FEDERALISM

Santorum on Sex: Where the Slippery Slope Leads: Santorum's remarks are more plausible as legal analysis than most critics have acknowledged (Stuart Taylor Jr., May 6, 2003, National Journal)

[S]antorum's remarks are more plausible as legal analysis, in the context of a major gay-rights case now before the Supreme Court, than most critics have acknowledged. Meanwhile, Santorum's assertion in the same April 7 interview that there should be no constitutional right to privacy reveals an agenda that is more controversial than most of his defenders seem to understand. [...]

Santorum, a devout Roman Catholic, said in the April 7 interview that he is driven not by animus but by his conviction that "this freedom"-which I read to mean the freedom to engage in any sex outside of traditional marriage-is "antithetical to strong, healthy families." There may be a modicum of truth here. But in an era of rampant adultery, divorce, unhappy marriages, spousal violence, child abuse, deadbeat dads, premarital sex, birth control, out-of-wedlock births, and working couples whose kids spend most waking hours in day care centers, it seems far-fetched to list gay sex as one of the real threats to the traditional family.

Speaking of slippery slopes, Santorum's assertion on April 7 that the "right to privacy ... doesn't exist in my opinion in the United States Constitution" would take the law in a direction far more objectionable than would the "right to anything" that he is so worried about. By explicitly rejecting Griswold v. Connecticut, the 1965 decision that established the constitutional right of married couples to use contraceptives, Santorum suggested that states should be free to ban contraception, period. And his apparent goal of overruling the entire 80-year line of right-to-privacy decisions would not only be a step toward allowing states to criminalize all premarital and extramarital sex; Rick Santorum's America might also be a place in which states would be free to mandate sterilization of convicts and retarded people.

Yes, but the entire 80-year line of cases is wrong as to the Constitution and should therefore be discarded. It seems unlikely that many states would outlaw premarital sex or contraception (there are still voters you know), though many might criminalize extramarital sex and the like. So what? At worst we'd end up with a nation that had a wide range of sexual standards, from the most debased--in places like HI, VT, MA, etc.--to the most chaste--AL, etc. What's wrong with that? Posted by Orrin Judd at May 10, 2003 7:59 AM