Queen to K6

I was shocked at how low the Straits Times sank when I saw the commentary in its 4th May 2007 edition, headlined, "Decriminalising homosexual acts would be an error". For a newspaper to accept such poor writing for publication indicates one of two possibilities: either the editors couldn't spot the low quality of this piece and its illogicalities and therefore they were incompetent, or the editors personally agreed with the aims of the article and chose to help propagate its line of argument regardless of standards.

I was even more shocked to see from the Straits Times' end-note that the writer teaches law at the National University of Singapore. This must be a national disgrace of some sort.

As someone asked on a mailing list -- does this qualify as hate speech?

4 May 2007
Decriminalising homosexual acts would be an error
By Yvonne C. L. Lee, For The Straits Times

Readers of The Straits Times have written in to question the rationale for the criminalisation of homosexual acts. It is imperative that we understand the legal and broader social implications, and that Parliament, in the forthcoming debate on the Penal Code reform, carefully considers these implications. 

The Home Affairs Ministry has indicated that Section 377A of the Penal Code (S377A) will be retained. S377A prohibits the commission of gross indecency by one male person with another male person. Opinions have been expressed that S377A may be unconstitutional because it discriminates against homosexuals by criminalising homosexual sex and not oral and anal sex committed by heterosexuals or lesbians. 

This is an over-simplistic reading of the equality clause. 

Context 

Firstly, the legal meaning of equality must be understood within its social context. Equality is not an absolute value. Extreme applications of equality impair community interests and violate the rights of others. Furthermore, the Constitution does not prohibit all forms of discrimination. 

Like cases must be treated alike, but Parliament may enact measures which differentiate between different groups. The courts hold that such measures must satisfy two tests to be constitutionally valid: Firstly, the classification must have a rational basis. Secondly, the law must serve a legitimate purpose which is reasonably related to the basis for the classification. 

Each differentiating legal measure serves a social objective. For example, a married individual with four children enjoys higher tax relief than one without children. The public good is to encourage married couples to have more babies. 

Indeed, discrimination can be constitutionally valid if there is a rational basis for making such distinctions and the law in question serves a legitimate public good. Note the qualifying words: "rational", "legitimate" and "public".

She then introduces the word "social" which starts to confuse the issue. Not all "social" aims are legitimate or rational. A majority religious group seeking to deny freedom of worship to a minority so as to keep their society homogenous may be a social objective, but it isn't legitimate. To say that women must not drive cars is also a social aim, but it isn't rational.

To view the issue of S377A exclusively as a matter of equality omits the broader context -- that rights can clash with other rights and community values. 

When they do, Parliament may pass laws which reflect the public good in preference over the rights of the individual or groups. 

She doesn't say what are those "other rights" that repeal of 377A clash with. There's a good reason why she doesn't say. There are none.

As for "community values", see above about rationality and legitimacy. A majority or dominant group can be irrational and can want its irrationality enshrined in law. That does not make it rational or legitimate. She's able to slip in "community values" as an argument because the word "social" has been introduced to muddy the waters.

You'd notice also how "social" morphed to "community values" and then further morphed into "reflect the public good in preference over...".

Any argument to decriminalise homosexual sex must consider the harmful social consequences. For example, would affirming homosexual sexual practices serve the common good? It is a known medical fact that homosexual intercourse or sodomy is an inherently unhealthy act that carries higher risks of a number of sexually transmitted infections. The law should not facilitate acts which threaten public health. 

Moreover, any reform to the Penal Code must preserve fundamental values which serve the public good, instead of abstract notions of equality or fashion. 

At last, an attempt to explain the "social" and "public good". She writes that "sodomy" is a risk to public health. Everything we do, from eating cockles to hanging out our laundry can pose a risk to public health. Anal intercourse, like vaginal intercourse can do too. The reality is that the risk is nothing to scream about -- otherwise societies that have legalised gay marriage should be overrun with disease. She's just crying wolf.

