Andrew Sullivan writes:
“Even strict Catholics who believe homosexual sex is a grave sin nevertheless draw the Thomist distinction between sins and crimes. Just because something may be a sin doesn’t mean it should mean jail. In fact, many things - especially in the private realm - fall into that category.”

This much is exactly right. As a gravely immoral act, buggery is not something to which one can have a “right” and can be legitimately made illegal if it becomes a public problem significant enough to justify government action. So the only real question is the prudential one, of whether wear-it-on-your-sleeve-in-public buggery has become enough of a public problem to justify some sort of legislative prohibition, with appropriate and reasonable enforcement, penalties, etc. and what the proper prudential judgements on those matters entail.

In short, Santorum seems to have it exactly right (based on the little I have read that he actually said rather than on Sullivan’s hyperbole). Speeding is illegal, but they don’t immediately throw you in the slammer for it. Sullivan’s position seems to be quite binary: either something is treated as a grave crime with jail sentences or it is a legal right that cannot be infringed. It is true that the consequences and punishments for the immoral (and in some states illegal) acts to which Sullivan believes he has a right could be blown out of proportion. It seems to me that anti-sodomy laws could be done compassionately and reasonably while still protecting public morality. A cite-and-escalate process much like with speeding — pay a few bucks on the first offense, with increasing penalties for intransigent repeat offenders, reasonable restrictions on police power to enter homes, etc — is quite possible and not at all unreasonable, and that would be MORE draconian than the widely unenforced anti-sodomy laws already in place that Sullivan thinks violate his right to bugger.

To clarify my last post a bit, the same can be said for any sexually immoral practice e.g. fornication, adultery, contraception, etc. In principle a person cannot have a right to such things. In general government shouldn’t get involved until there is a public problem or other clear public interest implicated. Once there is, the response should be reasonable and proportionate.

Matt,

That’s a very well-parsed refutation of Sullivan’s position. I’m sure it wouldn’t satisfy him, since he believes, naturally, that homosexuality is perfectly moral, but it does shed light on the false choice fallacy he is trying to employ.

Homosexual behavior, like adultery, is sinful (or has been stipulated by Western Man as repulsive for thousands of years). Equating sinful behavior with moral heterosexual marriage devalues marriage. Heterosexual marriage is fundamental to almost every society on record. Publicly celebrating homosexual behavior and adultery means celebrating the end of society.

Outlawing the public devaluation of societal fundamentals is always necessary. But the enforcement of law becomes necessary only when the criminal substantially threatens law and order. The merciful and traditional don’t-ask- don’t-tell tolerance of Christianity serves to define Christianity, but the notoriously stupid criminal mind will always be around to test the limits of Christianity.

Law enforcement, therefore, is needed to control the criminal. Many people from time to time drink alcohol in excess socially. But this excess is not allowed to affect others. If you want to drink, stay away from the road. If you want to behave homosexually, stay away from society’s road.

I empathize with the homosexual and will be his or her friend. I will support research that will reverse this psychogenetic phenomenon. It isn’t fair some are born deformed. It isn’t fair some children are born with clubfeet or hemophilia. It isn’t fair children die of cancer. It isn’t fair fearless children are emotionally brutalized by their parents and therefore become sociopathic murderers.

I posted a long essay about this controversy just recently. I’m sure VFR readers will be interested.

http://cellasreview.blogspot.com/2003_04_20_cellasreview_archive.html#93288123.

It’s impossible to take Sullivan’s outburst seriously:

1. Santorum didn’t say that “gay people should be subject to criminal prosecution for their private, adult consensual relationships.” He said that a constitutional rule ruling out prosecution for certain acts that often occur within such relationships would be a bad idea. That’s not at all the same thing. Sullivan believes that the fact something is thought bad doesn’t mean there must be a legal rule against it. Why not apply that principle to constitutional law as well as sodomy?

2. Even if Santorum had said he favored prosecutions for private, adult, consensual homosexual acts, that wouldn’t be calling for “the criminalization of an entire group of people” or for that matter “their relationships” unless all criminal laws criminalize entire groups of people and the relationships within which they carry on their crimes.

