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In recent years, the Netherlands,Belgium, Canada, and Spain have recognizedmarriages between people of the same sex. Several other countries recognizecivil unions with similar legal effect. An even wider range of countries havelaws against discrimination on the basis of a person’s sexualorientation, in areas like housing andemployment. Yet in the world’s largest democracy, India, sex between two men remainsa crime punishable, according to statute, byimprisonment for life.
India is not, of course, the only nation to retain severepunishments for homosexuality. In some Islamic nations – Afghanistan, Iran,Iraq, Saudi Arabia, and Yemen, for instance – sodomy is a crime for which the maximum penalty isdeath. But the retention of such laws iseasier to understand in the case of countries that incorporate religious teachings into their criminal law – nomatter how much others may regret it – than in a seculardemocracy like India.
Anyone who has visited Indiaand seen the sexually explicit temple carvings that are common there will knowthat the Hindu tradition has a less prudish attitude to sex than Christianity. India’s prohibitionof homosexuality dates back to 1861, when the British ruled the subcontinentand imposed Victorian morality upon it. It is ironic, therefore, that Britain has long ago repealedits own similar prohibition, while India retains its law as a colonial relic.
Fortunately, the prohibition of sodomyin Indiais not enforced. Yet it provides a basis for blackmail and harassment ofhomosexuals, and has made it more difficult for groups that educate peopleabout 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 callingfor a repeal of the law that makes homosexuality a crime. Many other notableIndians signed the letter, while still others, including the Nobel LaureateAmartya Sen, have given it their support. A legal challenge to the law iscurrently before the high court in Delhi.
Around the time when India’sprohibition of sodomy was enacted, John Stuart Mill was writing his celebratedessay On Liberty , in which he put forward the following principle:
the only purpose for which power can be rightfully exercised over anymember of a civilized community, against his will, is to prevent harm toothers. His own good, either physical or moral, is not sufficientwarrant....Over himself, over his own body and mind, the individual issovereign.
Mill’s principle is not universally accepted. The distinguishedtwentieth-century British philosopher of law, H.L.A. Hart, argued for a partialversion 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’sphysical good is sufficient warrant, if individuals are likely toneglect their own best interests and the interference with their liberty isslight. For example, the state may require us to wear a seatbelt when driving, or a helmetwhen riding a motorcycle.
But Hart sharply distinguished such legal paternalismfrom legal moralism. He rejected the prohibition on moral grounds of actions that donot lead to physical harm. The state may not, on his view, make homosexualitycriminal 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 isnot. Defenders of the distinction often claim that the state should be neutralbetween competing moral ideals, but is such neutrality really possible? If Iwere a proponent of legal moralism, I would argue that it is, after all, amoral judgment – if a widely shared one – that the value of riding my motorbikewith my hair flowing free is outweighed by the risk of head injuries if Icrash.
The stronger objection to the prohibitionof homosexuality is to deny the claim that lies at its core: that sexual actsbetween consenting people of the same sex are immoral. Sometimes it is claimedthat homosexuality is wrong because it is “unnatural,”and even a “perversion of our sexualcapacity,” which supposedly exists for the purpose of reproduction. But wemight just as well say that using artificialsweeteners is a “perversion of our sense of taste,” which exists so thatwe can detect nourishing food. We shouldbeware of equating “natural” with “good.”
Does the fact that homosexual acts cannot lead to reproduction make themimmoral? That would be a particularly bizarre ground for prohibiting sodomy in a densely populated countrylike India,which encourages contraception and sterilization. If a form of sexual activity bringssatisfaction to those who take part in it, and harms no one, what can beimmoral about it?
The underlying problem with prohibiting homosexual acts, then, is not thatthe state is using the law to enforce private morality. It is that the law isbased on the mistaken view that homosexuality is immoral.
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