Secondly, she doesn't seem to object to the repeal of Section 377 itself which would legalise sodomy for opposite-sex couples. Consistency is an inescapable test of logic and rationality. When someone uses a purported reason to argue for A, yet keeps quiet about the same reason applying equally to B, one rightly suspects that the reason is being used merely as a smokescreen for a another underlying motive, which she is trying to hide. Therefore that purported reason should immediately be ruled out of court.

Broader agenda 

Recent developments in foreign jurisdictions like Canada, Sweden, the United Kingdom and the United States indicate that the move to decriminalise homosexual sex is the first step in a broader homosexual rights agenda to transform social morality: 

+ If S377A is repealed, homosexual sex is legitimised, transformed from a crime into an 'alternative lifestyle'. 

So what? All social change is driven by a broader agenda to transform society. Many of the rights various sections of our population take for granted, e.g. racial non-discrimination, freedom from slavery, right to basic education, freedom from forced marriage, were once unpopular "broader agenda" by some group or other. 

Transforming attitudes is not an illegitimate aim. Accusing others of trying to do so is more a reflection of the writer's irrational fears about change than an exercise in dispassionate logic. 

+ The minimum age for sodomy must then be specified. This opens the door for homosexual lobbyists to pursue the next step of equalising the age of consent for homosexuals and heterosexuals. The current age of consent for homosexual sex in countries which have decriminalised sodomy ranges from 13 to 18, covering Singapore males from Secondary 1 to junior college. 

More scare-mongering. All gay activists around the world adopt the stand that age of consent should be equal to heterosexual sex. For the writer to speak about age of consent at 13 or 18 only with reference to "sodomy" is mischievous. It is so because heterosexual sex in those places is also legal at those ages. If that doesn't seem to be a problem, why is homosexual sex at the same age a problem?

The real problem here is that anti-gay campaigners tend to perceive of homosexuality as a class by itself with a high shock value, such that even equality in age of consent is held in horror by them. But such perception is basically irrational -- like saying it's OK for men to drive cars but horror of horrors, women shouldn't do it -- and therefore cannot be admitted as a constitutional argument.

+ The third step is re-conceptualising homosexuality as a civil right in the name of equality. As an 'alternative lifestyle', homosexual lobbyists will seek for this to be endorsed and 'mainstreamed' into society (for example, arts, education, entertainment and media), beyond the privacy of the bedroom. The current view that 'sexual orientation' should not be a basis for discrimination is problematic. 'Sexual orientation' is a vague term covering a range of sexual expressions, including paedophilia and bestiality. Also, the assertion that one is 'born gay' is scientifically unproven. 

Bringing in "paedophilia and bestiality" truly shows the poverty of her arguments. Most people who abuse children sexually are men targetting girls. Selectively ignoring this fact testifies to an attempt to mislead. Trying to extend the meaning of "sexual orientation" well beyond common usage in order to make her case borders on dishonesty.

"Born gay" is more or less the consensus of the scientific community today. They may differ about the detailed mechanisms, but no serious, reputable researcher thinks that people become gay through socialisation or family upbringing.

In any case, whether or not one is born anything is never the basis for fundamental civil rights. For example, being Christian or Hindu is not grounded in biology. Religious freedom is a civil right even though one's religion is acquired and one is free to change one's mind at any time. The basis for civil rights is respect for personal autonomy.

+ An active homosexual agenda has engendered clashes with fundamental liberties such as free speech and religious liberty. Christian pastors have been criminally prosecuted for sermons declaring that homosexuality is a sin, a view also held by Muslims and many non-religious people who consider homosexuality unnatural and morally repugnant. Attempts have been made to extend 'hate speech' laws to the Bible and Quran.

People who oppose the homosexual agenda are branded as intolerant, bigoted, homophobes, or hateful towards homosexuals who are merely 'different'. This does not promote free speech but seeks to censor it. If this intolerance against religion is imported into multiracial and multireligious Singapore, this will breed social divisiveness. 

What cheek! What does the anti-gay lobby seek to do by criminalising others? Isn't that the mother of all censorship? It's not enough to shut people up, but to throw them in jail too.