3. Santorum did not equate “homosexuality with the abuse of minors.” He said that if you accept homosexuality you’re not likely to have a big objection to sexual relations between post-pubescent men and older men. And he’s right about that. It’s worth noting that Ruth Bader Ginsburg — who’s participating in deciding the case at issue — called for reducing the age of consent to 12 in a report she once did for the U.S. Civil Rights Commission. Nor did Santorum “[associate] homosexual relationships with bestiality” unless distinguishing two things is the same as associating them.

4. The view that homosexuality is wrong and its wrongness should be reflected in laws and institutions is not “faith-based bias” or “theocratic radicalism.” If so, which faith and what theocrats? Is penalization of homosexuality a rare thing found only in a few societies governed by a particular group of clerics with a special religious outlook? How could saying “I don’t think the Supreme Court should intervene with a new principle that throws out law that’s been around for a long time” constitute radicalism? It would make more sense to view the movement to penalize “homophobia” as the ideology-based bias of a narrow radicalism.

Sullivan isn’t trying to deal with any of the issues. He’s just screaming.

I think Mr. Kalb, especially in his point two, is failing to confront the core issue between Sullivan and Santorum that I was trying to raise. First of all, let’s be clear that there are two distinct issues here. The first is the issue of whether the Constitution contains a right to engage is various consensual private acts and thereby prohibits states from prohibiting them. I think we all can agree that the answer is no, not only according to our own opinion but as is still affirmed under the 1986 Bowers v. Hardwick decision. The second issue is the political issue: given the fact that states have discretion in this area, should the states have laws criminalizing certain consensual acts, most important among them homosexual sodomy? Sen. Santorum clearly believes the answer is yes. Sullivan replies, entirely correctly in my view, that this means that the acts that constitute the private relationships of homosexual men are to be criminalized (or at least treated as a misdemeanor—I no longer have my old copy of the New York penal code to see what category of offense sodomy was, prior to New York Court of Appeal’s invalidation of the sodomy law in the early 1980s). This, Sullivan continues, is an attack on his very being as a homosexual, and since, as he is constantly telling us, he IS homosexual to the very core of his being, it is an attack on his very essence as a human being. It is a denial of his human equality with the rest of us, and of his equal membership in the American community and the human community. To seek to criminalize the behavior of homosexuals like himself is totally unacceptable in a free society.

Mr. Kalb simply dismisses Sullivan’s concerns as irrational. I don’t see how they are irrational. I think Sullivan has raised a real issue, and instead of avoiding it we need to confront it head-on. Anti-sodomy laws make the usual private behavior of homosexuals a crime or misdemeanor. If we support such laws, as I tend to do and as I gather Mr. Kalb does, we should not pretend that we are not doing what Sullivan says we are doing. Therefore, in the interests of intellectual honesty, we need to respond to the principal objection to such laws which I think Sullivan has eloquently stated.

I don’t see where Andrew Sullivan makes any of the points to which Mr. Auster refers. Quite possibly they are the points he should have made, but the thing that struck me most forcibly about what he wrote is that he doesn’t make them.

Mr. Auster has made them though, so I will respond as best I can to the kind of argument he’s concerned with.

Except in the glory hole situation, homosexual acts do not “constitute” a relationship. However, such acts might be viewed as an essential part of certain relationships among some people to which they attribute a significance like that of marriage. Since marriage goes to personal identity (at least those who consider divorce a metaphysical impossibility are entitled to say it does), such relationships also go to personal identity. And since the right to engage in sexual congress is essential to marriage, and thus to the identity of a married person, it is also essential to marriage-like homosexual unions, and thus to the identity of those involved in them.

My response to such an argument is that there’s no particular reason to treat a homosexual coupling as the same sort of thing as marriage. A marriage is a comprehensive union of two persons that joins them body and soul and by its nature transcends their lives, desires and personal interests. A homosexual coupling can’t possibly be the same because the bodies of the participants do not form a functional unity that points beyond them and joins them in the sexual act with the entire human world. Without the natural and thus unchosen physical element we’re left with choice — a homosexual coupling is what the participants decide to make of it. But you can’t bootstrap personal identity by saying “I decide I am X, and Y has such-and-such a significance for me, so therefore those things are so and make me what I am.” Personal identity — at least to the extent others are obligated to recognize it — has an essential nonvolitional aspect. Homosexual couplings do not.

