Andrew Sullivan goes after Rick Santorum’s comments on homosexuality both on his website and in Salon. Sullivan, to his credit, ignores the bogus issue about Santorum’s having supposedly treated gays as morally equivalent to practitioners of incest, and instead gets to the deeper issue: Santorum’s opposition to the Supreme Court’s potential assertion of a constitutional right to sodomy (and to other sexual behaviors) and, what is not the same thing, his support for laws against sodomy.
Sullivan writes, “[Santorum] not only believes that sodomy laws should be constitutional. He believes they should exist. And if they exist, they should be enforced. Santorum is actually making a substantive and radical political point under the guise of a serious constitutional one. And that point is the government should have no restraint in enforcing sexual morality — even if it means knocking on your bedroom door.”
This seems to me a misreading. First, I don’t see where Santorum came out for the active, or even not-so-active, enforcement of anti-sodomy laws. Second, Santorum is not saying that governments should show no restraint in policing sexual morality. He is denying the existence of two particular restraints: a constitutional right to sexual freedom and a valid moral principle that prohibits the governmental policing of consensual sexual behavior. There may be all kinds of other reasons, both prudential and principled, for state governments to show restraint.
Sullivan claims to venture no judgment on the constitutional point at issue, although he plainly makes one. He seems to believe that it is “radical,” “extremist,” and “theocratic” to believe that the federal government should allow state governments to prohibit consensual sex acts, subject to the approval of voters. (“Trying to drag the country back to the 1950s” is at one point equated with theocratic politics, which is a peculiar comment to make about Eisenhower’s America.) But this is in fact the status quo. Sodomy laws have been disappearing from the books precisely because they no longer command majority support. (Moreover, it’s hard to imagine that the Supreme Court would be willing to strike down sodomy laws across the board if public opinion had not already shifted.) Wrong, Santorum may be. I think he is wrong on the question of whether states should ban sodomy. If you believe that it’s the Supreme Court’s job to force state governments to conform to Millian political philosophy, you will naturally have a stronger objection to Santorum’s views. But the claim that Santorum is “radical,” etc., seems to me just silly.