Section 377A: Why So Many Arguments Fail (And Only the Democratic One Holds)

Section 377A, Penal Code (Cap. 224). Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

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By the First Schedule of the Criminal Procedure Code (Cap. 68), an offence under Section 377A of the Penal Code (Cap. 224) is ordinarily arrestable without a warrant.

Introduction

2018 has been a year of much public debate regarding Section 377A, sparked by the Penal Code Review as well as the comments of many public intellectuals including Professor Tommy Koh, Professor Walter Woon and Mr Ho Kwon Ping.

For convenience, I shall call the people who want to retain 377A the "Retainers", and the people who want to repeal 377A the "Repealers".

The objective of this article is to expose weaknesses in the arguments of the Retainers, especially those who think their arguments are strong enough to defeat the Repealers, or that their claims are absolutely watertight and self-evidently true. I have seen many cocksure Retainers making such arguments online, and I am compelled to respond.

I argue that on the Retainers' side, only the democratic argument holds. That is, the most cogent argument (and thus the most convincing one) for the retention of 377A is this: the majority wants it. I will support this conclusion by critiquing the arguments presented by the Retainers, demonstrating why they are weaker than they seem, and showing that the democratic argument has the least problems.

The arguments for the retention of 377A can be classified as follows:

1. Theology
2. Appeals to Nature and Normality
3. Appeals to the Reverence of Tradition and the East–West Divide
4. Appeals to Family and Reproduction
5. Appeals to the Self-Justificatory Authority of the Law
6. Inactive Enforcement, Legal Inefficacy and Unaffected Rights
7. Slippery Slopes
8. Instrumentalism
9. Democracy

Act, Property, Experience

Prima facie, the property of feeling same-sex sexual attraction and the act of having gay sex are distinct and separate. I shall call the former the "Gay Property" and the latter the "Gay Act". In real life, they are two sides of the same coin. I hereby assert axiomatically that the Gay Act and the Gay Property are both essential parts of the "Gay Experience" — the totality of living life gay.

Can monastics be considered straight if they adhere to complete lifelong abstinence? It is reasonable to believe that these monastics are more asxeual than straight. If all religious organisations, establishments and practices such as prayer, congregation and rituals are outlawed, can law-abiding people who believe in God but do not participate in these religious activities still be considered religious? Not really, because these practices are essential to the "Religious Experience". Similarly for heterosexual people, the "Straight Property" and the "Straight Act" are both essential parts of the "Straight Experience".

I have seen arguments claiming that 377A criminalises the Gay Act, not the Gay Property. Because of the connection among the Gay Act, the Gay Property and the Gay Experience, it follows that criminalising either the Gay Act or the Gay Property necessarily implies the criminalisation of the Gay Experience.

Let's get started with the critique.

Critique of Retainers' Arguments

Theology

"God made Adam and Eve, not Adam and Steve."

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"Punish the sin, not the sinner."

Obviously, it is assumed that God exists, and not any God for that matter; an omniscient, omnipotent, omnibenevolent, intelligent and infinite God. I will not delve into the metaphysical arguments for and against God's existence, and shall assume that such a God does exist.

Based on this logic, there exist people that are not willed by God to be who they are. In fact one can generalise from here: there exist people, objects, properties and phenomena inter alia that God does not will. This undermines God's supposed omnipotence and intelligence, because if God were so great, then He would have designed a perfect world. But of course the world is not perfect, and many things that God does not want exist. Therefore, as God is indisputably perfect, the Retainers must either hold that [1] to humans, the world is imperfect, but to God, it is actually perfect in some meta-universal sense incomprehensible to lowly mortals, or that [2] God wants the world to be perfect, but these foolish sinners (gay men) exist in active rebellion against God.

If the Retainers hold [1], then there is no need for 377A because everything goes according to God's grand plan, even the existence of sin and evil. But this cannot be the case because if everything is going smoothly at a meta-universal level, there will be no need for any criminal law. Unless, on the whole, everything is perfect at a meta-universal level, just that God has created evil for humanity to fight it. God thus places the moral responsibility to intervene in instances of evil on humanity, which can be considered the same as [2]. I believe the Retainers are more inclined towards [2], as "all have sinned and fall short of the glory of God" (Romans 3:23), and "whoever conceals their sins does not prosper, but the one who confesses and renounces them finds mercy" (Proverbs 28:13). Moral responsibility depends on free will. Therefore, it must be the case that gay men actively rebel against God causing the world to become imperfect, and that it is the moral responsibility of heterosexual people to intervene and straighten them up.

