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ClearDot.gif (85 bytes) Bedeviled by Devlin
. . . . . .
By Arnold Beichman

Editor's Note: Arnold Beichman is a political scientist, writer, and former journalist, and has been a visiting scholar and research fellow at the Hoover Institution since 1982.

Arnold BeichmanMany years ago, Lord Patrick Devlin, the eminent British jurist and political philosopher, raised three questions about society's relationship to moral standards and their enforcement, questions which have become quite relevant with the same-sex marriage issue high on the  agenda of American legislatures and courts.

Lord Devlin's famous and much debated 1965 book, titled, The  Enforcement of Morals, has been described as an "anti-gay" manifesto, which it undoubtedly is. But it also is more than that because it deals with the most fundamental problems of any democratic secular society. These are Devlin's questions, and they are worth examining:

(1) Has society the right to judge matters of morality — in other words, to legislate moral behavior? Or are morals always a matter for private judgment?

(2) If society has the right to legislate moral behavior, has it also the right to use the coercion of law to enforce it?

(3) If yes, should it use the weapon of law in all cases or in some cases, and in accordance with what principles should it employ the weapon of law?

I would add a fourth and perhaps an overriding question:

(4) What should be the relationship between morality and secular law?

We are pretty much agreed that neither government nor society belongs in the bedroom but the issue today is whether such a consensus applies outside the bedroom.

In 1919, the U.S. government legislated moral behavior with the Prohibition Amendment, which proscribed intoxicating liquors. That amendment sparked in a majority of the American people one of the great, unorganized rebellions against law that continued unabated until the 18th amendment was repealed in 1933.

Devlin's fundamental questions were directed at Britain's secular democratic society where the issues at the time were homosexuality and novels like D.H. Lawrence's Lady Chatterley's Lover. The same questions, still unsettled, have reappeared today in the U.S. where the issues involved in public morality are far more numerous and complex — partial-birth abortion, on-line pornography, cloning, AIDS, hate speech, assisted suicide, consecration of homosexual clergy as well as same-sex marriage.

The Massachusetts Supreme Judicial Court recently  ordered the state legislature to legalize same-sex marriage.

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