JB

Pennsylvania Senator Rick Santorum angered gay rights groups with this recent interview with the Associated Press:

Referring to an upcoming decision from the U.S. Supreme Court on the constitutionality of antigay sodomy laws, Santorum told the Associated Press, "If the Supreme Court says that you have the right to consensual [gay] 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." He then added, "All of those things are antithetical to a healthy, stable, traditional family. And that's sort of where we are in today's world, unfortunately. It all comes from, I would argue, this right to privacy that doesn't exist, in my opinion, in the United States Constitution."

I well understand that Santorum was trying to compare homosexuality to incest and polygamy in order to criticize homosexuality. I completely disagree with his criticism of homosexuality and think that the Supreme Court should overturn Bowers v. Hardwick, the 1986 case that upheld criminalization of same-sex relations. Nevertheless, Santorum's remarks raise an important issue about constitutional interpretation and how the meaning of constitutional rights changes over time that is well worth discussing.

First some background on what Santorum said: The Supreme Court has protected procreative liberty under a mis-named "right to privacy," which is really a combination of several different rights, including the right of intimate association, the right to decide the conditions under which one will bear or beget a child, and the right to sexual autonomy. Judicial recognition of this set of rights stems from two cases decided in the 1920's that concerned the right of parents to direct how their children were raised, a case in the 1940's which struck down a compulsory sterilization law directed at lower class criminals (as opposed to white collar criminals), and was finally recognized in a 1965 case which upheld the right of married couples to purchase contraceptives, and a 1972 case which extended the right to unmarried persons. The 1973 decision in Roe v. Wade is based on this right as well.

The basic problem with the right of privacy is not that it is not mentioned in the Constitution (the word "liberty" does appear in both the 5th and 14th Amendments) nor is it that it was unknown under the original understanding (a lot of rights that we would not be willing to give up today were unprotected according to the original understanding). It is rather that it is difficult to put a precise boundary on how far the right to privacy extends. A convervative traditionalist might argue that the right of procreative liberty only should extend to traditionally recognized rights of intimate association and procreative liberty like those of married couples to have sex and beget children, but not to anything that is nontraditional. The argument is that courts are not very good at defining the boundaries of the right of privacy, so they should just stick to rights that have a long and hallowed tradition.

If courts move past the most traditional versions of the right to intimate association and procreative autonomy that almost everybody agrees are ok, the argument goes, they will not be able to find a clear stopping point. That's because all of the practices that courts might wish to protect will be controversial and immoral to someone or somebody. This is Santorum's point: You may think that incest (even between consenting adults), polygamy and adultery are morally wrong, but not homosexualty. Santorum thinks they are all morally wrong and undermine the stability of society. Other people might think that all of them (or some of them) are morally permissible (Think about the official position of the Mormon Church in the 19th century, for example). Whose views about morality should win out? Since there is strong disagreement about these practices, courts should leave it up to local communities to determine their legality. This is, I think, the best version of the argument that Santorum was trying to make.

But this argument overlooks an important point about how constitutional rights get their content. In fact, the scope of the constitutional right of privacy is determined by evolving social norms, not by legal logic. It is determined by politics and social movement contestation, even if judges don't recognize this fact or admit it to themselves. We often think that fundamental rights should reflect basic values that do not change over time. In fact it is quite the opposite. Through social movement contestation, people demand that the articulation of fundamental rights keep pace with their changing ideas of what values are most important and fundamental. Rights become timeless, in other words, when the time is right for them.

The right of privacy is a perfect example of this phenomenon. The right of privacy is always responding to changing notions of what is sexually appropriate and inappropiate. Today most people in the United States (and certainly most young people) think that heterosexual sex between unmarried individuals is permissible. It was not always thus. The sexual revolution changed people's views about the morality of pre-marital sex. That, in turn, changed what people thought the state had a right to regulate. Most people now probably think that it is none of the state's business whether heterosexual couples have sex and whether they wish to live together outside of marriage.

The same thing, I would submit, is happening with same-sex relations. When the Supreme Court first considered the issue in 1986 in Bowers v. Hardwick, homosexuality was only beginning to win widespread social acceptance. Not surprisingly, the Supreme Court, filled with people of a much older generation, could not muster five votes to protect the rights of gays and lesbians. What was surprising was that there were already four votes to do so. Now, with Will and Grace one of the top-rated comedies on television, it is quite clear that a very large number of people have changed their views. It is only a matter of time before the Supreme Court begins to protect same-sex relations. Whether they will do so through extending the right of privacy or through the use of the equal protection clause is yet to be determined. But they will change constitutional law to accomodate changing social mores. However, since there have been no similar changes in social attitudes about incest or polgyamy, there is no reason to think that courts will protect those practices. As I have said, the reason is not based on logic, but experience, which, as Oliver Wendell Holmes, Jr. once said, is the real source of the life of the law..

Conservative religious groups used to have the upper hand in the debate over gay rights. But now they have seen the writing on the wall. They are, for the most part, resigned to the Supreme Court's overruling or severely limiting Bowers v. Hardwick. Santorum's comments should be understood in this light. He is giving this feature of right wing politics its last hurrah. Right wing politicians will quickly see that the most overt forms of gay baiting do not work except to an increasingly small number of their constituents, and so they will gradually give up trying to do it. Instead, they will shift to more subtle forms of homophobic appeals, just as they did in the case of race. Within twenty years or so, it will be impossible for Santorum or someone like him to make comments like this and still expect to be elected to national office. At that point, it will be seen as akin to Trent Lott's comments about race. In fact, as the outcry over Santorum suggests, we are witnessing this transformation of what is politically acceptable to say before our very eyes. Santorum is on the losing side of a long battle. In the future, social conservatives will change their rhetoric, for example, by insisting that gays have a perfect right to do what they want behind closed doors, as long as they do not try to flaunt their practices in front of heterosexuals. The struggle for gay rights will then focus on the question of full acceptance rather than mere tolerance.