Homosexuality and the Constitution

 Posted: June 12th, 2012

Simeon CR McIntosh
Former Dean & Prof of Jurisprudence
Faculty of Law, UWI, Cave Hill

It rather seems that there is no sinful act, outside of the classic crimes of murder, rape, etc, that so vexes the souls of the West Indian people than that of sexual relations among adult men. Certainly, it is not adulterous relations among adult men and women, which is so pervasive in our societies that if we were to criminalise that behaviour the overwhelming majority of us: our politicians, our judges, our clergy, and the rest of us common folk would be committed to the prisons; which we claim belong to her majesty. Of course, we would have to commit members of her majesty’s immediate family as well, since they, too, have sinned, and have fallen short of the glory of God.

But so we have it: we have criminalised sexual relations among some; and we adamantly refuse to have the legislation repealed, even when this may aid in the adoption of effective policies to combat the spread of the dreadful disease of HIV/Aids. What is especially sad about all this for me is that our politicians, judges, and lawyers, et al to grasp an essential truth: that the criminalisation of same-sex relations among consenting adults is private and in fact in violation of the fundamental principles articulated in our various constitutional texts. So when our Prime Minister, the Hon Freundel Stuart, proclaimed, in effect, that Barbados would not decriminalise homosexuality in contravention of those values that we hold most dear, at the directive of Great Britain and the United States, I intoned that I agree: we should rather do so in fidelity to those constitutional principles to which we have committed ourselves.

In similar vein, when, as Attorney General, the Hon Freundel Stuart proclaimed that Barbados may have to repeal the mandatory death penalty law and, possibly, amend Section 26 of the Constitution so as to bring Barbados in line with its international human rights obligations, again, I agreed; and I intoned that Barbados should indeed repeal its mandatory death penalty law, because that law is morally repugnant to the Constitution. And Section 26 of the Constitution should be amended because, as written, that particular provision allows for a rather supercilious reading of the Constitution by the Privy Council and our WI judges, which may result in ordinary legislation overriding the fundamental rights provisions of the Constitution(s). That was most evident in the Ophelia King case.

It bears noting that in the case of Barbados and those jurisdictions with a constitutional savings law clause, the law criminalising homosexuality is saved and is therefore said to be insulated from constitutional challenge. This, I am sure, would be one of the arguments advanced by lawyers and judges who are opposed to the decriminalisation of the practice. However, the stock arguments I have heard favouring continued criminalisation of the practice are that homosexuality is a horrible sin, an abomination in the face of God. Also, it is an unnatural act and is most disgusting; hardly the grounds for the State’s criminalisation of any form of behaviour.

But let us take the religious argument first. As I have stated on so many occasions before, for those of us who accept the teachings of our scriptural texts, homosexuality, like adultery, is a sin; and it shall remain a sin into eternity. However, in the constitutionalist State’s decision to criminalise any form of behaviour, the fact that that behaviour is sinful cannot be the sole moral predicate for criminalising it. For having regard to the fact that the criminal law regime in a democratic society is the most coercive area of the law, then the State has the political obligation to its citizens to advance compelling moral justification for criminalising certain practices. Murder and rape stand as paradigmatic examples of how the compelling moral justification for the criminalisation of such acts would at once explain why our society would be grossly unjust had we not legislated such crimes. And, as for the unnatural and disgusting nature of homosexuality, nothing more need be said, since that, in and of itself, establishes no moral ground for the criminalisation of the practice.

However, I would hasten to add that the fact that the religious argument must fail as the sole moral ground for the criminalisation of homosexuality—as I would explain shortly—does not mean that it is irrelevant. Quite to the contrary. For the Church, the Temple, and the Mosque, as some of the most important institutions in civil society, protected by the fundamental right of freedom of speech and of religion, claim a central place in the Public Square. Their teachings must school us to a more exacting temper of religious faith. They must be that agency by which we would preserve those values that we hold most dear; and by which we would allow the offices of our religious faiths to speak transcendent truth to wordly power. But theirs remains one voice among many in that communal discourse by which we hope to fashion a just social order. The Church, the Temple, and the Mosque must therefore continue to preach against the practice of homosexuality as long as they continue to believe that this is contrary to sound religious faith.     