I believe that it is due to this reason that many Retainers making theological arguments insist that being gay is a choice made by the gay person — not a phenomenon of nature — and thus choosing to be gay is an act of defiance against God. A milder but nevertheless similar claim is that people can be born gay, but it is precisely because of this that gay people should try to rid themselves of their gayness through prayer, sustained practice of heterosexual/cisgender habits, or even conversion therapy. However, if this is so, then the Retainers must concede that any other act against God's will ought to be punished by the law. This includes all sins. If the Retainers do not believe that the laws of Singapore should criminalise all sins, then the burden is on them to show why the sin of choosing to be gay is much more serious than other (legal) sins, such as to warrant criminalisation.

In order to determine which sins are worse than others, we need a ranking of sins based on their severity. If there is no religious ranking of sins based on their severity, then this ranking must come from the Retainers' personal moral beliefs, which are unfounded from a theological point of view. If there is a religious ranking of sins based on their severity, then the Retainers must prove why their theological doctrines should be imposed on a multireligious, secular society. This must be based on a "why your God is better than mine" consideration. There is no purely theological process to evaluate which religion is best (and thus which theological doctrine is best) because if you are religious, of course your own religion is the best. (By the way, the Buddhist Fellowship President supports Repeal.) The only way to do so is to look at potential outcomes or fall back on claims about nature, normality and tradition — secular considerations. Either way, theological arguments fail. Later, I will address why arguments appealing to nature, normality and tradition fail too.

It is important to note that the Government makes decisions based on the opinions of the people, not the reasons for the opinions of the people. The Government consults religious leaders not to listen to their sermons but to hear what devotees think. The Government will listen to the Retainers' support for 377A, but will not adopt the theological reasoning behind such a belief. Murder is illegal not because the Government believes in God, but because another person's right to live has been forcefully removed against that person's will. This is the result of Singapore being a secular society. Therefore, any theological argument is irrelevant to legislation.

Appeals to Nature and Normality

"Being gay is unnatural, thus it is wrong and should be criminalised."

Counterexample: "Flying on an airplane is unnatural, thus it is wrong and should be criminalised."

Therefore, that something is unnatural does not necessarily imply that it is wrong. Furthermore, that something is wrong does not necessarily imply that it should be criminalised (e.g. saying vulgarities). Regardless of whether being gay is natural or unnatural, the Retainers' argument fails.

But what does "unnatural" mean? Can being gay be "natural" in the sense that people can be born having gay inclinations? Even if being gay is a choice, it is an action done by a human. Does nature include or exclude human beings? If nature includes humans, then any choice by a human being is immediately "natural". Thus the Retainers must hold that nature excludes humans for some reason. Common sense tells us that humans are different from wild animals because of our better intellect. I can think of no other reason why humans can be considered not part of nature, and thus I shall assume that the Retainers believe so too. However, if nature excludes humans, then all human behaviours, conscious or unconscious, are by default "unnatural", and we must compare human behaviours with behaviours of wild animals in order to determine which human behaviours are "natural". We must thus define: if a human behaviour is similar to the behaviour of a wild animal, then it is "natural", otherwise it is "unnatural".

But this stance is challenged by the existence of a few same-sex animal couples in the wild. Perhaps the Retainers would like to revise their definition of what it means for a human behaviour to be "natural": if a human behaviour is similar to the behaviour of most wild animals, then it is "natural", otherwise it is "unnatural". This works, but it reveals that the conception of "nature" is contingent, as it is unclear why the Retainers' particular conception of "nature" is necessary (must be the case), compared to the others which I have mentioned. It is also puzzling why the Retainers believe humans are one level above wild animals, yet still compare human behaviours with those of wild animals in order to establish moral legitimacy. Even if there are a few elementary physical and biological restraints on human behaviour, multiple different ethical systems can be built upon them. As shown in my counterexample, treating the natural world as a source of moral authority is problematic, for there is no necessary connection between the natural world and human ethics.

I have seen many Retainers appeal to nature as a source of moral authority because of their belief in intelligent design — the essentialist assumption that humankind is created with a divine purpose. Hence, this is a theological argument masquerading as a secular one about nature, and I have shown why both theology and appeals to nature are problematic in the context of 377A.

