The loony-libertoid position -- nicely encapsulated by Ms. Postrel here -- begins with this underlying premise:
The problem with this line of reasoning is that neither Santorum's comments nor the current debate concern sin. They concern criminal law, which is to say the capacity of the state to "persecute and punish" certain actions. If you worry about the sinfulness of an action, you seek to persuade people not to commit it; that persuasion may include shunning such sinners in ways gay rights advocates would not approve of (such as refusing to hire them). A liberal society ought not to use criminal sanctions to punish actions merely because a particular religion, or even many religions, may deem them sinful. Eating live animals and shellfish--hence, eating oysters--is a sin in my religion, it's damned gross, and it can kill you. But I don't want to make eating oysters a crime.An ye do no harm, Do as ye will shall be the whole of the law, to use a terribly overwrought cliche that nonetheless sums up this position nicely.
And it is -- let's not mince words -- stupid.
There are two logical problems here.
First, where, exactly do you think our laws against murder come from? Any guesses, anyone? Rape? Theft? Religious codes, actually. Specifically, Christian (Catholic) law that filtered its way into the European systems over fifteen hundred years -- and that, in turn, came from Judaic law. In case you think that's simply the norm -- that all societies have laws against killing, rape, etc., I commend you to a history book. The Danes. The Celts. The Philistines. The Romans. The Greeks. The shogun Japanese. The Zulus. The Aztecs (you know, peaceful Earth folks). The list goes on. Without walking through four thousand years of theological history, the Jews -- and then the Christians -- were the first people to posit that these things were, in most circumstances, wrong. That murder couldn't be institutionalized. That -- especially from the Christian view, drawing on older Jewish sources -- every life has value unto itself, not as part of the gens, but for its own sake.
My point, to begin to make this short, is that from a purely practical point of view, it is in fact sometimes normatively better to award pride of place in our laws to several folks' notion of sin. Unless any women out there want to be forced into my harem? No?
Second, there's an idea that I've been kicking around that I like to call "social comfort theory." I'm sure someone has said this before, somewhere, better than I (seriously, I don't know, but if you do, I'd like to give proper citations), but it goes loosely like this: Societies, like other organisms, need a certain minimal comfort level to survive. Humans need minimal rest, water, nutrition, exercise, and relief (relaxation, interaction, etc.), or they curl up in a shell and die. (Or at least, the humans I know have shells.) Societies need things like consensus, (some) social mobility, minimal internal violence, and a functioning (relatively efficient) method of distributing goods and services to the members of that society, or they throw the silver down the well, pack up the chickens, and curl up and die. Thus, it's easy to see why the Civil War and the 1960s were the ones in which it was least likely that our society wouldn't make it (the 1780s, 1870s, 1880s, and 1930s can make a claim on this too): Social and governing consensus were breaking down, social mobility was minimizing, internal violence was escalating (for the Civil War: duh), and the old method of good distribution was in disarray.
The same thing goes for social issues to which society attaches any importance. (This is why abortion has been so contentious: One quarter of society thinks that what's at stake is an innocent life (and an innocent life is more valuable than nine months of liberty for someone else), another quarter thinks it's all about liberty and power (and it's not alive, dammit, and if it is, it's not a person, and we'd really rather not think about this, thank you), and the remaining half of society is moderate, which is to say, they don't care, or they don't want to know, and they hate taking sides, unless it's their daughter. In such a state, social consensus is eroded. Screw you, Blackmun. I hope Asmodeus is giving you new orifices to be raped as we speak.) Gay rights -- a cruddy term, as it seek to piggyback onto the civil rights movement -- is such an issue. We've had a social consensus -- an evolving one the last couple of decades, to be sure, but a consensus nonetheless -- on the whole panoply of issues bound up in the crude phrase "gay rights." Most Americans' opinions can be summarized thusly: No one should be discriminated against because of what they do in their bedroom, if everyone involved is old enough to consent, and does so, and they keep me from knowing about it by not flaunting it in public, because to be frank, it's quite icky. And gay marriage is an oxymoron. And I hope my kid isn't gay, or that he'll grow out of it. To a certain extent, this reflects America's form of moderation -- we don't have to take too harsh a position one way or another because we don't think about it, and we don't want to be thinking about it, so go away -- but more importantly, it reflects the rough consensus in this country. Sodomy laws are part of that consensus. And that consensus is, in large part, religious.
Indeed, so long as an explicit Constitutional provision is not violated -- and this goes to the whole idea of social comfort -- then there is nothing wrong with encapsulating religious beliefs as law, Justice Stevens's bigotry notwithstanding.
This leads down a separate tangent: Religion v. philosophy. At base -- and one would expect a secularist to think this way -- the two are to all practical purposes identical: They order the way one views reality. Think there's a God? Then your philosophy of life will at some level involve what we call religious elements. No? Then it won't. Belief in God (rarely) grants superpowers; all it really does is open a different starting point; you can arrive at the same conclusion, or not, with or without that belief in God. You'd think, from the way the Libertoids go on about it, that religious creeds (and their broad acceptance) have led to untold deaths; funny, but the two big -isms of the twentieth century with significant blood on their hands were both explicitly godless, secular philosophies. (You could argue, I suppose, that Nazism worshipped a mythical, forest-dwelling Volk; you'd be wrong, but you could argue it.) And between them, I'm betting the death toll exceeds the ugliest that Christianity, Islam, Hinduism, and any other religious mindset have caused.
This is not to pick on secular philosophies; for example, I am an ardent (though not doctrinaire) federalist. That doctrine does not rely on a God to make it work (although its underpinnings involve certain religious or quasi-religious presumptions); it's simply to ask: If we may impose the choices of a philosophy on others -- and this is what every politician in America seeks to do, Republican, Democrat, Libertarian, Green, whatever --, why may we not do the some of a religion? Please don't give me any garbage about how not everyone shares the same religious beliefs: Not everyone shares the same philosophical beliefs, either. Forcing devout, socialist secularism on me is no different from forcing radical Catholicism on you.
So the question is, why is it ok to force, oh, I dunno, Virginia Postrel's
The Libertoid position, in a nutshell, is intellectually incoherent. It ignores the facts on the ground, frequently in illogical overreaction to a philosophical grouping to which it shows an irrational prejudice. If they seriously wish that we remove every legal principle drawn from religious bases from our law, that's fine, but let me buy a few AKs first.
UPDATE: Oh, yeah, great, I go away for a few days and Patrick Ruffini does me one better.
SECOND UPDATE: So Stanley Kurtz also said it better. (To all of you who find elements of his slippery slope argument disagreeable, I say this: Old customs and religious practices tend to have some underlying, rational reason. Agree or disagree with the underlying logic; I care not -- if you don't think shellfish are frequently dangerous in a primitive culture with few methods of preservation or refrigeration, that's fine, but don't mock kosher laws as irrational. In the same way, Kurtz has made a strong argument that banning homosexual conduct is part of the in-place social disapproval aimed at solidifying married sexual intercourse as the only proper sexual activity. Don't like that purpose? Wanna play it the gay way? Fine, but don't pretend that Kurtz -- who opposes sodomy laws is out to burn the next gay he meets.)