it interesting that many people who refuse to believe in genetic determinism in, for instance, intelligence will accept it for gender and sexual orientation.) Thus, I'm assuming that they view his comments as bigoted.

Perhaps they are to a degree--as I said, I myself believe that sexual orientation is not within one's control. But if it is, it's one on which there's much less societal consensus than there is on matters of race. Our public debate on sexuality and sexual orientation seems to be about where the race debate was prior to the Civil War, in which there was broad and widespread disagreement about whether people of other races were fully human, with human rights. It's easy now to see that those who doubted this were wrong, but it really was not a settled issue back then, just as the deterministic nature of homosexuality is not today, either scientifically or societally. Thus, from that standpoint, Mr. Santorum has a legitimate viewpoint, even if it may not be scientifically correct, and I don't think that he should be censured, or forced out of power over it. It's a matter for the voters.

Yale law professor Jack Balkin has commented on this subject over here, echoing much of what I say, except putting more of a legal and constitutional gloss on it.

However, having said all that, I do want to expand a little on my view of the matter. While I believe that some people are born homosexual (whether because of genetics, or womb environment, or both), and others born heterosexual, I also believe that those are not the only two options.

In fact, I believe that sexual orientation (ignoring the issue of gender, which is even more complicated), which is defined as which sex you are physically attracted to, relative to your own, is not a binary situation--it is a continuum. I suspect that it's a skewed distribution, with many or most people being heterosexual, very few being homosexual, and a gradient between them of various degrees of bi-sexuality.

Assuming homo to the left, and hetero to the right, I personally fall on the extreme right side of the distribution. While I don't think that it is immoral to have sexual relations with the same sex, I cannot in any way contemplate doing it myself--the very thought of the act disgusts me (which is not to say that people who are homosexual disgust me per se). I can't imagine any amount of "therapy" that would result in my seeking gratification in that way, or perhaps even tolerating it or being able to perform. Given a choice between that, and self congress, I'd choose the latter.

I assume that someone on the extreme left side of the distribution feels similarly--it's simply not possible for them to feel attracted to someone of the opposite sex.

Of course, there are many people who fall somewhere in between. They are the ones who actually do have a "choice." I know that they exist as well, because they are bisexual, and clearly have the capability of switch hitting. I suspect that they're the ones who are the most outspoken on the subject, because for them, it does come down to an issue of morality, and furthermore, I suspect that they believe that everyone is like them, so that they believe that homosexuals really are being contrary and deliberately perverse.

Someone who does have a choice, who is attracted to the same sex, but also finds the opposite sex attractive, will simply think themselves superior to those who engage in what they view as sinful behavior. They'll say to themselves "I can resist the temptation, why can't (s)he? They must be weak and morally corrupt." They'll view any argument like the one that I make here simply as an excuse--they won't believe that it's impossible for someone to be attracted to the opposite sex--after all, they're capable of going either way, why aren't those perverts?

This offers an explanation for the "conversions" that are so controversial, in which (usually through some church-based therapy), homosexuals "become" heterosexual. I suspect that in the cases that it doesn't work, it's because you can't make a homosexual into a heterosexual, any more than you could convert me from straight to gay. The success stories are not really conversions from homosexuality--they're simply a persuasion of a bi-sexual (who was never truly homosexual) to no longer indulge in homosexual activities.

Homosexual behavior (which can be engaged in by both homo and bisexuals) has to be distinguished from homosexual orientation. The former is an act, while the latter is a desire, and often one that cannot be altered.

Until we develop a more sophisticated and nuanced view of issues like this, I suspect that the threads will continue to flame ignorantly on over at Free Republic, and that Republicans will continue to make potentially inflammatory statements, and that opportunistic Democrats will continue to bash them over it.

Posted by Rand Simberg at April 22, 2003 12:56 PM

Comments

The hub-bub is coming from liberals who do not accept the idea the that homosexulity is immoral. Now, I'm an atheist and I don't mind homosexuality, but most orthodox Christian denominations believe homosexuality is immoral. Andrew Sullivan can argue all he wants, but Paul says in Romans that its immoral, and there's not much you can do with that.

