The Slippery Slope Goes Both Ways

Mostly because people love saying "pedophilia, incest, polygamy, and beastiality" in the same sentence as "homosexuality" every time they get a chance, the slippery slope consequences of a right to privacy are often disingenuously cited as arguments against it. However, even more powerful are the slippery slope arguments of there NOT being a right to privacy. That is if, despite the language in the 4th, 5th, 9th, and 14th amendments, the states DO have the power to regulate private consensual sexual behavior then slippery slope reasoning - given credence by Santorum's views - should scare us all. As Steady Eddie says in comments below:

Atrios, both Democrats and anyone interested in expanding personal liberty against the anti-Enlightenment forces of theocracy should be appreciative of what Santorum has done.

Politically, you and commenters have been talking about the benefits for days; this post hints at our basis for appreciating his little rant legally.

The difference you cited between the Texas case (Lawrence) and Bowers is critical. Bowers was decided on a straight (no pun intended) rejection of applying the right of privacy to homosexual conduct. While the Court could change its mind given the changes in both Court membership and the states' political changes in sodomy laws, it's far likelier to look at this as a violation of equal protection for gays, precisely because Texas' anti-sodomy law does not apply to the same practices between heterosexuals.

For the Court to not reject Lawrence as a violation of equal protection, it would indeed have to take Santorum's view, that sodomy is inherently bad. The slippery slope that Santorum's list of behavior that government should actively proscribe has laid out for the Court is surely going to be repugnant to at least O'Connor and Kennedy, and maybe even Thomas (though he may choose dishonestly to deny and repress his past affinity for Long Dong Silver).

In other words, Atrios, Santorum's statement has clarified that (a) and (b) are indissoluably connected. If you do not find Lawrence to be a violation of equal protection under (a), Santorum is saying that indeed you will get some substantial (b). What his little rant has done is make it impossible for at least O'Connor and Kennedy to pretend that (b) is an improbable, theoretical possibility.

Knowing how intensely political those two Justices are, they'll see that upholding Texas' law will do far more damage to Republicans, via an active fight on the extension and enforcement of anti-sodomy laws, than striking it down would be. The great thing about this case, and how Santorum has clarified the stakes in it, is that the Republicans can't get out without substantial damage in the latter case either, because the Christian theocrats are going to be pissed at the Supreme Court and the Republican libertarians who will be celebrating the decision.