At night, I tried writing the sodomy essay on the enforcement of public morality under timed conditions. Realised that I couldn't remember anything, including the name of one of the dissenting judges in Dudgeon v. UK - including even the FULL NAME OF THE SOUTH AFRICAN CASE. It was when I was struggling to connect ideas together so that they flowed in a reasonably coherent manner that I realised how difficult this issue is. The model essay I did was about how courts are essentially engaged in a discussion about what democracy is when they decide cases on the constitutionality of anti-sodomy laws, which I think is a plausible argument to make, but it can only be made if I get a 'discuss' question. If I get a 'to what extent is [statement] reflected in the case law' question, I can't do that because it simply doesn't fit. Ergo, I tried to tweak the essay and that was when I realised that I couldn't remember anything and that this issue is really difficult. It's almost a philosophical discussion about what the Constitution aims to do, about the connection between law and morality, and about what democracy is. Why can the state not enforce the moral views of the majority of the public of homosexuality as immoral? So what if it leads to the discrimination or loss of autonomy of the minority of the citizenry who bears the burden of the aforementioned enforcement? Why should the state care? Why should the majority care?
I think the broad argument is that, as was stated in Naz Foundation, the only morality that the state can enforce is not popular morality, which is based on shifting perceptions of right and wrong, but constitutional morality, which is derived from constitutional principles. The thesis, then, is that the state cannot enforce through the operation of the criminal law the moral views of the majority of the population (or at all, I think) if such views contradict or violate constitutional principles - in the case of anti-sodomy laws, it would be the principles of equality, dignity, and privacy/autonomy/liberty. That has to be what the majority of the US Supreme Court ruled in Lawrence v. Texas when Justice Stevens said that the majority cannot enforce the moral views, based on religious doctrines, that homosexuality is immoral through the operation of the criminal law because the proper role of the court is to 'define the liberty of all' (quoting Planned Parenthood of Southeastern Pennsylvania v. Casey) and not to mandate its own moral code. The source of this 'liberty of all' is the Constitution. The US Supreme Court's decision in Bowers v. Hardwick upholding an anti-sodomy statute and its claim that the law is constantly based on notions of morality had a different idea of what this 'morality' entails, and it is one that finds no expression in constitutional principles - simply put, it is 'rank prejudice', to quote Ackerman J in National Coalition for Gay and Lesbian Equality v. Minister of Justice.
In an indirect way, then, the state is enforcing morality by not enforcing the popular idea of what is moral: it is enforcing the morality of the Constitution which demands 'equal concern and respect for all citizens (Ronald Dworkin)' and which celebrates diversity (Naz Foundation). Not allowing the state to enforce popular morality does exactly that: the homosexual man no longer has to conform to heterosexual lifestyles and is free to lead his life the way he wants, and the bigot continues to be free to hold the view that homosexual is immoral. Equal concern and respect for both their rights. Very brilliant.
I don't know what the fuck I'm talking about. Gotta go to bed now and try to get to the library by 10 a.m. for once. I am SO tired.