“Homosexual carnal intercourse between two consenting adults” is legal in India now. It wasn’t for lack of reason or scientific data that the item of legislation that rendered sodomy illegal – Section 377 – had been retained for so long. Instead, it was more a question of whether sodomy offended public decency and morality. On September 6, the Supreme Court of India said no consensual sexual act between adults, whether of the same gender or otherwise, could be considered illegal or offensive to public decency or morality.
The US had this moment in 2003, but there, science did play a role. In the landmark case Lawrence v. Texas, the Supreme Court of the US was able to rule that homosexuality was not a sin against nature on the back of a growing body of evidence that homosexuality exists in nature. More broadly, science helped determine the construction of sexuality in human and non-human species and rescued it from the chokehold of religious ideals and the stigma it carried. CJI Dipak Misra and Justice A.M. Khanwilkar may not have laboured through the scientific evidence in their own judgment but the veins of rationalism are evident in their syntax. Consider this excerpt (from the full; emphasis added):
What nature gives is natural. That is called nature within. Thus, that part of the personality of a person has to be respected and not despised or looked down upon. The said inherent nature and the associated natural impulses in that regard are to be accepted. Non-acceptance of it by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual. Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. It can be viewed from another angle. An individual in exercise of his choice may feel that he/she should be left alone but no one, and we mean, no one, should impose solitude on him/her.
From another part of the same judgment:
It is submitted on behalf of the petitioners and the intervenors that homosexuality, bisexuality and other sexual orientations are equally natural and reflective of expression of choice and inclination founded on consent of two persons who are eligible in law to express such consent and it is neither a physical nor a mental illness, rather they are natural variations of expression and free thinking process and to make it a criminal offence is offensive of the well established principles pertaining to individual dignity and decisional autonomy inherent in the personality of a person, a great discomfort to gender identity, destruction of the right to privacy which is a pivotal facet of Article 21 of the Constitution, unpalatable to the highly cherished idea of freedom and a trauma to the conception of expression of biological desire which revolves around the pattern of mosaic of true manifestation of identity. That apart, the phrase ‘order of nature’ is limited to the procreative concept that may have been conceived as natural by a systemic conservative approach and such limitations do not really take note of inborn traits or developed orientations or, for that matter, consensual acts which relate to responses to series of free exercise of assertions of one‘s bodily autonomy. … It is urged that the American Psychological Association has opined that sexual orientation is a natural condition and attraction towards the same sex or opposite sex are both naturally equal, the only difference being that the same sex attraction arises in far lesser numbers.
Many of these arguments hinge on what it means to be natural. But what is nature, and what is naturalness*? The Wikipedia article on homosexual behaviour among animals carries an instructive line in this regard, and vis-a-vis the tenet of peccatum contra naturam (Latin for “sin against nature”): “The observation of homosexual behaviour in animals can be seen as both an argument for and against the acceptance of homosexuality in humans.” It’s ‘for’ because if animals do it, then it’s natural; it’s ‘against’ because humans are not meant to be like other animals. It’s a ridiculous position to be in. I find a quote originally about economics to be useful here:
… if background conditions determine, in a way which in principle falls outside a theory, what counts as the events over which the theory ranges, the theory is at the mercy of changes in these conditions which at any moment can undermine the predictive power of the theory.
The philosopher Richard Norman had intended to develop a theory that could predict how much, rather what kind of, resistance certain technologies would meet from certain cultures based on what traditions each technology appeared to offend. He succeeded in that he was able to explain why some cultures struggled, and continue to struggle, with the acceptability of technologies like vitro fertilisation and contraception, and what the latter might have in common with homosexuality. He pegged it on background conditions. Russell Blackford, a philosopher at the University of Newcastle, Australia, summarised Norman’s thesis thus in a 2006 review (emphasis added)
According to Norman’s approach, anything that may threaten a culture’s basic assumptions about how ordinary human life works – especially assumptions about sex and its relationship with conception and birth, the development and rearing of children, the roles of men and women, the processes of ageing and death – is likely be disquieting to at least some people. For example, homosexual practices may seem to threaten a background condition that relates to sex and procreation. If there are recognised choices that include sexual acts with no possibility of pregnancy, then one of the background conditions has been lost.
Blackford writes in another part of the review (emphasis added):
Norman argues that the discomfort that some people feel about IVF and futuristic prospects such as that of biological immortality comes from a sense that important background conditions to choice – relating to procreation and death – are threatened. In this context, a “threat” to the background conditions seems to mean that certain conditions may no longer pertain. A sense that some background conditions are under threat can be expressed as a claim that nature is being interfered with. When such claims are made, nature is being equated with the background conditions recognised within the culture concerned. Norman, however, defends IVF on the basis that incremental changes to our own culture’s background conditions can be absorbed into our thinking.
However, given that the Bharatiya Janata Party has refused to issue a statement on the historic SC verdict, signalling its moral ambiguity (at the very least) on the subject, it seems unlikely that the party’s members – i.e. the country’s ministers – will be open to making incremental changes in their worldview to accommodate the naturalisation of “unnatural” sexual acts, so to speak.
*Not to be confused with the naturalness of particle physics, or maybe it is.
September 7, 2018
Featured image credit: gagnonm1993/pixabay.