Is Gay Right a Human Right Issue?

Is gay right is a human right? Someone argued here that gay right is a human right issue. He argued that since it is a human right issue, it should be decriminalised. I agree that it should be decriminalised, but I disagree with the reason provided for why it should be decriminalised. 

Human rights are rights that each person possesses by virtue of being a human person, and violating human right amounts to dehumanising the person. If a person is forced to have sex against her or his consent, that can be a violation of her or his human rights. But if a person is not allowed to have sex, will that be a violation of her or his human right? Or if I put it in a slightly different way: if a person chooses to restrain from sex, would she or he be violating her or his human rights? I would answer the latter question in negative; celibacy is not a violation of one's human rights. I shall come back to the former question later. 

But one may argue that there is a difference between choosing to remain single and being forced to remain single. After all, there is a difference between choosing to fast voluntarily and being forced to starve. If I choose to fast voluntarily, that is not a violation of human right; but if I was forcefully starved, that would be a violation of human right. Now is this analogy quite right? Is state's position -- or rather lack of it -- in not positively legitimising gay sex akin to not positively providing food where and when there is starvation? I think there is a difference. No one can survive without food; one can live well without expression of homosexual activity or heterosexual activity. But one may still argue that the state not legitimizing same sex union is different from forcing a person not to have same sex relation. And I do think that there is a difference. Let me take the latter case first i.e the state forcing a person not to have same sex relation. This is also the question that I paused in the second paragraph.

The state forcing a person not to have same sex relation would mean that the state criminalises people who have same sex relation; meaning, the state considers homosexual activity a crime.

Now if gay right is a human right, what would that mean? Now if gay right is a human right, the state has to take steps to positively and actively promote and legitimise it. This is what being an item of human right would mean. If starvation is a human right issue, then the state should not only starve people, but when there is starvation the state has to actively work and ensure that starvation is wiped out. Now this is problematic.

But are these two the only options -- The state criminalising homosexual activity and the state legitimising and advancing gay marriage saying that it is a matter of human right?

Now if same sex union is a human right, then those religious communities that teach the members of the community against homosexual practice cannot do that. Because saying that homosexual practice is morally wrong and should refrain from that would be a violation of human right of someone. So I would say that to argue for expression of homosexual taste. based on human right is a wrong-headed argument. In my previous post, from a different perspective I argue why same sex marriage should not be legalised, but also why it should not be criminalised; I argue that it should be a non-criminal act yet not a legalised act that the state affirms, recongises and celebrates. It should rather be treated like live-in relationship which is neither a criminal activity nor a legal union.

I agree that homosexual practice should be decriminalised. But to argue for that based on human right is, I think, a mistake. Human right is a thin idea. To put different kinds of right into the category of human right is to do disservice to human right. I think decriminalisation of same sex relation should rather be argued based on the idea of a liberal state.

So the third option is consider it as a non-criminal act, and leave it at that. This is to say that the state is not criminalising it nor is it legalising it. The state does not legitimise gay union no more or no less that it does with adultery or fornication. This way it leaves room for religious communities the freedom to shape the moral consciousness of the members and also the gays to be single or otherwise and also it leaves the state not too morally stringent that it curtails individual liberty nor too morally loose that age old civilisational scaffold like marriage and religious teachings are undermined. 

Same Sex Relation: To Criminalise or to Legalise or a Third Way?

Shashi Tharoor, an Indian Parliamentarian, recently started a petition that seeks to make an amendment in the section 377 of the Indian Penal Code. The section reads " whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine." Tharoor argues that it impacts the LGBTQ community, and also the heterosexual couples. The campaign to seek amendment has also been sought even by the Naz Foundation. Tharoor mentions that rape and pedophilia should not be legitimised, but different forms of sexual expressions between consenting adults must be made legal. Here is the quote: Section 377 should be amended so that all consensual sex between consenting adults irrespective of gender and sexuality is legal. I have an issue with the word 'legal'. 

The headline in the Petition says " Decriminalise Homosexuality". However, the content of the petition is not really about decriminalisation of homosexual practice; it is about legalisation of homosexuality practice. It is because of this inconsistency that I did not sign the petition. Let me explain further what I am saying.

It is one thing to decriminalise homosexual act; it is another thing to legalise it.  This is not the case in all situations. But this is so particularly for matter involving sexuality. Let me explain the differences with examples.

In certain sates of India, beef consumption is banned. So if you consume beef in these states, you are consuming an illegal food item. And it is taken as a criminal act, and you can be jailed for that. However, fish consumption is legal. The state will not send anyone to jail for consuming fish. The government does not say that fish or cabbage or potato or tomato and so on are legalised food items. It is understood that beef consumption is an illegal act and consuming other food items like those mentioned above are legal acts. Here only two categories are employed: illegal act or legal act. The idea here is that if it is not an illegal act, then it is a legal act.

