I’ve gotten lots and lots of email asking, inquiring and demanding (I hate demands) that I say or do x or y in response to this Santorum mini-tempest. I pretty much ignored the story yesterday because I had to get the column done and go to Princeton and back. On the constitutional aspects, I have to say Ramesh is right (he very rarely isn’t on the Contitutional front), as for the public policy I agree with Sullivan and the Libertarians. As do, it seems, plenty of conservatives. William F. Buckley included.
Because conservatives understand that the US Constitution is not the moral equivalent of Felix the Cat’s magic bag, we recognize that something can be wrong and constitutional. One of the most annoying aspects of debating Supreme Court cases with liberals is dealing with an opponent who says “So you think people should burn crosses!?” — simply because you recognize that it might not be unconstitutional to burn crosses.
To be honest I don’t know or haven’t decided if sodomy laws are unconstitutional. Though Andrew Sullivan makes a perfectly valid point when he notes that whether you agree or not with the constitutional “right to privacy” is fairly irrelevant because it exists as a matter of constitutional law today. And let’s face it, it exists as fact in our political culture as well. But I do know that I’m against sodomy laws simply because homosexuals are citizens, human beings, taxpayers etc. I don’t have to dig everything they do to recognize this fact. And whatever moral justification for sodomy laws there may be — I don’t see any, really, but I’m open to the idea there might be some — are obviously outweighed by the moral costs of enforcing them. Kicking in doors, spying on people etc would not only be unfair to the “criminals” it would be destructive for the cops and the people who pay their salaries. I would love to hear from someone defending sodomy laws but opposing drug laws. (With the exception of marijuana, I support the drug laws).
Sullivan has chastised me in the past for waxing nostalgic for Victorian cultural norms which more or less forced everyone to act in a straight-laced way in public but allowed a let-your-freak-flag-fly lifestyle in private. He contends this is a past-that-never-was, but that’s a debate for another day. The point is even in my ideal arrangement, you could get away with doing most anything you want in private so long as it was consensual, no one was hurt, and there were no kids or close relatives around.