Law, Morality and Sodomy: The Bowers Majority in Bed with Lord Devlin

Mary Sylla, Student

University of North Carolina at Chapel Hill

Introduction

The question of whether the law ought to enforce morality has been an issue of philosophical debate for some time. John Stuart Mill's assertion that the only justification for limiting one person's liberty is to prevent harm to another represents a starting point in the discussion, but his principle is not universally accepted within the philosophical community and certainly is not applied in the real world. Private consensual homosexual behavior is a recurring focus of this debate: it was the focus of the governmental report in Britain in 1965, which prompted Lord Patrick Devlin to explore the issue, and remains a common example of private activity which society seeks to regulate solely on the basis of its immorality.

Part I of this paper explores the philosophical discussion among scholars about the proper interaction of law and morality, beginning with Lord Devlin's lectures and continuing with criticisms of Devlin by H.L.A. Hart and, more recently, Joel Feinberg; Part II examines the Supreme Court's decision in Bowers v. Hardwick1 in light of the philosophical debate. By examining the philosophical arguments for and against intrusion into private morality, this paper demonstrates that the Bowers majority adopted the antiquated notion that law may enforce morality, even when the activity prohibited causes harm to no others and tramples privacy concerns, and ignored the more current philosophical arguments, ably pointed out by the dissent.

An underlying assumption of this piece is that Bowers was wrongly decided and that it represents an illegitimate intrusion into the area of private morality. The argument against legal enforcement of morality is driven by moral relativism and postmodernism: unless we are willing to say that the current morality is the one true righteous morality, free of socially constructed and therefore changeable influences, we should be wary of enforcing morality through the law.

Part I: The Philosophical Debate------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 54---------------------------------------

Lord Devlin

In The Enforcement of Morals2 Lord Devlin, a British judge, responded to the then-recently published Report of the Committee on Homosexual Offenses and Prostitution (the Wolfenden Report) which advocated decriminalizing consensual homosexual activity between adults in England.3 The drafters of the Wolfenden Report asserted that, unless the legislature was willing to equate crime and sin, "there must remain a realm of private morality and immorality which is . . . not the law's business."4 Devlin interpreted the Committee's position to mean that "no act of immorality should be made a criminal offense unless it is accompanied by some other feature such as indecency, corruption or exploitation."5 He disputed this position and argued that a society is a "community of ideas" including ideas about morality, that "without shared ideas on politics, morals, and ethics no society can exist."6 Since "recognized morality" is necessary to society "then society may use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence."7 Legislation against immorality is not only permissible but necessary to prevent the disintegration of society,8 in the same way that society may protect itself from subversive activities by outlawing treason.9 The criminal law exists for the protection of society, not, as Devlin thought the Wolfenden Report asserted, for the protection of the individual.

In Devlin's view, a society's morality is determined by the view of a "reasonable man . . . the man in the Clapham omnibus."10 Morality can be based on "disgust" and therefore society's "general abhorrence of homosexuality" is a sufficient basis for the legal prohibition of homosexual activity.11 Privacy can be balanced against the public interest in the moral order so that even private consensual conduct can be prohibited.12

H. L. A. Hart

Devlin's relatively simple argument has met with much opposition. The first response came from H. L. A. Hart, an American professor, who disputed Devlin's thesis saying that it assumes that immorality jeopardizes society, when in fact there is no evidence of that proposition.13 While Hart conceded that some shared morality is essential to the existence of society he questioned Devlin's leap from there to the proposition that a change in society's morality is tantamount to destroying it-- that society is equal to its morality14-- because that implies that the morality of a society can't change, or rather that if it does one society is actually disappearing, and being replaced by another.15 According to Hart, Devlin's argument amounts to an assertion that law should preserve existing morality, not that legal enforcement of morality is a good in and of itself.16 By contrast, Hart asserted that society cannot only survive individual differences in morality but can profit from them, though he does not specify exactly how it might profit.17

Finally, he said that even if there is a valid argument for the legal enforcement of morality, Devlin's argument as to how that morality should be ascertained is flawed: ". . . no one should think even when popular morality is supported by an 'overwhelming majority' of marked by widespread ' intolerance, indignation, and disgust' that loyalty to democratic principles requires him to admit that its imposition on a minority is justified."18 Hart's view of the connection between society and society's morality is more flexible than Devlin's. A society's morality can change without the society disappearing and democracy does not require the enforcement of uniform morality, as Devlin suggested.