Another common argument made by the Retainers that has the same line of reasoning is the appeal to normality.

"Being gay is abnormal, thus it is wrong and should be criminalised."

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"Repealing 377A would normalise homosexual acts, so 377A should be retained."

If we are critical, we can question the assumption that homosexual acts are abnormal in the first place, as the tautology — norms are normative and thus moral — reduces the argument to a simple moral assertion: "being gay is wrong and should be criminalised" which can be further questioned. However, I will not proceed with this interpretation of "normal" as I will show that other interpretations of "normal" are problematic too.

Inspecting this line of reasoning more charitably again reveals a more fatal implicit assumption: a biconditional between normality and morality. I believe that the Retainers hold this biconditional because in many of their arguments, they imply the inverse: "normal ⇒ right".

But this is problematic too. Common sense tells us that being "normal" implies being "usual" or "common", so the Retainers can mean two things by "normal": [1] something is "normal" if it has been practised for ages, or [2] something is "normal" if it is practised by the majority. Either way, normality does not provide a stable foundation for morality. To claim that something is moral because it has been done for a long time, or that something is moral if most people do it, would be to concede that morality is contingent and arbitrary, undermining the moral authority of the Retainers' position itself.

Furthermore, if unnatural or abnormal people should be criminalised, then all people with disabilities should go to jail! By reductio ad absurdum, I reject such appeals to normality.

Just because something is the case doesn't mean that it should be the case. This is the is–ought fallacy; it is illogical to assert that "x is y" necessarily implies "x ought to be y". The only way to make this kind of reasoning is by already presupposing some moral standard. For example, the presupposition behind the choice of defining "natural" as "similar to the behaviour of most wild animals" is that "most" is good. But why is "most" good? Why can't I go into the nature reserve and observe the behaviour of a few animals which exhibit homosexual behaviour and call that "natural"? Indeed, one must already have in mind other theories assumed to be true in order to rule out the "anomalies" and focus on the evidence that one prefers: the Duhem–Quine thesis and theory-laden observation in action.

In fact (or should I say, in value?) the Retainers already know this! They keep on saying "just because people are gay doesn't mean that they should be gay" and yet they argue that "just because heterosexuality is the default, therefore it should be the default". Never mind the disputable truth-value of the antecedent (that there is a "default" which is heterosexuality in the first place), this line of reasoning is in itself fallacious.

Arguments that appeal to nature and normality all commit this fallacy. Therefore, by unexpectedly making a mockery of morality while trying to establish it on some "firm" naturalistic basis, these arguments are self-defeating.

Appeals to the Reverence of Tradition and the East–West Divide

"The acceptance of homosexuality is a Western concept and is thus inappropriate in Singapore."

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"Repealing 377A goes against traditional Asian conservative values, so 377A should be retained."

It is fallacious to assert that just because something is Western, it is necessarily inappropriate in non-Western contexts. Tuxedos are Western; but is it inappropriate for Singaporeans to wear them? It is clear that arguments of this sort merely avoid addressing the issue properly, resorting to cheap "East"/"West" labels to determine if something is appropriate or not.

Arguments that appeal to the reverence of tradition and the East–West divide all assume that traditional Asian values must always be upheld because they are good. I believe this is because the Retainers who adopt this view recognise that one cannot claim that something is moral just because it has been done for a long time, so they try to find a "firmer" foundation for normality by invoking tradition.

(Anyway, is there even a set of conservative values common to all Asian people in the first place?)

A tradition is good either because [1] it is inherently good, or because [2] its continued practice produces good results. At any rate, since traditional values are so good, the Retainers who adopt this argument must prove that abiding by traditional values produces no bad outcomes, as well as why the process of questioning and revising traditional values produces no added goodness.

I am not saying that we should overturn all traditions. Not all traditions are bad, but not all traditions are good either. Therefore, it is fallacious to claim that just because something is traditional, it must be good.

It is dogmatic to follow a doctrine for it's own sake without analysing why it should be followed in the first place. Believing that one's own doctrine is perfect and that everyone should follow it is an act of uncritical, sanctimonious moral chauvinism. Arguments that appeal to tradition and the East–West divide are not constructive to solving the issue at hand: whether 377A should be retained or repealed.

