Homosexuality is Not Immoral
Project Syndicate, October, 2006
In recent years, the Netherlands, Belgium, Canada, and Spain have recognized marriages between people of the same sex. Several other countries recognize civil unions with similar legal effect. An even wider range of countries have laws against discrimination on the basis of a person’s sexual orientation, in areas like housing and employment. Yet in the world’s largest democracy, India, sex between two men remains a crime punishable, according to statute, by imprisonment for life.
India is not, of course, the only nation to retain severe punishments for homosexuality. In some Islamic nations – Afghanistan, Iran, Iraq, Saudi Arabia, and Yemen, for instance – sodomy is a crime for which the maximum penalty is death. But the retention of such laws is easier to understand in the case of countries that incorporate religious teachings into their criminal law – no matter how much others may regret it – than in a secular democracy like India.
Anyone who has visited India and seen the sexually explicit temple carvings that are common there will know that the Hindu tradition has a less prudish attitude to sex than Christianity. India’s prohibition of homosexuality dates back to 1861, when the British ruled the subcontinent and imposed Victorian morality upon it. It is ironic, therefore, that Britain has long ago repealed its own similar prohibition, while India retains its law as a colonial relic.
Fortunately, the prohibition of sodomy in India is not enforced. Yet it provides a basis for blackmail and harassment of homosexuals, and has made it more difficult for groups that educate people about HIV and AIDS to carry out their work.
Vikram Seth, the author of A Suitable Boy and other fine novels, recently published an open letter to the government of India calling for a repeal of the law that makes homosexuality a crime. Many other notable Indians signed the letter, while still others, including the Nobel Laureate Amartya Sen, have given it their support. A legal challenge to the law is currently before the high court in Delhi.
Around the time when India’s prohibition of sodomy was enacted, John Stuart Mill was writing his celebrated essay On Liberty , in which he put forward the following principle:
...the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant....Over himself, over his own body and mind, the individual is sovereign.
Mill’s principle is not universally accepted. The distinguished twentieth-century British philosopher of law, H.L.A. Hart, argued for a partial version of Mill’s principle. Where Mill says that the good of the individual, “either physical or moral,” is “not sufficient warrant” for state interference, Hart says that the individual’s physical good is sufficient warrant, if individuals are likely to neglect their own best interests and the interference with their liberty is slight. For example, the state may require us to wear a seatbelt when driving, or a helmet when riding a motorcycle.
But Hart sharply distinguished such legal paternalism from legal moralism. He rejected the prohibition on moral grounds of actions that do not lead to physical harm. The state may not, on his view, make homosexuality criminal on the grounds that it is immoral.
The problem with this argument is that it is not easy to see why legal paternalism is justified but legal moralism is not. Defenders of the distinction often claim that the state should be neutral between competing moral ideals, but is such neutrality really possible? If I were a proponent of legal moralism, I would argue that it is, after all, a moral judgment – if a widely shared one – that the value of riding my motorbike with my hair flowing free is outweighed by the risk of head injuries if I crash.
The stronger objection to the prohibition of homosexuality is to deny the claim that lies at its core: that sexual acts between consenting people of the same sex are immoral. Sometimes it is claimed that homosexuality is wrong because it is “unnatural,” and even a “perversion of our sexual capacity,” which supposedly exists for the purpose of reproduction. But we might just as well say that using artificial sweeteners is a “perversion of our sense of taste,” which exists so that we can detect nourishing food. We should beware of equating “natural” with “good.”
Does the fact that homosexual acts cannot lead to reproduction make them immoral? That would be a particularly bizarre ground for prohibiting sodomy in a densely populated country like India, which encourages contraception and sterilization. If a form of sexual activity brings satisfaction to those who take part in it, and harms no one, what can be immoral about it?
The underlying problem with prohibiting homosexual acts, then, is not that the state is using the law to enforce private morality. It is that the law is based on the mistaken view that homosexuality is immoral.