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Homosexual activists and Democrats are urging Republicans to remove Sen. Rick Santorum, R-Pa., from his leadership position for remarks about a Supreme Court case, but a transcript of questions asked during oral arguments indicate justices share his constitutional concerns.
The rights groups contend Santorum’s comments in an Associated Press interview about a case challenging the constitutionality of a Texas sodomy law, Lawrence v. Texas, were “disparaging an entire group of Americans.”
Sen. Rick Santorum, R-Pa.
However, an attorney who was present during the March 26 oral arguments said Santorum merely echoed the argument of the state of Texas, which is defending its law.
Asked whether he believed homosexuals should be allowed to have sex, Santorum referred to the Lawrence case, telling the AP: “If the Supreme Court says that you have the right to consensual 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.”
That assertion was a major part of the debate, attorney Jordan Lorence told WorldNetDaily. Legal counsel from both sides essentially were asked by justices: If we find a right to engage in private, consensual sodomy, are we also creating a right to bigamy?
“This is mainstream stuff,” said Lorence, senior counsel for the Alliance Defense Fund in Scottsdale, Ariz. “This is part of the debate on this case.”
Santorum’s argument also is supported by the 1986 Supreme Court decision, Bowers v. Hardwick, in which Justice Byron White wrote consenting adults have no constitutional right to private homosexual sex.
Nevertheless, the Human Rights Campaign, a Washington-based homosexual rights organization, joined several Pennsylvania groups in calling for Republicans to remove Santorum from his position as chairman of the Senate Republican Conference, the party’s number three post.
“These remarks certainly do not reflect the tone of compassionate conservatism espoused by President Bush,” said John Partain, president of the Philadelphia chapter of Log Cabin Republicans. “He’s out of step with mainstream Republicans. He’s aligning himself with the fringe right-wing extremists of the party.”
“They are trying to demonize one side of a major court decision,” Lorence said of the opposition.
“I can’t think of a time that that’s ever happened before,” he said. “It’s one thing to be critical, to say I disagree, I think the law should be upheld. But they are saying it is morally wrong to make the argument that Texas made or to ask the questions the justices did. That, to me, is very chilling.”
Santorum spokeswoman Erica Clayton Wright said the quote was accurate “only in the context related specifically to the right to privacy in the Supreme Court case,” the Washington Post reported. The senator, she said, “has no problem with gay, lesbian, bisexual or transgender individuals.”
But the activist groups insisted Santorum’s remarks are comparable to comments by Sen. Trent Lott, R-Miss., that forced him to resign as majority leader in December.
“For the second time in a matter of months, we see a senior Republican leader in the Senate disparaging an entire group of Americans,” said Human Rights Campaign spokesman David Smith. “While we welcome his spokeswoman’s clarification that he has no problem with gay people, it’s analogous to saying, ‘I have no problem with Jewish people or black people, I just don’t think they should be equal under the law.'”
When Smith spoke with WorldNetDaily, however, he was unaware the state of Texas is making the same argument Santorum made in his remarks to the AP.
Lorence asked: “If the Supreme Court agrees with the state of Texas in Lawrence v. Texas, does that mean the majority of Supreme Court justices should step down? If they go the other way, are people not allowed to criticize the Supreme Court?”
Yesterday, the Democratic Senatorial Campaign Committee, or DSCC, also called for Santorum to step down from his leadership position.
Fox News said the AP reporter who interviewed Santorum, Lara Jakes Jordan, is married to former DSCC official Jim Jordan, who now manages Sen. John Kerry’s presidential campaign.
That’s causing some Republicans to quietly raise questions, Fox said.
Kerry was among the first Democrats to weigh in on Santorum’s remarks, saying, “The White House speaks the rhetoric of compassionate conservatism, but they’re silent while their chief lieutenants make divisive and hurtful comments that have no place in our politics … . These comments take us backwards in America.”
‘Right to privacy’
Defenders of the Texas sodomy law have insisted attorneys for Lawrence want the high court to expand the “right of privacy” used as the foundation of the controversial 1973 abortion decision, establishing a constitutional right to practice homosexual sex.
Texas attorney Kelly Shackleford, who wrote a brief on behalf of 70 Texas lawmakers, contends a high court establishment of such a right would have “massive implications,” jeopardizing, if not overturning, thousands of laws that have a definition of marriage embedded in them, from tax laws to custody laws.
Ultimately, this case is about establishing same-sex marriage, he asserts.
“If you don’t have a law that says a man and woman can do something and a man and man can’t, then every marriage law is unconstitutional,” Shackleford told WND earlier this year.
During the March 26 session for Lawrence v. Texas, attorney Smith of the Lambda Legal Defense and Education Fund argued for the sodomy law to be struck down on the basis of a “right to privacy” and equal protection under the law.
Smith told the justices: “There’s no legitimate and rational justification under the Equal Protection Clause for a law that regulates forms of sexual intimacy that are permitted in the State only for same-sex couples, thereby creating a kind of a second class citizenship to that group of people.”
The transcript shows Supreme Court justices took seriously the argument that overturning the sodomy law could threaten the constitutionality of other laws that govern behavior.
One justice, noting that society always has made moral judgments in its laws, asked Smith, “Why is this different from bigamy?”
Later, Smith was asked whether he thought adultery laws were unconstitutional.