Phantom Menace 9

Is 377A an impotent anachronism (per VK Rajah) or according to Law Professor Thio Li-ann, a contemporary, important law?

Today’s article by Prof Thio deserves to be read. 

She has been the most fervent and educated advocate against the repeal of 377A, and one of the most highly regarded guardians and voices of society’s moral conscience. 

Mind you, the debate has advanced up to the many layers of our little garden state, from pinkdot demonstration to the bustling social media corridors, from a DJ fighting to repeal 377A as he asserts “I am not a criminal” to PM Lee and our law minister assuring the people that it will not be enforced, and from laymen in the street to former justice, attorney generals and even an acclaimed ambassador at large at the highest echelon order of society. 

For me, my role has largely been parasitic as I ride on their views and present my views on theirs. I put on record that I have written much about this topic and 377A has kept me reasonably occupied most mornings as I browse through the papers to pin my thoughts on FB. 

Looking at the gladiatorial fight in the 377A ring, you can’t help but feel that it resembles a WWE tag team where each challenger with his/her logical point of views would put on their polemic gloves and rational headgear to tough it out in the ring for that five-minute fight of reason, passion and action either for a more liberal stake in our future or to preserve our moral, conservative society. 

Alas, at some point of this heated debate, you also get the feeling that it has become a shouting match premised mainly on demonstrating numerical strength (just look at the number of online votes on both sides) that has unfortunately polarised the society with one side fighting to preserve “societal morality” and the other side fighting to turn the attention on a more technical legal aspect of what to them is an archaic law that is largely redundant and discriminatory, and thus far from being constitutional.

And the shouting match has become more enunciated, refined and intellectually persuasive on both sides as they lift 377A from a hardly-bothered section hidden in one corner of the penal code to the center-hot-seat of society or town square. 

Indeed, both sides have intentionally and/or unwittingly contributed to the section’s social prominence.

Now, no one can say that they have not heard about that semi-retired section 377A living on the government’s “legislative” welfare. 

And if 377A were a rock or pop star, it would be as cool as Jon Bon Jovi or as hip as Justin Bieber (I know I am being flippant here, but you can’t deny the reality of its unintended popularity).

Just to add to that flippancy, I suspect what is missing here is a substitution of that alphabet “A” to any random number so that even the HDB folks of all ages can participate in the whole debate by queuing up at the 4D booths to try their luck on a possible lucrative strike at the expense of gender ambiguity. 

But flippancy aside, Prof Thio has raised a few good points no less and they mostly centered around the consequences of repealing 377A. 

She wrote as follows:-

“Some argue that pointing to the negative consequences that have taken place in other jurisdictions decriminalising sodomy is a “slippery slope” argument and that one should just consider the narrow, discrete issue of whether 377A is just or unjust in prohibiting homosexuality.”

Her point is that to say it is a slippery slope argument (as stated above) is a “red herring” because it seeks to ”obscure or diminish the consequences of repeal.”

And to Prof Thio, such consequences are “reasonably foreseeable” and “not speculative”, “both in terms of empirically observing developments in other jurisdictions”.

She went on to stress that “there is a straight line between decriminalising sodomy and down the line, legitimating same-sex marriage: Both rest on the same premise that homosexuality should be seen to be on a par with heterosexuality in terms of public sexual morality norms.”

On that premise, she wrote that “it is pivotal to their (gay) cause to repeal 377A as a first step to advance a broader agenda to normalise same-sex relationships, which demonstrates that 377A is not merely symbolic but substantive.”

And here is why it is not merely symbolic as Prof Thio forewarned that “the experience of other jurisdictions shows that decriminalising sodomy does often lead to subsequent activism for policy and legal changes towards the progressive normalisation of same-sex relationships in the name of “equality” and non-discrimination, coercively mandating the equation of homosexuality and heterosexuality.””

From there, she wrote about “religious tertiary institutions which support a non-traditional definition of marriage (becoming) grounds for legal actions in the name of “marriage equality”” and ”Christian bakers whose conscience shaped their refusal to bake cakes with pro-gay messages, regardless of who the customer is, have been sued on the basis of anti-discrimination legislation.”

So, that is the crux of her argument - the long and short (you have to read it to get the full flavour). 

Nevertheless to Prof Thio, it is not about some slippery slope argument that may lead to some unacceptable conclusion or imaginary consequences because when the moral levee breaks should 377A be repealed, she reminds us quite sternly of the opening of the floodgate of moral relaxation leading to the normalisation of homosexuality and same-sex marriages. 

