Freedom to be Homophobic
Molly read from hansel25 that a Law professor has written to the press arguing that it would be an error the decriminalize homosexual acts. Molly has no idea what sort of error the Law Prof is talking about (because Molly is stupid), but she shall attempt to respond from the perspective of a Bimbo Studies Professor (Ph.D, Peasant University).

Clearly, Yvonne C. L. Lee who wrote the aforesaid letter to The Straits Times has more legal knowledge than Molly the Bimbotic Blogger. She disagrees with people who think that retaining Section 377A of the Penal Code would be "unconstitutional because it discriminates against homosexuals by criminalising homosexual sex and not oral and anal sex committed by heterosexuals or lesbians."

She assumes (correctly, I hope) that people making such a claim have a simplistic interpretation of the equality clause. Because of Lee's professional training, Molly believes that she is right to explain that:

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.

It's for the Public Good

Then Lee goes on to state that the "Parliament may pass laws which reflect the public good in preference over the rights of the individual or groups." She argues:

1. The harmful social consequences of legalizing homosexual sex must be taken into consideration.
2. Changes to the Penal Code must "must preserve fundamental values which serve the public good, instead of abstract notions of equality or fashion."

There are various problems here:
1. It is obvious that we are dealing with issues that are not clear-cut at all. Let's think of a hypothetical situation. In some traditional patriarchal societies, women were not allowed to study, work or even vote. If we put Lee in such a society, I wonder if she would buy the idea that there it should be a criminal offense for women to study and/or because there are going to be dire social consequences - they might not want to have babies; and even if they do have babies, they might be too busy with work to take care of babies. The law must preserve the values of patriarchal societies (women must be virtuous wives and housekeepers) for the public good instead of succumbing to abstract notions of equality. Hey, I think I might even be able to find some biblical verses in support of this argument.

I suspect Lee would find such an argument absurd. Yet, how different is her argument with regards to homosexual sex?

2. Lee claims that "[i]t 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."

A verbal sleight of hand: just because homosexual sex is not criminal doesn't mean that the law is "facilitating" homosexual sex. There is simply nothing to stop it. Furthermore,

- I have no idea where Lee found out the medical fact to which she referred. Homosexual intercourse carries higher risks compared to ___? Sex between a male cat and a female cat? (I'm actually surprised that someone with legal training gets as unspecific as this.) If we are talking about oral sex, is oral sex between a man and a woman any healthier than oral sex between two men? If we are talking about anal sex, the same question applies. Why, do you suppose that women's mouths or anuses have fewer germs or have natural antiseptic facilities?

- if acts that threaten public health should be criminalized, then shouldn't heterosexual casual sex should be criminalized as well? Shouldn't the french kiss be criminalized?

Maybe the next person to sneeze in a crowded SBS bus should be liable for life imprisonment? After all, it doesn't hurt me or other people one bit when two men decide to have sex and (supposedly) endanger their own health. But the person who sneezes three inches away from me without my consent could endanger my health - perhaps even with a mutant air-borne strain of the bird flu virus.

Give Gays an Inch and they will take a Yard

Lee proceeds to make speculative claims, such as that:

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

Yes, perhaps. And may I know what's the fu bloody problem you have with that. If the law deems a 16 year-old heterosexual person is old enough to make a decision of consent and engage in sexual intercourse (even oral sex and anal sex), what makes you think that a 16 year-old male isn't old enough to decide whether he wants to have sex another male who is 16 or above?

And do you suppose that a bisexual 16 year-old male can decide to engage in sexual intercourse with a female but cannot decide to do so with another male?

Give Gays an Inch and Others will take a Yard too

According to Lee:

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.

The assertion that heterosexuality is normal is also scientifically unproven. Let's ban everyone from having sex.