A Fresh Start: The WI Polity
Let us try starting over again. It has long been my firm belief that on this vexing, emotional matter of the practice of homosexuality, we have always missed the central interpretive issue: whether, in a democratic society, such as ours, the State has the constitutional authority to criminalise same-sex relations among consenting adults in private. For us, the answer to the question must turn on a careful articulation of the nature of the West Indian (Independence) Constitution and of the polity that such a constitution informs. In this articulation, we must locate a compelling theory of criminalisation.

It is submitted that the West Indian Constitution stands in the tradition of written constitutionalism: an idea first forged in the American founding over the past two centuries; the idea of a polity constituted and regulated by a written fundamental law, structured on the principle of the separation of powers, and entrenching a set of fundamental rights and freedoms, enforceable by an independent judiciary for the protection of the citizenry against arbitrary and capricious government, and to ensure that the exercise of legitimate governmental powers always remains within morally obligatory limits. In a word, these fundamental rights and freedoms, as principles of political morality, impose moral constraints upon the State and its various institutions and offices as to the policies that may legitimately be adopted and how the citizenry may be treated as free and equal persons. Hence the common understanding that constitutional, democratic government is limited government. Indeed, it is these rights and freedoms that give to constitutional democracy its claim of moral distinction among other forms of political rule.

But most importantly, these rights and freedoms articulated in Western constitutional texts, including ours, are held equally by every citizen of the State. They are otherwise referred to in the philosophical literature as the basic human rights of the individual person, constitutive of the ideal of human dignity and of the equality of persons. Therefore, any limitations placed by the State on the exercise of these rights and freedoms must themselves be morally justified. Again, this is what distinguishes constitutional democracy from all other forms of political rule, in that the very conception of democracy that is entailed is one which places moral boundaries on the majoritarian principle of democratic governance.
That is to say, while we readily recognise the majoritarian principle as one of the defining principles of constitutional, democratic rule, we are yet mindful of the fact that, for this form of governance to have great normative value and any claim to moral distinction, there are certain issues of principle which cannot simply be determined on the grounds of whatever happens to be the desire or the preference of the overwhelming majority of persons in the society. For if that were the case, then minorities in a society would forever be at the mercy of the majority. They would hold their fundamental rights and freedoms at the sufferance of the majority.
Democracy and Criminalisation
As I have intimated at the very beginning of this piece, we need a theory of criminalisation consequent on a more sophisticated understanding of constitutional, democratic governance. I rather suspect that we have eschewed any serious philosophic reflection on this question of criminalisation because the regime of classic crimes we have inherited from colonial days seems pretty self-evident to us. Moreover, we have for nigh two hundred years been under the tutelage of the judges of her majesty’s judicial committee, whose judicial opinions hardly impress me as being informed by any deep philosophic understanding of the law; something to be expected of all judges, in particular, those of the highest court. Hence our need for a fresh start. For if we are to make some sense of this deeply, troubling emotional issue surrounding the criminalisation of same-sex relations among consenting adults in private, then we need to start with a general theory of criminalisation.

To repeat, in our written constitutional texts, we have committed ourselves to live according to certain constitutional principles, properly understood. These constitutional principles, which include certain principles of political morality, at once empower the State to act affirmatively and, at the same time, establish the morally obligatory boundaries within which the central competences of the State—the legislature, the executive, and the judiciary—may exercise their legitimate governmental powers. Among these powers is that awesome power of the legislature to make laws for the governance of the society. But this power is always subject to the constitutional constraints articulated in the Fundamental Law. Thus, the power to make law, which entails the power to determine what forms of behaviour should be criminalised, requires that the State offer compelling justification for such legislation. Justification is of course required for all legislation; however, for the criminal law, having regard to the punishments that may be exacted for the commission of a crime, the justification advanced in favour of such legislation must be morally compelling.

What is of the utmost importance here is that although ordinary legislative enactments are based on policy considerations, the criminal law is especially demanding that any such legislation comports with the very principles of political morality to which the people of a democratic society have committed themselves. On this view, it can never be the case, without more, that a particular piece of legislation is eminently required because the overwhelming majority of citizens demand it. Rather, where there is such strong support for a piece of legislation, it must be the case that such support coincides with the very constitutional principles that would justify the legislation as being eminently just.

