S377A and legislating morality
There has been much hype in the media and the Internet about the Parliamentary Petition submitted by NMP Siew Kum Hong yesterday morning. The petition is reported to contain more than 1,000 signatures and seeks the repeal of Section 377A of the Penal Code (hereafter s377A or section 377A), which forbids men from having sex with each other, whether in public or private.
As one would expect, Mr Siew has been attacked (or his actions at least) in the forum pages as well as on the net as ‘over-stepping’ his role as an NMP or even as ‘championing the gay cause’. This I think is unfortunate. To him, its about equality; to them, its morality.
Although I’m inclined to agree that the section should be repealed it is for different reasons entirely. I do not think that it is a matter of equality or about a ‘right’ to exist (they already exist, let’s not kid ourselves. Repealing the section does not give them a ‘right’ to engage in homosexuality nor does it give them any other rights – I’ll explain what I mean below). I do think that it is a matter of morality – about whether the government to legislate morality – or in other words to be our ‘moral police’. BUT I believe we should not expect them to be so and that, if we really thought long and hard about it, it wouldn’t be desirable. Now before your radar starts to sound uncontrollably and you get your knickers in a knot, let me explain.
Law and morality
My personal view (which is necessarily a religious view), as a Christian, obviously is that homosexuality is a sin. I do not believe that there is any denying this (from a biblical point of view). It is explicitly mentioned as such in the bible and it goes against God’s natural order (what He intended for human beings when he created us) – it is clear that He made man to have sexual relations only with women (of course, for the sake of completion, one can also add that it is to be within the confines of marriage). But it is precisely because I am a Christian that I think that ‘religion’ and politics should be kept separate.
I think that whenever a legislature assumes the role of being a moral policeman, problems naturally arise. One such problem is in deciding which moral standard should be adopted or propagated?
Of course many Christians would be quick to suggest that a Christian standard of morality be adopted – as it is, in their view, a superior standard of morality. But this is certainly not going to fly, and perhaps, it shouldn’t. Nowhere in the bible do we see any warrant to impose biblical morality on those who are not of the faith. No doubt they will be judged according to it in the final judgment, but they are never expected to conform to them in a pre-salvation condition.
Furthermore, every instance (throughout history) where there has been an attempt to institute biblical morality into the law has resulted in widespread persecution. I guess this can be seen in every attempt to merge religion with politics (eg fundamentalist Islamic states or even Christian states of the past). That is why there needs to be a separation between religion and ‘state’.
If one considers the philosophical foundations of democracy, it would seem that if the government is representative of the people that the moral standard should be determined by the people. In most instances, this means the majority of the populace. In relation to this issue, since Singaporeans are generally still conservative in this area, this section would in all likelihood be kept on the statute books.
But this is still unsatisfactory as morality should not be dependent on simply obtaining a majority. Can you imagine the injustices that may occur if a 'simple majority' (ie 51%) is allowed to impose their sense or standard of morality on others? So what is the solution? Well, one possibility is that if the law is to contain a standard of morality at all, then it must be a minimum/basic level of morality – a level that everyone agrees on. For example, I would venture to suggest that no one would argue that murder, theft, cheating are not acceptable in society. Also no one would agree against the protection of the innocent/weak (e.g the mentally handicapped, the elderly and children). So the law may impose sanctions for violations of this minimum standard, while any higher standard is left to individuals to impose on themselves.
Perhaps a minimum standard of morality that everyone can agree on is a little idealistic and naive, and may not even be relevant in this particular instance.
Repealing s377A = Promotion of homosexuality?
At any rate, I think that people against the repeal of s377A are overreacting. There is a vast difference between the intention of s377A of the Singapore Penal Code and, for example, section 28 of the UK’s Local Government Act 1988 (hereafter s28). I bring this up because, while as a first-year law student in the UK, this was a relatively big debate. Section 28 reads as follows:
28 Prohibition on promoting homosexuality by teaching or by publishing material
(1) The following section shall be inserted after section 2 of the [1986 c. 10.] Local Government Act 1986 (prohibition of political publicity)—
“2A Prohibition on promoting homosexuality by teaching or by publishing material
(1) A local authority shall not—
(a) intentionally promote homosexuality or publish material with the intention of promoting homosexuality;
(b) promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.
