la nausée

Prologue

Self-professed liberals have difficulty grasping this basic tenet of democracy: that whatever your argument, there is bound to be disagreement. “I refuse to engage you… you must be stupid not to see my reasoning” — that line, which I have seen ad infinitum, ad nauseum, reeks of a cop-out, a more urbane, unctuous way of saying, “Lalalalala… I can’t hear you… nanny-nanny-poo-poo!” If indeed we yearn for a true deliberative democracy, an effervescent civil society of free and equal citizens… then learn to accept that deliberation is a process, and that it is most effective when approached with maturity, thoughtfulness and prudence on all sides (notwithstanding that a real democracy entails giving all citizens a strong prima facie right to offend and insult one another, as I’ve argued before).

The Heart of the Matter

So let me go on to what I had intended to talk about: Thio Li-Ann’s speech in Parliament. First, some prolegomenal remarks on the blogosphere’s response. Most bloggers prefer to indulge in lampoonery, although they oblige by way of ‘logical analysis’ by pulling out a number of well-worn arrows from their quiver of “logical fallacies”, the old chestnuts like “strawman”, “false dichotomy”, “hasty generalization”, and so on. I’m afraid, however, that these labels don’t mean a thing if not backed by substantive arguments which rebut her arguments.

Moreover, it is inevitable that any well-crafted speech (as Prof Thio’s was, purely from a stylistic point of view) will rely to some extent on constructing enemy “strawmen” in order to gun them down; that is simply the art of good rhetorical speaking. But most arguments, no matter how flawed their presentation, have some persuasive value. Our job is to take each argument in its best light, and then attack each one from there. It’s too easy to demean or caricaturize your opponent’s arguments — that’s the métier of a school debator — but that’s just being lazy.

A second comment: the ad hominem attacks. I see no sense in making a mockery of Prof Thio’s intellectual and professional credentials, because it detracts from any meaningful debate. Let’s see you get a B.A. from Oxford, an LL.M. from Harvard, a Ph.D. from Cambridge, be widely published in local and foreign academic circles, and become a full Professor at age 38… before you denigrate Thio Li-Ann’s intellect (which, as far as I can tell from reading a number of her published articles, is first-rate). Scholastic achievements are far from being everything, yes, but they do count for something, unless you’re a provincial, uncouth bumpkin, in which case, why should we take you seriously?

I’ve vented enough of my frustration, I suppose. On to Prof Thio’s speech. Let’s start with what I agree with.

I agree that the argument from privacy is flawed, that ‘private’ acts can have public repercussions.

I agree, to some extent, that harm can be “both physical and intangible”, if we take “intangible” to mean “psychological”.

I agree with her rebuttal of the argument from neutrality, because I believe that legal positivism does not adequately account for the “internal” perspective, the fact that every participant within a legal system will unavoidably seek for laws to be founded on sound reasons, regardless of what these reasons actually are. I agree that “not to make a stand, is to make a stand”: our laws are an expression of what our society is, what we cherish and aspire towards. When we say, “repeal 377A”, we mean that we value liberty and equality so much that we will permit other lifestyles with which we may disagree; when they say, “keep 377A”, they mean that our laws must protect public morality and social decency.

I agree that “[a]ll citizens may propose views in public debate, whether influenced by religious or secular convictions or both”.

All these arguments, I have gone through before, in the (as-yet-unfinished) “The Flaws of the Pro-Gay Position” series of posts (Part 1; Part 2; Part 3).

What do I disagree with?

First, even granting that homosexuality is a gender identity disorder (taking Prof Thio’s argument at its strongest), that gives no good reason to criminalize gay sex. If homosexuality is indeed a psychiatric disorder, then this favours the rehabilitation of homosexuals, not punishment or deterrence. I fail to see how s. 377A shows “a compassionate society [which] would help those wanting to fulfill their heterosexual potential”. I will admit, though, that it may be justifiable to both rehabilitate and punish offenders who are suffering from some sort of mental disability or deficiency. So we are thrown back to the moral blameworthiness of homosexual sex, on whether s. 377A is founded on a valid ‘differentiation’.

Public Health

Prof Thio refers to ‘public health’ concerns. “It is rational for the state to target the most acute aspect of a problem.” Here, the distinct problem is the “disproportionately higher STD rates” among the gay population. Fair enough, but the only way you can effectively ‘target’ a problem, is to actively enforce the laws which seek to combat it. If HIV / AIDS is such a problem, then assemble an army of ‘gay sex inspectors’ (like you have ‘mozzie inspectors’ from the NEA to deal with the dengue epidemic), and invade people’s bedrooms, public toilets, massage parlours, saunas, etc. Or even if your aim is just ‘deterrence’, to state at the outset that a law will not be actively enforced only makes it toothless… how then to deter such acts which purportedly endanger ‘public health’?

And against all this, you must weigh the fact that criminalizing an act usually just forces it underground. Wouldn’t it be far more sensible to rely on public campaigns (a favourite government tactic) which decry sexual promiscuity and advise against unprotected sex?

It says something, I think, that Prof Thio doesn’t openly state what inexorably follows from her ‘public health’ argument, because active enforcement of s. 377A is not only impractical, but it would also reveal a warped set of policy objectives and priorities. Sure, it may be “rational to target the most acute aspect of the problem”; hence, s. 377A, or any other policy involving gays, may not be unconstitutional in terms of attempting to solve the ‘public health’ problem. Still, ‘targeting’ the gay community in no way entails criminalization, which is just one possible policy response out of many (e.g. public awareness campaigns). There is a huge logical chasm here which Prof Thio has blatantly overlooked.

