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5 May 2005

drawing lines

What does it mean to "draw a line"? Judgment? Or discrimination? Douglas Sanders, a retired Canadian law professor, ponders the public/private dividing line, and Singapore's anti-flaunting campaign.

Singapore axed the Snowball Party last Boxing Day. Prime Minister Lee Hsien Loong said he had exercised judgment and drawn a line. Yes, I said to myself, they are always 'drawing lines.'

The earliest 'drawn line' in my memory was described by a criminal court judge in San Francisco in 1964 to an earnest group of gays and lesbians who were awed to have a live judge speak at one of their meetings. He said we should remember that it was not a crime to be a homosexual. We were not criminals - unless we actually had sex, that is.

I found the statement very odd. After all, being in the closet meant hiding your orientation not your activity - since polite people don't talk about their sexual activities anyway. Looking back on it, I wonder if the good judge knew that some countries did make it a crime to be a homosexual - countries like Iran. I doubt it.

The BIG LINE was drawn in the famous Wolfenden Report (1957) in the United Kingdom. Sir John Wolfenden argued that there was a sphere of "private morality" that was simply not the business of the law.

There were two propositions that emerged: sexual activity should take place in private (and be out of the reach of the law) and, by implication, we should be grateful for our blessings and keep our sexual orientation private. Privacy as protection. Privacy as imposition. The public/private dividing line was a bold bid for tolerance in 1957, but a line that haunts us to this day.

At the time the idea that the criminal law could not be based simply on ideas of 'morality' was startling. It led to a heated public debate in common law countries. H.L.A. Hart, a legal philosopher, supported Wolfenden. Lord Devlin, a judge, defended morality.

A whole generation of professors and law students in the West hashed and rehashed the Hart-Devlin debate. In my high school years in Canada in the late 1950s, debating clubs always asked their favourite questions: "Should we recognise Red China" and "Should homosexual acts be legalised?"

In 1981 the European Court of Human Rights bought the Wolfenden "privacy" argument in their groundbreaking decision in Dudgeon v United Kingdom, ruling against the sodomy laws in Northern Ireland.

The Reverend Ian Paisley was marching around with signs reading SAVE ULSTER FROM SODOMY. The Court in Strasbourg, bless them, came down on the side of sodomy.

But that was it. Privacy. Stay in your closets and stay in your bedrooms. The European Court rejected every new claim that did not involve an anti-sodomy criminal law.

A US homophobe tried to ensure that strict limits remained in place. He ranted that "militant gays have pushed their agenda beyond the right to privacy and it's time to draw the line." His organisation got enough signatures to force the good citizens of Oregon to vote on a state constitutional amendment to (a) prohibit anti-discrimination laws that would apply to gays and lesbians, and (b) require schools to teach that "homosexuality was abnormal, wrong and perverse." Voters defeated the amendment in November 1992.

So what about discrimination? What about getting sacked from your job? Wolfenden didn't deal with that issue. It could be seen as a 'privacy' issue, of a different sort. I should shut up about being gay. My boss should also shut up if he or she found out I was gay. We should all shut up, and I should keep my job. Being gay is irrelevant.

The nice politicians in the West keep saying that they oppose discrimination (not that they like homosexuals). Individuals should not be fired "just because they are gay." They often condemn "discrimination" without actually using the "H" word or the "G" word or the "L" word.

Increasingly anti-discrimination laws were amended in the West to include "sexual orientation," and later "gender identity" as well. The European Court of Human Rights only started to condemn job discrimination in the late 1990s when it ruled against the U.K. ban on gays in the military.

So 'privacy' got expanded from sex in a bedroom to keeping your job. Privacy became a larger, more comfortable closet. A new line had been drawn. It did not include "flaunting" one's homosexuality. United States President Clinton, in the debate on the US ban on gays in the military said the government must not appear to be promoting or endorsing a "gay life style."

By the end of the 1980s new claims were made that focused on same-sex relationships. If heterosexuals got successor rights to rent-controlled apartments on the death of their spouses, what about homosexuals? If straights could sponsor their partners to immigrate, what about queers?

These claims involved same-sex couples who had happily left the closet behind and were making public claims based on their relationships. No longer individual victims, they pro-actively sought the same rights that the law routinely accorded to heterosexual couples. Wags said that the love that dared not speak its name - now would not shut up.

One of the first big cases in Canada was about pension rights. An appeal court judge said that gay and lesbian equality rights were "premised on an unarticulated right to privacy" If the courts recognised same-sex relationships they would be intruding into "the bedrooms of the nation" in violation of privacy rights. So the pension claim had to be rejected. Heterosexuals had that piece of public paper. Homos only had sex.

The nice Scandinavians decided to do something about same-sex relationships. In 1989 Denmark enacted its registered partnership law, giving most of the rights of marriage to same-sex couples who registered. You weren't allowed a wedding in the state-sponsored Lutheran Church. You couldn't adopt children. And one of you had to be a citizen or legal resident of Denmark (to prevent Denmark becoming a gay tourist destination, apparently). But you got most of the package of rights that the state gave to married heterosexual couples.

Gradually a number of systems developed: registered partnerships, civil unions, reciprocal beneficiaries, pacts of civil solidarity. If you were registered in Denmark, that would be recognised in Sweden, Norway, Iceland and Finland (because they had the same laws), but probably nowhere else. Canada went for 'ascription.' If you have lived together for two years, hetero or homo, there are spousal rights - to support, to pensions, to health insurance.

