EDITOR’S NOTE: This is the fifth in a series of five excerpts from It Takes a Family, by Sen. Rick Santorum. Together they comprise chapter 23, “The Rule of Judges.”
Now that we know where it started, where are we now? You may recall my comments, widely reported in the press, about the Lawrence v. Texas case, in which the petitioner was seeking to strike down the Texas sodomy statute as unconstitutional. Before that decision, I made the comment to a reporter that this decision had the potential to further expand the right to “privacy” with devastating consequences. This is how she reported this often-repeated quote of mine:
And 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 reporter inserted the word “gay” into the first sentence. This led to claims that I was comparing homosexuality with incest and polygamy, which I was not. What I was saying takes more than a sound bite to explain and that makes it tough for some reporters, and the media in general, to grasp.
First, we have to look at the state of the law before Lawrence was decided. I discussed the Griswold case above and the right of privacy that it eventually created. With respect to sexual conduct, not abortion, the Court had recognized a zone of privacy around marriage. In other words, married people were treated differently under the law with respect to their sexual activity with one another than unmarried people. In its left-handed way, the Court in Griswold gave deference to marriage between one man and one woman as the building block for society and the legitimate purpose for sexual activity and thereby protected it from state regulation. Eisenstadt began to change all that, however, and this transformation of our constitutional traditions continued with Roe and Casey.
What I feared the Court would do in Lawrence in striking down the Texas sodomy statute is finally and completely eliminate marriage as a privileged institution in our laws and simply expand the zone of privacy in sexual conduct to all consenting adults. That is exactly what they did: Marriage has now completely lost its special place in the law. The Court said in effect that marriage has not only outlived its legal usefulness, it said it is discriminatory to treat people differently based on such an outdated social construct. Therefore, over the past generation, it has decided to change the zone of sexual “privacy” from one man and one woman in marriage to consenting adults, period. So, to paraphrase my own quote above: If consent is now the only standard to have your sexual behavior protected by the Constitution, then how can the Court prohibit any consensual sexual behavior among two, three, or more people? The answer is logically, judicially, that you cannot–for other than arbitrary reasons. That is why there have already been several cases filed by polygamists seeking similar constitutional protection on the basis of Lawrence.
It is also no coincidence that within a few months of the Lawrence decision, the Massachusetts state supreme court handed down the Goodrich decision, which established in that state a constitutional right to same-sex marriage. And what was the first and most often cited case it used in coming to its decision? You guessed it: Lawrence v. Texas. The village elders on the Massachusetts court reasoned that the Commonwealth of Massachusetts could not discriminate against people simply because they were exercising their constitutional rights. They went so far as to say that there is no “rational basis” for treating heterosexual unions differently from same-sex relationships: The only conceivable reason for barring same-sex couples from state-sanctioned marriage had to be “animus”–hatred. That’s right, the Massachusetts court said the only reason you could possibly want to protect the sacred institution at the core of every civilization in history is because you are a bigot. Welcome to village legal scholarship.
As for a Moral Impact Statement to determine the extent of damage such a fundamental change would cause: none. The court in Massachusetts ordered no studies or hearings. It simply, by undemocratic, authoritarian brute force, told the people of Massachusetts that marriage as we all know it is over. In fact, it declared that anyone who holds to the traditional definition of marriage is “irrational,” since there is no “rational basis” for the traditional view.
And what do the village elders in Congress today say to all of this? What do the liberals who have never met an issue that didn’t need “solving” by legislation say about the role of Congress? They say, “It’s a state issue: they can handle it.” Or they say, “It’s a judicial issue: they can handle it.” Let me translate: “We can’t come out in favor of same-sex marriage since it is too unpopular. So let’s let the unelected judges on the state and eventually federal courts do the dirty work for us.” The fact is, I could substitute the words “in the 1960s” for the word “today” in the first sentence, and the word “abortion” for the words “same-sex marriage” in the previous sentence, and you now see the strategy laid bare. This calculated plan is undemocratic, it’s an abuse of power, it savages the moral ecosystem in this country–and it worked once and is working again.
The good news is that while it is rare, Supreme Court decisions are sometimes overturned. We are now only a little more than thirty years on from Roe v. Wade. But it took more than sixty years for the “separate but equal” ruling of Plessy v. Ferguson to be overturned by Brown v. Board of Education. It took thirty years for the ruling in Lochner v. New York to be overturned. It can be done. Just like the health of the Great Lakes and the rivers of Ohio returned, so too, I believe, can our moral ecosystem right itself. All we need is leadership that understands the gravity of the problem and is determined to do something about it. And that is why disputes over nominations for federal judgeships will continue to be among the most bitterly contested matters in the U.S. Senate.
–Senator Rick Santorum is the junior United States senator from Pennsylvania. Chairman of the Senate Republican Conference, he is the third-highest-ranking Republican in the U.S. Senate.