That’s my response to what seems to me the strongest form of the kind of argument that Mr. Auster seems to attribute to Andrew Sullivan. The argument “the core of my being is homosexual, and homosexual acts are its necessary expression, so forbid them and you attack me” strikes me as an unusually bad argument. All we have is Sullivan’s say-so to go on, and the same argument would forbid interference with anything anyone feels compelled to do. Also, the force of the argument seems to depend on a previous agreement that it’s horribly wrong to forbid any heterosexual act, and I don’t see why that previous agreement should be assumed.

Mr. Auster speaks of “intellectual honesty.” Intellectual honesty is of course the only thing that can give these discussions any value. But it can be exercised only in connection with arguments that are made and understood, or otherwise seem live issues to the person engaging in the discussion. If there’s some point that seems important to Mr. Auster that I did not cover he should certainly raise it. He should not assume though that I am avoiding it. It may seem a non-issue or may simply not have occurred to me.

If Mr. Kalb reads my last paragraph again, I think he will see that my call for intellectual honesty was a general comment directed at all of us in this discussion, not a personal comment directed at him. I think that because this issue is so difficult and dangerous, and because the stakes are so high (given the ongoing gay agenda of totally normalizing homosexuality and forbidding any criticisms of it), that people on our side feel we cannot afford to make any concession at all to the other side’s arguments. One correspondent has sharply criticized me for giving respect to Sullivan’s argument and challenging conservatives to answer it.

The correspondent also made the more subtle point that since, apparently, only four states now have laws against homosexual sodomy rather than against sodomy per se, it’s not worth the political cost of trying to articulate a moral defense of such laws. The main thing is to oppose the larger gay agenda to plant in the U.S. constitution a supposed right to every kind of consensual behavior, which would be truly disastrous.

However, the purpose of this web site is to articulate the first principles of tradition and transcendence and their relation to society and politics. I cannot see what good is to be gained or what harm is to be avoided by shying away from discussion of a fundamental issue. And it seems to me that conservatives do tend to shy away from answering the sort of passionate moral challenge that Sullivan has posed, i.e., that restrictions on sodomy make him a second class citizen. I think that Mr. Kalb in his latest reply has provided some of the elements of a principled answer to Sullivan. Mr. Kalb is saying that homosexual acts do not belong to the same moral category as marital acts, and therefore should not be treated the same under the law. These are the sort of arguments that need to be articulated.

If conservatives are going to win in the fight against the gay rights movement, they must not only speak in negative terms about the extreme gay agenda, but state in positive terms why it is moral and proper for society to treat homosexuality differently from heterosexuality. Thus, by raising these issues as I’ve done, I’m trying to help strengthen Sen. Santorum’s position.

Mr. Kalb’s latest comment gets to the heart of the matter, though I tend to think like Mr. Kalb that Mr. Auster presented an actual argument whereas Sullivan (at least in the linked posts) was simply raving.

The key difference between a marriage and a homosexual relationship is that the homosexual relationship is only about itself and is purely a matter of willed consent. Traditional marriage is neither of those things. The interesting thing to me about how Mr. Kalb expressed this is that it makes clear why things like contraception, divorce, elimination of arranged marriages, etc have led inevitably to the exhaltation of the homosexual as the social ideal. The homosexual relationship is the purest expression of the liberal ideal, being purely about itself, purely a matter of consent, and implicating no new life which itself has no choice in the matter. It ends in death with no offspring, and so with no tyrannical tradition to wield power over offspring it commits no sins against liberal ideals. In response to the homosexual’s “give me liberty or give me death” God responds in the affirmative. The mutual abuse, the parody of love, in which the homosexual engages is the crowning achievement of liberalism and one of the best sacramental expressions of liberal ideals; but it can’t exist without the contraceptive culture of death that supports it. When the heterosexual couple sacrifices their fecundity and their offspring on the altar of contraception and abortion they call forth the ultimate expression of liberal self-destruction in the homosexual. So there is some validity when the homosexual complains that, in order to implicate him, the entire contraceptive culture that precedes him must also be implicated.