Appeals to Family and Reproduction

"By repealing 377A, society will have to change the definition of the family."

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"Repealing 377A will cause my kids to think that being gay is okay, which is wrong."

Just like the arguments that appeal to the reverence of tradition and the East–West divide, arguments that appeal to the public notion of the family are "signal" arguments. I will not critique the role of tradition in this type of argument, but instead focus my criticism on these arguments themselves.

The logic is that by retaining 377A, the law is seen to reject homosexuality, which perpetuates the traditional notion of the family and thus maintains the integrity of the family — considered to be the basic unit of society. Therefore, the Retainers assert the negation of this statement: if 377A is repealed, the law is seen to condone homosexuality, which stops perpetuating the traditional notion of the family, and thus results in the destruction of the family.

This argument is problematic, because many other traditionally objectionable practices, such as prostitution and lesbian sex, are legal. By the Retainers' logic, the current legality of lesbian sex sends a signal that lesbianism is okay, which will also undermine the integrity of the family. If this was the case, then the family unit would have long ceased to exist. The fact that the majority of people are heterosexual suggests that the traditional family will not go away anytime soon.

But if at any point in time, the majority of the population is heterosexual, why are Retainers so worried that traditional families will disappear? I believe that this is because the Retainers see homosexuality as a "lifestyle choice" subject to peer pressure or social influence, instead of being inborn. Hence the Retainers worry that any "legitimisation" or "normalisation" of the homosexual "lifestyle" will influence straight people to turn gay. However, this still rests on a metaphysical assumption that some higher being created humankind with the grand purpose of posterity, so human beings are heterosexual "by default", thus it is wrong to be homosexual. But as I have shown earlier in my critique of appeals to nature and normality, establishing right and wrong on the basis of "by default", "natural" or "normal" is seriously problematic.

Another assumption in these arguments is that effective parenting requires appealing to the law to reinforce the authority and legitimacy of parents' moral claims. It is pretty pathetic that one has to tell one's children: "Doing this is wrong. See? Even the law says so." in order to effectively convey why that action is wrong.

The Government defines the family as a heterosexual married couple, preferably with children. If the Government's only basis of defining family is utility, then unless one holds utility to be inherently good and the foremost good, one cannot treat the Government's definition of family as morally authoritative. In my critique of Instrumentalism later, I will argue that even if only utility is pursued in legislation, the criminalisation of gay sex is unwarranted.

I believe that the Retainers want to appeal to a source of moral authority that is of a higher order than mere utility. In this case, to invoke the law or the Government for the purposes of moral education is circular: "Why is this definition of the family right? Because the law/Government says so. Why does the law/Government define the family this way? Because it is right."

This circularity reveals that it is assumed that there is a unique and necessary — self-evidently, indisputably, unquestionably true — conception of the family. This is most probably naturalist, based on the foundational belief that reproduction and the continuation of humankind is a good thing. Thus any family structure that is naturally able to bear offspring must be the correct one, and there is only one such family structure — the heterosexual married couple. Based on this foundational belief, some Retainers may hold that as long as one has the ability to, one should bear and raise children. I will not delve into the ethical and metaphysical arguments for and against this proposition, but I will show that this argument is also problematic, for a similar reason.

If gay sex should be criminalised because the act of gay sex does not conform to the traditional notion of the family, which is in turned based on the foundational belief that as long as one has the ability to, one should bear and raise children, then it must be the case that all other similar "acts against the family" should be criminalised. This means fertile single individuals, single mothers and lesbians should all go to jail. I do not think the Retainers advocate this position. Therefore, it is inconsistent to hold that 377A — now shown to be specifically discriminatory against gay men — should be retained.

Appeals to the Self-Justificatory Authority of the Law

"Defying the law is wrong, and gay men defy 377A, so 377A should be retained."

This is the most hideous argument, and is thankfully made by the minority of Retainers. I can think of only two assumptions that will lead to this conclusion: [1] the law is perfect, or [2] the status quo is always right. [1] is downright false and will never be the case, and [2] succumbs to the problems of appealing to normality and tradition, as shown earlier.

If the Retainers hold that one chooses to be gay and disobeys 377A, and any criminal act is morally reprehensible, and any morally reprehensible act ought to be criminalised, therefore 377A should be retained, then the Retainers are making a circular argument which does not independently establish why the existence of 377A has inherent merit. It is obvious that current laws should be followed, so pointing that out is meaningless. The question here is whether the law ought to be changed, and for this purpose, a circular argument that uses the law to justify itself cannot be accepted.

