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| Weimar's Courtyard of the Muses |
Let’s
hear it for the Enlightenment.
God
bless those often godless folk of the Age of Reason, as the Age of
Enlightenment is sometimes also called.
All those 17th and 18th Century thinkers, the philosophes, Descartes, Newton, Spinoza,
Hobbes and Locke, Voltaire, Rousseau.
Benjamin Franklin and Thomas Jefferson in the United States. And
others who gave us the Declaration of Independence, the Bill of Rights, the
Polish-Lithuanian Constitution of 1791.
(I threw that last one in to show I’m not Americo-centric.)
Kant
called the Enlightenment “mankind's final coming of age, the emancipation of
the human consciousness from an immature state of ignorance.” Hit the nail on the head, it seems to me.
Enlightenment
ideas are so much a part of our lives that we take them for granted. We don’t stop to recognize how wretched our
lives would be without this great leap forward in human progress. The force that ripped the teeth out of
superstitious authoritarian religion and made the good life we know today possible. The French summed it up with liberté, égalité, fraternité; the Americans with “liberty and justice for all.”
The
humanist moral code of the Enlightenment didn’t entirely replace the religious
codes that went before, and the old ways can surface at any time and claw us
back into the darkness of fear and superstition, as they did with the
announcement today that India’s Supreme Court has just overturned a 2009 ruling
that had decriminalized gay sex. Sad
news for LGBT people in India. And
because we’re all linked together in this battle for human rights, sad for the
rest of us, as well.
nbcnews.com ran with the shock headline, “India goes 'back to the Dark Ages' by banning
gay sex — again.”
Well yes, and
no. Yes, if you look at this at ground
level, at how this affects individual gays and lesbians and other sexual
minorities. If you look at the evolution
of India as a modern democracy, not so much.
The Court decided the case on procedural grounds. The Delhi High Court had overstepped its
powers back in 2009 when it granted people with a same-sex orientation equal
rights. That power belongs, according to
the Supreme Court, only to Parliament.
India’s penal code has a clause – Section 377 – which specifies that
“sex against the order of nature” should be punished by up to ten years in jail.
You’ve got to love
the choice of words. So deliciously 19th
Century British somehow. The Roman poet
Terence had expressed humanist values centuries before the Enlightenment when he declared, “Humani nil a me alienum puto – Nothing human is alien to me.” The
sex-averse Saint Paul had a different view.
He and others responsible for establishing the practices of the ancient
Hebrews as if they were dictates from heaven, believed in the curse of the
Garden of Eden and the unending sinfulness of mankind. Cherry-pickers of that tradition are still
very much with us. From the Baptists who
don’t want to have sex because somebody might see them and think they were
dancing, to the folks living in fear that somebody somewhere might be having a
good time, religious proscriptions are never totally out of sight.
Another way to speak of these laws which offend nobody except possibly a fictive deity is to call them laws against victimless
crimes. Nobody gets hurt, say the
humanists. God gets hurt, say the authoritarian
religionists. Well, not so much
anymore. They know they can’t be that
obvious about it, so they express it in terms of “nature” or “the social
order.” But you know they mean God. They will admit it, if you push them on it.
Steven Weinberg is known
in academic circles for his Nobel Prize in Physics. I think he deserves equal recognition for his
insight into the power of religion. “With
or without religion,” he said, “You
would have good people doing good things and evil people doing evil things. But
for good people to do evil things, that takes religion.”
We in America talk
about our “Culture Wars.” What we’re
talking about is the clash between two different sources of a moral code, one
which we admit is man-made, the other which various self-imposed authorities
tell us is the will of God. From the
Enlightenment rose the radical notion that “all men are created equal.” Today we have updated our language use,
having recognized that too many people mistook “men” to mean “men only and not
women” instead of “all human beings” regardless of sex. It has been a long and painfully slow process
freeing ourselves from the dead hand of traditional religion, from sex
discrimination, from racism, from the belief that Northern Europeans were more
clever than Southern Europeans, who, in their turn, were better than
Africans. The thrust of this Enlightenment
value system was that there is no justification to granting rights to one human
being that you do not also grant to all others.
