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The Bondage of a Good Society
Arnold Beichman is a Hoover Institution Research Fellow and
author of Anti-American Myths: Their Causes and Consequences.
Many years ago, Lord 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. 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
is also 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?
I would add a fourth and perhaps an overriding question: 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 legislative act
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was repealed in 1933.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 gay clergy as well as same-sex
marriage. The Massachusetts Supreme Judicial Court has recently ordered
the state legislature to legalize homosexual marriage. Should an amendment
barring same-sex marriage be enshrined in the U.S. Constitution?
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 to enforce that common morality 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 do we adopt on
social issues? President Bush was surely reflecting majority public
opinion when he declared in words that 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? A December2003 Fox News Channel/Opinion Dynamics poll on same-sex marriage produced these results: Opposed—66percent In favor—25percent
A Pew Research Center poll reported these results: Opposed—53percent In favor—38percent
Since a large minority favors a change in the marriage laws should
governments adopt the “civil union” formula as defined by General
Wesley Clark: 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.
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