Delhi Order: Equality, Sliced Thick
As many readers know, last week the High Court in Delhi, India, sided with an HIV/AIDS services organization in ruling that the state’s prohibition on consensual, “unnatural” sexual acts violated the Indian Constitution. Nan Hunter has a brief summary of the ruling in Naz Foundation v. Government of NCT of Delhi, which apparently applies throughout the country unless and until reversed by the Supreme Court.
The long decision is noteworthy for many reasons, most obviously because it adds India to the ever-growing list of nations that have taken important steps towards recognition of the basic equality of their LGBT citizens. I recommend reading the entire decision (it’s long!), which you can find linked to The Times of India (which also quotes some of the court’s soaring rhetoric about discrimination, equality, and dignity).
Here, I want to focus on just a couple of points. First, the two state ministries that weighed in on the law differed; the Ministry of Home Affairs supported the law, while the Ministry of Health and Family Welfare sided with those challenging the law. The conflict draws into sharp focus the question of whether “morals legislation” is valid when it’s contradicted by public health and welfare considerations. In sum, the court said “no.” Home Affairs conceded the privacy argument for throwing out the law, but thought that it should be overborne by considerations of “public safety and protection of health as well as morals….” But the evidence strongly supported the contrary view of Health and Family Welfare, to the point that public health considerations argued strongly in favor of removing the legal prohibition against consensual sexual acts.
As someone who writes and teaches about the connections between public health and law, I was surprised and heartened to see the court undertake a direct and compelling public health argument in favor of throwing out this artifactual statute. In a ten-page section of the opinion entitled “[The Law] as an Impediment to Public Health,” the court details the high social and epidemiological cost of the closet, which is powerfully reinforced by the criminalization of same-sex relations. As we know, criminalization of same-sex relations and the accompanying stigma (as well as the potential for blackmail, apparently still real in India) drive the epidemic underground, making it much more difficult to reach people with disease prevention messages and strategies.
To the Home Affairs counter that criminalization was the right response to the HIV epidemic, the court noted that this view ran counter to well-understood views of homosexuality and the effect of criminalization. Siding with international and national public health authorities (including Health and Family Welfare), the court stated the prevailing view that criminalization doesn’t stop the behavior, but simply drives it underground. Not a good place to be, from a public health perspective. In addition to leading to preventable cases of STDs, including HIV, criminalizing homosexuality has more subtle effects. It adversely “shapes an individual’s identity and self-esteem. These laws “serve to embed illegality within the identity of homosexuals.” They “reinforce public abhorrence of lesbians and gays resulting in an erosion of self-esteem and self-worth.”
The other point worth mentioning is that the court, like many courts addressing broad issues of human dignity and civil rights, looked not only to its own law but also to the laws of other nations, as well as to international declarations of rights. Lawrence v. Texas received prominence of place, with the New Delhi court quoting Justice Kennedy’s majority decision declaring that banning same-sex intimacy violated the couple’s fundamental liberty interest, as well as Justice O’Connor’s equality-based concurrence. But decisions from South Africa, Canada, Australia, and the European Court of Human Rights were also discussed, as were the Universal Declaration of Human Rights and the European Convention on Human Rights.
I can’t resist concluding this post by remembering Justice Scalia’s dissenting screed in Lawrence, relevant to both points. First, he liked that, pre-Lawrence, the prohibition on same-sex intimacy could be — and was — used to support the unequal treatment of gays and lesbians in other areas of law. A couple of the cases he cited favorably upheld: the use of a police department questionnaire asking potential applicants about past homosexual (but not heterosexual) activity; and expanded security clearance for gay and lesbian job applicants only. He left out the worst case of all, in which a job offer to a lesbian who was set to begin working in the Georgia State Attorney General’s office was withdrawn after the AG found out about her commitment ceremony; in the view of this later-to-be-determined adulterer, her status as a lesbian was enough to presume she’d engage in illegal conduct. Begin making room in the closet.
Scalia also reddened at the Lawrence majority’s invocation of — not reliance on — foreign (pronounced: “fer’n”) sources of law. He quoted favorably from an earlier opinion by Justice Thomas objecting to the Court’s imposing “foreign moods, fads, or fashions…” on Americans.
Dignity, equality, and application of sound public health findings: “Moods, fads, and fashions.”