(2) Nothing in subsection (1) above shall be taken to prohibit the doing of anything for the purpose of treating or preventing the spread of disease.
(3) In any proceedings in connection with the application of this section a court shall draw such inferences as to the intention of the local authority as may reasonably be drawn from the evidence before it.
(4) In subsection (1)(b) above “maintained school” means,—
(a) in England and Wales, a county school, voluntary school, nursery school or special school, within the meaning of the Education Act 1944; and
(b) in Scotland, a public school, nursery school or special school, within the meaning of the Education (Scotland) Act 1980.”
(2) This section shall come into force at the end of the period of two months beginning with the day on which this Act is passed.
Since it was about the promotion of homosexuality as an alternative sexual orientation among children in schools, it was certainly a big deal. There was a lot of debate over it, but alas, it was ultimately repealed. I would disagree with the repeal in this instance because it is the explicit and active promotion of homosexuality to children in school that was at issue is section 28 of the Local Government Act. This isn’t the case where s377A is concerned.
There is a very big difference between decriminalising something (as in s377A) and active promotion (s28), especially among children. For example, the fact that suicide was decriminalised in the UK (I’m not sure whether it is still a crime here, but I suspect it isn’t) does not necessarily mean that the authorities thought that suicides were suddenly a good idea. In fact I would venture to suggest that they didn’t and were definitely were not attempting to promote it. I would suggest that they decriminalised it because they realised the impracticalities involved with arresting and prosecuting offenders. After all, those who were successful were already dead, while those who were not successful needed help to work through the problems which made them attempt suicide in the first place (not to mention that prosecuting someone who attempted suicide would inevitably cause them to get more depressed and perhaps more determined to do it again).
On the contrary, repealing s28, because of its limited nature (in relation to the promotion of homosexuality to children within the school system), was to facilitate the promotion of homosexuality among children in schools. After all, this was the only activity that the section was preventing, if it continued to stay in force. This is again not the case where s377A is concerned.
The issue of homosexuality being a ‘viable alternative sexual orientation’ is, however, predicated on the belief that homosexuality is genetic and therefore ‘natural’. This I disagree with, quite apart from my religious beliefs, because there is absolutely no (remotely credible nor conclusive) scientific basis for such a claim – and it would certainly be dangerous to allow arguments from silence (ie to say that ‘its there, we just haven’t found it yet’ or that ‘we just don’t know enough about the human body, DNA, etc’). Furthermore, if sexual orientation such as homosexuality can be claimed to be genetic, then what is there to stop a paedophile from making similar claims and then expecting to be allowed to promote such thinking among school children in schools?
I realise that this last analogy can be used to argue the contrary position too – that if we’re not going to allow paedophilia to be decriminalised then we should do the same for homosexuality (an unnatural sexual orientation) – but I would argue a distinction between the 2 on the basis that children need certain protections that adults do not; and s377A refers to consenting adults. This does not change my religious views (which as I said above need to be kept separate as much as possible), but it does affect my views on how the law should be constructed.
Conclusion
At the end of the day, I do think that the section is unlikely to be repealed and the efforts of Mr Siew are destined to come to naught. As mentioned in the reports, this is only the second time a petition has been submitted to Parliament, the last time a petition submitted by JBJ in the 80s; and if the comments by a Public Petitions Committee member are anything to go by – that although it is technically possible for amendments to legislation to be made through Parliamentary debates – history suggests that such changes are unlikely.
But perhaps it is sufficient for the issues to be raised and debated. And perhaps, as Christians the right course of action is not to fight the repeal of the law but to actively pursue opportunities to dialogue and hopefully reach out to the homosexual community in Singapore (As I recall I praised a Singapore church leader, who was taking steps in this direction, in a previous entry to this blog).