Inactive Enforcement, Legal Inefficacy and Unaffected Rights

"377A is not actively enforced, so it does not actually affect gay men."

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"Gay men can do whatever they want in private, what more do they want?"

Some Retainers claim that 377A is not actively enforced and thus ineffective, so gay men will not get prosecuted anyway. These Retainers maintain that the rights of gay men remain the same with or without 377A. This is a ridiculous assertion. The problem is that no matter how improbable it may be, it is not impossible that gay men get prosecuted, if the Attorney-General decides to do so. Therefore I reject the Retainers' reasoning that inactive enforcement implies inefficacy and thus unaffected rights. No law is ineffective. If it is a law, it can be enforced. The only way to completely guarantee the impossibility of enforcement is to repeal the law altogether.

Slippery Slopes

"377A repealed ⇒ equal age of consent ⇒ anti-discrimination laws ⇒ marriage and child adoption rights for same-sex couples ⇒ ..."

Slippery slope arguments take the following inductive form. For statements p, c₁, c₂, c₃, ... , c_n where n is a positive integer,

p ⇒ c₁  ⇒ c₂  ⇒ c₃  ⇒ ... ⇒ c_n

At least c_n is unacceptable.
Therefore, p is unacceptable.

I have several objections to the slippery slope arguments made by the Retainers, which I will elaborate below. Combining all my objections to the various kinds of slippery slope arguments made by the Retainers, I aim to show that all these slippery slope arguments are weak.

First Objection to the Slippery Slope from Axiological Incommensurability

All slippery slope arguments are necessarily value-laden due to the involvement of acceptability. With regard to this, an important distinction must be made. We must divorce the acceptability of the means to an end from the acceptability of the end itself. The Retainers can hold that equal marriage and child adoption rights for same-sex couples are inherently acceptable, just that the process from the repeal of 377A to the establishment of equal marriage and adoption rights is necessarily violent with activists and lobbyists getting more aggressive until they achieve their end goal. Thus the destination is acceptable, but the violence along the way towards that destination is unacceptable. But is violence really inevitable? There are many peaceful means that achieve the same end.

The adamance with which the Retainers hold on to their views suggests there must be a more fundamental disagreement between the Retainers and the Repealers regarding the inherent acceptability of the end, not just the means to the end. The general problem of slippery slope arguments made by the Retainers is the inability to justify why repealing 377A will most likely lead to objectively unacceptable results, for example, equal marriage and adoption rights. Why should the anyone listen to the Retainers if these results are only unacceptable to the Retainers? I believe that this is because acceptability is grounded in morality. "Acceptable" means "moral", and likewise, "unacceptable" means "immoral". Hence, the moral authority of the Retainers must be questioned. Unless the Retainers prove that their view of what's acceptable (moral) and what's unacceptable (immoral) is objectively the gold standard, they have no moral authority over anyone else. Some Retainers try to do this, but face my Second Objection. If the basis of the Retainers' moral beliefs is theological, naturalist or jurisprudential, then as I have shown earlier, the Retainers's moral arguments fail as far as legislation is concerned.

Second Objection to the Slippery Slope from Inductive Weakness

Some Retainers try to achieve objectivity by extending the slippery slope argument all the way and arguing that repealing 377A will cause the future legalisation of bestiality and statutory rape — acts that are safely assumed to be universally immoral. This is an argument about unacceptable ends. However, the strength of the entire slippery slope argument depends on how strongly p implies c₁, and how strongly c₁ implies c₂, all the way to how strongly c_n−1 implies c_n. If the inference is too far-fetched, then we have good reason to reject the whole slippery slope argument.

And indeed this is too far-fetched. I think these Retainers are unaware that the single most significant and immovable obstacle preventing the legalisation of bestiality and statutory rape is consent. Consent consists of two parts: [1] the ability to freely say "yes" or "no" to an act without fear or misconception, and [2] the ability and maturity to understand the nature and consequence of the act while doing so. For animals, both [1] and [2] are not satisfied. For minors, [2] is not satisfied. If you think about it, bestiality and statutory rape would neither be morally reprehensible nor illegal if animals and minors were like adult humans who fulfil both [1] and [2]; but that will never happen. Another way to think about it this is through a thought experiment: if a 40-year-old woman does some magical procedure (plastic surgery, witchcraft, or otherwise) to look 25 years younger (15 years old), does this make any sexual activity with her immoral? No; because she still has the cognitive maturity of a 40-year-old who can consider the consequences of any sexual activity and freely say "yes" or "no". I conclude from this that it is not the appearance of minors that makes sexual activity with them morally objectionable, but the lack of consent.

