Wednesday, December 11, 2013

Still Slogging

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. 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.

photo source:,6

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