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Homosexuality and the Law

In response to:

There Oughta Be a Law from the November 11, 1965 issue

To the Editors:

The trouble with current philosophical controversy concerning homosexuality laws is not that a concrete question is being debated by appeal to abstract principles, but that the wrong principles are being appealed to. For most of those who advocate repeal on the ground that it is improper to legislate morality, such an argument is superfluous; they do not believe that homosexual activity is deserving of punishment, wrong, dreadful, disgusting, or even particularly conducive to the misery of the participants. Unfortunately a change in the law depends not only on the thoughtful men who hold this view, but on a general public which by and large does not. And the thoughtful men seem reluctant to argue with the public about sex—perhaps they find such a role alarming, since it involves a not purely intellectual self-exposure; perhaps they surmise (I suspect rightly) that the electorate will be more easily induced to accept general principles concerning the true province of law than to give up its revulsion toward homosexuals. Complex and sophisticated positions can be very effective precisely because they are unthreatening. To that extent the abstract legal tenor of current discussions may have its pragmatic justification, just as recent aesthetic defenses of literary works against the obscenity laws may be justified by their success. But this does not obviate the need for a direct attack on the incredible sexual values which seem to make such casuistry unavoidable.

Besides, it is not clear that any distinction between harm to others and harm to oneself will yield an argument capable of appealing to those who remain convinced that homosexuals are wicked. Most objectionable instances of “legislating morality” (a phrase which, as Henry Aiken points out [NYR, Nov. 11] embodies profound confusions) concern not what is harmful to anyone, but simply what is thought to be good or bad, tout court. Some people think that homosexual activity is a bad thing. And it would be difficult to defend the position that the law has no business promoting or discouraging anything simply because it is a good or a bad thing. (How in that case could one justify the laws against cruelty to animals?) There may be principles of justice which require an extremely general tolerance toward sexual and religious practices. But against some bad laws it is more to the point to argue that what they seek to discourage is not an evil. This may involve appeals to some general principles, but at least they will reflect the primary issue, which is sex and not the law.

Thomas Nagel

Department of Philosophy

University of California

Berkeley

Henry Aiken replies:

Since Mr. Nagel’s comments on the subject of my review do not seem, with one exception which I shall mention presently, to take direct issue with what I have to say, I shall take the occasion to address myself mainly to the substance of some of his remarks.

It is a little hard to know what to say about the contention that the trouble with current controversy concerning homosexuality is not that it is being debated by appeal to principles, but that the wrong principles are being appealed to until it is made clear what the right principles are. No such principles are specified in Mr. Nagel’s letter. Presumably they concern sex rather than law, as his last sentence suggests. Even so, one still wants to know first what are the right principles in question. For only then will one be able to tell whether or not the law should be invoked or in what way. But of course there is here, after all, an issue of law also (what it should be and do) even if, perhaps, the right conclusion were that there should be no law whatever so far as “sex” is concerned.

Mr. Nagel alludes to the possibility of principles of justice which require an extreme general tolerance toward sexual and religious practices. Perhaps Mr. Nagel would care to tell us what they are. For only then could we determine both in view of such principles and the facts about such practices, moral and otherwise, whether to be tolerant or just how tolerant to be. Let me emphasize, in passing, that among humans “sex” is never a purely sexual matter: it involves, for most of us, a good many associated matters of concern. This is precisely why, whether one likes it or not, a decent principle about sex is bound to have to take into account, for example questions not only of instinct and pleasure, but also of kindness and love, of health, perhaps even of religion. Just because sex is so important, and so complexly interwoven into “other” aspects of our personal and social lives, the question of what, if anything, to do about the laws governing sexual practices is not open and shut. In my view, for what it is worth, there are more things involved, from a moral point of view, than principles of justice (in the ethical sense) could alone adjudicate (though of course questions of justice are centrally involved too).

Finally, I return to what at least seems to be an implicit criticism of my review. Evidently Mr. Nagel thinks that I object to the current philosophical controversy over homosexual laws because it is being debated by an appeal to abstract principles. Well, I do and I don’t. I do just to the extent that such a controversy diverts attention from the substantive and pressing human problems which occasioned it. Mr. Hart, Lord Devlin, and the rest have ranged pretty far afield, and consequently have to some extent fogged the view of it. Whether they meant to do so or not, they have diverted attention (including their own) to a great many moral and jurisprudential issues which are interesting in their own right, but which also have caused us all to forget the need for reform of homosexuality laws. In a way, I myself was saying, before Mr. Nagel said it, “let us not lose sight of the fact that the point at issue (however complex) concerns the matter of the laws affecting homosexuality.” But I don’t, in principle, object to the appeal to abstract principles, and I didn’t say that I did. All the same, I want now to go a step further than I have done hitherto: I don’t think that any amount of appeal or study of abstract principles can finally settle for us what we should do about the reform of particular laws of homosexuality in a particular country at a particular time. I believe, in the end, that one simply has to size up the whole situation, in the light of available principles and facts (which are never, or almost never, sufficient), and make up one’s mind what to do. I have made up my mind: generally speaking, freely consenting adults should henceforth be free to love according to their tastes, and this goes for publicly viewable displays of their love. To my mind the notion that the blinds should always be carefully pulled down is quite as archaic as the view that homosexual love is evil per se.

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