Therefore, nothing will cause bestiality and statutory rape to be decriminalised unless the definition of "consent" changes — not what the Repealers want either. Is the goal of the Retainers then to preserve their conception of morality and law for as long as they can? Well, good luck. I bet the morals and laws of the world will have changed in 1000 years' time.

Therefore, such an extreme slippery slope argument made by the Retainers is weak induction.

Third Objection to the Slippery Slope from Pre-Existing Restrictions on Religious Freedom

Some Retainers look at the United States of America and cite examples such as Arlene’s Flowers Inc. v Washington and Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission inter alia to show that repealing 377A will cause anti-discrimination laws to be enacted, which will oppress religious freedom, if by "religious freedom" one means "freedom to follow my religion by disapproving of homosexuality and refusing service to gay people".

It is obvious that no absolute religious freedom is permissible anywhere on Earth. Islamic fundamentalists conduct terrorist acts based on their interpretations of the Holy Quran. Are they not exercising their religious freedom? The curtailing of absolute religious freedom is not new. The law gives provisions for the Government to ban certain preachers from coming to Singapore to give sermons, and also prevents Christians from "put[ting] to death" "[a]nyone who has sexual relations with an animal" and "[destroy]" "[w]hoever sacrifices to any god other than the Lord" (Exodus 22:19–20).

Therefore, the issue now becomes: which religious freedoms to allow and disallow. These Retainers must prove why it is acceptable for the religious to refuse selling goods and services to gay people and at the same time be subjected to other legal restrictions on their religious freedom. To do so, they must show that the disapproval of homosexuality is so fundamental to their theological doctrine — as essential as prayer, congregation and rituals — that, if the law were to care about religion at all, no law should ever prevent the religious from following this core tenet. At any rate, I do not think the disapproval of homosexuality is that essential to any religion.

Never mind the possibility of events like Arlene's Flowers and Masterpiece Cakeshop happening in Singapore once 377A is repealed. Arguments that invoke such examples, assume that religious freedoms must be protected in all circumstances and claim that repealing 377A would be a cataclysmic affrontment to religious practice fail.

Fourth Objection to the Slippery Slope from Other Slippery Slopes

Because slippery slope arguments are inductive, we can run a reverse slippery slope of the following form. For statements p, k₁, k₂, k₃, ... , k_x where x is a positive integer,

¬p ⇒ k₁  ⇒ k₂  ⇒ k₃  ⇒ ... ⇒ k_x

At least k_x is unacceptable.

Therefore, ¬p is unacceptable.

Because p and ¬p can be both unacceptable, whether p or ¬p is the lesser of two evils depends on the relative strength of the induction as well as the relative desirability of the ends c_n and k_x.

One can argue:

[Slippery Slope 1]

"Repeal 377A ⇒ equal age of consent ⇒ anti-discrimination laws ⇒ marriage and child adoption rights for same-sex couples"

Noting that 377A only targets gay men, one can also argue [Slippery Slope 2], similar to what what Joshua Ip did:

[Slippery Slope 2]
"Retain 377A ⇒ lesbian sex banned ⇒ adultery banned ⇒ divorce banned ⇒ Women's Charter repealed"

Why should attention be focused on [Slippery Slope 1] instead of [Slippery Slope 2]? Does the fact that [Slippery Slope 2] is unlikely to happen because of other legal barriers and safeguards not suggest that [Slippery Slope 1] can be equally countered by other legal barriers and safeguards? The First and Second Objections I have made earlier reinforce this point.

Furthermore, one can also argue:

[Slippery Slope 3]
"Allow abortion ⇒ degrade the sanctity of life ⇒ destroy of the family unit ⇒ destroy society ⇒ end human civilisation"

In addition to addressing all my earlier Objections, the Retainers must prove why 377A is the moral, social, legal and political tipping point (and point of no return), given that lesbian sex, adultery and abortion et cetera have long been legal.

