VARIETY
85
tween consenting adults be removed from the sphere of the law on the
grounds that "the Code does not attempt to use the power of the state
to enforce purely moral or religious standards. We deem it inappropriate
for the government to attempt to control behavior that has no sub–
stantial significance except as to the morality of the actor. Such matters
are best left to religious, educational and other influences." The Com–
mittee's recommendaion on adultery was accepted. But there was a
difference of opinion about sodomy. Judge John
J.
Parker spoke for
the legal moralists: "There are many things that are denounced by
the criminal civil code in order that society may know that the state
disapproves. When we fly in the face of public opinion, as evidenced
by the code of every state in this union, we are not proposing a code
which will commend itself to the thoughtful. ..." Judge Parker was
answered by Judge Learned Hand who said, "Criminal law which is
not enforced practically is much worse than if it was not on the books
at all. I think homosexuality is a matter of morals, a matter very largely
of taste, and it is not a matter that people should be put in prison
about." Judge Hand's position was upheld by the Institute.
As matters now stand only the state of Illinois has attempted to
modify its sex laws. As of 1962, there is no longer any penalty in Illinois
for the committing of a deviate sexual act. On the other hand an "open
and notorious" adulterer can still be punished with a year in prison
and fornication can be punished with six months in prison. So it is still
taken for granted that the state has the right to regulate private be–
havior, in the interest of public morality.
One of the odd post-war phenomena has been the slowness of the
liberal community to respond to those flaws in our society which might
be corrected by concerted action. It is, of course, exhilarating to de–
termine to what degree Hannah Arendt was responsible for Hitler.
Yet it would seem to me that a change in the legal codes of the fifty
American states might be almost as interesting an occupation for the
liberally inclined as the fixing of past guilt and the analysis of old
crimes. As they stand, the laws affect nearly everyone; implemented,
they affect millions. Originally, the United States made a brave dis–
tinction between church and state. But then we put within the legal
provenance of the states that which rightfully was religion's concern,
and for those not susceptible to religious discipline, the concern of the
moral conscience of the individual. The result has caused much suf–
fering. The state laws are executed capriciously and though in time
they may wither away, without some organized effort, they could
continue for generations. In fact, there are signs today that the legal