Mm...one has to wonder here, is her floodgate of real (not arguably imaginary) consequences a backdoor to cloth the slippery slope argument with some believability? (Just thinking).

Lesson? Three. 

1) Personally, I don’t know whether it is wise, prudent or even expedient to expect a secular legislation like ours to make or unmake (or preserve) a law based on the happening of some “future imponderables”. 

Now, I am not saying that the consequences that Prof Thio warn us about once 377A is repealed will not come to pass when 377A is in fact repealed.

The truth is, we will never know for sure. And if we are honest about it, we would at least acknowledge that before launching into an instinctual Christian counterargument. 

But nevertheless, the swift rejoinder to that is, why risk it? Isn’t it better to be safe than sorry?

Well, as a believer, a father, a leader in my own right, I get that. I really do - prevention is better than cure...got it. 

However, my concern is, how do you “preach” all that to the ”unconverted”, that is, to the secular legislation without them seeing it as some “sky-is-falling” panic theory? 

But sure, for now, all believers can heave a deep sigh of relief because our PM Lee had taken a wild stab at the realm of moral triumphalism to say that if a referendum is held today, the majority of Singaporeans would vote for 377A to remain. 

Yet, trust me, it is not because he and his government believed in the floodgate argument that Prof Thio writes so passionately about. It is just a matter of administrative pragmatism and electoral accommodation. 

When the cultural tide changes, you can rest assured that no floodgate argument is going to convince them otherwise to scrap 377A. 

2) Another personal note is, does the legislation of morality ensure that every individual in our society will live morally for fear of punishment? 

Well, let me just say that we all know things are more complicated than that. 

From a biblical perspective, if the law works wondrously and enduringly, Jesus’ final words at the Cross would not be “It is finished”, but “it is optional.” (that is, you can be saved by law or grace, and for those in perpetual doubt and insecurity, by both). 

You see, if the goal is to use the law to preserve or advance “societal morality” like protecting the traditional family structure, should we then go back to criminalise adultery, imprison fornicators and/or outlaw abortion? Why stop at just fighting against the repeal of 377A? 

Are we then being disingenuous (or opportunistic) for fighting (with fiery conviction) against the repeal of 377A as if the whole moral foundation of our society depends on it, and then go about living our lives as if adultery and fornication can be left out of the penal code because they do not matter as much?

In other words, why should adultery or fornication be treated any differently than homosexuality since they all threaten the moral foundation of our society to a large extent?

And...

3) My last lesson is of the greatest concern to me since the day every major religious body (except the Buddhist Assoc) came forward most visibly and vocally to support the retention of 377A. 

I wonder, what would happen should 377A be repealed? Mind you, it is not too farfetched a future reality in our globalised, politically unstable and liberal world. 

And here is why I am deeply concerned, against the backdrop of Prof Thio’s article this morning. 

Prof Thio wrote that “377A inhibits the promotion of their (gay) ideological agenda and demands that society conform to their vision of sexuality.” 

She also wrote that “377A stands in the way of demands to positively portray, even celebrate same-sex relationship through vehicles such as free-to-air media programming and in school curricula, to fuel agitation to legalise same-sex marriage and child adoption by same-sex couples.” 

Personally, that seems to me to be giving a lot of attention, credit and fearsome power of wide social change to a fang-less section.

Alas, my fear is, have we raised 377A to new heights that it did not deserve in the first place, and thereby inadvertently bestowed it with such portentous significance that once it is gone (repealed), we are as good as finished? 

So, going back to what I’ve asked earlier, what would happen should 377A be repealed? Prof Thio puts it this way: “What consequences will any legal change engender?” 

At this point, we can’t really tell for sure. And prophetic warnings from one overzealous section of the society should never be taken as a future certainty; or else many of us will be storing up baked beans in our bomb shelter in anticipation of the end of days. 

But nevertheless, according to the way we have raised the specter of doom over the repeal of 377A, I am afraid that most believers will take it as a major defeat if that day should come to pass. In other words, our actions may have unintentionally magnified our disappointment in the event of a successful repeal. 

Unfortunately, we may have turned our ignorable aversion into an unhealthy obsession and thus tied our hope and faith inextricably to the retention of 377A. 

That to me is one slippery slope we as believers have unknowingly created (and politicised) that effectively distracts us from what we need to do to win trust, build bridges and close the gap in certain often neglected, shunned and misunderstood sector of society. Cheerz.