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  This Is Diversity?
by Steven D. Laib, J.D. M.S.
1 May

More important than the context of Senator Santorum’s comments is the law behind them.  Others have noted that the Senator essentially paraphrased the opinion of Justice Byron White in the 1986 case Bowers v. Hardwick.

You really have to hand it to Senator Rick Santorum.  He spoke his mind in full view of the nation; he was true to his faith, and never once has he wavered in his position, since.  He has shown himself a lot stronger than most people would be in his position, never demanding tolerance of his viewpoint from those who disagree with him.  There is no doubt that the strength of his faith and commitment to what he believes has enabled him to take this stand.  He should be commended, and civil rights activists should be flocking to his support.  Unfortunately, their commitment to true civil rights and to the current buzzword “diversity” is apparently a one-way street. 

Dictionary definitions of diversity focus on the words “variety” and “multiformity”.  Roget's Interactive Thesaurus, First Edition includes homonyms such as, “assortment,” “divergence,” “heterogeneity,” “medley,” “mixed bag,” “multiplicity,” and “unlikeness,”  It includes as antonyms “homogeneity,” “sameness,” and “uniformity.”  Aside from being well within his rights in expressing his opinion on a controversial issue, clearly, Senator Santorum was only contributing to the multiplicity of opinion, which makes for a truly diverse society.  He should get applause, not criticism.  After all, how would there be diversity if everyone agrees on everything, looks and acts the same.  Or is it that somehow the only diversity allowed is diversity that the self appointed critics agree with?

What is probably more important than the context of Senator Santorum’s comments is the law behind them.  I am sure that other legally minded people have noted that the Senator essentially paraphrased the statement made by Justice Byron White in the 1986 case Bowers v. Hardwick, which concerned a Georgia statute similar to that challenged in the current case of Lawrence v. Texas.  His unedited comments were "If the Supreme Court says that you have the right to consensual 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."  His language was perhaps a bit less specifically directed at the legal issues, but was in no way divergent from White’s opinion: "If respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest and other sexual crimes even though they are committed in the home."  No one asked Justice White to resign following this statement, but times have changed and today Justice White would probably be tarred with the same brush, though his opinion rested on a solid legal and logical foundation. 

Historically the Tenth Amendment to the Constitution dealt with what were sometimes referred to as the “state police powers” covering the broad reach of “health, safety and morals.”  With the expansion of federal power in the 20th century the Tenth Amendment has become less recognized as a source of states' rights.  Thus, Senator Santorum’s concerns may be directed not only toward the issue of limits on individual behavior.  They may also address the rights of people in individual states to enact laws reflecting their particular views on issues such as morals where they find it reasonable and proper to do so.  This state power was at one time mentioned in virtually every high school civics class, along side fact that this nation is not entirely homogeneous.  If the people in one area have a different view, or different needs because of how their particular culture developed, then they are presented with the opportunity to address those needs without forces being brought to bear from the outside.  Federal mandates are not always a good idea. 

However, all of this is beside the point.  The critics who seek to silence people such as Senator Santorum do not want the tolerance, sensitivity or diversity, which they bandy about on a continual basis.  What they want is conformity.  This is what distinguishes them most of all from the Senator.  When have we heard him calling for all states to enact sodomy statutes?  When has he called for ill treatment of homosexuals?  When has he demanded that people resign for disagreeing with him?  I’m sure that he has not done any of these, or we would never hear the end of it.  His simple statement is that to enlarge the right to privacy doctrine would be wrong and he provides an excellent basis.  He could conceivably expand it further to cover other activity such as child pornography in the privacy of the home, or non-sexual conduct which might otherwise be criminal.  If the state of Texas were to repeal the law at issue in the Lawrence case the Senator might express his faith-based regrets, and that would likely be the last of it.  He has no legal argument with the presence or absence of such a law, and his comments were in the realm of legal opinion.  No matter how controversial, his opinions are equally valid as those of his critics, and he a right to state them publicly, and to be heard, just as much as anyone else.  The fact that he dared to do so is what critics are concerned about. 

Those who seek to silence those they disagree with should beware, lest the sword they now wield in pursuit of their own goals might be turned against them someday.  Protecting Rick Santorum could be effectively protecting themselves in the long run.  It is a pity that the activists who are now calling for him to resign do not understand this better.  Perhaps it is too much to expect from them.

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