Then the dreaded "M" word emerged. The Hawaiian Supreme Court said that barring same-sex couples from marriage was discrimination on the basis of sex and invited the state government to see if it could justify the discrimination. The Netherlands - loved by generations of gay travelers - extended real marriage to same-sex couples. Belgium followed. Then British Columbia, Ontario and Quebec. Then Massachusetts.

The US enacted the Defense of Marriage Act, to draw the line on what was right and proper. To buy off disaster, Hawaii amended its state constitution and extended most of the rights of marriage to same-sex couples, holding fast to the magic of the word "marriage," preserving it for heterosexuals only. George W. Bush called for a constitutional amendment.

Gradually "marriage light" and "separate and queer" became all the rage. A new line had emerged, embraced by a bunch of our enemies. Yes same-sex couples should get legal recognition and equal rights - because their claims to equality had to be bought off with something less than "marriage."

Stephen Harper, head of the Conservative Party in Canada, opposed same-sex marriage: "I hate to say this, but there comes a point when we have to draw a line." Why the part about "I hate to say this"? Did he recognise that he sounded like a scolding schoolmarm, lecturing some hyperactive children? He supported registered partnerships and opposed the big "M."

In the 2004 US presidential election, near the end, both Bush and John Kerry expressed support for registered partnerships at the state level. Why? To justify denying marriage rights. A new line had been drawn in the sand.

So is Canada going all the way? The real thing? The big "M"? As I write, the Canadian Parliament is debating legislation to extend same-sex marriage to the three jurisdictions where it is not already in place as a result of court orders, though an election on other issues may upset the apple cart.

In speech after speech, the Prime Minister and the Minister of Justice are saying that they are only extending "civil" marriage. To increase support for the change, they are saying over and over again that only part of "marriage" is being extended to same-sex couples.

Canadian governments have always recognised churches and clergy in their legal rules around marriage. Clergy act both as religious figures and government registrars. Now to sell same-sex marriage, Prime Minister Martin and his cabinet keep repeating that it is only "civil marriage" that is being extended to same-sex couples. This will create a separation of church and state in Canada - for many homos - but not, in practice, for any heteros. Some churches, like the mainstream United Church of Canada, will happily combine the religious and civil marriages for same-sex couples.

The government people say they can't order the churches around. I say get the churches out of civil marriage, so that the law is in fact treating people equally. Most activists in Canada would say that I am quibbling. You have to understand that aging activists are like that - never satisfied with yet another compromise.

So back to Singapore. Former PM and current Senior Minister Goh and PM Lee know that there are homosexuals in Singapore and talk about that fact. For that they each get one gold star.

Goh said in 2003 that in every society there are gay people. "We should accept those in our midst as fellow human beings, and as fellow Singaporeans." And Lee said in 2000, before becoming PM, that Singapore was nice - homosexuals are not "harassed or intimidated or squeezed." National politicians don't actually say this kind of thing in tolerant Thailand, where I now live, and certainly not in Malaysia.

Goh said they should have jobs - in government and in the private sector. Presumably Lee agrees. For this they both get a second gold star - even if what they are really saying is that gays and lesbians must support themselves - not be parasites looking to family or government for economic assistance.

But flaunty homosexuals are not welcomed. Goh said he did not "encourage or endorse a gay lifestyle." Lee said Singapore did not "encourage homosexual lifestyles to be publicly flaunted or legitimated or presented as being part of a mainstream way of life" Heterosexuality is embraced (with fervent hopes for more babies). Homosexuality is ok as long as it is not a lifestyle, not flaunted, easy to overlook.

How does the government ensure that there will be no flaunting? Keep the criminal law. Prohibit gay rights organisations. Keep homosexuals out of the public eye. No coverage in the newspapers. Ban the Taiwanese movie Formula 17 because it "conveys the message that homosexuality is normal." Ban Jason and DeMarco, the US gay Christian duo, because their image is wholesome. Reinforce the association of HIV with gays (while stopping Action for AIDS from handing out condoms at the Nation party). Ban public lectures on gay topics by academics, artists or activists, as was done in 2000 and 2004.

The great sin of the Nation.04 party was not that it was for homos only, but that it got such great coverage in the Far Eastern Economic Review, the Wall Street Journal, The Economist, the South China Morning Post, the Bangkok Post and various newswires. This was flaunting it - even if there was no coverage in the Straits Times or any other local paper. Outside papers loved the story that Singapore was finally loosening up, now had a lively gay scene.

Another thing for the government to do in the anti-flaunting campaign - issue dire warnings to gays and lesbians that if they act up, the government and society will react. Remember, Singapore is a "conservative society." (How many times have Lee and Goh and Lee number two said that? Is it less than 600 thousand times?)

Goh and Lee warn that if gays demand more space, there will be a reaction and they will wind up with less freedom. Less is more. That is what Singaporean gays are told.

I grew up in Canada. We all knew it was a conservative, Christian country. We woke up in the 1990s to realise that we all believed in human rights and were far more tolerant than our yankee neighbours. Being conservative, for us, proved not to be permanent, no self-fulfilling prophecy. So we pretty much stopped drawing lines.

Douglas Sanders is a retired Canadian law professor, living in Bangkok. He can be contacted at sanders_gwb@yahoo.ca.


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