DAVID SIDORSKY
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their previous deprivation. Yet the societal determination of character–
istically male or female relationships and roles and the cultural defini–
tion of feminine identity were not, in the main, challenged.
With the third concept of liberty there is a new emphasis on the
"option right" to freely select one's sexual identity and orientation. The
formal egalitarianism of the liberal state had required that there be no
discrimination among persons on irrelevant grounds such as race, reli–
gion, or gender. The ideal of sexual liberation, in the idiom of this for–
mal egalitarianism, can be formulated as requiring that sexual
orientation should be added to the list of irrelevant grounds for dis–
crimination. The political agenda of a movement for sexual liberation,
however, has gone beyond the rhetoric and idiom of the formal egali–
tarianism of nondiscrimination. As a political corollary of the third con–
cept of liberty, the claim is that a free or pluralist society should move
beyond nondiscrimination toward the recognition that freedom for the
individual requires that the State and the culture positively support the
freedom of choice of persons in their sexual self-identification.
One special area for probing the significance of different concepts of
liberty is that of legislative reform on the proscription of various forms
of sexual behavior. In the late 1950s, the Wolfenden Commission in
England represented the new frontier in sexual politics when it advo–
cated the overturning of previous laws which had proscribed homosex–
ual practice among consenting adults . The argument of the Wolfenden
Commission was essentially Millian so that the concept of liberty was
interpreted as "negative liberty." From this perspective, proscription of
private sexual practice was an unjustified intervention by the State into
the domain of the individual. The rights of the formed, adult individual
who is capable of acts of free consent should not be invaded by gov–
ernmental legislation.
It
was this form of argument which was decisive
for the legislative reforms that ensued .
At that time, Justice Patrick Devlin based his criticism of the
Wolfenden Commission, to a great degree, on its Millian view of the
relationship between the individual and society. According to Devlin,
when the State or other societal institutions change the boundaries of
their intervention against the liberty of action or freedom of choice of
the individual, then the State has also changed the cultural conditions
for the development of individuality. Devlin's point was that legislative
reform that affects the freedom of the private person in relation to the
environing society also affects the norms and conditions for social
expression in the public culture. Consequently, in Devlin's view, the
Wolfenden Commission was deceiving itself, either unintentionally or