Instrumentalism

"Gay sex has a higher chance of spreading HIV, so 377A should be retained."

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"Singapore's low fertility rate is bad, by repealing 377A, childbirth will be further discouraged."

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"If 377A is repealed, nearby Muslim countries will turn more hostile towards Singapore."

Instrumentalist arguments are made by Retainers who seek cogent, secular and amoral reasons for supporting the retention of 377A, based on Singapore's state pragmatism. The logic is, we cannot impose any theological doctrine or personal morality on society at large, so we must appeal to utility and common sense in legislation because that's the most objective jurisprudential foundation we can find. After all, the sale of chewing gum was made illegal because of utility and convenience (malum in se); it is not inherently wrong to sell chewing gum (malum prohibitum). This law is nonetheless useful and convenient because if you ban the sale of chewing gum, there won't be any chewing gum anymore, so cases of littering would dramatically decrease.

Thus far, I think instrumentalist arguments are more convincing than all the other arguments I have critiqued. However, I have three objections to Instrumentalism.

First Objection to Instrumentalism from Inefficacy

Let's assume for now that gay sex indeed has a higher chance of spreading HIV. To reduce the spread of HIV, practical action must be done. 377A is an ineffective law which the Government says it will not actively enforce. How then does the retention of 377A prevent HIV from spreading?

This can be another "signal" argument as well. The Retainers may argue that the retention of 377A sends a signal that gay sex is wrong, which discourages gay men from having sex, thus reducing the chance of HIV spreading. I do not think any sort of discouragement (let alone an unenforced law) can deter people from having sex in private. After all, no one can find out. 😏

Even if gay sex does have a higher chance of spreading HIV today, it is possible that the gay community practices safer sex and brings HIV rates down in the future. Also, it is neither the case that if someone is gay he definitely has HIV nor the case that if someone is straight, he definitely does not have HIV. Heterosexual people can contract HIV too. For the purposes of reducing the spread of HIV, retaining 377A is practically an ineffective measure compared to public education and healthcare campaigns.

This objection applies to the low fertility rate as well. No law or moral suasion will encourage the majority of gay men to marry women and have children, since they do not feel sexual attraction to women in the first place. Furthermore, retaining 377A for the purpose of increasing the total fertility rate is even more ineffective because gay men are the minority. Retainers, focus your efforts on getting straight couples to have kids instead!

Criminalisation is too hefty a measure, when there are other viable policies to improve public health and the impact on utility is negligible.

Second Objection to Instrumentalism from National Sovereignty

The primary focus of governance in nation states is domestic. Laws are enacted for the well-being of the domestic population; the last consideration of legislation is neighbouring countries' pleasure with our laws. Singapore has, since Independence, pursued an official policy of pluralism in culture, race, language, religion, and backgrounds, despite various objections from neighbouring countries. Changing domestic laws to pander to other countries' wishes does not make sense.

Third Objection to Instrumentalism from the Inadequacy of the Pursuit of Only Utility

Certainly it is politically, socially and economically useful that there is perpetual religious harmony in Singapore. What's the most cost-effective way to do this? Ban all religions and promote agnosticism. This way, you won't ever have to spend resources on setting up interfaith councils, training teachers to teach religious harmony in social studies, and using the Sedition Act to settle cases of religious offence. Fantastic, isn't it? John Lennon must be smiling, if any metaphysical vestige of him remains.

China adopted the one-child policy in the name of utility, which arguably changed how the people of China view the family, not least the traditional notion of 子孙满堂 (a court full of children and grandchildren). Although 子孙满堂 may still be upheld as the ideal, in practice, the one-child alternative has become accepted and thus acceptable. This shows that traditional notions of the family are more malleable, and therefore less necessary, than the Retainers may think.

I believe that utility is a very convenient and powerful normative guide when used appropriately, and should not be abandoned in legislation, but the blind pursuit of only utility without respect for other considerations is inadequate for general well-being and minority protection. At any rate, I do not think that the issue of 377A can be resolved by utility considerations alone.

Democracy

"The majority of the population side with the Retainers, thus 377A should be retained."

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"The vocal minority should not trump the silent majority, so 377A should be retained."

