December 11, 2013

"Homosexuality became illegal again in India Wednesday after the Indian Supreme Court ruled that a colonial-era law banning gay sex was improperly struck down."

Reports the NYT:
The ruling reverses a landmark judgment by a lower court, which in 2009 decided that an 1861 law that forbids “carnal intercourse against the order of nature with man, woman or animal” was unconstitutional. The law, passed by the British, makes homosexuality punishable by 10 years in prison. Only Parliament can change that law, the Supreme Court ruled.

There is almost no chance that Parliament will act where the Supreme Court did not, advocates and opponents of the law agreed. And with the Bharatiya Janata Party, a conservative Hindu nationalist group, appearing in ascendancy before national elections in the spring, the prospect of any legislative change in the next few years is highly unlikely, analysts said.
The NYT quote I've put in the headline is a bit inaccurate — probably willfully so — in saying that "homosexuality" is illegal. It's homosexual intercourse that is banned, not the status of having a homosexual orientation. But those who want equality for gay people frequently elide this connection. In the American case dealing with homosexual conduct, Justice O'Connor, concurring, made the connection openly:
Texas argues... that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. “After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.” [Romer v. Evans, 517 U.S.] at 641 (Scalia, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not “deviate sexual intercourse” committed by persons of different sexes, “that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

24 comments:

Bob Ellison said...

I had not read that O'Connor essay before. She seems to be saying that the government can decide whether behavior defines a "class". So maybe I'm a "class" because I play piano rather than guitar. I should get some special standing on that basis.

Nonapod said...

I think there's a tendency for people in the West think of India as an enlightened progressive society. But this is a country that still regularly practices arranged marriages, caste based discrimination, and even some slavery in modern times.

Somewhat tangential, adultery is still a crime in NYS.

Mark Nielsen said...

There are lots of classes of people for whom the "conduct that defines the class" is appropriately illegal -- pedophiles, for an obvious example. I support removing laws that discriminate against gay people, but O'Connor's logic here is lazy. There's obviously an unspoken distinction between classes whose defining behaviors are protected and those for whom it is not. O'Connor ought to be able to articulate that distinction if she's going to use that argument.

As for India, while I hope they ultimately come up with a democratic fix, I'm impressed that their courts don't just throw out the actual demands of their governing documents when the cause is socially fashionable. We could learn a little bit from them.

YoungHegelian said...

Indian culture tends to be sexually quite conservative, or so my many Indian co-workers in my years in IT have told me. I don't mean conservative in relation to secular US or European culture. I mean conservative even in relation to modern Christian cultures.

I've just never been able to get a straight story on how that came to be. Has Hinduism itself been the cause, or did the Mughal invasion inject a conservative Muslim strain into a previously more liberal Hinduism? No answers.

Some white liberals I've spoken to have tried to blame the British Raj. Yeah, right. That explains the HIV infection rate in Africa --- all those countries the British turned into repressed prigs.

Paul said...

Aw geeze man, the Sodomy law only affects shit stabbers. They can be 'gay' or strait.

The whole point of the law is the sewer is no place for sex. So many disease are they it's very unhygienic.

Ann Althouse said...

@Paul I hate to tell you but oral sex is also sodomy.

mccullough said...

O'Connor was a weak justice. She was in the majority in both Bowers v. Hardwick and Lawrence. Instead of admitting she changed her mind with the times, she concocted a ridiculous explanation for her views. She shouldn't be taken seriously.

Ignorance is Bliss said...

So as long as an anti-sodomy law was enforced equally with regards to anal vs. oral and hetero vs homo O'Connor's argument would not apply.

jr565 said...

Especially in this day and age the anti sodomy laws would apply equally to gays and heterosexuals.

madAsHell said...

I've always thought laws against homosexuality were un-enforceable. They were "feel good" laws.

Perhaps, they allow some recourse to an individual that is coerced into a homosexual act, but I'm sure we can find other laws to manage that situation.

FuzzyFace said...

I think that there is a tendency for people in the West to think that permitting and even subsidizing behaviors low considered immoral is "enlightened."

tim maguire said...

Mark Nielsen, are you arguing that it's ok for people who aren't pedophiles to have sex with children? It's an odd argument you're making.

The excerpt clearly and repeatedly states that the law bans homosexual conduct only. A point most of the commenters here seem to miss.

Larry J said...

The law, passed by the British, makes homosexuality punishable by 10 years in prison. Only Parliament can change that law, the Supreme Court ruled.

Oh, the humanity! Their Supreme Court ruled that the lower court had no authority to change the law and that only the duly elected Parliament could do so. How backwards! Why, judges are the black robed high priests of the law. If they want to make the laws and change the laws, they should be able to do so! Who needs representative government when we can have judges change laws? [/sarc]

Alexander said...

I am very surprised: surely the NYT would remind us that all view points are equally valid and all cultural norms are equally acceptable. Where is the tolerance!

Mark Nielsen said...

Tim, I'm not seeing your point. "While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual." Replace "homosexual" with "a pedophile" -- same argument, but clearly not as palatable. I'm not equating the two -- I thought I was clear about that. What I'm saying is that O'Connor should articulate why her argument is valid one case and not in the other.

Archie said...

Well, good.

EDH said...

Don't go to bed, with another dude who'll give you head...no, no

Don't do it!

Don't do the crime, if you can't do the time...yeeeaaa

Don't do it!

paul a'barge said...

There is a reason it's called the Kama Sutra and not the Buttra Sutra.

Smilin' Jack said...

The law, passed by the British, makes homosexuality punishable by 10 years in prison. Only Parliament can change that law, the Supreme Court ruled.

So perhaps India will preserve Western Civilization, now that the West has lost it.

eric said...

In what year did discrimination become unconstitutional?

What a horrible law, or at the least, horible interpretation of the law.

eric said...

"I've always thought laws against homosexuality were un-enforceable. They were "feel good" laws.

Perhaps, they allow some recourse to an individual that is coerced into a homosexual act, but I'm sure we can find other laws to manage that situation."

Perhaps. Although there could be a semi enforcement to them.

For example, if a marriage were only a marriage after consummation and sodomy was illegal, how could you have homosexual marriage?

Kirk Parker said...

mccullough,

"[O'Connor] shouldn't be taken seriously."

Oh, so you know somebody who does? Links, or I don't believe you! ;-)

Bob Ellison said...

Mark Nielsen, the conduct defines the person. That's the basic classic liberal principle. There is no morally defensible distinction between people whose behaviors are protected and those whose behaviors are not. There is only a distinction between which behaviors are prohibited and those which are not.

Drago said...

AA: "@Paul I hate to tell you but oral sex is also sodomy."

Did you really "hate" to tell Paul that?