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Santorum and Texas vs. Lawrence

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The Texas vs. Lawrence case involves the Texas anti-sodomy law, which specifies that sodomy is only illegal between people of the same sex. This makes the case against the law very different than the case against anti-sodomy laws in other states. After all, here in Texas, we’ve discovered that sodomy isn’t a criminal act for some people.

A law that makes an act that is legal for members of one group to perform illegal for members of another group to perform is inherently discriminatory. The question is ‘is this illegal discrimination?’ Some discrimination is fine. It is legal to discriminate against 10 year olds who wish to vote. It is legal for the VA to discriminate against non-veterans who want free governement healthcare. There is a compelling state interest in discriminating that overrides the harm done to the discriminated class.

Senator Rick Santorum attempts to define this state interest by asserting that protecting gays from this discrimination will de facto protect bigamists, polygamists, people committing incest, and adulterers. It is clear under Texas law that all sodomy is not harmful, since it is no longer illegal between consenting adults if they are of opposite sexes. All Santorum has is a rather weak ‘gateway’ argument.

I don’t think there is any merit to his position, because bigamy (for example) is illegal regardless of gender or orientation. Striking the Texas sodomy law because it illegally discriminates would be laudable. It would not inherently establish a right to privacy (regardless of the merits of such a right) and it would not invalidate existing laws against gender-and-orientation-blind behavior. His arguments miss the point, and it is my hope that the court agrees with me.

Senator Santorum may not be the homophobe that he’s being painted, but he does a poor job of determining the harm done by a discriminatory law and he is far too willing to invade the bedrooms of consenting adults of whatever orientation. I suspect he is not particularly different from John Ashcroft in this. It’s run of the mill odiousness, not a particular stench that belongs to Santorum alone.

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  • http://www.slumdance.com/blogs/brian_flemming/ Brian Flemming

    Well said, Michael.

    As Bill Maher once said, the government should have no interest in “what happens at the end of your dick.”

    As far as Santorum’s being a homophobe, I think it’s pretty clear he would like to be perceived as one. Given an opportunity to clarify his remarks, he said,

    “My comments should not be misconstrued in any way as a statement on individual lifestyles.”

    I think many people would accept that Santorum was making a more nuanced legal argument with his remarks. However, his remarks DID bring up the issue, “Yeah, but do you deplore gay people?” Santorum didn’t take the opportunity to say something like this about his fellow Americans who are wondering how he feels about them:

    “Every day in our country, gay and lesbian Americans get up, go to work, pay their taxes, support their families, and contribute to the nation they love. ” (John Kerry)

    And the President, who famously refused to meet with the Log Cabin Republicans and blatantly lied about the reason (the group never endorsed McCain), obviously doesn’t consider gays and lesbians important enough even to think about.

    This is an issue on which the GOP needs to be forced to do some plain speaking, I think. Orgs like the Family Research Council claim that homosexuality and “family” somehow cannot exist within the same nation.

    For right-wingers who criticize liberals for suspecting that conservatives are “evil,” I have to say, if you aren’t evil, why do you hate so much?

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