Ultimately, I find this the least problematic and thus the most cogent and convincing argument. Instead of the futile attempt to tie normality to morality, the democratic argument tries to tie normality to legality. There are good reasons for this. Any moral disagreement between Retainers and Repealers is futile because of their respective incommensurable systems of value claims. In Singapore, no theological doctrine can be superior, no private moral code can be imposed across society, and pure instrumentalism does not work.

All Retainers' arguments that appeal to these considerations are merely performances of rhetoric trying to convince the Repealers and the "silent majority" (in their words) to agree with them; these arguments per se are irrelevant to legislation. Again, we must note that the Government makes decisions based on the opinions of the people, not the reasons for the opinions of the people. The only reasons why the Government seems to listen to people's reasons are [1] respect and concern, and [2] understanding the nature of people's opinions better. For example, if the reasons for an opinion are religious, then the opinion may be strong and hard to change, just like a conviction. If the reasons for an opinion are based on contextual circumstances, then the opinion may be more open to change. Regardless of whatever reasons that support people's opinions — and there are too many such reasons — the government will just consider their opinions and run them through the Government's own decision-making matrices.

Therefore, legislation, and at least superficial normative consensus, can only turn to the artificial establishment of a non-moral higher authority: the Constitution — law of all laws — and the adoption of the most empirical of all normative guides: majority rule.

Some Repealers have tried to mount Constitutional challenges for the repeal of 377A. These include the cases of Tan Eng Hong v Attorney General and Lim Meng Suang and another v Attorney-General. However, the judiciary eventually threw the case back to the legislature. Thus, it is clear that the Government will continue to adopt majority rule.

Of course, the argument from democracy has its problems. Majority rule is bad if it leads to the tyranny of the majority. One form of the tyranny of the majority is unfair institutional discrimination against minority groups. This is one of the arguments made by the Repealers: If lesbian sex, adultery and similar acts of carnal hedonism are legal, but only gay sex is illegal, then 377A discriminates against gay men specifically and is thus unfair.

But why are the rights of women, racial minorities, elderly people, people with disabilities, et cetera all upheld, except the rights of gay men? Who decides whose rights are worth protecting? Common sense tells us that "society decides", but what does "society" refer to? It must be the majority or the Government — the two groups that have the most social and political power. The debate on 377A thus becomes an issue of power. This is the stance taken by Edward Low, à la Michel Foucault. Ooh la la, monsieur! Touché, touché!

However, seeing that all other arguments made by the Retainers have much bigger problems, the democratic argument quite simply becomes the best argument for the retention of 377A. The Repealers must now convince the Retainers to abandon their position, or provide a strong enough objection to this democratic argument that is palatable to the Government. The Government has clearly stated its position: the latter is impossible to effect without the former. At any rate, the road ahead is long and difficult for the Repealers.

Huh? So Liddat How?

A more sensible approach is that of "majority rule, minority rights", like what Lee Chin Wee has proposed. This is consistent with Singapore's multicultural policy. Of course not all minorities' rights should be protected (e.g. convicted murderers' rights to personal freedom), but this reveals a tricky problem: minorities gain legitimacy by receiving the recognition of those who have greater social and political power — the majority or the Government. The majority won't budge, and the Government will wait for the majority to budge. This unfortunate stalemate will continue. But since many figures of the establishment personally support Repeal, I think the Government will not hesitate to repeal 377A the moment it senses social change. Inaction is not indifference, and I think while the Government is inactive, it is not indifferent.

I believe that the purpose of political debate, especially with regard to divisive issues like 377A, is rhetorical. Morality is not purely rational (sorry Spinoza and Kant). Axiological incommensurability ensures that the more people talk, the more people talk past one another, ultimately resulting in people "agreeing to disagree". This is actually a blessing, because life would be so boring if there is always a right answer and everyone can reach it.

As mentioned in the Introduction, the objective of this article is to expose weaknesses in the arguments of the Retainers, especially if they think their arguments are strong enough to defeat the Repealers, or even worse, that their arguments are absolutely watertight or self-evidently true.

There are many grey areas in ethics and politics. The world has never been, and will never be, neat and tidy. We should all navigate these murky waters with love, respect, humility, scepticism and critical thinking.

Finally, for now, let us find hope in the words of William Shakespeare.

If it be not to come, it will be now. If it be not now, yet it will come. The readiness is all. (Hamlet 5.2.235–237) 

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I would like to thank Yew Siong, Ian Goh and Zhang Shufang for their insightful ideas. ∎