SUPREME CANT

“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.” Thus pronounced Republican Senator Rick Santorum of Pennsylvania this week in an interview with an Associated Press reporter. It’s hard to characterize Santorum’s remarks as anything other than those of a homophobic bigot; but, rest assured, Santorum’s staff has tried. As Santorum’s spokesperson Erica Wright explained in the wake of the firestorm her boss’s comments kicked up, Santorum has no problem with gay relationships; the senator, a 1986 graduate of Dickinson School of Law, simply worries that, if the Supreme Court decides to overturn Texas’s anti-sodomy law, it will, in one fell swoop, grant people the right to commit bigamy, polygamy, incest, and adultery.

With apologies to Justice Santorum, that’s just stupid. First, the senator’s concerns about creating a right to commit adultery are a bit late: Adultery is actually legal in some places like Texas. Second, the fundamental issue in bigamy and polygamy is the number of people to whom a person can be married, not the number or kind of people with whom a person can have sex; any ruling overturning the Texas law would be carefully written so as to have as little bearing on the institution of marriage as possible. Most importantly, Santorum’s legal reasoning betrays a remarkable ignorance of the grounds on which the Court might overturn Texas’s anti-sodomy law. If the Court overturns the law on privacy grounds, it will undoubtedly do so in a narrowly tailored fashion, stipulating that, if a state is going to forbid consensual relations in a home, it must have a good reason. And, while a state might not have a good reason for forbidding sodomy, it most certainly has good reasons for forbidding incest (e.g., protecting children) and bigamy and polygamy (e.g., protecting women from exploitation). Alternatively, the Court could overturn the Texas anti-sodomy law on equal protection grounds, ruling that the law discriminates against gays; but, since laws against incest, bigamy, and polygamy do not discriminate in any way that the constitution condemns, those laws would be unaffected by the ruling. “No one on the Court would want to rule that there’s a privacy right here that in any way would raise the questions Santorum’s discussing,” says University of Chicago Law School Professor Cass R. Sunstein. Which means that the senator’s defenders face a dilemma: In disputing that their man is a bigot, are they conceding that he’s a moron?

DOG BITES MAJORITY LEADER

Last December, as conservatives were falling over themselves in their enthusiasm for soon-to-be Senate Majority Leader Bill Frist, Noam Scheiber noted in these pages that the doctor-turned-Tennessee-senator should enjoy the adulation while he could (“Hatchet Job,” December 30 & January 6). “The right wing of the Republican Party,” Scheiber wrote, “is simply incapable of accepting the kind of compromises a Senate majority leader must make.” Thus, the Senate GOP remains trapped in a perpetual cycle whereby it installs new leaders it believes will usher in a new era of conservative purityBob Dole, Trent Lott, Bill Fristonly to inevitably turn on those same leaders when they get down to the messy business of legislating.

Barely four months into his tenure, Frist’s honeymoon with conservatives is already over. Frist’s crime? He agreed to a tax cut of only $350 billion, rather than the $726 billion demanded by President Bush. Of course, Frist wants a big tax cut just as much as Bush. The problem is that, due to the objections of moderate Republicans, he can’t get a majority for any tax cut larger than $350 billion. Frist, wrote conservative columnist Robert Novak, “not only accepted an unacceptable limit on President Bush’s tax cut but kept it secret while hurrying out of town two weekends ago.” House Majority Leader Tom DeLay warned that Frist’s deal would cause “serious long-term consequences.” This falling-out between conservatives and their newest darling as Senate leader was comically predictable. The only surprise is that it took four months.

TRUSTING

Martin Indyk, the Australian spook turned Clinton-era peace processor, has outlined a new plan for Israeli-Palestinian peace in the recent issue of Foreign Affairs: Put the West Bank and Gaza under American trusteeship in preparation for Palestinian independence. The historically minded may remember that this has been tried before. The last time a trusteeship governed Palestine west of the Jordan River was during the two and a half decades when the British ran a mandate for the League of Nations. Until 1948, that is, when His Majesty’s bloodied troops hauled down the Union Jack, a mordant confession that neither the Arabs of Palestine nor the surrounding Arab countries would accept any formula that included a Jewish state. Indyk thinks the last half-century has changed things. But most Palestinians don’teven the most moderate of them think that the armistice lines of 1949 would constitute a tremendous concession. Indyk told The New York Sun, “The purpose of trusteeship is to grow the democracy.” But it’s hard to see how democracy will be inculcated under Indyk’s plan, given that anti-democracies such as Egypt, Jordan, and Saudi Arabia will be involved in the “training of the Palestinian security services.” There’s one more problem with Indyk’s proposal: As he himself admits, “Some Americans might die.” Here, at least, his predictions are almost certainly on the mark.

THE ART OF THE POSSIBLE

“The images [of looting] you are seeing on television, you are seeing over and over and over, and it’s the same picture of some person walking out of some building with a vase. And you see it twenty times. And you think, ‘My goodness, were there that many vases? Is it possible that there were that many vases in the whole country?’”

Defense Secretary Donald Rumsfeld, April 1

“A handful of ancient objects stolen from Iraq’s national museum were returned today. A U.S. soldier at the museum said local residents handed over bags containing twenty vases and other antiquities. Thousands of objects disappeared [from Baghdad museums] last week.”

— “The NewsHour with Jim Lehrer,” April 18

DEPARTMENT OF CORRECTIONS

In the column titled “Albatross” in this magazine’s February 17 issue, we referred to Rev. Al Sharpton’s “1987 conviction for defaming a man he accused of raping Tawana Brawley.” Rev. Sharpton has correctly pointed out that the judgment entered against him was a civil judgment for damages, not a criminal conviction. In the same column, we referred to Rev. Sharpton’s “1995 incitement against a Jewish store owner in Harlem,” which the column described as having “culminated in the racially motivated murder of seven of the store’s employees. “ We did not mean to suggest that Rev. Sharpton intended to incite those murders.

This article originally ran in the March 5, 2003 issue of the magazine.