So the question becomes, have we reached a state in American politics where advocating a law that tracks Christian morality is beyond the pale? If so, wow.

Posted by Joshua Chamberlain at April 22, 2003 01:39 PM

I think Santorum's statement is more troubling than you do.

First, comparing homosexual sex with adultery or bigamy or polygamy is absurd.

With adultery, polygamy and bigamy, it's not the sexual act in and of itself that's wrong, it's the fact that you're having it with someone who isn't your spouse (or with more than one spouse at the same time). The same act that's OK when done with your spouse is not (under the law) OK with the next-door neighbor.

Frankly, as long as it's with a consensual partner who's of age and who doesn't share grandparents with you, the state has no business whatsoever saying what you can or can't do in the bedroom.

Bigamy or adultery are different matters - those are contracts, and since there are benefits granted by the state that flow from the marriage contract, there's at least in theory an argument for the state saying it's wrong to violate the marriage.

Posted by James DiBenedetto at April 22, 2003 01:47 PM

As you said yourself, Rand, incest has genetic risks. That separates it from the rest of the list.

Posted by Rick C at April 22, 2003 01:50 PM

The only ones I see on the list as having some credible justification are the restrictions on incest and adultery. The former due of course to potential genetic problems (even those may be mitigated) and the latter due to violation of the marriage contract (a formal legal agreement). On the other hand, I don't see any problems with bigamy or polygamy. Frankly, the whole spectrum including same-sex marriage, polyandry, or any other combination of marriage (between consenting adults) should be permitted. Yes, we'll call it something other than marriage so nobody is too put out.

The current situation in Western reproduction is pretty sick. You have de facto polygamy/polyandry in the forms of adultery, serial monogamy, and prostitution. Most normal marriages have both partners working outside jobs and trying to raise kids. In other words, you get punished for trying to fit the mold of monogamy, and rewarded for thinking outside the box. Then the government gets ahold of your kids...

Posted by Karl Hallowell at April 22, 2003 02:23 PM

>...there are benefits granted by the state...

Seems like quite a stroll from "Congress shall make no law..."

Posted by Zeal at April 22, 2003 04:18 PM

I believe FOX has reported that the quote was out of context and the full statement was not presented. Also that the newsperson in question was apparently related to a high ranking person on Kerry's staff. Also that the newspaper in question sort of backed off by admitting that the story had errors.

So...when was the last time you saw Kerry on a news broadcast other than C-span. Besides the comments on the above supposed issue. Hmmm... can you say desperate for attention.

Posted by Dr. Clausewitz at April 22, 2003 04:50 PM

Provided the story is not simply inaccurate, Santorum is making a slippery slope argument. I hate those, but what I hate most about them is that sometimes they are right. A good example has been gun control legislation. The most disturbing thing on the sexual rights issue (if that's what we call this) is that there is a subculture out there that thinks it's OK for children (and I mean young, minor children) to have sexual relationships with adults and each other. I have seen some quotes in columns here and there from people who hold these beliefs; I guess I'm going to have to do some research and dig up some writings. It's not just NAMBLA. All the consenting adults hypotheticals don't bother me much, but I think it's a fair bet that people exist who will use a legal right to homosexual sex to argue for a legal right to sex with children. I'm not saying that's even a reason to legislate against homosexuality, but I think it's a reason to not reflexively discount what Santorum said, which is what some people (not here) are doing.

Posted by Dave Himrich at April 22, 2003 05:03 PM

A question....and I'm serious about this. If anyone has legal training I'd like to know.

Bigamy and Polyandry, take your pick, are illegal, given.

What, in the eyes of the law, constitutes either of these conditions?

There is nothing stopping me from shacking up with two or three hot babes that I know of. I just can't marry them both. However....could I get a good business type lawyer and draw up a business contract covering their (and my) property rights when one or both of them leave? Is that bigamy? We haven't married, in the regularly accepted sense of the word.

