Gay and Lesbian Applicants to the Bar: Even Lord Devlin Could Not Defend Exclusion

In 1957, the publication of a report to Parliament, the Wolfenden Report, which recommended the repeal of laws criminalizing private homosexual conduct between consenting adults, sparked an intensely debated controversy in political philosophy and jurisprudence. The issue: is society justified in criminalizing behavior which, although causing no secular harm, transgresses widely held moral values? The principal proponent of morals legislation was Lord Patrick Devlin, who responded to the Wolfenden recommendation with a paper disputing the report\u27s premises--that criminal law had no proper business punishing private immorality.Oxford Professor of Jurisprudence H.L.A. Hart, a philosophical successor to the libertarianism of John Stuart Mill, vigorously opposed Devlin\u27s views. In this country, the most distinguished proponent of the Mill-Hart philosophical position is Professor Ronald Dworkin. Hart, Dworkin, and those of a similar persuasion, and Lord Devlin and those of his persuasion, produced a prodigious body of legal, moral, and political philosophy. While I am of the Mill-Hart-Dworkin persuasion, the Devlin-Hart disagreement will not be pursued herein, for one thesis of this Article is that in the present moral climate, even supporters of Lord Devlin\u27s philosophy could not justify criminalizing private sexual conduct between consenting adults. I look at this specifically in the context of admission to the Bar. At the outset, let me state my reasons for the subtitle of this article--i.e., Even Lord Devlin Could Not Defend Exclusion, in the moral climate of the year 2000. Devlin, in his major work on this subject, conceded that his thesis was subject to certain important exceptions or qualifications. The most significant of these, for present purposes, is that when, over time, the limits of tolerance shift as to particular behavior, society would not be required or even justified in continuing to criminalize that conduct. Critical to Devlin\u27s thesis defending the enforcement of morality was the presence of a strong and pervasive public demand for enforcement, a demand generated by almost universal disgust and abhorrence, such that the very idea of legal tolerance was itself intolerable. As I examine, in Part I, the developments since the mid-1960s with respect to the legal, constitutional, social, and reputational status of homosexuals, it becomes abundantly clear that the conditions for even the debatable Devlinian justification for prohibiting consensual same-sex intimacies are simply not present. Rather, there have been major shifts in the limits of tolerance away from condemnation and outrage, and toward toleration and acceptance