Moral Reasons and the Limitations of Liberty

Abstract

I find myself in substantial agreement with Professor Dworkin, and I find this deeply disturbing - not merely because it will make my role as his commentator more difficult, but also for reasons of a more personal nature. In Bowers, however, this distinction was lost on Justice White; for in Bowers, once he had decided that citizen disapproval of homosexual sodomy was moral disapproval, he concluded that the rational basis test had been satisfied, with no inquiry at all into the question of whether the moral judgment involved is a rational or reasonable moral judgment or perhaps simply a judgment of unexampled stupidity, ignorance, prejudice, and animus. By arguing that disapproval of homosexuality may not be moral disapproval and that moral disapproval of homosexuality may not be rational, I have tried to fill out in some detail my reading of two of Professor Dworkin's claims - the claim that our thinking about issues such as homosexuality requires a plausible account of what is involved in the making of moral judgments, and the claim (made in the final sentence of his essay) that the reason that homosexual conduct ought not to be criminalized is that there is nothing immoral in such activity.