For those who want to read up on the s28 debate can visit the BBC’s coverage of the issue at: http://news.bbc.co.uk/2/hi/uk_news/613023.stm
There has been much hype in the media and the Internet about the Parliamentary Petition submitted by NMP Siew Kum Hong yesterday morning. The petition is reported to contain more than 1,000 signatures and seeks the repeal of Section 377A of the Penal Code (hereafter s377A or section 377A), which forbids men from having sex with each other, whether in public or private.
As one would expect, Mr Siew has been attacked (or his actions at least) in the forum pages as well as on the net as ‘over-stepping’ his role as an NMP or even as ‘championing the gay cause’. This I think is unfortunate. To him, its about equality; to them, its morality.
Although I’m inclined to agree that the section should be repealed it is for different reasons entirely. I do not think that it is a matter of equality or about a ‘right’ to exist (they already exist, let’s not kid ourselves. Repealing the section does not give them a ‘right’ to engage in homosexuality nor does it give them any other rights – I’ll explain what I mean below). I do think that it is a matter of morality – about whether the government to legislate morality – or in other words to be our ‘moral police’. BUT I believe we should not expect them to be so and that, if we really thought long and hard about it, it wouldn’t be desirable. Now before your radar starts to sound uncontrollably and you get your knickers in a knot, let me explain.
Law and morality
My personal view (which is necessarily a religious view), as a Christian, obviously is that homosexuality is a sin. I do not believe that there is any denying this (from a biblical point of view). It is explicitly mentioned as such in the bible and it goes against God’s natural order (what He intended for human beings when he created us) – it is clear that He made man to have sexual relations only with women (of course, for the sake of completion, one can also add that it is to be within the confines of marriage). But it is precisely because I am a Christian that I think that ‘religion’ and politics should be kept separate.
I think that whenever a legislature assumes the role of being a moral policeman, problems naturally arise. One such problem is in deciding which moral standard should be adopted or propagated?
Of course many Christians would be quick to suggest that a Christian standard of morality be adopted – as it is, in their view, a superior standard of morality. But this is certainly not going to fly, and perhaps, it shouldn’t. Nowhere in the bible do we see any warrant to impose biblical morality on those who are not of the faith. No doubt they will be judged according to it in the final judgment, but they are never expected to conform to them in a pre-salvation condition.
Furthermore, every instance (throughout history) where there has been an attempt to institute biblical morality into the law has resulted in widespread persecution. I guess this can be seen in every attempt to merge religion with politics (eg fundamentalist Islamic states or even Christian states of the past). That is why there needs to be a separation between religion and ‘state’.
If one considers the philosophical foundations of democracy, it would seem that if the government is representative of the people that the moral standard should be determined by the people. In most instances, this means the majority of the populace. In relation to this issue, since Singaporeans are generally still conservative in this area, this section would in all likelihood be kept on the statute books.
But this is still unsatisfactory as morality should not be dependent on simply obtaining a majority. Can you imagine the injustices that may occur if a 'simple majority' (ie 51%) is allowed to impose their sense or standard of morality on others? So what is the solution? Well, one possibility is that if the law is to contain a standard of morality at all, then it must be a minimum/basic level of morality – a level that everyone agrees on. For example, I would venture to suggest that no one would argue that murder, theft, cheating are not acceptable in society. Also no one would agree against the protection of the innocent/weak (e.g the mentally handicapped, the elderly and children). So the law may impose sanctions for violations of this minimum standard, while any higher standard is left to individuals to impose on themselves.
Perhaps a minimum standard of morality that everyone can agree on is a little idealistic and naive, and may not even be relevant in this particular instance.
Repealing s377A = Promotion of homosexuality?
At any rate, I think that people against the repeal of s377A are overreacting. There is a vast difference between the intention of s377A of the Singapore Penal Code and, for example, section 28 of the UK’s Local Government Act 1988 (hereafter s28). I bring this up because, while as a first-year law student in the UK, this was a relatively big debate. Section 28 reads as follows:
28 Prohibition on promoting homosexuality by teaching or by publishing material
(1) The following section shall be inserted after section 2 of the [1986 c. 10.] Local Government Act 1986 (prohibition of political publicity)—
“2A Prohibition on promoting homosexuality by teaching or by publishing material
(1) A local authority shall not—
(a) intentionally promote homosexuality or publish material with the intention of promoting homosexuality;
(b) promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.
