morals and law revisited

response paper written for my LGBT class

Freedom to be who I am, without apology, without being labeled-my defiant claim of right does not make it so.
Llewellyn says that there are two camps on rights: the idealists; and the cynics, or realists. The idealist sees rights as things. Primary rights are something such as my right to have you perform on your contract with me. They are not real in themselves, but are the substance of the law. Enforceability of that right is another, separate thing, and is not the primary thing. The right is, but the inability of the law to fully enforce it is not a problem. Remedies inadequate-these are not a conflict, because you still have your rights. This seems like cold comfort to the person who has been wronged.
The cynic/realist, on the other hand, sees rights as that which is enforceable, for which there is real remedy: if no remedy, no right. As he puts it "defect of remedy is defect of right." The law can really only be seen as it has effect, as it leaves its mark.
The power to be who we are is so fundamental it almost seems redundant to express it. While I would suggest that most of us feel constrained in some way by societal expectations, such core expressions as our gender identity, and our sexual identity are presumed rights for most Americans. These concepts of self have a profound impact on our daily lives, on almost every component of life. When that basic ability is withheld, it is not surprising that the damage includes a high rate of suicide and depression. Loss of control, of the right to choose, strips me of my value as a person, makes me insignificant in the larger whole. Worse, for the transgender person, it often makes them a freak, a deviant in the eyes of society. What then does the law do to ameliorate this situation?
H.L.A. Hart asks the question, "Is the fact that certain conduct is by common standards immoral sufficient to justify making that conduct punishable by law?” In the context of sexual identity and expression, when the majority of our society finds certain conduct immoral, does that justify laws proscribing such conduct? Is law the enforcement of morality, or are law and morals distinct and overlapping concepts?
I concur with John Stuart Mill when he said "The only purpose for which power can rightfully be exercised over any member of a civilised (sic) community against his will is to prevent harm to others." (On Liberty) He went on to clarify that one can not be made to do or forbear from doing something just because it is for his/her own physical or moral good.
Society, of course, can find its own ways to exert pressure, but when the law becomes a tool to secure conformity, then society is the loser as well as the individuals who are impacted. Hart says that to use coercion to maintain the moral status quo at any point in a society's history would be to artificially arrest the process that gives social institutions their value. I know so little about the law at this point, but it seems to me that a law such as the Federal Defense of Marriage Act is an example of just that kind of coercion. I don't suggest that a society devoid of morals would be beneficial. I just want the right to flout those morals if they are not mine.
To me these are all variations on the same theme. Freedom to choose,
within the limits of not causing harm to others, is my right. It is also then my responsibility what consequences come of those choices. Law is key to an orderly, fruitful society and essential to quality of life for the members of the community who live under the law. A common sense of morals may be an important part of society (a whole other topic). But let us not mask moral certainty and judgment as law. They are not the same.