In the late 1950s and early 1960s, the legal world was captivated by an ongoing debate between two of England's most respected jurists regarding whether and to what extent morality should be reflected in the law. The debate was instigated by the publication of the Wolfenden Report, a study presented to Parliament as it considered whether to repeal certain antisodomy laws in Great Britain. Lord Patrick Devlin, then a Lord of Appeal in Ordinary and later elevated to the House of Lords, Britain's highest court, opposed the conclusions contained in the Wolfenden Report and supported the continuation of the antisodomy laws. H.L.A. Hart, then Professor of Jurisprudence at Oxford University, believed that the use of the criminal law to enforce popular morality, in particular sexual morality, was inappropriate. The purpose of this Article is to review the dissent in Romer v. Evans in the context of the continuing Hart-Devlin debate regarding the proper role of morality in law and analyze the legitimacy of Justice Scalia's arguments in favor of the enactment of morality legislation. Although the law at issue in Romer will be used as a primary example of morality legislation, this article will explore the legitimacy of such laws in other contexts as well.
S.I. Strong, Justice Scalia As A Modern Lord Devlin: Animus and Civil Burdens in Romer v. Evans, 71 S. Cal. L. Rev. 1 (1997)