When it comes to sexuality, employing just two categories will not work. I would argue that we need three categories: illegal act (or criminal act), non illegal act ( non criminal act) and legal act. Rape is a criminal act; it is illegal. You rape, and you can go to jail. As of now homosexual act also falls in this category. You have sexual relation with a person of same sex, you can be jailed. But fornication between one adult male and one adult female is not a criminal act. Society or parents may find it unacceptable, but if it was consensual then the two individuals cannot be sent to jail. I would call this as non illegal act (or non criminal act). The third category is the sexual relation between husband and wife. This is a legal act. This third category -- marital sexual relation -- is different from the first category and the second category because it takes place within the state (or concerned authority) sanctioned institution. Marriage is a formal recognition of the union that involves authority's sanction, witnessed by friends and families and often accompanied by celebration. The couple is honoured by providing certificate of marriage. Because marriage is an institutionalised union, sexual relation within marriage cannot be equated with fornication; the legal standing between the second category and the third category has to be different. If we do not treat them differently, we are compromising with the most basic institution called family. And this is a very serious issue.

Given that family, which traditionally is composed of male-female equation, is the basic building block of a civilisation, I would not want the state to legalise same sex union. Or to put it different, I do not want same sex union to be recognised, celebrated and honoured by the state. Immanuel Kant would invoke the universalisability principle to examine the moral imperative of an action. He says that we should act on that maxim that it can be acted on universally. I would apply the maxim here like this. If everyone begins to marry the person of same sex, human species would extinct. If the state legalises same sex marriage, it would mean it recognises, celebrates and honours same sex marriage. Given that same sex marriage, if universalised, can result in the extinction of human race, the state should not recognise, celebrate and honour it.

I am okay about decriminalising homosexual act, which would mean it would no longer be placed alongside criminal act like rape; instead, it would be placed alongside non-criminal act like fornication. A liberal state would have to allow individual to exercise liberty to a great extent unless it infringes on the autonomy of other people. I may not appreciate it nor consider it right. However, a liberal state would have to allow citizens to exercise liberty, and this is different from recognising, celebrating and honouring a conduct. However, I would insist that the state should not legalise it.

When it concerns food items, the state will not dish out certificate and say that this is a legal food item. That's why if it is not illegal, it would mean that it is legal. With sexuality, the government does give certificate. Here it is about people coming together to make an institution. Here the nature of the matter is different from that of the consumption habit. And because of the nature of the matter, it requires three categories; unlike food matter that works with only two categories.

Possible Outcome of Legalising Same-Sex Marriage in the US

US Supreme Court rules 5-4 in favour of same-sex marriage. Now same-sex couples would be or must be given recognition and affirmation as much as heterosexual marriage. Traditionally marriage is between two consenting adults of opposite sex. Now this definition is modified to indicate that marriage is between two consenting adults.  I can imagine certain questions emerging as consequences of such ruling now and in the years to come. 

1. If two same-sex adults can give mutual consent and get married, why can't consenting adults go for polygamy or polyandry? Questions and comments of these sorts can be posed: Why can't people be allowed to love who they want to love? Why should the state decide who all I marry? I am not harming anyone by marrying three girls/boys, so why can't marriage be just between consenting adults? Why not legalise polygamy/polyandry? 

2. Why must mutual consent be the basis? Why can't one party's consent be enough when the other party cannot say 'yes' nor 'no'? Meaning, why can't I marry my dog that cannot say 'yes' nor 'no'; shouldn't my consent be enough? Why can't I be allowed to love my dog or my lamb? Why should the state refuse to honour my feelings when I am doing harm to no one? Why must consent imply mutual consent? 

3. If one party's consent is the basis, then why can't I marry a lovely and a beautiful child? Why can't an adult marry a child who does not oppose the marriage? Well, those who oppose this and say that this child is physically not ready, they should ask if same-sex marriage also involve 'physical readiness'. If physical relations between same-sex is okay, why is it not okay between an adult and a, say, 13 or 14 year old child? 

4. Why can't I marry myself? I have no objection to myself getting married to myself; I give my consent. 

NB: Very often the argument of a liberal is based on the concept of freedom -- freedom of an individual to do things that harm no one. But taking freedom alone as the basis is quite problematic. As shown above taking freedom as the only basis can lead onto other outcomes in a subtle way. If mutual consent (by exercising freedom) is the basis, then why not mutual consent of few adults for polygamy/polyandry? And then onto other issues as listed above. For the state to legalise and therefore affirm and recognise and publicly laud, I would say the 'purpose' or 'function'  must also be taken into account. (This is Aristotle's line of arugment.) What is the purpose of a marriage? Does same-sex marriage or polygamy/polyandry or human-animal marriage or marrying oneself satisfy the purpose of marriage? 

From liberal point of view where freedom is the basis to decide what the state ought to legalise or not, same-sex marriage is fine. But if we include Aristotle's way of reasoning of taking into account the purpose/functioning, I think it's hard to justify same-sex marriage or the other kinds of marriage. (In fact, polygamy and polyandry would have stronger reason than same-sex marriage if both freedom and function are to be taken together as the basis for legalisation of whatever kind of marriage is to be legalised.) Thus, If freedom and functioning are taken together, I think the only marriage that fulfills the condition is the heterosexual marriage between adults. 

I am not in favour of legalisation of same-sex marriage nor am I in favour of criminalisation of same-sex relation as it is in India now. The state does not have to criminalise live-in relationship between consenting adults nor does the state need to legalise live-in relationship between consenting adults. The state ought not to criminalise same-sex relations because it has to respect the freedom of the individual. But the state also ought not to legalise same-sex marriage because the state must go beyond respecting freedom alone to affirm certain practices; the state must also look at the purpose/function/ telos of that practice.