My own reaction when Sullivan and other gay partisans say that moral consistency would also require the unmaking of modern heterosexual culture is “yes, and your point is???” But even the conservative evangelical churches in America refuse to approach this with complete intellectual honesty: in order to oppose the homosexual one must also oppose the contraceptor. Even those who recognize that the Tower of Babel cannot be built all the way to Heaven still want to make it as high as practically possible; few are willing to abandon the project altogether.

That ties nicely back to Santorum’s denial of any right to consensual sex (of any sort), even in the privacy of the home. Again, based on the few quotes of his I’ve read, and in spite of the media-inserted parentheticals intended to turn his argument into a straw man, Santorum’s position is exactly right.

I of course agree that Sullivan is wrong and overwrought on many points. But for the record here is the part of his linked blog entry that presented an argument that I felt required a serious response from people on our side. What he says here does not strike me as ranting. Sodomy laws mean giving police the power to arrest people engaged in private consensual acts. Those of us who believe in that position ought to be able to defend it on a rational, moral, and prudential basis, not switch the subject (as conservatives keep doing) to how awful and dangerous the gay liberation movement is, including its attempt to put gay rights and other sexual rights in the Constitution. Ultimately, I believe that that attempt can only be stopped by substantive moral and traditional arguments relating to the rightness and wrongness of the conduct in question. (Such arguments, as I remember, played a role in the majority decision in Bowers v. Hardwick). Thus the Court’s determination of the procedural, Constitutional issue of whether sodomy laws are to be outlawed by the U.S. Constitution will ultimately rest, at least in part, on how society in general and the justices in particular view the substantive, moral issue of homosexual conduct.

Sullivan:

“For the president to call the criminalization of an entire group of people the position of an ‘inclusive man’ leaves me simply speechless. It indicates that the White House still doesn’t understand the damage that this incident is doing, the fact that it is beginning to make it simply impossible for gay people and their families—or any tolerant person—to vote for the president’s party.

“NOW IT’S A CRISIS: Look, it’s possible to tolerate differences of opinion within the Republican party over homosexuality. It’s absolutely legitimate for some religious people to hold that gay sex is immoral, or to oppose marriage rights, and so on. I can happily live with that, and benefit from the dialogue. I defend their right to believe it and to say it. We can agree to disagree. But Santorum has gone far further than disagreement. He let it slip that he believes gays should be put in jail for our relationships. I’m sorry but that kind of statement is unacceptable, non-negotiable, intolerable. The Senator must withdraw it. I worry that the president means well but just doesn’t get it. So let me put it another way: Senator Santorum believes that the vice-president’s daughter should be made a criminal for her relationship. A criminal. Now do you see what I mean?

“Even strict Catholics who believe homosexual sex is a grave sin nevertheless draw the Thomist distinction between sins and crimes. Just because something may be a sin doesn’t mean it should mean jail. In fact, many things—especially in the private realm—fall into that category. But by arguing for the criminalization of gay sex, Santorum goes beyond even the traditional position and heads for a theocratic one. The more he seems to represent the face of the Republican party, the more fair-minded people will simply leave it, fear it, or vote against it. As they should.”

http://www.andrewsullivan.com/index.php?dish_inc=archives/2003_04_20_dish_archive.html#200201467

Mr. Auster wrote:
“Sodomy laws mean giving police the power to arrest people engaged in private consensual acts.”

Well, sure. So do drug laws, prostitution laws, contract law, corporate law, employment law, consumer law, securities law, etc. There may well be more laws that govern mutually consensual acts — and provide for police power to regulate them — than there are laws that govern nonconsensual interactions. For liberals that will always be a moral outrage, because to liberals consent is the measure of morality; but it is nevertheless the way things always have and always will work in every possible polity of any significant size, ever.

Sullivan wrote:
“Just because something may be a sin doesn’t mean it should mean jail.”

And again, this is tritely true and utterly irrelevant. Sullivan attempts to set up a dichotomy in which something must either be legally protected on the one hand or entail jail time (on a first offense? He doesn’t say, but speeding can entail jail time for the intransigent) on the other. Real life doesn’t work that way, never has worked that way, and never will work that way; and no amount of shrill ranting on the part of Andrew Sullivan will make it so.

