On repealing Section 377A – Part 1: Weaknesses in justification

Rainbow flag and blue skies - Ludovic Bertron Wikimedia
Rainbow flag and blue skies (Image – Ludovic Bertron, Wikimedia Commons)

By Aloysius Chia

Opponents of repealing a law that criminalizes sex between men use a number of approaches in arguing for why the law should remain.

First, they say that allowing homosexuality (in laws or publicly as moral acceptance) will lead to a slippery slope where morality will degenerate, since homosexuals are more prone to such immoral acts. These will intrude into such important social institutions such as the family, and affect the livelihood of many, since the family is an important social institution that many people cherish and want to preserve.

Second, they say that accepting homosexuality will send an implicit message that such acts are accepted and thus actually promote it.

Third, they say that allowing homosexual acts will lead to undesirable consequences, such as the increase of undesirable health issues (presumably, HIV/AIDS).

It is important to clarify a few points. The argument against homosexuality (mostly involving homosexuals) is related but is not exactly the same as arguing for why the law should or should not be repealed. Arguing for the latter features a different set of related arguments that pertain to how laws and to what extent laws should be applied to society for various reasons, or why it should be there in the first place.

A person against homosexuality may necessarily want not to repeal the law, but a person who wants not to repeal the law may not necessarily be against homosexuality. The person who wants not to repeal the law may want not to do so for reasons other than that against homosexuality, though that may be a relevant reason.

This piece argues for why the person against homosexuality who do not want to repeal the law, is little different from a racist person, and in fact, share the same values on some level, even if this might not be so obvious.

This does not mean that all who are against homosexuals/-ity are racist, for some may do so out of certain held beliefs or convictions that are not grounded on reason, as well as accuse all who are against homosexuals/-ity are so. The important point here is to highlight the many similarities between those who are against repealing the law and those who are racists, since the reasons used by racists and those against repealing the law have highly similar features. The argument is that they are basically the same reasons.

Let’s analyse each in turn.

Consider the first argument. What is the basis of the claim that allowing homosexuality will lead to a degeneration of morality? In order to make this claim, a positive claim must be made which assumes that non-homosexuality is the order of the day, and that any allowance will lead to its erosion. This claim requires further claims in order to function. First, beneath this claim is the assumption that homosexuality will cause immorality. Second, this claim needs to assume that allowance necessarily leads to a slippery slope situation.

There are significant flaws in these two claims. Regarding the first claim, it is not clear that homosexuality by itself will lead to immorality. There could very well by a multitude of other factors that lead to immorality of the kind defined by those who make the normative claim that non-homosexuality is the norm. This could result from personal frailty or bad experiences that have affected the way one conducts one’s relations. Examples of personal frailty would include callousness of concern for others, lack of moral judgement, deliberate harm etc. Examples of bad experiences that could affect one’s conduct would include one’s upbringing, education, peer influence, media etc. Thus, in order for this claim to work, it has to show clearly and unequivocally that homosexuality on its own causes immorality.

The second claim, that a slippery slope may occur, makes the assumption that homosexuality (or allowing it) will certainly and definitely lead to a downward slope. Before analysing this claim there needs to be some understanding here. In claiming that there is a downward slope in morals, it is set against the normative values defined above, that non-homosexuality is the norm, that this slope is going down against.

The question within this framework then is why this downward slope must be taken as a given. How would those who cite this reason explain this downward expectation, when the removal of law that is claimed that will lead to this occurrence has not even been removed? On what basis is this expectation presaged upon? The slippery slope needs clear evidence and projection, which opponents cannot show other than reasoning from personal biased viewpoints. Both ways up and down in this framework is possible.

This argument is weak because it depends on expectations of homosexuality as causing immorality without doubt; yet, even if one supports this notion of normal, it is not clear that homosexuality causes immorality so defined. But far more fallacious is the linking of immorality with the fact of homosexuality itself. The fact of homosexuals as human beings – an existential fact – is linked to a pre-defined moral that already excludes homosexuals or homosexuality. The argument is completely circular and self-referential. It first defines the norm, which already excludes homosexuals/-lity, then argues for why the law which already excludes homosexuals should remain. The pre-defined norm leads the way, not the fact. The deliberate exclusion takes place before any conception of a human being as an entity is accepted in the case for homosexuals.

Thus, it seems that in both instances, it is the fact of being homosexual itself that is taken as the expectation of a slippery slope of morals.

Consider the second argument. Accepting homosexuality, or allowing the law to be repealed, will actually promote homosexuality as an accepted way of life. This assumption goes to the very heart of what morality means as a way of life. The problem is, even if we accept non-homosexuality as a way of life, even if we reject homosexuality as an acceptable norm, it by no means is certain that by repealing the law or accepting other people as homosexuals, is promoting homosexuality at all.

One can reject homosexuality as the norm, and accept other people as homosexuals, without promoting it. Repealing the law does not in any way mean advocating for homosexuality.

This is because the basis for rejecting the law is due to reasons that are based on fair and just grounds, such as the idea that laws should treat all equally not on some perceived trait that the individuals cannot choose, or of some characteristic that has no definite way to prove that is solely the result of a person’s agency.

But even if it is assumed by opponents of repealing the law, that it is in fact due to a person’s agency to be able to choose one’s sexual orientation, then they have to ask why need a penalizing law that needs to promote the value that non-homosexuality is the norm, since it could be enforced or changed through appropriate policies such as education? Are penal laws tools for promoting values?

In this argument, repealing the law means promoting homosexuality; by not repealing the law means retaining non-homosexuality as a norm and a form of official recognition. In other words, not repealing the law means promoting non-homosexuality as the norm.

Since retaining the law also means promoting non-homosexuality as the norm, and because it is the problem of ‘promoting’ that is at issue, it seems like those who go by this argument are contradicting themselves. They say the state should not promote homosexuality, yet they want the state to promote non-homosexuality. If they say ‘promoting’ is the issue, why are they using the same justification to say the state should not promote, when in fact they are doing the very same thing? This self-contradiction shows that the argument is based on something else, and that something else is the fact of homosexuals being homosexuals.

Far more crucial is how the fact of being a homosexual itself is justification for the law to exist. Homosexuals are equated with a lifestyle that is claimed to cause immorality of a certain kind, that could very well be caused by a variety of factors, that in turn justifies a law that cannot justify its own logic. By saying it sends an implicit message to promote is denying the fact that it is also promoting. This makes the law, under the penal code that has real penalties, a tool of values rather than the actions of offenders, and rational justification.