Put differently, this is the requirement of the most critical constitutional principle of due process of law: that the State does not criminalise any form of behaviour and impose severe forms of punishment for the commission of crimes without compelling justification for doing so. So, notwithstanding that much of our criminal law would have preceded the enactment of our Independence Constitutions, these texts nonetheless establish the conceptual contexts whereby we make sense of our criminal law regime in the West Indies. Murder and rape are morally justified as crimes because they constitute a gross violation of some of the most basic human rights of the individual: the right to life and to bodily integrity, among others. Similarly, the severe forms of punishment imposed for these crimes are morally justified because they comport with the degree of moral culpability entailed in the commission of these crimes, and are therefore required to vindicate the moral worth of the victims and to reaffirm the sovereignty of the State and our collective commitment to live according to certain principles of political morality, properly understood.
The Savings Clause
But the WI Constitutional Text suffers a peculiar anomaly. There is that savings law clause which, as written and understood, insulates laws which were in existence at the time of independence from constitutional challenge. Indeed, there are those clauses that speak specifically to the criminal law and to forms of punishment in existence at the time of independence. For example, the mandatory death penalty law (and associated penalties) is one that has most exercised the judicial mind for the past several years. The Barbados Clause (Section 26 of the Constitution) seems to cover all existing laws, so I will use it as an example.

First, I wish to state that, from a certain standpoint, a savings law clause, such as Section 26, does the obvious: it states in essence that all existing laws which are not expressly abrogated by the Independence Constitution are hereby saved. To the legal philosopher, this very simple claim is of extraordinary importance because of the conceptual transformation which inevitably ensues with political independence. For us, it is the inevitable rupture and discontinuity of British sovereignty over our territories and the fundamental conceptual transformation of our Constitutional Texts, which are now formally articulated in the language of human rights, common to all republican constitutions of Western democracies, which would now include the formally (unwritten) constitution of Britain itself. This principle of ‘discontinuity of law’ requires that we understand a savings law clause as giving formal expression to the idea that all laws existing at independence as being conceptually re-enacted by the Independence Constitution, and must therefore be interpreted in accordance with that Constitution. For, as the teachings of the late Prof Hans Kelsen and of the late Prof HLA Hart have made it so painfully obvious: all laws now derive their validity from the Independence Constitution.

But, sadly, our judges, those of the Privy Council and WI judges, miss this critical point about the discontinuity of law, and instead assume an unbroken continuity between the colonial constitution by which we were governed and the Independence Constitution. Thus, in the famous Ophelia Kingcase against the Attorney General of Barbados, all our judges were preoccupied with questions about the Crown’s relationship with its servants, and the powers that the Crown—a Crown which has yet to be explained—has retained under the Barbados Constitution. In the end, at the Privy Council, the case came to rest on the rather idiotic premise that the crown retained the power, as per a 1948 statute, to vary the emoluments of its servants at will.

In consequence, the most important philosophical question for constitutional interpretation was never frontally addressed: How was the Barbadian polity reconstituted and transformed by a written Constitution which expressly entrenched a set of basic human rights of the citizen? I submit that if this question had been diligently pursued, not only would we have been tutored in a more sophisticated reading of our (WI) constitutional law, but we would also have been led to a deeper philosophic problem at the heart of the case: the problem of distributive justice; a problem of the equitable distribution of benefits and burdens among members of the society. At this level, we would have seen how central the constitutional principle of due process would have been to a just resolution of Mrs Ophelia King’s case. I rather suspect that then Prime Minister Arthur had gleaned this in a statement he had made some years later, pledging the restoration of the salaries of civil servants.

But the reader may think that I have digressed too far afield. But I have not really; the two cases are inextricably linked in the hermeneutic reading that I am advancing for the WI Constitution. Moreover, for Barbados and those countries that still retain a savings law clause in their Constitutions, the reading of these Texts may be skewed in deference to the clause. That is because the complete language of the clause states that an existing law, such as that criminalising same-sex relations among consenting adults, shall not be found to be inconsistent with the fundamental rights provisions of the Constitution.
So we have now come full circle to the central question as to how the West Indian Constitution ought to be read in respect of a challenge to the constitutionality of the law criminalising same-sex relations among consenting adults in private. The reader would note that I have not used words like “gay rights” or “homosexual rights,” simply because such terms have invariably led to the wrong questions being asked. For the issue is not whether the State should recognise “gay rights,” given that those persons who practise homosexuality do not have any rights separate and apart from the rights that the rest of us have. The fundamental rights and freedoms articulated in our constitutional texts are held by all citizens equally. In a word, they are the rights of equal citizenship.