As for legislating Christian morals....what about the folk who aren't Christian? Isn't there supposed to be some sort of seperation thing going on there? It's not a new thought, but I've never seen it brought up publically. This country makes a big deal about "Seperation of Church and State" but most, if not all, of our laws regulating public morals are based squarely on Christian ethos and if you come from some other system of religious beliefs, too bad. Might be fun, even though it would be futile, to see a challange made against one of them some time on that basis. (Actually, we already have, though I'm not 100% sure what argument they used. Native Americans trying to get permission to use peyote in their ceremonies, as they had done for a couple of thousand years before the white man showed up, and losing.)

Posted by FDC at April 22, 2003 06:58 PM

Boy is my face red.

Yeah, I'm an idiot. Ignore that bit about the Indians and Peyote. No sooner than I posted it than I stumble across a news item that proves me an utter imbecile. Evidently I was wrong and they won that case and are allowed to use it in their religous ceremonies.

Sorry...

Posted by FDC at April 22, 2003 07:17 PM

Rand wrote: "If we must allow consensual gay sex, on what basis can we outlaw the other things he mentioned?"

FDC got it right on bigamy and polyandry --

"There is nothing stopping me from shacking up with two or three hot babes that I know of. I just can't marry them both. However....could I get a good business type lawyer and draw up a business contract covering their (and my) property rights when one or both of them leave? Is that bigamy?"

No. That isn't bigamy.

Bigamy requires actually marrying two spouses by the state mandated process, ie: getting a marriage license for more than one spouse.

Cohabiting with as many lovers as one chooses is not bigamy, so long as no state marriage license is involved. There may be some cases that adopted a "common law marriage" interpretation, and so make mere cohabitation into bigamy, but I don't know of them. This would cover polyamory of most any stripe.

The law in most states, however, will make fathers responsible for any offspring regardless of whether conceived within legal wedlock. There may also be some obligations for property settlements upon death or separation for those who cohabit outside marriage as well. California's "palimony" cases are an example.

Bigamy is distinguishable from mere polyamory by whether the state issued a license.

Santorum's other bugbears are "incest", "adultery", and "anything".

Adultery generally requires one partner to be married, so a state license is involved again. Adultery is not a criminal act in many states. Where it is, it is rarely enforced, and might be overturned if enforced.

Maybe he meant "fornication", which is sexual intercourse (by consenting adults) without benefit of marriage. But that's not what he said. Some states do prohibit fornication, but it is rarely enforced, and might be overturned if challenged.

Incest, presuming consenting adults, is more typically illegal in the same state licensed sense; that is, the state will not issue a marriage license. There may be some state laws prohibiting sexual intercourse among blood relatives of some degree of consanguinuity, but I doubt that all states make that an offense. I'm don't know about constitutional cases on the issue. There may have been some, but I don't know them.

That pretty well covers everything but "anything".

I can't really comment cogently on "anything", since I've never heard of a law that prohibits "everything" -- yet, but I expect some grandstanding politico to try it.

Posted by fub at April 22, 2003 10:22 PM

A lot of people who find the practices of adultery and extramarital sex in general to be immoral do not believe that the government should be authorized to ban them. Same should apply to gay sex. We do not need a counterpart of the Food and Drug Administration to micromanage our spiritual and psychological health. That should fall under thr province of the free market of ideas.

Posted by Alan K. Henderson at April 22, 2003 11:03 PM

> have we reached a state in American politics where advocating a law that tracks Christian morality is beyond the pale?

Read I Corinthians 14:34 and then ask that question again.

Posted by Erann Gat at April 22, 2003 11:17 PM

Hmmm...I Corinthians 14:34...

If a law were to track this, lawmakers would be interfering with churches' rights to decide who they do and don't want speaking on the premisis - not to mention their rights to interpret the text the way they want. (See NIV Study Bible notes for multiple interpretations.)

Jesus didn't say to render unto Caesar what isn't his.

