Editorial: HOMOSEXUALITY AND THE LAW: Sex and the Senator.

Sen. rick santorum, a conservative Republican from Pennsylvania, is in the dock for saying -- well, how to characterize what he said is a subject of dispute. In an interview with an AP reporter, Santorum implied that he supported state laws banning sodomy. The Supreme Court is expected to strike down such laws this term, but Santorum thought that the laws should stand. He feared that the Court would invalidate them as a violation of the "right to privacy." That right, he claimed, does not actually exist in the Constitution. If the court found that the right to privacy included a right to commit sodomy, he said, "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." All of these things, he said, are "antithetical to strong, healthy families."

Liberals and libertarians vilified Santorum for his alleged intolerance, bigotry, hatefulness, and theocratic leanings. President Bush supported him, if somewhat tepidly and vapidly (Ari Fleischer said that the president considered Santorum "an inclusive man").

The toughest criticisms of Santorum rested on strained interpretations of his words. Santorum was said to be placing homosexuals on the same moral plane as polygamists, practitioners of incest, and (drawing on another portion of the interview) practitioners of bestiality. That is not a fair inference from his remarks. Santorum was making a slippery- slope argument. Such arguments generally take the form of saying that if you accept A, which seems innocuous in itself, you'll wind up with B, which everyone agrees to be dreadful. Santorum's argument, in other words, presupposed that incest could be assumed to be worse than homosexuality. Otherwise his slippery slope would have become a slippery plane, which would have done his argument no good at all.

To say that homosexual conduct, incest, and adultery all undermine the traditional family -- i.e., that these practices make it harder for the culture to treat the traditional family as normative -- is to state a truism. It is not to say that these things undermine the family to the same degree, or (even if they do) that they are equally objectionable morally.

The fact that Santorum's remarks have been distorted does not, however, establish that they expressed wisdom. We disagree with the senator's apparent support for sodomy laws. He is right in suggesting that state and local governments have a role to play in support of public morals. The laws against prostitution and incest are in place largely because of moral objections. But there are good reasons not to ban homosexual conduct. Seriously to enforce such a law would be brutal; and to leave the law on the books, but rarely and selectively enforced, would be unfair and foster disrespect for law. To ban same-sex sodomy but leave heterosexual conduct unregulated, as Texas does, seems odd if the goal is to promote sexual morality. So Santorum is, in this respect, wrongheaded. Texas should join the majority of states that have repealed their sodomy laws. We cannot, however, bring ourselves to condemn Santorum as some kind of un-American clerical fascist for supporting what was, after all, the status quo until the day before yesterday.

Santorum's slippery-slope argument, meanwhile, seems stronger as a matter of logic than of legal prediction. Recognition of a constitutional right to consensual sexual activity would seem logically to preclude laws against incest; but the Supreme Court has squared bigger circles before.

The immediate issue before the Court is whether it should strike down the Texas law, and it should be considered in isolation. Most opponents of the law seem to think that it is so foolish and oppressive that it must be unconstitutional. But they have not been able to pick one constitutional provision on which to hang their hat, which is itself suggestive.

One theory is that the law should be nullified as a violation of the "right to privacy" that the Court announced in its abortion and contraception cases. The right to privacy is not entirely a judicial invention. The Constitution really does protect privacy in certain respects: forbidding the quartering of soldiers in the home, restricting police searches, etc. But the Court's expansive "privacy right" goes well beyond the constitutional text. The Americans who ratified the Bill of Rights and the Fourteenth Amendment did not understand themselves to be encoding a right to contraception, abortion, or sodomy, or even to be encoding a principle from which those rights could be judicially derived. The late justice Byron White has been condemned by law professors and journalists for writing, in a 1986 case similar to today's, that the claim of a historical grounding for a constitutional right to sodomy was "at best, facetious." But he was right.

The Court's privacy-rights jurisprudence, bad as it is, has never extended so far as to eliminate state governments' power to discourage and even prohibit immoral sexual conduct. The strongest precedent that opponents of the sodomy law can cite is Eisenstadt v. Baird (1972), which struck down bans on the sale of contraceptives to unmarried people. But even that decision expressly declares that non-marital sexual acts are "evils" that states have a "full measure of discretion in fashioning means to prevent." If the Court will not undo the constitutional damage it has done in the privacy cases, as we think it should, let it at least not compound that damage.

The second leading theory is that the law violates the Equal Protection Clause by discriminating against homosexuals. This theory does not raise the slippery-slope concerns that exercise Santorum. And, as we suggested above, the selectivity of Texas's law is a strong argument against it. But to discriminate among acts is not, formally, to discriminate among persons; otherwise any legal prohibition could be said to discriminate against those people inclined to perform the prohibited act.

Under the Supreme Court's equal-protection jurisprudence, Texas must show to the Court's satisfaction that there is a "rational basis" to its distinction between illegal same-sex sodomy and legal opposite-sex sodomy. It is hard to see how Texas can do this. But the "rational basis" test is itself an extra-constitutional judicial invention, a license for judges to second-guess the judgments of legislatures about which laws are and are not rational. If the Court rules against the law on the equal-protection basis, however, it would at least not raise the slippery-slope concerns that exercise Sen. Santorum.

The state legislature of Texas should repeal its law. But the question before the Supreme Court is not whether Texas should retain its law, but whether it may do so -- or, better, whether the Court is authorized to nullify it. There is every reason to expect that such laws will continue to be repealed. If the Court forces the issue, its main effect will be to give gay-rights activists a symbolic victory. Taking sides in the culture wars is not a good enough reason for the Court to exceed its authority.