Public Morality

Third, Prof Thio refers to s. 377A as a legal expression of our public morality. I ignore the weaker argument, that our laws should simply be based on the opinions of a numerical majority. Instead, I take Prof Thio to mean that our laws must express an ideology common to most members of society, one is formed from the overlapping consensus of several reasonable comprehensive doctrines (to take Rawls’ model). More simply put, our laws must express a coherent picture of what our society accepts and values, which most reasonable members of society can agree with.

Prof Thio’s vision of our laws is that they should safeguard public morality and decency. What kind of public morality, exactly? Her positive claim is this: “Public sexual morality must buttress strong families based on faithful union between man and wife, the best model for raising children.” It is an all-too-predictable argument: sex is bad, unless it occurs in the context of marriage, procreation, and child-raising. So instantly, what is conveyed is a picture that is utterly wholesome and salutary, the happily-married Singaporean couple with their proverbial 2.1 children.

This ignores the fact that marriage, procreation, and child-raising, are three distinct concepts. Conservatives frequently run all three together. The institution of marriage, it has been argued, is founded on procreation. Yet this is an assertion that is at odds with most cultures. Consider these excerpts from the conventional wedding vow: “to love and to cherish, in sickness and in health… to honour and respect, till death do us part”. Any mention of starting a family, having children?

No… even the mainstream view of marriage is predicated on deep love and commitment between 2 individuals — admittedly, a man and woman, but nevertheless, 2 human individuals. It denigrates the traditional marriage to view it simply as a procreative institution, a means of ensuring the continuity of one’s gene pool.

Besides, even if you adhere firmly to the traditional conception of the family, this is no argument in favour of s. 377A, unless you also criminalize all forms of extra-marital sex which undermine that institution. How are gays more of a threat to sexual fidelity and marital stability than heterosexual adulterers and their secret lovers? Prof Thio’s argument (she cites a 2004 Her World article about a gay guy sleeping with 100 men) is premised on this rudimentary equation: Gay = Promiscuous. Surely Prof Thio cannot be asserting, “Every gay is promiscuous, and every promiscuous person is gay”, can she?

Then doesn’t it follow, if your legislative goal is that of stamping out sexual promiscuity and licentiousness, that you should target those who are actually promiscuous, rather than those who are gay? How is one’s sexual orientation a valid ‘differentiation’ here? Surely a secret, extra-marital, heterosexual relationship is as much a threat to the sanctity of marriage and family, as a secret extra, extra-marital, homosexual relationship!

Perhaps Prof Thio might argue that classifications need not be perfect, that it is rational to target the most acute part of the problem of sexual promiscuity. Unlike her case for ‘public health’, however, she offers no concrete statistics here. One would strongly suspect that if the majority of society comprises of heterosexuals, then the majority of married individuals who stray, would stray into heterosexual love affairs. The most acute part of the problem consists of heterosexual individuals who stray (and their heterosexual lovers). So s. 377A is not based on an imperfect classification — it is based on a completely wrong classification!

The Radical Pro-Gay Agenda

A far better solution, if you are a conservative, is not to criminalize homosexual sex, but to avoid recognizing gay marriages, and/or avoid granting gays adoption rights. This would be clear if one were to separate sex from marriage, procreation and child-raising, but Prof Thio polarizes the debate by lumping all these concepts together. She contends that all these concepts are being subverted by a radical pro-gay agenda (reiterating the points made in Yvonne Lee’s Straits Times article), but doesn’t consider whether some sort of middle ground may be achieved.

Equalizing the age of consent: she talks about exposing Sec 1 boys to adult sexual predators, but this is totally disingenuous, because the age of consent here is 16! If the liberal arguments are indeed convincing, then logically, the age of consent for gay sex should also be 16, unless one wishes to make the absurd argument that homosexuality somehow develops much later than heterosexuality — an argument not backed by empirical evidence.

Prohibit discrimination based on sexual orientation: she poses the rhetorical question, that the Bible and the Koran might be criminalized as hate-mongering, because they declare homosexuality to be morally deviant.

Well, no, because in a real democracy (which is what we are all arguing for), acts and words should not be censored or criminalized, even if offensive or discomfiting, unless they also pose a clear and present threat to our safety and well-being… something which s. 377A supporters fail to comprehend.

Legalizing same-sex marriage, and granting child adoption rights: As mentioned above, permitting people to have sex is very different from recognizing their right to raise children. In the former, any kind of ‘harm’, if it exists at all, is highly abstract… it at most qualifies as ‘harm’ to our social morals (whatever that means). In the latter, over and above this abstract form of ‘harm’, we must also consider the very tangible, long-term effect on children who are raised by same-sex couples.

In that case, I think the logical approach would be not to allow same-sex couples to adopt children until it has been ascertained what the effects of growing up with parents of the same gender are. The fears of conservatives, that allowing homosexuals to have sex is tantamount to allowing them to adopt children, are thus baseless.

Moreover, it is fallacious to speak of adoption ‘rights’, because anyone (including gay couples in overseas jurisdictions) who wants to adopt a child generally has to first go through rigorous background checks, interviews, preparatory courses etc. The opportunity to raise an adopted child is only granted to a select, deserving few. Much more than can be said for how the average heterosexual couple is chosen for parenthood — the “best model for raising children” indeed!

Thus, if the ‘public morality’ argument against s. 377A is cast in terms of family, procreation and child-raising, then it cannot stand.

This is not the fullest rebuttal that could be made of Prof Thio’s speech, but I think I’ve covered the major bases, leaving aside the still-controversial issues, such as whether there are truly such persons as ‘ex-gays’.

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