Law, Morality, and "Sexual Orientation"

Abstract

I During the past thirty years there has emerged a standard form of legal regulation of sexual conduct. This "standard modern position" has two limbs. On the one hand, the state is not authorised to, and does not, make it a punishable offence for adult consenting persons to engage, in private, in immoral sexual acts (for example, homosexual acts). On the other hand, states do have the authority to discourage, say, homosexual conduct and "orientation" (i.e. overtly manifested active willingness to engage in homosexual conduct). And typically, though not universally, they do so. That is to say, they maintain various criminal and administrative laws and policies which have as part of their purpose the discouraging of such conduct. Many of these laws, regulations, and policies discriminate (i.e. distinguish) between heterosexual and homosexual conduct adversely to the latter. The concern of the standard modern position itself is not with inclinations but entirely with certain decisions to express or manifest deliberate promotion of, or readiness to engage in, homosexual activity/conduct, including promotion of forms of life (e.g. purportedly marital cohabitation) which both encourage such activity and present it as a valid or acceptable alternative to the committed heterosexual union which the state recognises as marriage. Subject only to the written or unwritten constitutional requirement of freedom of discussion of ideas, the state laws and state policies which I have outlined are intended to discourage decisions which are thus deliberately oriented towards homosexual conduct and are manifested in public ways. The standard modern position considers that the state's proper responsibility for upholding true worth (morality) is a responsibility subsidiary (auxiliary) to the primary responsibility of parents and non-political voluntary associations. This conception of the proper role of government has been taken to exclude the state from assuming a directly parental disciplinary role in relation to consenting adults. That role was one