- The Washington Times - Tuesday, January 6, 2004

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people one of the great, unorganized rebellions against law that continued unabated until the 18th amendment was repealed in 1933.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.

Devlin argued in these ominous words that “if men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if having based it upon a common set of core values, they surrender those values, it will disintegrate. For society is not something that can be kept together physically; it is held by the invisible but fragile bonds of common beliefs and values. … A common morality is part of the bondage of a good society, and that bondage is part of the price of society which mankind must pay.”

In many cases, society agrees to a common morality and the weapon of law in that it accepts the validity of laws barring polygamy, adults seducing young boys, marriage of children, a father marrying his son’s wife, a woman marrying her stepfather, or consanguinity marriages, say, between brother and sister.

The issue today is, based on Devlin’s questions, what or whose standard to adopt on social issues. President Bush was surely reflecting majority public opinion when he declared in words Devlin would have approved:

“Marriage is a sacred institution between a man and a woman. Today’s decision of the Massachusetts Supreme Judicial Court violates this important principle. I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage.”

Or should the decisive standard be public opinion as measured by polls?

Last month’s Fox News Channel/Opinion Dynamics poll on same-sex marriage produced these results:

Opposed — 66 percent

In favor — 25 percent

A Pew Research Center poll reported these results:

Opposed — 53 percent

In favor — 38 percent

Since a large minority favors a change in the marriage laws should governments adopt the “civil union” formula as expressed by Gen. Wesley Clark and so reported in The Washington Times:

“People who want same-sex relationships should have exactly the same rights as people who are in conventional marriages. I’m talking about joint domicile rights of survivorship, insurance coverage and all those rights. I think that’s essential in America today.”

If we answer Devlin’s questions to the satisfaction of the overwhelming majority, what then of the dissatisfied and disobedient minority?

The debate continues.

Arnold Beichman, a Hoover Institution fellow, is a columnist for The Washington Times.

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