That, however, social opinion--law or no law--will speak with no uncertain
voice is very evident. Once homosexuality was primarily a question of
population or of religion. Now we hear little either of its economic
aspects or of its sacrilegiousness; it is for us primarily a disgusting
abomination, i.e., a matter of taste, of esthetics; and, while unspeakably
ugly to the majority, it is proclaimed as beautiful by a small minority. I
do not know that we need find fault with this esthetic method of judging
homosexuality. But it scarcely lends itself to legal purposes. To indulge
in violent denunciation of the disgusting nature of homosexuality, and to
measure the sentence by the disgust aroused, or to regret, as one English
judge is reported to have regretted when giving sentence, that "gross
indecency" is not punishable by death, is to import utterly foreign
considerations into the matter. The judges who yield to this temptation
would certainly never allow themselves to be consciously influenced on the
bench by their political opinions. Yet esthetic opinions are quite as
foreign to law as political opinions.
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