Santorum's Point: "Polygamy Rights"

After making a simple point on April 7, 2003, Pennsylvania Senator Rick Santorum was quickly vilified by many who seemingly disagreed with him.

But do they really disagree?



SENATOR SANTORUM

Santorum's point was straightforward. Discussing a "right to privacy", he explained his view that it's not in the Constitution.

He said, "We have laws in states, like the one at the Supreme Court right now, that have sodomy laws and they were there for a purpose, because, again, I would argue, they undermine the basic tenets of our society and the family. And if the Supreme Court says that you have the right to consensual 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."

While disagreeing with that argument, he made the larger point that a "privacy right" to consensual sex also means a "privacy right" to consensual polygamy.

The case he referenced is "Lawrence v. Texas", an appeal by two homosexuals who had been "caught in the act" by police, while in the privacy of one's home.   Their "act" violated Texas law.   The case is currently before the Supreme Court, arguing the Texas law as unconstitutional.

The Senator's polygamy comment followed what U.S. Supreme Court Justice Antonin Scalia said in hearing that case.



LAWRENCE v. TEXAS

On March 26th, attorney Paul Smith was making the "right to privacy" appeal in that case before the U.S. Supreme Court.

He argued that the majority cannot tell a minority what they may do in the privacy of their own home, especially if the majority is not likewise disallowed.

He said, "It is fundamentally unfair for a state to outlaw sex acts for a minority group but permit the majority to engage in the same acts, with no more justification than to say, 'we want it that way, we want them to be unequal in their choices and their freedoms.'"

U.S. Justice Scalia responded, "You can put it that way.   You can make it sound puritanical.   But lots of laws make moral judgments.   What about the laws against bigamy?"   Scalia joked, "I mean, who are you to tell me that I can only have one wife, you blue-nosed bigot?"

Scalia foresaw the consequential impact of this "right to privacy" argument for consensual polygamy.

Such foresight was not the first time he has commented about polygamists' civil rights.



ROMER v. EVANS

On May 20, 1996, the Supreme Court overturned Amendment 2 to Colorado's State Constitution.   Voter-approved in 1992, it was titled, "No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation."

The Court's majority decided that Amendment 2 was unconstitutional, an "impermissible targeting" of a "class" of people.   It decided that Amendment 2 had "impermissably targeted" homosexuals.

Justice Scalia disagreed.   In his written Dissent, he explained that a number of State Constitutions were (per federal requirement) originally adopted with clauses that polygamy is "forever prohibited."

Scalia stated, "Polygamists, and those who have a polygamous 'orientation,' have been 'singled out' by these provisions for much more severe treatment than merely denial of favored status...   The Court's Disposition today suggests that these provisions are unconstitutional; and that polygamy must be permitted in these States... --unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals."

Justice Scalia elaborated: Idaho's State Constitution had gone so far as to disenfranchise any polygamist or vocal polygamy advocate from even being allowed to vote.

He concluded, "It remains to be seen how Section 501 of the Idaho Revised Statutes was not an ‘impermissible targeting' of polygamists, but the much more mild Amendment 2 is an ‘impermissible targeting' of homosexuals."  



SCALIA FORESEES FUTURE
 
With these two cases, Justice Scalia foresees the future: the Supreme Court is constitutionalizing consenting-adult polygamy.

Romer v. Evans yielded the "impermissible targeting" argument.   Lawrence v. Texas could finalize the "right to privacy" argument.

These arguments effectively establish that anti-polygamy laws are an   "impermissible targeting" of   consenting-adult polygamists and a violation of their "right to privacy."



EVERYONE AGREES

Senator Santorum's point was in that context, repeating Scalia's foresight. He pointed out, these arguments inevitably constitutionalize the previously-unprotected civil rights of consenting-adult polygamists.

To his opponents' chagrin, the senator opposed such arguments.

Disagreeing with Santorum about the "right to privacy" argument means agreeing with his larger point. Agreeing with him, in using his larger point to oppose "privacy rights", means also conceding such agreement with the larger point too.  

As such, Santorum, Scalia, and their opponents all agree.   Laws against consenting-adult polygamy are inevitably unconstitutional.


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