Posted by Alan K. Henderson at April 23, 2003 05:38 AM

I was under the impression that incest was defined as the sexual act between closely related individuals, and that it is illegal regardless of marital status. Since first-cousins may legally marry in many states, presumably any relationship closer than that may be within those states' definition of sexual incest, or it may not.

Seems to me there was a brother and sister, middle-aged, who were arrested for shacking up as sex partners. Clearly they couldn't be married in any state (I believe this happened in Illinois but it was years ago), so it couldn't be marital incest they got in trouble for.

My understanding is that sexual incest is about the most universal sexual taboo there is, particularly if defined solely as sex between siblings or between a parent and child. Nothing else comes close.

Posted by Kevin McGehee at April 23, 2003 05:47 AM

Not completely universal. Hawai'ian royalty often bred from brother and sister. It was kapu for the commoners, though, I believe.

Posted by Rand Simberg at April 23, 2003 07:49 AM

Rand --

Apparently Santorum was indeed misquoted. But what he supposedly said is even more scary. Basically, he thinks it is the government's "right" to outlaw any and all sexual activity other than heterorsexual, marital, procreative relations. All other extracurricular activities are fair game for criminalization, in his estimation. Andrew Sullivan's got the scoop on this at www.AndrewSullivan.com. As Andrew says, it's pretty frightening when polititions talk in terms of the government's "rights".

Posted by Michael M at April 23, 2003 08:04 AM

Santorum's use of "anything" is the give-away about what he's really thinking, namely that any sexual activity other than procreative sex within marriage is potentially dangerous and thus open to government regulation.

Santorum is typical of so many on the so-called Christian right: he is terrified of his own penis and the impulses he feels regarding its use for purposes other than urination.

Santorum is another example of why people like me can never be members of the Republican party. I should be a reliable Republican; I support a robust, assertive foreign policy (including the war in Iraq), favor lower taxes and limited government spending, and think capitalism is the best, surest route to a prosperous, happy society. But I also want the government out of my life unless absolutely necessary, I don't need jabbering TV evangelists to tell me what to do with my life, and I like to engage in sex, even without the benefit of marriage, with consenting adult partners. And too many Republicans want to impose a de facto Christian theocracy on this country.

But the Democrats are too hobbled by memories of Vietnam to adequately defend the United States and have a childlike view of how the world really works (exemplified by their support of affirmative action) and its dangers.

Damn both the Republicans and Democrats.

Posted by Harry at April 23, 2003 08:24 AM

> Hmmm...I Corinthians 14:34...

I Timothy 2:11-12 then.

Look, I don't want to turn this into a religious argument. The point is only that there are elements of Christian morality for which advocating laws that track those elements is clearly "beyond the pale".

Posted by Erann Gat at April 23, 2003 08:52 AM

Santorum does indeed appear to be against any non-procreative heterosexual sex. That's fine with me, since he won't be the one deciding wether or not states can make other sex illegal - that'll be the Sup Ct.

What bothers me is the outrage everyone is expressing because Santorum compared homosexuality to incest, adultery, bigamy, etc... The impression I'm getting here is that the folks upset with Santorum are upset because he lumped homosexuality into activities these people think are _wrong_. In other words, their tolerance for homosexuality does not extend to tolerance for polygamy or other alternative relationships. If so, why not? Polygamy in particular has a far longer history of social acceptance (at least in other cultures/religions) than homosexuality has had.

Incest - I understand the genetic concerns incest raises, but defective babies are not created only by sister/brother or mother/son pairings. If the prohibition against blood-related consensual adults having sex is only due to the risk of birth defects, why have we not also made it illegal for people who _know_ they will have defective children to breed? And if no offspring results from the pairing, why is it wrong? (Before anyone jumps on my case for that - I don't think its the governments' business to decide who has babies and who doesn't...smacks too much of nazism to me.)

I disagree with Santorum's stance, but I _agree_ with his statement. If the Sup Ct rules, based on the 'right to privacy', that the states cannot make laws prohibiting homosexual sex, then they shouldn't make laws prohibiting other sexual relationships between consenting adults.