In place of Devlin's justification for the full enforcement of morality, Hart developed his own argument for the partial enforcement of morality based on a distinction he drew between immorality which affronts public decency and that which merely 'distresses' others based on the knowledge that immoral acts are taking place.19 In Hart's view society may, for example, outlaw the public expression of bigamy20 or prostitution,21 because such could be considered an affront to public decency, as a nuisance,22 while it would not be justifiable to outlaw purely private manifestations of these types of behavior, or of consensual homosexual behavior in private,23 even though some might claim to be distressed by the private behavior as well.24 At this point Hart viewed it as a matter of balancing the distress from the knowledge that something immoral is taking place with individual liberty: "[n]o social order which values individual liberty could also value the right to be protected from this type of distress."25------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 55---------------------------------------

Joel Feinberg

A more recent review of the issue comes from Joel Feinberg.26 In the last volume of his series The Moral Limits of the Criminal Law, Feinberg criticized Devlin's argument as simply a series of confusions over "sometimes" and "always": he said that although society is a community of ideas in some sense, it does not follow that society must always share moral beliefs. "We cannot live together without any agreement, but it is not the sole alternative to no agreement that there be total agreement."28 Devlin's "social disintegration thesis," as Feinberg called it, seems to assert that society should view any change to the present morality, not just any morality, a threat; morality as it exists must be wholly preserved. Devlin confused the need to preserve some common morality to some extent with the preservation of a specifically defined morality, the present morality, in its entirety.29 The resulting problem is how to define the present morality. Feinberg pointed out that if morality is defined by reasonable people who may be racists or would-be witch burners, Devlin's argument is absurd; to avoid this absurdity Devlin would have to establish criteria for reasonableness beyond just the will of the majority of members of the community.30

Although Feinberg conceded that the criminal law may take morality into account, for example by lengthening sentences based on greater moral blameworthiness, contrary to Devlin he maintained that this does not justify moralitiy invading all of the criminal law.31 His argument likens the criminal process to "a great moral machine . . . [t]he question the liberal raises about this moral machine is: 'which actions should cause their doers to be fed into it?', and his answer is: 'only those actions that violate the rights of others.'"32 Although the criminal law does serve a moral purpose it does not follow that the criminal law's only legitimate purposes are moral ones, and that all more purposes are equally legitimate as reasons for criminalization.33

Part II--Bowers v. Hardwick

Majority decision

In 1986 the Supreme Court faced the same question the Wolfenden Report dealt with in 1957: whether private consensual homosexual sodomy could be properly prohibited by law. The majority of the Court held that it could, while four justices dissented. The arguments of the two sides, represented by Justice White's majority opinion and Justice Blackmun's dissent, correspond with remarkable similarity to the respective positions of Devlin and his critics, Hart and Feinberg. It is interesting that, despite the intense criticism Devlin's position has come under since its articulation over twenty-five years ago, the majority in Bowers adopted it, while the dissent was left to point out the more contemporary counterarguments, both legal and philosophical, by which the majority remained unmoved.

From the very beginning, the framing of the issue, the majority opinion devalues the liberal position and forces the burden of proof onto those who advocated removing the law from the regulation of private morality: while Hardwick framed his case in terms of a constitutional challenge to a state law which he felt improperly infringed upon his personal privacy, the Court articulated the question before them as "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy."34 The Court immediately foreclosed Hardwick's privacy argument, saying that the rights to privacy cases which developed substantive due process to prohibit state regulation within certain spheres of private decision-makings was inapplicable: that "none of the rights announced in those cases bears any resemblance to the claimed constitutional rights of homosexuals to engage in acts of sodomy that is asserted in this case."35

By rejecting the privacy argument the majority decision refuses to recognize Hart's distinction between what is indecent and offensive, for example committing sodomy in public, and what is simply immoral, committing the same act in private. Refusing to extend privacy to consensual sexual practices, the majority decision undermines personal liberty and permits the state to ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 56--------------------------------------- regulated its citizens' most intimate decisions. It also ignores Feinberg's argument that the criminal law should only be concerned with certain areas of activity, excluding unoffensive immorality: that only certain questions should be fed into the great moral machine of the criminal law. By refusing to consider the areas of private consensual sexual activity off-limits for criminal legislation, the Court ignored the more recent philosophical arguments, and permitted itself to reject Hardwick's claim based on the substance of his activity.

The majority of the Court the engaged in a Devlinian analysis, emphasizing the consensus on the issue of the immorality of consensual sodomy, pointing out that sodomy was illegal at common law, forbidden by the original thirteen colonies, outlawed by all 50 states until 1961 and still illegal in 24 states on the District of Columbia.36 The Court's reliance on history and common conceptions of morality illustrates its allegiance to Devlin's way of thinking: the state has a right to regulate private activity to preserve current morality.

The majority opinion rejects Mill's principle, saying that victimless crimes should not escape the law, even when committed consensually and in private. If privacy in the home were permitted for this purpose, the Court asserted, "it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest and other sexual crimes even though they are committed in the home."37 The Court ignored the fact that Mill's principle would permit the state to regulate these other sexual crimes because they cause harm to other and are therefore not regulated as immoral per se.

In a sense the majority opinion goes further than Devlin in asserting society's right to regulate conduct based solely on its immorality when it says that Hardwick's argument that "the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral is unacceptable . . . [is] an inadequate rationale to support the law."38 In response the Court simply asserted that the majority may enforce its moral convictions on the minority because the law is "constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed."39 Even Devlin said that the society's common morality could not simply be determined by majority rule but ought to be based on reasonableness, though it is unclear how the reasonable position would be determined, and how distinct from the majority it would be.