+ The final step involves attempts to redefine 'marriage', the fundamental institution and bedrock of many civilisations. The redefinition is a radical reconstruction of 'marriage' - no longer a union between man and woman but includes 'same-sex marriage'. Homosexuals must then be allowed to marry someone of the same sex and be given the benefits of marriage such as tax benefits, adoption of children and/or state-funded access to alternative 'reproduction' methods. 

Slippery-slope scare-mongering. A law professor should know better -- that not a few jurisdictions have in fact accepted the legal arguments (for same-sex marriage and equal treatment under the law re tax and adoption, etc) as solid and convincing. The arguments are not as outrageous as the tone of the above passages make them out to be.

The argument that decriminalising homosexual sex will not cause a change in moral attitudes is erroneous. It has been suggested that even after adultery was decriminalised, it remained morally reprehensible. So too, decriminalising homosexual sex will not cause a shift in moral attitudes. 

Who ever said that?

While the law embodies a moral judgment, it is not always prudent for the law to punish all immoral behaviour. However, to draw an analogy between adulterers and homosexuals is fallacious. Adulterers do not seek societal approval, but certain homosexual activists campaign to alter the public mindset and to gain legal and social endorsement of the gay lifestyle. 

Indeed, drawing an analogy between adulterers and homosexuals is fallacious. Having  sexual relations with a third party behind the back of one's spouse violates a trust and causes deep personal hurt. Consensual homosexuality is no more hurt-inducing than consensual heterosexuality. It can be used for adulterous purposes, but often it is not.

We say that the moral approbation reserved for adultery is rightly there, but to say that the same should apply to consensual homosexuality is illogical. To the extent that moral disapproval is placed on homosexuality, we will seek to change people's minds.

Yvonne Lee wrote that "certain homosexual activists campaign to alter the public mindset" by way of suggesting that gay activists and their supporters are being deceitful when they claim they aren't out to change social attitudes. This was an attempt to set up a straw man. Quite the contrary, gay activists and their supporters make it quite clear they are out to change social attitudes. Who is being deceitful here?

The fact is, under the proposed Penal Code reform, homosexuals wishing to lead private lives may do so, provided they do not foist their homosexual acts on the public. 

Again, a statement unbecoming of a law professor. Section 377A applies to male-male sex in private too, a point she conveniently ignores. The government may have said they do not intend to prosecute, but such assurances have no standing in a court of law. And what does "foisting" mean?

S377A is a legitimate statement of the values of our society. In constitutional terms, equality claims operate within a broader social context. 

Homosexuality is offensive to the majority of citizens. Allowing an aggressive homosexual rights agenda to dictate law reform ignores the nature of Singapore's multireligious, multiracial community. Such an agenda would be divisive. Therefore, the attention given to fundamental moral values of the majority of citizens by retaining S377A in its entirety strikes the right balance. 

The writer is an assistant professor who teaches company law and constitutional law at the Faculty of Law, National University of Singapore. The opinions expressed are the author's own. 

 

"Aggressive homosexual rights agenda"? The use of such a phrase tells you where she's coming from, for which fundamentalist religious group is fond of such characterisation?

* * * * *

I have long known -- and lately, blogger Mr Wang Says So has also discovered -- that arguments with the primary anti-gay lobby group always takes a certain form. It starts by sounding reasonably logical, but then bit by bit, untenable extensions of logic, inappropriate analogies, straw men and scare-mongering claims are introduced. At first, these are easily pointed out.

They then show their true colours, progressing to wilder and wilder claims and raising the decibel level. The emotion and desperation is plain to see, which only goes to show that the intellectual argument on their side is long lost.

That a law lecturer is now having to step in to do likewise, making her look silly to others in her profession by her lack of acuity and logic, sacrificing her intellectual reputation for the sake of a "cause" -- in the main daily newspaper, no less -- is almost like an endgame on a chessboard. The king, queen and a rook are left to defend themselves, the pawns and other pieces having all been taken.

© Yawning Bread 

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