Many
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that continued unabated until the 18th amendment was repealed in 1933.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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