Moral Offenses and Same Sex Relations: Revisiting The Hart-Devlin Debate

Abstract

2 The long-standing controversy about the law‟s proper role in enforcing morality has entered a new phase with the U. S. Supreme Court‟s decision in 2003 invalidating state criminal laws prohibiting same-sex sodomy. On its face, the Court‟s opinion in Lawrence v. Texas1 might appear to rest on the libertarian principle enunciated more than a century ago by John Stuart Mill: that “the only purpose for which power can be rightfully exercised over any members of a civilized community, against his will, is to prevent harm to others.”2 The Court does not explicitly invoke Mill’s principle; and it is highly unlikely that the Court majority is prepared to endorse the implications that Mill drew from this principle, to invalidate laws restricting narcotics usage or commercial sex. But Lawrence can be read at least to suggest that state coercion must be aimed at secular harms, at something more than simple moral approval or disapproval of individuals‟ conduct. In this sense, Lawrence might be understood to rest on the spirit of Mill‟s dictum, even if secular justifications might be identified for specific state restrictions that he would not approve.