The year 1957 saw the publication of a key document in the history of the sexual revolution, the Wolfenden Report. A committee of distinguished figures in British public life headed by Sir John Wolfenden, who later became director of the British Museum, studied what the law’s attitude towards homosexual acts should be. It concluded that “homosexual behaviour between consenting adults in private should no longer be a criminal offence”. In essence, the committee endorsed the view that private morality is no concern of the law.
In 1959, to rebut the conclusions of the Wolfenden Report – which was highly controversial at the time – Lord Devlin, one of the leading jurists in the UK, wrote what has since become a classic of jurisprudence, The Enforcement of Morals. The committee got it wrong, he contended. If, in the court of public opinion, certain acts, including homosexual acts, were regarded with horror and disgust, legalising them posed the threat of social disintegration. Society could not afford to decriminalise such acts.
Devlin’s position came as something of a surprise to his colleagues. He was a man of broadly liberal sympathies and had even declared in his own testimony to the Wolfenden Committee that laws on consensual homosexual activity should be relaxed.
What must have been an even greater surprise was his recantation a few years later. On the eve of the 1967 Parliamentary debate on the Wolfenden Report’s recommendations he joined several Anglican bishops and law lords in writing a letter to the London Times:
“Seven years ago a distinguished list of signatories wrote in your columns that the existing law clearly no longer represented either Christian or liberal opinion in this country, and that its continued enforcement would do more harm than good to the community as a whole.
“We hope that in response to the Motion calling attention to the Wolfenden Committee’s recommendations… Her Majesty’s Government will now recognise the necessity for this reform and will introduce legislation.”
Lord Devlin’s volte face sheds some light on last week’s startling news that David Blankenhorn, who not so long ago was the face of opposition to gay marriage in the American media, has changed his mind.
Blankenhorn is the founder of the Institute for American Values and the author of The Future of Marriage and Fatherless America. His credentials as a defender of traditional marriage seemed impeccable. But last Friday, to the dismay of his erstwhile allies, in a New York Times op-ed he ran up a white flag. He wrote: “as a marriage advocate, the time has come for me to accept gay marriage and emphasize the good that it can do.”
Blankenhorn has not abandoned his conviction that marriage between a man and a woman is the best place to raise a child. He has a great argument:
“Marriage is the planet’s only institution whose core purpose is to unite the biological, social and legal components of parenthood into one lasting bond. Marriage says to a child: The man and the woman whose sexual union made you will also be there to love and raise you. In this sense, marriage is a gift that society bestows on its children.”
But he is tired of being called a bigot and so the time has come to compromise. “You can bend a little bit because we have to live together. And the endless perpetration of a culture war over this is enervating,” he told New York Times reporter Mark Oppenheimer in a radio interview. Now he hopes that he will be able to build coalitions with gays and lesbians who believe in stable marriage. Together they will beaver away at improving the woeful statistics on married life in the US.
By what mental twists and turns did he travel to this Rubicon? After all, his support for marriage between a man and a woman was — and is — profound and sincere. He had even been the principal witness in support of California’s ban on same-sex marriage when it was appealed before Justice Vaughn Walker in 2010. That took courage and conviction.
Blankenhorn has given three reasons for his change of heart. Two are social: the need for “comity” and “respect for an emerging consensus”, especially among “most of our national elites, as well as most younger Americans”. The third is personal: “the equal dignity of homosexual love”.
Although Devlin and Blankenhorn are separated by more than 50 years, they are at one in arguing that consensus trumps principles. In 1959, Devlin thought that homosexuality was too disruptive; in 2012 Blankenhorn thinks that opposing it is. Go with the flow. Both men use their yearning for peaceful co-existence as a justification for turning their backs on their moral principles.
It is interesting to note that in The Enforcement of Morals, Lord Devlin says that whether a society adopts monogamy or polygamy is a matter of convention. “It got there because is Christian,” he wrote, “but it remains there because it is built into the house in which we live and could not be removed without bringing it down.” Were he alive today, there is no doubt that he would be a strong supporter of gay marriage. Would polygamy come next?
But Blankenhorn takes Lord Devlin’s argument one step further. The law lord had no sympathy whatsoever for homosexuality, which he described in his book as a “miserable way of life”. But Blankenhorn has always accepted that homosexual love is equal in dignity to heterosexual love. This was the fatal flaw in his stand against gay marriage, the leak in the dyke which allowed the waves of virulent criticism to break in and sweep him away.
If homosexual acts are equal in dignity to marital intercourse, then the law has no business criminalising them. If they are not criminally wrong, then they must (at least to the average Joe) be morally upright. If they are right, it is sheer bigotry and discrimination to hamper their expression in any way. The logic is overwhelming.
The Blankenhorn incident is a painful reminder of one of the main failings of our culture – its inability to set boundaries to sexual expression. Fundamentally this has happened because people have come to believe that they can define the purpose of sex for themselves. On Tuesday, it could be love; on Wednesday lust; on Saturday pleasure; or on Sunday simply curiosity. Sex’s link with children and the complementarity of male and female is something incidental, almost irrelevant, to the way we should live our sexuality.
There are two lessons here. First, unless opponents of gay marriage have firm views on the immorality of homosexual acts, it is almost inevitable that they will follow David Blankenhorn into a grudging acceptance of a new social paradigm. They must hold firm to the truth that homosexual love is not equal in dignity to married love. Second, those views need to be articulated in a way which does not humiliate or vilify homosexuals but gives a clear account of why homosexual acts are an inherently disordered use of sexuality. There is a lot of work to be done here.
And lest anyone else think that sharing marriage with gays will save it as a social institution, here are some bitter observations about Blankenhorn from Richard Kim, executive editor of the leading progressive magazine The Nation. He thinks that the new player on the gay marriage bench is just as “regressive, archaic and punitive” as he was when he opposed it. All that stuff about what kind of marriage produces the best results for children is irrelevant. “Blankenhorn sees an inner circle of honor and benefits that should be attached to marriage, and he’s now extended that circle to include gays and lesbians,” Kim writes. “I want to scramble that circle.”
I wish David Blankenhorn the best of luck in building a coalition with the likes of Richard Kim.
Michael Cook is editor of MercatorNet.