You don't have to be a gay basher to believe, as Sen. Santorum argues, that striking down the Texas statute is problematic. Either the Constitution protects the rights of consenting adults to do whatever they desire in private or it doesn't. If the Constitution prohibits a state from regulating consensual sexual activities between adults of the same sex, why should it allow states to regulate such activities between adults of the opposite sex, which anti-incest, anti-bigamy, anti-polygamy and anti-adultery statutes certainly do? (Ironically, one of the arguments of the gay rights groups that brought this case is that homosexuals and heterosexuals ought to be treated the same.) Again, the issue isn't whether these laws are good policy or bad, but whether the state should have the authority to pass such laws at all.
These laws reflect a moral consensus about the behaviors involved. But, for better or worse, that consensus is changing, especially with regard to homosexuality. There is far greater acceptance of gay men and women today than at any time in our nation's history. Nonetheless, according to the most comprehensive study of sexual attitudes among Americans, the National Health and Social Life Survey conducted in the early 1990s, 65 percent of respondents said "same gender sex is always wrong."
Believing homosexuality is wrong, however, doesn't translate into support for laws outlawing homosexual conduct. Most Americans -- 68 percent, according to a 2000 Los Angeles Times poll -- favor laws forbidding employment discrimination against gays. Half of all Americans favor giving gays inheritance rights, employer-provided benefits and other entitlements enjoyed by married couples (although an even larger 58 percent oppose allowing gay couples to marry).
These data suggest that most voters would favor repealing the few remaining state anti-sodomy laws, putting the power to make such decisions where it belongs, with the elected representatives of the people. If the Court disagrees and strikes down the Texas statute, not only will anti-bigamy and anti-incest laws be at risk, but so will others that interfere with private, consensual behavior, including gambling, prostitution, drug laws and others.
No doubt some Americans -- libertarians, for example -- would applaud such sweeping change. But most wouldn't, which brings us back to Sen. Santorum's statement. He wasn't equating homosexual behavior with bigamy, incest, etc. -- as most of the media reports on the flap have suggested -- but rather asserting that the state has an interest in regulating some private behaviors. There's nothing abhorrent about such a view, and he should not be pilloried for stating it.