DOES THE THREAT OF AIDS CREATE DIFFICULTIES FOR LORD DEVLIN'S CRITICS?

Although over twenty years have passed since the Hart-Devlin exchange, the controversy over society's right to punish homosexuals remains alive, as is shown by recent concern over the spread of AIDS and the recent announcement of the Supreme Court that “majority sentiments about the morality of homosexuality” constitute an adequate justification for sodomy statutes under the due process clause of the fourteenth amendment.1 Lord Devlin's moral justification for punishing homosexual conduct seems to follow a similar line of reasoning. The one argument to which his critics have paid the most attention begins with the assertion that society consists of a seamless web of ideas and values, the content of which is determined by whether the ordinary, reasonable person is disgusted by a particular type of conduct.2 Among the types of conduct that disgust the ordinary person, he continues, is homosexual conduct.3 Therefore, Devlin concludes, society may punish homosexual conduct, even if it is consensual.