Given
that the recent ruling of the Supreme Court of India with regard to gay
sex has generated much controversy, the essay attempts to explore a
moral and political perspective of a concerned citizen. To this end, the
essay makes a distinction between moral norm and legal system of a
given society, which is followed by a brief rehearse of the history of
the subject matter. The essay ends by making a distinction between the
need to decriminalize an action which does not necessarily have to lead
onto legalization of the same action.
Moral norm vs. Legal system.
In the absence of any moral law, human
society will descend into chaos. Moral law is an essential element for a
flourishing human society. There are certain human actions which will
find a general consensus about their moral nature. Rape or murder are
examples generally agreed to be evil by rational minds. Thus rape or
murder are actions where moral disapproval have been codified in the
legal system of a given nation-state. This is a situation where moral
norm of a given society is in congruency with the legal system of the
same society.
The moral disapproval of an action of an
agent, however, is not always in congruency with the legal system of a
given society. This is to mean that an action may be considered immoral
yet it may not be codified as unlawful or illegal by that given society.
This is because the codified legal system of any given society cannot
incorporate and inquire into every aspect of human action. For example, a
priest who demands rupees fifty thousand as fee or wage for solemnizing
a marriage may be considered greedy and immoral. But the legal system
would be incompetent in dealing such a matter. The legal system would
also be silent on consensual fornication or adultery between two adults;
or for that matter on heavy petting between two unmarried adult lovers.
Yet these are actions that would be considered morally disgraceful in
Indian sub-continent. These examples thus seek to underscore that there
are times when moral norms of a society does not always get codified
into the legal system of that given society; legal system stops short of
reaching to that extent moral norm sometime would extend to.
Freedom and Section 377 of IPC
In the second half of the 19th century
the colonial power criminalized homosexual act, not homosexual urge. It
means that anyone engaging in such act would be punished under the law.
Independent India continues to maintain the law until today. In 2006,
Vikram Seth, a noted author wrote an open letter, which was signed many
intellectual figures and social activists, seeking support for the
decriminalization of “consensual sexual acts between adults of the same
sex.” The letter urges readers to collectively fight against human right
abuse and restraint upon individual freedom. In a separate letter Nobel
laureaute Amartya Sen too came out in support of Seth, arguing that
section 377 of the Indian Penal Code stifles human freedom and thus go
against the notion of human right.
Freedom and human right have become two
important categories in contemporary discourse on moral and political
philosophy. Human right is considered to be that inherent right every
individual possesses by virtue of being a member of human species. This
right is not given by the state to its citizen; and is unlike the legal
right given by the state to the citizen. Human right thus comes under
the special category of right since state does not grant it, and
therefore state is not entitled to take it away. The result of such
endowment entails that any assault on this given aspect of right is an
assault on his or her human-ness; human right abuse is to render a
person sub-human.
Given this understanding, I think, it is
a mistake to argue for decriminalization of gay sex by appealing to the
notion of human right. It is hard to conceive of the idea of a person
possessing inherent right to have an adult sexual partner of his choice.
It is equally hard to imagine how outlawing a particular type of sexual
preference amounts to assaulting a person’s humanity. One can put the
matter this way: does it amount to dehumanizing him – making him
sub-human, when he is not allowed to have consensual sexual acts with a
person of same sex? I would answer this question in negative. If sexual
act is a subject matter of human right, then one would be led to
consider that willful celibates have chosen to dehumanize themselves.
And since dehumanizing oneself is not a virtuous act, institutions and
society must intervene to end this status. It would be very hard to
defend the logical entailment of such a thought position on human
sexuality.
It is one thing to argue for
decriminalization of homosexual act in the name of human right; it is
another thing to argue for it in the name of freedom. Freedom to perform
any action that harms others or involves coercing another moral agent
necessitates restraint from the concerned authority as well. However,
consensual sex between adults of same sex does not necessarily involve
apparent harming of any party. Considering that even fornication or
adultery between consensual adults does not invite criminalization, it
sounds fair to argue that homosexual act between consenting adults too
should not be criminalized. This does not mean that homosexual act would
be morally permissible in any given society just as adultery or
fornication may not be morally permissible. Any given society may or can
continue to regard these acts as immoral, but these acts do not
necessarily have to invite penalization from the legal point of view.
The empirical advantage for having
decriminalized the act would be that homosexuals who have contracted
HIV/AIDS too can come out and seek medical help. As of today a
significant number of HIV/AIDS patient are apprehensive of seeking
medical for fears of being prosecuted by the law keepers.
Gay Sex and Common Good
As it is happening in the West, few
decades after having homosexual act decriminalized, it is conceivable
that gays will seek to legal recognition of their relationship. They
will come out and argue that the law recognizes their union, which means
that the given society shows respect, affirms and celebrates their
union like any other marital union of the heterosexuals. It is one thing
to argue for decriminalization; it is another thing to argue for
legalization!
As of today the general consensus about
the legal definition of marriage is between one male and one female.
This is the pattern of practice which is being affirmed and honored. One
may argue that the definition of marriage gets expanded to include ‘one
male and another male or one female and another female’. Similarly, one
may as well argue that the definition gets more inclusive and makes
room for polygamy and polyandry too. Furthermore, it is not implausible
to imagine that certain people will argue for the inclusion of ‘one
female and one dog or one male and one dog’ in the definition of
marriage.
Discourse on marriage and the
legalisation of gay sex are not therefore entirely unrelated. The
question that we need to deliberate as a society is what kind of marital
arrangement we must legally recognize, honour and celebrate. Can we
allow any conceivable union to come under the definition of marriage or
do we circumscribe a definition of marriage and say that within this
understanding we want our society to function? Since legalisation is
about affirming an action, and criminalisation disavowing the same,
legalisation of gay sex would have a far reaching consequences on the
moral limit of this practice. And to determine the moral nature of this
action, one plausible thing to do is to ask the function of a marriage.
Is marriage a love union of two people or is marriage a love union of
two people with potential ground for procreation? If marriage is about a
love union of two people, gay sex fits the bill too. But if marriage
entails a possible ground for procreation as well, gay sex does not fit
the function of a marriage. State should not legalize an action which
fails to do the job that it possibly is meant to fulfill. After all the
legal system has been framed to enable citizens to cultivate the
virtuous actions as habits too.
Conclusion
A
practising Christian may pray that all tribes and tongues confess that
Jesus is Lord. Similarly, a philosopher who is convinced that her school
of thought is right and good may wish that everyone thinks like she
does. However, in this side of reality where God given free will is to
be honoured, Christian moral and political consideration has to make
room for an individual to reject or accept Jesus Christ and his moral
teaching. Unless an action of any moral agent involves harming someone,
it is prudent not to legally criminalize an action of anyone so that an
individual may be able to exercise his or her freedom to do things he or
she has reason to do. My opinion is therefore on the side of
decriminalising homosexual act. Yet an action should not be affirmed and
honoured legally if, by choice, it fails to perform the purpose that it
is to perform. Therefore, I take side with those who argue that
homosexual union should not be legally recognized as marriage by the
state. Homosexual union does not engender common good since it fails to
serve the purpose of a marital union.
( This article appeared on the 22nd of February, 2014 at Hueiyen Lanpao. The link is available here. )