This response to Senator Santorum has all of the intellectual consistency of toddler babble. And I'm being kind. (It's actually kinda surprising; Silber's usually a lot more on his game than this. Oh, well:)

Here, in case you haven't seen it, is what Santorum said:

"If the Supreme Court says that you have the right to consensual (gay) 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," Santorum, R-Pa., said in the interview, published Monday.

Here is (some of) what Mr. Silber said in response:

First, Santorum, like many others, forgets the crucial difference between whether you have -- and ought to have -- the legal right to commit a certain act, and whether one might not personally view that act as right in a moral sense. They are not the same thing, although a great many people (and all too frequently religious conservatives) act and talk as if they should be one and the same. You might well view a certain act as immoral, but that does not mean that it should be illegal, or that the state should have the right to criminalize it. But assuming that Santorum knows the meaning of the words he speaks -- surely not too high a hurdle for a Senator, is it? -- he believes you should not have the right to commit even adultery, and that the state properly may make adultery a criminal act.

I will refrain from making the obvious point concerning the similarity of such views to those of certain religious zealots who are among our enemies in the war on terror, and rely on you to fill in the dots. (But perhaps I just did make that point. Oh, well.) I've been over this ground at length before, in this post about the Texas case, and follow the links to previous posts on this subject. People who "think" as Santorum does really ought to learn the difference between personal morality and the meaning of individual rights. A consistent recognition of individual rights means that people have the right to act in ways that you may disapprove of morally. So long as such individuals are not violating the rights of anyone else, it is none of your damned business. Is that clear enough?

Ahem:

Insofar as Santorum was saying that the recognition to a right of privacy that encompasses the (negative) right to do dirty things in one's own bedroom would necessarily encompass the (positive) right to force the state to legitimize unions of more than two people, he was committing a logical error. And that was his only mistake.

His broader point is valid, as Mr. Silber concedes in the comments section:

A large part of the problem is state involvement in marriage to begin with. Second, I think the Ninth Amendment, together with the general understanding and historical context at the time of the Constitution's adoption, makes it clear that all rights and powers not specified in the Constitution as given to the govt. belong to the people (or to the states). But I would argue that the "right to be left alone" means that bigamy, polygamy, etc. should not be illegal. (Incest might be a somewhat more difficult case, but I tend to think that, if we're talking about adults, that shouldn't be illegal either.) As I said, though, if all of it were privatized, then adults can make whatever private contractual arrangements they want, the state is kept out of it (except to enforce contracts as it does all the time), and all these issues go away.

I should point out that the idea that the Founding Fathers intended any sort of sodomy to be implied in the panoply of rights lurking beyond the Ninth Amendment is wishful thinking, at best. As for incest, bigamy, and polygamy... they still lynched folks back then, you know.

Did you see anything about adultery in Santorum's quote? I didn't.

As for that twaddle about no laws governing personal behavior that doesn't directly hurt others... hell, this is old ground. You forsake certain liberties by being part of a society. (Read the Preamble to the Constitution some time, instead of just the juicy parts. There's enough there to make most Libertoids' underwear freeze solid in terror.) If society as a whole decides that exercising those liberties negatively impacts society as a whole, and there is no explicit Constitutional provision otherwise forbidding the prohibition of that exercise, then you're S.O.L. Is that clear enough? Don't like the law? Go to the damned legislature. Otherwise, don't yammer about rights hiding somewhere in the Constitution, if you'll just turn around fast enough and yell, "Peekaboo!" (I've always loved the penumbra form of Constitutional interpretation; it's like a Where's Waldo? of new and exciting "rights.")

Put most simply: You have a liberty interest in privacy. You may have a liberty interest in sodomy. The former is to some extent protected by the Constitution. The latter is not. If you don't like the Constitutional restrictions of the state in which you live, move.

Oh, and "I will refrain from making the obvious point concerning the similarity of such views to those of certain religious zealots who are among our enemies in the war on terror, and rely on you to fill in the dots" is the equivalent of the following: HITLER!!! or "If we don't affirmatively state that homosexual sodomy is a protected right, then the terrorists will have won!!" A lot of politicians in the Northeast are in favor of (efficient?) state-run rails; should I therefore, in arguing against their positions, point out that Hitler, Stalin, and Mussolini were all in favor of state-run rails?

If someone isn't calling for killing all the Jews, killing all Americans, forcibly converting everyone far and wide to Islam, putting women under terribly unfashionable body wraps, and dropping walls on gays, then equating them to Islamic terrorists is stupid. Is that clear enough?

UPDATE: As usual, Ben Domenech does it one step better -- he even cross referenced it to South Park.

FURTHER UPDATE: Never argue when a smear will do; Jack Balkin once again proves that the left would rather insult than engage (and proves that he deserves less respect with each passing day):

Conservative religious groups used to have the upper hand in the debate over gay rights. But now they have seen the writing on the wall. They are, for the most part, resigned to the Supreme Court's overruling or severely limiting Bowers v. Hardwick. Santorum's comments should be understood in this light. He is giving this feature of right wing politics its last hurrah. Right wing politicians will quickly see that the most overt forms of gay baiting do not work except to an increasingly small number of their constituents, and so they will gradually give up trying to do it. Instead, they will shift to more subtle forms of homophobic appeals, just as they did in the case of race.

(Emphasis added.) I never knew how I felt about not attending Yale Law, until just this moment. I actually feel great.

FINAL UPDATE: Eugene Volokh, though tenderly dipping into the "ick" factor ("if two gay men are constitutionally entitled to have sex (as I think they should be), then adult siblings would similarly be constitutionally entitled to have sex (as I think they should be)") in a way that I suppose makes sense in Blue State Land, nonetheless puts more precisely, and more fairly, Santorum's comments in perspective from a Libertoid point of view.

Now if you'll excuse me, I've read too many men (who aren't from West Virginia, Massachussetts, or the Ozarks) arguing that there's nothing wrong with brother-sister love today to be entirely comfortable closing my eyes tonight, so I'm gonna go back to work now.

ACK, FINAL, FINAL UPDATE: Santorum didn't squirm. Good for him.