DOUGLAS OLSON — The unforgivable crime of being right

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The Olson file
 

On Leviathan's libertarian revolution
 
The unforgivable crime
of being right

By DOUGLAS OLSON
 

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Make any statement that is so true that it has been staring us in the face all of our lives, and the whole world will rise up and passionately contradict you. If you don't withdraw and apologize, it will be the worse for you. But just tell a thundering silly lie, and a murmur of pleased assent will hum up from every quarter of the globe.

— George Bernard Shaw


 
In today's world of fear and conformity, the only sin worse than criticizing the latest fashion or fad is being proven absolutely and incontrovertibly correct in that criticism. There are few more unpleasant sights than the outraged bigotry of those who most stridently demand absolute tolerance for their own beliefs and activities.

Shortly before last year's Supreme Court ruling in Lawrence v. Texas, which struck down a state law outlawing homosexual sodomy, U.S. Senator Rick Santorum (R-Pa.) gave a fateful interview. If the court found that "privacy" rights included sodomy, Santorum predicted, "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." A firestorm descended on him for that observation. He was denounced as a bigot by pols and professional homosexuals, and by professed "civil rights" and "religious" "leaders."

The ugly reaction only intensified when Justice Antonin Scalia, in his scathing Lawrence dissent, echoed Santorum precisely by predicting that the majority decision would lead to challenges against laws that banned "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." He also noted that the majority's reasoning "leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples."

But Santorum and Scalia were even worse than intolerant. As much as one hates to admit this about two senior servants of the regime, they were correct!

In Lawrence, Justice Anthony Kennedy's metaphysical majority decision declared that "the instant case involves liberty of the person both in its spatial and more transcendent dimensions." Therefore, homosexuals "are entitled to respect for their private lives," and "the state cannot demean their existence or control their destiny by making their private sexual conduct a crime." The sentiment is libertarian, to be sure, but the alleged legal reasoning is laughable, to say the least.

Compare Randy E. Barnett's assessment at Cato: "Justice Kennedy's Libertarian Revolution: Lawrence v. Texas."  Warning: This is a "PDF" file.

Not that intellectual honesty has ever been a hallmark of politics or the judiciary; but no sane person can deny that, logically, Santorum and Scalia were right on the money in their predictions — for better or for worse. If such homosexual relationships are entitled to respect, how can any court deny that same respect to a relationship of fifteen minutes between a hooker and her John? Or to a relationship between three, five, or six dozen people? Or to a relationship between a father and an adult daughter (or son)? Or, perhaps, even to a relationship between a man and a sheep? Those trashing Santorum and Scalia are actually looking forward to all of these new freedoms, but won't admit it for fear of rousing the general public to action.

The shameful truth is that the latest flap is not about marriage at all. It's about government interference in something that should be between brides and grooms (whatever their sexes and numbers). A recent article claimed that there are 1,049 specific benefits conferred on married couples by federal laws — a telling indictment both of illicit government intervention in private affairs and the massive scope of the federal Leviathan.

Recent judicial and political attempts to force same-sex marriage have received far more coverage than they deserve, and they will probably wind up re-electing George W. Bush in November in a backlash. However, in the months since the Texas decision, the media have largely suppressed news about a number of other court cases that bear out Santorum and Scalia on other fronts:

In January, a married couple sued the state of Utah in federal court because they were denied a license for a "plural" marriage with a second woman. They argue that such an arrangement is an integral part of their religious beliefs, and cite Mr. Justice Kennedy's mystical mumbo-jumbo in Lawrence to buttress their demand.

The mother of a 13-year-old Oregon girl argued (unsuccessfully) that her daughter's "constitutional rights" were violated when she was expelled for performing oral sex while on a school bus.

A Utah man convicted of bigamy, criminal nonsupport of his 30 children, and rape for having sex with one of his five "wives" when she was 13 is using Lawrence in his appeal. "It's no different for polygamists," Tom Green's attorney told the state supreme court about the SCOTUS finding that people are "entitled to respect for their private lives." Rodney Holm, another convicted polygamist/rapist, is making the same argument.

After a Fresno (Calif.) police "sting" operation resulted in the arrest of 40 homosexuals for having sex in a government park, Superior Court Judge James Quashnick declared the bust "discriminatory" because no heteros were nabbed. Defense attorney Bruce Nickerson argued on TV that gays have a right to sex in a government ("public") park, "where you reasonably don't expect to offend anybody." Nickerson contends that bathroom-stall sex is "private" and, therefore, sacred — and he says that if you peek through the crack into a stall where sex is taking place, "you've violated their privacy."

A Virginia man charged with making an Internet date with an undercover cop for sex in the public rest room of a Sears store is basing his defense on Lawrence. According to his attorney, there should be a "reasonable expectation of privacy" in the stall.

Yes, Santorum and Scalia must forever bear the onerous burden of having been right. But when they are proven so — when a state official solemnizes that first legal plural marriage; when public sex on state property becomes a "civil right"; when Leviathan, once more masquerading as paladin of liberty, bestows official governmental honors upon the sacred erotic bond between a father and his daughter — those who condemned their predictions will shout with glee, and the gushing national media will deliberately deny the pair any credit for their insight.

April 28, 2004

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