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[Previous entry: "... Europe?"] [Main Index] [Next entry: ""Cheese-eating," granted..."] 04 May 2003: "What does morality have to do with it?"Spinsanity ran a piece about a week ago regarding misrepresentations of comments made by Senator Rick Santorum, in which Santorum's position was summed up as follows: Santorum is clearly stating his opposition to constitutional protection for what he calls "homosexual acts" earlier in the interview. In mentioning polygamy, bigamy, incest, and adultery, however, he did not state that they are morally equivalent to homosexual acts. Instead, he made the legal argument that if the Supreme Court overturns Texas's sodomy laws prohibiting anal and oral sex amongst homosexuals, those other acts would have to be legalized by the same principle of a constitutional right to privacy.Kudos to Spinsanity for accurately pointing out the distinction. However, this doesn't make Santorum's position any less incorrect; it's just incorrect for different reasons. Unlike sodomy (which, as this article in The Stranger points out, is a term which is not unambiguously defined anyway) there are reasons why bi-/polygamy, adultery and incest are regulated which have nothing to do with the prevalent perception of morality. From the point of view of the state (in the widest sense), marriage is essentially a legal contract; this contract affects the legal relationships of the parties involved with other parties (financial institutions, creditors and the government itself), as well as those of any children born to (or adopted by) the parties involved. If either partner in a marriage commits adultery and produces a child as a result, various legal headaches arise. Should the non-adulterous partner be forced to contribute financially to the cost of raising and educating the child? Does the child have any claims to the inheritance of the partner who is not its parent? You get the idea. The same problems arise in the case of bi-/polygamy: should wife A be forced to contribute to the welfare of children born of wife B? In jurisdictions where a married woman is not considered to have any property rights—say, Saudi Arabia—this is not an issue (at least not a legal one), but in most western countries, it most certainly is. Incest is a different matter; for starters, the vast bulk of incest is non-consensual to begin with (enough said), but even consensual incest carries the risk of inbreeding, and this a public health concern. The common element with all three activities is that they may result in procreation, and that such procreation will cause problems regarding property rights or public health which are likely to affect other people who did not participate directly in the activity in question. This provides the legal basis—independent from any concerns of morality—for regulating these activities. Sodomy, on the other hand, is an entirely different story; as David Schmader points on page 2 of his article in The Stranger: [...] the true definition of sodomy is nothing more and nothing less than nonprocreative sex. Any sex act that cannot result in male sperm fertilizing a female ovum qualifies as sodomy.Indeed, if we look at various legal definitions of sodomy, this is the element common to all of them: the activities described cannot lead to procreation. Thus, the legal concerns which necessitate regulation of the activities which can result in procreation can not, by definition, apply to sodomy. Santorum's argument is that, if the various laws banning sodomy were overturned on the principle that an individual's right to privacy trumps society's right to prescribe morality, the laws banning bi-/polygamy, adultery and incest would have to be overturned for the same reason; this would be correct if the conflict of individual privacy versus public* morality were the only issue affecting bi-/polygamy, adultery and incest. But as I have argued, it is not; concerns other than ones of morality play a part in the regulation of the other activities, and these do not play a part in the regulation of sodomy. Therefore, Santorum's analogy is a false one. While I'm discussing Santorum and analogies anyway, I read that Santorum stated in an AP interview: I have no problem with homosexuality. I have a problem with homosexual acts.That's sort of like saying you have no problem with computer ownership, but you do have a problem with running software. * - Insofar as any activity which takes does not take place in public can be called "public." |
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