Gay Sex, Freedom and Common Good

Jeremiah Amai Veino Duomai *

Supreme Court of India, photographed about 170 metres from the main building outside the perimeter wall
Pix - Wikipedia/Legaleagle86

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!