Molly thinks that Lee should try to recognize that a legal stance on pedophilia and bestiality does not necessarily come from a moral standpoint that claims that these are wrong. But the legal stance on these sexual expressions have got to do with the protection of entities that are vulnerable because they might not be in a position to give consent. Consensual homosexual sex between adults is different, whether or not you think it is moral.

Gays Violate My Freedom of Speech [?]

Lee also claims that:

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.

This is probably the most ludicrous turn in the whole letter. Hey, I'm not trying to stifle your freedom of speech or expression whether I call you a bigot or not. If you can make insinuations that homosexuality is immoral, why can't people say that you are homophobic. Just as you are entitled to your freedom to say that homosexuality compromises public health, homosexuals can call you a homophobe if they wish.

Isn't there also a need to differentiate between "an active homosexual agenda" (politicized gay activism?) and the legalizing of homosexual sex? We need to criminalize gay sex because some activists are throwing labels on you??

I don't know about the cases of Christian pastors who have been prosecuted, but I think these cases need to be considered with greater detail. Did these pastors go beyond the limits of the freedom of religion? I don't think everyone who claims that the Bible has or might have some negative things to say about homosexuality is liable for prosecution anywhere in the world. Surely there needs to be proof that the Bible or Quran has been deployed for the purposes of a speech that can reasonably be considered hate speech; and surely a legally trained person ought to get to the details? But maybe I'm wrong. Molly is a just a bimbo.

Of course, Molly still thinks that free speech needs to be protected. Free speech is not right speech. It might even be provocative. But the question is whether the state or the gahmen agrees. In the States, there is the First Amendment. (Or there was anyway - until people became too afraid to talk.) So maybe you can even have misogynist KKK members hanging around your neighborhood. You have a fair share of religious people, of activists, etc. But given that Singapore is always unique, extraordinary and whatnot . . . Things are a little more erm ... complicated.

Criminalize Gay Sex - because Gay Marriage is Bad!

Next, Lee claims:

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.

Duh? So what?

When women got to get into Law school and work as professors and vote, the bedrock of many civilizations were shaken! Since we have already degenerated (according to this line of argument) so much, I suppose there is no harm going a little further.

Basically Lee's argument simply assumes that homosexuality is something bad. Not a great move for a legal professional, in my bimbotic opinion . . .

Don't decriminalize it. Otherwise people will start thinking it's OK, not immoral . . .

Molly has to admit that she isn't able to totally understand Lee's last bits of ... writing. It seems to Molly that to argue with Lee would be to go round in circles.

First, she seems to be arguing that legalizing gay sex CAN (will) result in changes in people's moral attitudes. In other words, more people will come to accept it. But if that's the case, I can't make sense of her next turn which basically rehashes the idea that people cannot accept it. If legalizing gay sex leads to widespread acceptance, then there is no need to worry about offending this "majority" (or minority) who will eventually be accepting, is there? I'm feeling giddy already.

Or is there something so sacred about the current state of moralistic homophobia (I use the term "homophobia" as neutrally as possible and not derogatorily here) that it needs to be preserved as an inheritance for posterity?

In any case, we can be sure that at least some gays in Singapore will (continue to) engage in homosexual sex whether we decriminalize it or not. If people are going to be offended by the existence of acts that they will most likely not witness, then they will be offended whether or not there is a law criminalizing these acts. Why should the absence of a law criminalizing gay sex offend anyone any further - unless perhaps they are hell bent on having a repressive disciplinary mechanism for their own pleasures/interests?

Yes, in short, I can't quite follow Lee in her last five paragraphs or so. Read it for yourself. Maybe you can do better than a wretched bimbo. But Molly is compelled to write this horrendously long entry because she thinks intelligence and eloquence is, when misused, worse than plain ignorance and forgivable naivety.

The Letter

Decriminalising homosexual acts would be an error

By Yvonne C. L. Lee, For The Straits Times
May 04, 2007
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.

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.

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.

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'.
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.

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.

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.

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.

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.

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.

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.

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.