(2) Nothing in subsection (1) above shall be taken to prohibit the doing of anything for the purpose of treating or preventing the spread of disease.
(3) In any proceedings in connection with the application of this section a court shall draw such inferences as to the intention of the local authority as may reasonably be drawn from the evidence before it.
(4) In subsection (1)(b) above “maintained school” means,—
(a) in England and Wales, a county school, voluntary school, nursery school or special school, within the meaning of the Education Act 1944; and
(b) in Scotland, a public school, nursery school or special school, within the meaning of the Education (Scotland) Act 1980.”
(2) This section shall come into force at the end of the period of two months beginning with the day on which this Act is passed.
Since it was about the promotion of homosexuality as an alternative sexual orientation among children in schools, it was certainly a big deal. There was a lot of debate over it, but alas, it was ultimately repealed. I would disagree with the repeal in this instance because it is the explicit and active promotion of homosexuality to children in school that was at issue is section 28 of the Local Government Act. This isn’t the case where s377A is concerned.
There is a very big difference between decriminalising something (as in s377A) and active promotion (s28), especially among children. For example, the fact that suicide was decriminalised in the UK (I’m not sure whether it is still a crime here, but I suspect it isn’t) does not necessarily mean that the authorities thought that suicides were suddenly a good idea. In fact I would venture to suggest that they didn’t and were definitely were not attempting to promote it. I would suggest that they decriminalised it because they realised the impracticalities involved with arresting and prosecuting offenders. After all, those who were successful were already dead, while those who were not successful needed help to work through the problems which made them attempt suicide in the first place (not to mention that prosecuting someone who attempted suicide would inevitably cause them to get more depressed and perhaps more determined to do it again).
On the contrary, repealing s28, because of its limited nature (in relation to the promotion of homosexuality to children within the school system), was to facilitate the promotion of homosexuality among children in schools. After all, this was the only activity that the section was preventing, if it continued to stay in force. This is again not the case where s377A is concerned.
The issue of homosexuality being a ‘viable alternative sexual orientation’ is, however, predicated on the belief that homosexuality is genetic and therefore ‘natural’. This I disagree with, quite apart from my religious beliefs, because there is absolutely no (remotely credible nor conclusive) scientific basis for such a claim – and it would certainly be dangerous to allow arguments from silence (ie to say that ‘its there, we just haven’t found it yet’ or that ‘we just don’t know enough about the human body, DNA, etc’). Furthermore, if sexual orientation such as homosexuality can be claimed to be genetic, then what is there to stop a paedophile from making similar claims and then expecting to be allowed to promote such thinking among school children in schools?
I realise that this last analogy can be used to argue the contrary position too – that if we’re not going to allow paedophilia to be decriminalised then we should do the same for homosexuality (an unnatural sexual orientation) – but I would argue a distinction between the 2 on the basis that children need certain protections that adults do not; and s377A refers to consenting adults. This does not change my religious views (which as I said above need to be kept separate as much as possible), but it does affect my views on how the law should be constructed.
Conclusion
At the end of the day, I do think that the section is unlikely to be repealed and the efforts of Mr Siew are destined to come to naught. As mentioned in the reports, this is only the second time a petition has been submitted to Parliament, the last time a petition submitted by JBJ in the 80s; and if the comments by a Public Petitions Committee member are anything to go by – that although it is technically possible for amendments to legislation to be made through Parliamentary debates – history suggests that such changes are unlikely.
But perhaps it is sufficient for the issues to be raised and debated. And perhaps, as Christians the right course of action is not to fight the repeal of the law but to actively pursue opportunities to dialogue and hopefully reach out to the homosexual community in Singapore (As I recall I praised a Singapore church leader, who was taking steps in this direction, in a previous entry to this blog).
For those who want to read up on the s28 debate can visit the BBC’s coverage of the issue at: http://news.bbc.co.uk/2/hi/uk_news/613023.stm
posted by Clem | 4:06 PM
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