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Santorum's Point: "Polygamy Rights"

Date: May 06, 2003
Word Count: 750 words
Cross-Reference: Senator Santorum, Lawrence v. Texas, U.S. Justice Antonin Scalia, Romer v. Evans

Everyone ends up agreeing with the Senator's point, after all.

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?


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.


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.


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."    

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."  


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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