Sen. Santorum, I Can't Believe You Said That

Just for the record, Dewey, without beating this particular dead horse again, my view is that not all rights guaranteed by the Constitution are explicitly named there, and that the others are not “manufactured by judges” but understood by the “reasonable man” standard from what is there and what’s assumed by reasonable men to be rights that they enjoy in a free nation – with the courts as arbitrators of what the “reasonable man” will reasonably believe and assume.

“Substantive due process” has a long and checkered history, and I agree it’s been abused. But the idea that “due process” extends beyond adherence to proper procedure to a guarantee that justice will truly be done in a given case, is not one I’m prepared to give up on the grounds that it’s susceptible to abuse. It strikes me that advocates of judicial self-restraint could easily define what constitutes that sort of abuse, i.e., the proper limits on SDP.

Huh? Sure, the legal brief could be considered by the Senate during Pryor’s confirmation, but that argues against your position. If the argument contained in the brief is necessarily homophobic, then putting that argument in a legal brief could only hurt Pryor’s chances of being confirmed – I can hear Sen. Schumer getting warmed up already. Why on earth would you put in that argument if the only possible construction of it leads to homophobia? **

So what you’re saying is that the argument should be discarded because some not-so-bright people who aren’t paying attention will misunderstand it?

Sorry, I categorically reject that. We shouldn’t let the lowest common denominator determine what is or is not acceptable argumentation. **

And would Scalia be wrong? On what principled basis would you say a constitutional guarantee of consensual adult sexual relations protects one but not the others?

Poly: I understand your position. I still disagree with it, for reasons we’ve discussed ad nauseam. Suffice it to say you are less comfortable with democratic decisionmaking than I am. That’s OK; it just means we will never agree on this particular point of constitutional law.

Well let’s see, given that the party to which Rick Santorum belongs controls the Senate, it doesn’t strike me that taking an explicitly anti-gay stand is going to hurt Pryor in the slightest. So he gets confirmed on a 51-49 vote instead of 60-40 or whatever. My point was not whether or not including the argument would help or hurt his nomination. My point dealt exclusively with whether or not someone beyond the narrow audience to which you assigned the brief would be reading it.

I’m saying that the comparison should be rejected because it is utterly without relevance to the legislative process and utterly without merit in the judicial process.

Bigamy or multiple marriage is a matter of contract, not sex. The state certainly has the power to regulate who may enter into a marital contract (within of course the context of the Constitution) and a rational argument can be made that limiting the number of parties to the marital contract to two (well, three including the state) can be justified for the purpose of property ownership, inheritance, custody, etc. Not that I would necessarily agree with such an argument but it could rationally be made. Sex between an adult and child is easily distinguishable from sex between adults. As for incest, admittedly the argument is not as easy to make but personally I couldn’t care less if adult consensual incest were made legal. If someone prosecuted under an incest statute wants to take it to SCOTUS they are free to do so.

One word for you, sparky: filibuster. **

OK, fine, so the Senate and their staff would also be potential audiences for the brief. Again, I’ve got to ask: so what? What good does it do to insert a (according to your view) homophobic argument into a document where that is the target audience?

Your argument might arguably make sense if Pryor (like Santorum) was giving an interview or a speech to the general public – i.e., where his target audience might include dumb bigoted rednecks apt to connect homosexuality with incest, etc. I’d still say you need context to make that call, but at least your position would have some merit. But a legal brief doesn’t have those people as its audience. Why include a homophobic argument if your target audience is not prone to homophobia?

The simpler answer is that the argument by itself isn’t homophobic. It’s a dry constitutional argument, and its presence in the brief is perfectly legitimate. **

Again: it isn’t a “comparison.” It’s a statement of constitutional fact. If the constitution protects all consensual adult sexual relations, it protects incest as well as homosexual sodomy.

(I’ll happily cede the bigamy point – I stopped including bigamy several pages ago for precisely the reasons you note). **

OK, fine, you’re OK with adult incest. That’s your prerogative.

But surely we can agree that there are many non-homophobic people who aren’t OK with adult incest who would be deeply troubled by a rule that extended constitutional protections to that practice. That argument speaks to those people and their concerns. Surely making that argument, by itself, is not homophobic.

<sigh> If you say “thing A is like thing B” then you are comparing thing A and thing B. Even if the only point of comparison between the two is “both would become legal if SCOTUS rules this way,” that is still a comparison. I’m really completely baffled that you continue to resist this simple statement of fact. The real difference here is not whether or not a comparison is being made; it’s whether the comparison being made is strictly for legal purposes or whether there is some additional (anti-gay) meaning to the comparison.

I did not say this. You fucking quoted me word for word and you ought to damn well know what I did and didn’t say, and it wasn’t this.

Because the average person is so up on the Constitution that they’ll distinguish between the dry legal aspects and the visceral disgust they associate with incest…

Yes, goddammit, arguing that making love to my boyfriend is in any way the same as fucking my brother, or a dog, or a child, or a corpse, is all by itself homophobic.

Meanwhile, in other news, Santorum flees PFLAG parents.

For the umpteenth time, this isn’t a comparison. It is not saying “thing A is like thing B.” It is saying “Argument Z covers both thing A and thing B.” This is not a tough distinction to understand; why you persist in stating otherwise is quite odd. **

Fine. I hereby revise and extend my earlier remarks to read as follows: “OK, fine, you’re OK with constitutional protection for adult incest.” Better? **

You’re dodging. Do you deny that there are people who are (1) not homopobic but who are (2) uncomfortable extending constitutional protection to adult incest? Do you deny that a person can legitimately hold that point of view? **

And for the umpteenth time (again), the argument does not say that making love to your boyfriend is like any of those other things – it just says that if the constitution protects adult consensual sex, it protects those other things along with protecting your right to make love to your boyfriend. That. argument. is. not. homophobic. dammit.

Let me put a very basic, direct question to you: do you believe it is possible to think the Texas law is constitutional and yet at the same time not be homophobic?

Is it possible? Yes. Have I heard a non-homophobic argument? No.

So you’re calling me a homophobe then?

Oh, wait, I don’t want to give you the “you said it, not me” dodge that you used earlier.

Let me ask you point-blank: do you think I am a homophobe?