Robert P. George, board member for the Family Research Council, says Rick Santorum Is Right in the National Review.

George starts with a lie — the myth that sodomy is a non-marital sexual act — and proceeds into strawman arguments against the critics of sodomy laws.

Under prevailing law, the marriage relationship enjoys constitutional protection;…

This is false. In several states, sodomy laws do not exempt married couples. And crimes committed by married couples enjoy no special constitutional protections — nor should they. Crimes are crimes regardless of who commits them.

…Not only sodomy, but also fornication, adultery (e.g., spouse swapping, “swinging”), polygamy, group sex, prostitution, adult brother-sister or parent-child incest, and (depending on one’s views about the rights of animals and their capacity to consent) bestiality (would be) protected as specifications of the constitutional right of privacy.

This is false, too. Adultery, for example, is the violation of a legally binding contract voluntarily entered into by married partners. Parent-child incest and bestiality are non-consensual and harmful. And so on.

The remainder of George’s analysis is built upon the faulty assumption that all sex must be either proscribed or constitutionally “protected.” In fact, the question before the Supreme Court is no more about a “constitutional right to sodomy” than a “constitutional right to smoke at home” (if one believes sodomy is bad) or a “constitutional right to drink Pepsi at home” (if one believes sodomy is, independent of other factors, morally neutral).

The case before the Court involves questions of:

  1. privacy,
  2. unreasonable search and seizure
  3. unequal enforcement of sodomy laws, and
  4. inequality in states where heterosexual sodomy is legal while homosexual sodomy is not.

These questions are analyzed from a libertarian (philosophical conservative or small-government) perspective at the Independent Gay Forum.

George concludes, in part:

What sexual liberationists, “gay” or “straight,” wish to abolish is the legal concept of marriage as a “one-flesh union” made possible by the sexual complementarity of a husband and wife whose physical union is the biological basis of the comprehensive sharing of life that marriage is meant to be.

This is a strawman argument and an effort to change the topic away from sodomy. Neither libertarians nor libertines seek to abolish other people’s concepts of marriage. Different couples from different religious traditions have always married for different reasons. George does not respect this freedom of choice. And George’s concept of marriage discriminates against Christian heterosexual couples who cannot or will not conceive or raise children.

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