In general, the
modern world moves in the direction of Enlightenment values. The Mormon Church has just come out and
admitted they were wrong – actually used that word – about black people. We just followed the custom of the day, they
say. Everybody around us was racist, so
we were too. They were wrong, and we
were wrong. Notice, though, that
they cannot explain how it is that their anti-black principles are to be found in their
religious texts. They’ve still got a
whole lot of ‘splainin’ to do. My point,
though, is that our progress out of racism, sexism, ethnocentrism and
homophobia has been pretty consistent, even if we do fall back from time to
time.
The Indian Supreme
Court decision may not be a falling back.
It may be what they say it is, merely a cold rational legal decision
based on the British inspired notion of the importance of legal procedure. Not intended to further homophobia, but
necessary (if they're being sincere), because the homophobic law that needs correction was put
there by the legislature and should be taken out by the legislature.
I am in no position
to judge. I’m too far away and I lack
the legal background to take sides in this issue.
That said, there is
no doubt homophobia is alive and well in India, and progress out of the
darkness has not been without its hitches.
And it’s no surprise to discover that homophobia in the legal code can
be traced back to the Brits and their religious prejudices at the time the
Indian Penal Code was written.
Chapter XVI of the
Penal Code (Sections 299 to 377) deals with “Offences Affecting the Human
Body.” These include murder,
kidnapping, slavery and forced labor, and rape.
All but the last one, 377, involve a victim. 377 is the notorious section related to
so-called “unnatural offences.” The
Indians have been trying for some time to get rid of 377, not only because it
legalizes persecution of LGBT people, but because it had made it difficult to
get at the AIDS problem. The 2007 case against four men in Lucknow
illustrate the danger of giving homophobes free rein to go after gay
people. The police in Lucknow concocted
a case against them because they had found their names on a gay website and
assumed, because of Section 377 they could get away with criminalizing
them. It wasn’t the first time that
“being” gay was taken as synonymous with “doing” gay. Section 377 is intended, obviously to have a deterrent effect, to instill fear so that gays and lesbians will remain in the closet. To quote
another Nobel laureate, Amartya Sen, speaking of Section 377, “It is surprising that
independent India has not yet been able to rescind the colonial era monstrosity.”
The Indian Penal Code, including Section
377, was established during the time of Lord Macaulay, a “classical liberal”, opponent of slavery and advocate for equality of all men and women before the law. Macaulay might be called an Enlightenment figure, actually, although motivating his good works was a belief in the superiority of his British civilization and the need to get the Indians to give up their traditions, including the use of Persian and Sanskrit, in favor of the English language, so that they might be more amenable to his instruction. And his values. He was a pious man and what went into the penal code no doubt expressed his moral views. Once established with British sensibilities,
Section 377 was “updated” in the 1930s, when crimes against nature were expanded
to include not only oral sex but intercrural sex (friction against the thighs)
as well.
Sexual intercourse got
defined for the first time as “the temporary visitation of one organism by a
member of the other organism, for certain clearly defined and limited objects.
The primary objective of the visiting organisation (sic - the source writer obviously meant 'organism') is to obtain euphoria by
means of a detent of the nerves consequent on the sexual crisis. But there is
no intercourse unless the visiting member is enveloped at least partially by the
visited organism, for intercourse connotes reciprocity. Looking at the question
in this way it would seem that [the] sin of Gomorrah is no less carnal
intercourse than the sin of Sodom.”
Just
in case you had any doubts about the Christian origins of the suspicions held by
the British and the Anglo-Indians running India in the 1930s. If you're schooled in the sin of Adam, you know very well that people, if left to their own devices, might do really naughty things in the privacy of their own bedrooms.
Laymen
– non legalists – will not be persuaded that this Supreme Court decision was based on a
technicality. The Human Rights Campaign – and they're hardly alone – sees this decision as “recriminalizing love.”
It’s
one thing for one branch of government to throw a decision into the hands of
another branch of government, but with the Indian parliament in the hands of
conservatives, this setback for LGBT rights may take years now to correct. And as an article in today's New York Times reports,
Indian judges have a long history of judicial activism. The argument that the decision was out of
their hands, in other words, appears to be a cop-out.
Some
days you win. Some days you lose.
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