I agree with Mr. Auster that there are substantive arguments conservatives should make in this connection. I just don’t see that Sullivan presents any himself. Arresting people for acts is not the same as criminalizing a class, either as such or for their relationships. And it’s downright bizarre — it shows genuine contempt for the possibility of discussion — to claim that failing to create new legal doctrine that would overturn long-established laws goes beyond a traditional position. I’ve gone through all this before though.

I confess to not understanding Mr. Kalb’s point that sodomy laws do not criminalize (or at least “misdemeanorize”) homosexuals as a class. Obviously for people who are homosexual to have their principal sexual activity prohibited by law is going to be perceived by them as an attack on them as a class, and indeed it is an attack on them as a class, or at the very least a de-privileging of them as a class (especially given the fact that they have grown accustomed to the full exercise of those freedoms for several decades now in Western countries). My whole point has been that we ought to recognize that the moral traditionalist position does involve such a de-privileging, and that if we believe in that, we should be prepared to defend it. Instead, there seems to be a denial that the traditionalist position would deny to homosexuals freedoms they currently exercise, almost as though they didn’t exist as human subjects.

This whole discussion began when I “got” Sullivan’s position as a human subject who feels wounded and oppressed by what he perceives as other people’s denial of his equal freedom. It occurred to me that if society is going to take away his equal freedom, it ought to face squarely the fact that it is doing so, and be prepared to justify what it is doing.

Isn’t the difference between Mr. Auster and Mr. Kalb in this thread simply whether “homosexual” is considered a class of person (identity) or a class of act? Mr. Kalb it seems to me is discussing sodomy laws, while Andrew Sullivan is attempting to change the subject to sodomite laws in order to argue that a class of persons (rather than acts) is addressed by those laws, is he not?

I just don’t see how making an act illegal makes a human being illegal. If that’s applicable here why wouldn’t it be applicable to laws against every crime and misdemeanor?

The claim makes sense only if homosexual acts are part of what it is to be human, at least in the case of some people. But if that’s so, then of course they should be legal. So Sullivan’s way of putting it is a way of assuming the answer and so avoiding discussion of any issues.

Right: the old “what we are” versus “what we do” slight of hand is employed in order to win by definition. To liberals like Sullivan an act of the will is more of what it is to be human (or what in more traditionalist terms we would think of as “ubermensch”) than breathing. Thus the most consistent pursuits of liberalism always end up at some form or another of anarchism or partial anarchism (e.g. “you can’t legislate morality”).

To Sullivan the ubermensch, self-created of his own will, is here; and his name is Andrew Sullivan. When called on that, of course, he will insist that he is homosexual “by nature” and thus a helpless victim. That’s the beauty of being the ubermensch: you get to be a helpless victim of the oppressor-untermensch and a self-willed self-creation at the same time.

In practice of course liberals must restrict some kinds of acts of the will in order to govern at all. Naturally these restrictions tend toward whatever looks least like the traditional order that liberalism exists to overthrow: thus the tendency to cast everything that can be legitimately talked about, in the eyes of liberals, in economic terms. Classical Jeffersonian liberalism and radical left communism are two sides of the same coin. Put either one under enough intense stress that it feels it has to militantly defend itself by preemptively eradicating the oppressor-ubermensch, and hey presto, National Socialism.

Isn’t the triumph of the will great?

This discussion is filled with interesting ideas that one day I hope to be expert about. An idea that hasn’t been mentioned but is somewhat relevant to readers is the idea that it would be helpful to avoid reading Mr. Sullivan. Over a year ago, one idea I kept having was to avoid reading Sullivan. So about a year ago I stopped. I endured him off and on for only about two months. I don’t see why he is taken seriously. His Website is trash. Sure he is smart, but he behaves badly: filthy language and innuendo, and public celebration of a lifestyle that threatens the lives of healthcare workers. I could go on and on, but I have probably gone beyond the leeway given to off point comments. So I’ll end with definite relevance: Mr. Sullivan would not hesitate to send Big Brother’s storm troopers into the house of someone that violated his supposed Constitutional right to sin.