Posted by Celeste at April 23, 2003 09:05 AM

There quite a few cases now of unintentional incest where siblings, separated at birth had met and unknowingly engaged in sexual relations. Certainly the UK legal stance held that as long as there was no chance of children, the law could ignore it.

There is a more serious issue of consent in incest where, particularly with children, they are less likely to be able to make an informed decision than others. It is an area where I can't see it easily argued that this was consenual given the nature of the relationship, especially if dealing with adults and children.

Given these factors, I can't see how it can be lumped together with the others. The key with most of this is consent. If there is agreement by all parties then the problem should not be legal.

Posted by Dave at April 23, 2003 09:12 AM

As someone who has actually read the Griswold-Roe line of cases, I have to say that Santorum is correct. Griswold - from which springs the constitutional penumbras - found a privacy interest in the decision to reproduce. The privacy interest was the in the individual's autonomy in deciding whether to have children. It was not in the act of having sex. Likewise, Roe is a decision predicated on autonomous decision-making, not the act of sex. From that standpoint, Bowers - the 1986 sodomy case - was an easy decision since it didn't involve an issue of autonomy in decision-making about reproduction. [Although I know that this analysis doesn't comport well with what people think "privacy" means, but that was the ratio of those cases.] Further, absent a constitutionally protected interest, the government may regulate conduct if there is a "rational basis," which, as a standard, amounts to sheer tautology. All this goes out the window if privacy is extended from autonomous reproductive to choices to sexual activity. In which case the government must show a "compelling interest," and I doubt it can do that with respect to incest - the public health issue has always been overstated - or polygamy - what is the compelling interest in dictating how individuals structure their "private" family affairs? [Note that "compelling" in that context doesn't mean what you may think it means.]

Posted by Peter Sean Bradley at April 23, 2003 12:56 PM

Actually, to stir things up a little, there are times when incestuous reproductive is a good thing. Namely, when there aren't many bad recessive genes and you wish to bring out a desirable recessive trait. FWIW, most people probably aren't carrying recessive genes that would automatically kill a child if they were to express. Hence, incest probably would be harmful in most cases. OTOH, in cases where harmful genes were present, then they are much more likely to express in an incestuous pairing than the usual.

For what it's worth, farming routinely inbreeds animals in order to bring out desirable traits, and brother-sister pairings are done (no idea how common though). The key to making that work is culling of harmful recessives. Ie, if an animal has in the tree expression of a harmful recessive gene, then my understanding is that animal needs to have a lot going for it before it'll be bred.

Before people get upset at me, note that the nobility of Europe has a fine history of managed inbreeding though they kept away from the more extreme cases of incest and never culled the recessives (like hemophilia) from the noble lines.

Posted by Karl Hallowell at April 24, 2003 11:29 PM

Prince Charles causes one to think that there are some other recessives that they didn't cull...

Posted by Rand Simberg at April 27, 2003 11:21 AM

There is actually a formula that tells you how many members of a species you need, based on the number of chromosomes, for inbreeding with culling to maintain a viably diverse population.

The study I read (about 10 years ago) used frogs as an example.

Posted by David Mercer at May 2, 2003 12:00 AM

The point is only that there are elements of Christian morality for which advocating laws that track those elements is clearly "beyond the pale".

No argument from me - actually, I was illustrating that point. "Beyond the pale" positions with biblical-sounding justification (my favorite is the faulty parallel between welfare statism and private charity - sorry, but Jesus didn't say, "Give generously, and force your brother to do likewise") can be argued against easily by following the injunctions against theft and its various manifestations (including and especially that of usurping authority) to their logical conclusions - and, as Erann's verses illustrate, by not assuming that decrees regarding church government autmatically apply to secular government. Fortunately, that women-even-if-they're-not-named-Hillary-shouldn't-be-in-office mentality is extremely scarce in even the most conservative parts of the country.

Posted by Alan K. Henderson at May 5, 2003 05:24 AM


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