Again, the majority's argument is generally Devlinian and leaves itself open to criticism. Instead of examining an individual instance of the interaction between law and morality to determine whether it amounts to an enforcement of morality per se without other justification, the majority opinion says simply that the law cannot stay wholly separate from morality, and believes that the inquiry should end there. In this way it confuses "sometimes" and "always" in the same way Feinberg's argument asserts Devlin did, and assumes that the present morality is the only morality which should be protected.

Blackmun's dissent

Justice Blackmun's dissent on behalf of three of the four dissenting justices represents an expression of the Hart/Feinberg position. His opinion frames the issue in terms of individual liberty saying that the challenged statute "denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity."40 Blackmun's dissent views the question as one of privacy and individual liberty, rather than a fundamental right to commit homosexual sodomy; that "the Constitution embodies a promise that a certain private sphere or individual liberty will be kept largely beyond the reach of government."41 The question of private consensual sodomy should be left out of Feinberg's moral machine of the criminal law.

Blackmun challenged the majority's willingness to base its decisions on familiar moral judgments, that such moral judgments, "ought not to conclude [the Court's] judgment upon the question whether statues embodying them conflict with the Constitution of the United States."42 If the Court wants to enforce morality Blackmun would have it adopt a concept of privacy that "embodies the 'moral fact that a person belongs to himself and not others nor to society as a whole.'"43

Blackmun's opinion directly opposes Devlin's disintegration thesis, and points out that, in an ear ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 57--------------------------------------- lier decision, the majority of the Court did as well: he quotes a 1943 case in which the Court said "we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization."44 Further, freedom to disagree with the majority on important matters is the most important to protect; since the issue of sexuality, "touches the heart of what makes individuals what they are we should be especially sensitive to the rights of those whose choices upset the majority."45

The dissent also recognizes Hart's distinction between indecent and immoral acts: the fact that the conduct could be punished if in public does not mean that the state should be permitted to regulate that behavior when it takes place in private.46 Blackmun's decision actually quotes Hart on the issue and points out that the majority of the Court fails to see the difference between laws that protect the public sensibilities an those that enforce private morality.47

Conclusion

John Stuart Mill proclaimed in 1859 that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."48 Justice White said in 1986 that "[v]ictimless crimes . . . do not escape the law [even] when committed at home,"49 and held that private consensual sodomy could be criminally prohibited by state. An analysis of Bowers in light of the philosophical debate indicates that the majority of the Court remains in the 1960s mindset of Lord Devlin, while the dissenters have considered and applied the more recent arguments of Hart and Feinberg. Gay rights activists may take heart: Lord Devlin's position, out of favor within the philosophical community, is closest to the rationale of the majority of the Court in Bowers, while the more recent philosophical consideration clearly supports the four-Justice minority. Hopefully, it will be only a matter of time before the views of the individual members of the Court, and therefore the status of the law, catches up with the philosophical debate.

1. 478 U.S. 186 (1986).

2. Patrick Devlin, The Enforcement of Morals (1965).

3. Id. at 2.

4. Id. (quoting the Wolfenden Report, paragraph 61).

5. Id. at 3.

6. Id. at 10.

7. Id. at 11.

8. Id. at 12.

9. Id. at 13-14.

10. Id. at 15.

11. Id. at 17.

12. Id. at 19.------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 58---------------------------------------

13. H. L. A. Hart, Law, Liberty and Morality 50 (1963): "As a proposition of fact it is entitled to nor more respect than the Emperor Justinian's statement that homosexuality was the cause of earthquakes."

14. Id. at 51.

15. Id. at 52.

16. Id. at 66.

17. Id. at 71.

18. Id. at 81.

19. Id. at 44.

20. Id. at 41.

21. Id. at 45.

22. Id. at 43.

23. Id. at 45.

24. Id.

25. Id. at 47.

26. Joel Feinberg, Harmless Wrongdoing (1988).

27. Id. at 135.

28. Id. at 136.

29. Id.

30. Id. at 142.

31. Id. at 154 (quoting Devlin).

32. Id. at 155.

33. Id. at 153.

34. Bowers, 478 U.S. at 190.

35. Id. at 190-91.

36. Id. at 192-93.

37. Id. at 195-96.

38. Id. at 196.

39.Id.------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 59---------------------------------------

40. Id. at 199.

41. Id. at 203 (quoting Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986)).

42. Id. at 199 (quoting Roe v. Wade, 410 U.S. 113, 117 (1973)).

43. Id. at 204 (quoting Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. at 777, n.5 (Stevens, J., concurring)).

44. Id. at 211 (quoting West Virginia Board of Education v. Barnette, 319 U.S. 624, 641-642 (1943)(emphasis added)).

45. Id. at 211.

46. Id. at 213.

47. Id. at 212.

48. Devlin, supra at 102 (quoting John Stuart Mill, On Liberty, p. 75)

49. Bowers, 478 U.S. at 186.------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 60---------------------------------------