Santorum and the Morality Police

Senator Santorum strikes again. Over the last few weeks, The National Review Online has been publishing excerpts from the Senator's book, It Takes a Family. Most of the published chapters that I have read focus on the Supreme Court's "privacy" jurisprudence and the Senator's view of judicial activism. Here is one memorable paragraph where Santorum discusses the evolution of the Griswold right to privacy, and the effect of Lawrence:

What I feared the Court would do in Lawrence in striking down the Texas sodomy statute is to finally and completely eliminate marriage as a privileged institution in our laws and simply expand the zone of privacy in sexual conduct to all consenting adults. That is exactly what they did: Marriage has now completely lost its special place in the law. The Court said in effect that marriage has not only outlived its legal usefulness, it said it is discriminatory to treat people differently based on such an outdated social construct. Therefore, over the past generation, it has decided to change the zone of sexual “privacy” from one man and one woman in marriage to consenting adults, period. So, to paraphrase my own quote above: If consent is now the only standard to have your sexual behavior protected by the Constitution, then how can the Court prohibit any consensual sexual behavior among two, three, or more people? The answer is logically, judicially, that you cannot...

I am scratching my head... So, what?!? "Eliminate marriage as a privileged institution in our laws...."? Sounds good to me. What's the problem, Rick? Treat people equally? Preclude the government from restricting a person's individual choices? How freaking revolutionary. That being said - Griswold and Lawrence, were indeed "activist" decisions in that the Court, in essence, made up the fundamental "right to privacy" to further the personal policy preferences of the Justices involved. So, from a Constitutional standpoint - I'll throw the Senator a bone and admit that the Constitution does not (at least explicitly) recognize the fundamental right to "privacy." While there are originalist arguments that support such a right, I will leave that discussion alone for now.

What bothers me the most about Santorum's statement is not his Constitutional interpretation, but the audacious suggestion that marriage, as an institution, deserves favor qua institution and that the individuals who petition for such sanction are entitled to the same. The import of this view is that state governments may legitimately restrict or enhance individual liberty dependent upon an individual's marital status. I know, I know..., marriage is a state-sanctioned vehicle of privilege - but I am not referring to statutory tax benefits or rules of intestate succession. It is bad enough that the state uses the subtle-coercion of legal privilege to promote its collective view of morality. But even more generally, we, as humans, have a larger right to privacy that is part-and-parcel to the inalienable rights of liberty (e.g. "immunities") to which we pay so much lip service. And, that concept of liberty necessarily entails the right to be let alone and live as we choose (so long as we leave others alone as well). As such, those liberties cannot be legitimately enlarged or compressed by virtue of marital status, state-fiat, or Senator Santorum's sense of morality.