It therefore bears repeating, over and over again, that these rights and freedoms constrain the constitutionalist State as to the forms of behaviour it may or may not criminalise, and the degree of punishment it may justly inflict upon the citizen for the commission of a crime. Above all else, the West Indian Constitutionis an instrument of justice, and it must be interpreted to yield the integrity and coherence of its meaning as an instrument of such constitutive purpose. Thus, if the constitutionalist State is morally enjoined to treat its citizens as equals, then whenever the State affects to treat some citizens differently with respect to any benefit or burden, it must advance compelling justification for doing so. This is absolutely the only way in which the State can discharge its moral obligation to treat its citizens with equal concern and respect.

On the view of the foregoing, then, the appropriate question before us is whether the constitutionalist State has the authority to criminalise homosexual intimacy among consenting adults in private. What compelling justification, in other words, can the State advance for such action, which, in the case of Barbados, may result in a criminal defendant being imprisoned for life?  Does the State have the constitutional authority to criminalise heterosexual intimacy among consenting adults in private, whether or not that behaviour is adulterous?
We have noted earlier in this piece that the stock reasons advanced for the criminalisation of homosexuality are that it is a sin and an abomination in the face of God; and, also, that it is an unnatural and a disgusting practice. The more dominant reason is that homosexuality is sinful.

In all my pronouncements on this subject, I have never questioned the sinfulness of homosexuality; or of adultery, for that matter. It would be silly for one to do so, since that is the teaching of virtually all scriptural texts. Thus, for the many people who learn their morals from their religious texts, homosexuality remains a sin forever. So would murder and rape.
But the question remains whether our religious beliefs can be the sole predicate for the criminalisation of any form of behaviour. In other words, can the constitutionalist State claim justification for criminalizing homosexuality on the sole premise that it is against God’s law?
The answer to the question is no, for the simple reason that the right to religious liberty, which the Constitution protects, is held by all citizens equally; believers and non-believers alike. That is to say, some citizens’ choice not to believe the Bible, for example, is not something the law can regulate. Then there are those, as acts of conscience, who do not believe in any deity. This, too, is embraced by the right to freedom of conscience and religion.

So the State, in order to respect the principle of equal citizenship, must advance reasons that all citizens can in principle accept, irrespective of religious beliefs. In other words, if heterosexual relations among consenting adults in private are defended on grounds of privacy and of one’s moral right to make such critical choices as to when and with whom to be intimate, then the State must advance compelling reasons as to why homosexual relations among consenting adults in private could not be defended on the very grounds of privacy and of one’s moral right to make critical choices as to when and with whom to be intimate.
This is where the case against the decriminalisation of homosexuality fails. The State simply does not have any satisfactory argument in its favour. And the State is barred from using the argument that the overwhelming majority of West Indian people are against decriminalising homosexuality. For, if it is the case that, as citizens, we hold our fundamental rights as equals, then, as we have shown earlier, the State cannot use the desire, or the overwhelming preference, of the majority in the society, no matter how strong and enduring that desire or preference may be, as the basis for denying to one group of citizens the equal protection of their fundamental rights and freedoms.

Finally, we come to the savings law clause. This provision creates a contradiction within the West Indian Constitution, which can be interpreted to allow ordinary law to trump the fundamental rights provisions of the Constitution. This has led to rather unjust decisions, particularly in death penalty cases. However, the question remains, whether in the face of the reluctance of West Indian Governments to repeal the offending laws and remove the savings law clause from their Constitutions, the Courts (including the CCJ) are nonetheless empowered to act in fidelity to the Constitutions. The answer is a resounding, “Yes”; and for the following reasons.

The principal judicial office of our Courts is to enforce our democratic Constitutions. All our judges have taken an oath of fidelity to our Constitutions. This is in the very nature of the judicial office. But the West Indian Constitution, have noted, imposes certain moral injunctions upon all officers of the State to respect the fundamental rights and freedoms of the citizenry. Therefore, our judges have a moral obligation to interpret our Constitutions in a manner that would make them the best instruments of justice that they can possibly be. And this obligation holds in the face of a savings law clause in the Constitution.
So, in closing, I re-echo my agreement with Prime Minister Stuart, that he should not repeal the law criminalising homosexuality on the directive of the British or US government. Rather, he should repeal the law because it is the just thing to do. Failing this, we await a challenge to the constitutionality of that law in the courts across the region.

Source: http://www.guardian.co.tt/lifestyle/sunday-january-1-2012/homosexuality-and-consitution


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