Liberty, Immorality and The Law

By Dr. Lawrence A. Joseph

     This article is a follow-up to a previous article which was written by me entitled, “Homosexuality and the Concept of Human Rights”. This present article is being written in order to extinguish the misconception by some readers that I promoted homosexuality in that article. This misconception cannot be further from the truth as I abhor homosexuality and do not seek to promote it in anyway. My position is that immorality and illegality are entirely different concepts, so that whilst the bulk of the population may classify homosexuality as an immoral activity, in certain situations it ought not to be considered to be illegal. The article itself was written in the context of human rights and was purely secular in nature. It stuck to the facts and reality of the modern day homosexual phenomenon.

       The particular section of the article which seemed to have led to the above mentioned misconception referred to section 431 of the Continuous Revised Laws of Grenada which states: “If any two persons are guilty of unnatural connection, or if any person is guilty of unnatural connection with an animal, every such person shall be liable to imprisonment for ten years”. The article commented that “Whilst one may see the reasoning behind unnatural connection with an animal, one may be left to wonder why should  it be considered unlawful for two adult consenting males to have sexual relations in the privacy of their homes. This may well be taking it a bit too far and the law ought to be reconsidered.”

     I still hold the view that two adult consenting males (or females) ought to have the liberty to do what they choose to do as long as their action does not interfere with the liberty of others. The liberty which is being spoken of here concerns the freedom of the individual to make choices and this freedom is guaranteed under sections 9 and 13 of the Grenada Constitution. Moreover, Article 17 (1) of the International Covenant on Civil and Political Rights, to which Grenada acceded in 1991, mandates the right of privacy. It protects private consensual activity, thereby nullifying prohibition on homosexual behaviour. The Covenant however makes provision for the state to disallow this protection in certain situations. It seems rational therefore that this protection ought not to be allowed where minors are involved. In this situation, homosexual activity may be considered to be illegal and the law must then run its course.

      Over the centuries, the concept of liberty has been studied by many philosophers, such as Thomas Hobbes, John Locke, Jacques Rosseau, John Stuart Mill, Isaiah Berlin and many others. Whilst they all gave divergent views on its existence and trajectory, they all identified a common thread which focused upon the sanctity of the concept. It is submitted that for a state to make any significant progress, its citizens must be at liberty to express themselves both in words and in action with minimum interference from the state. In fact this concept goes to the root of democracy.

     Inevitably there would be activities which some sections of the population would consider to be immoral. In fact in the present day society, some hold the view that smoking of cigarettes, the drinking of alcohol, and even close-up dancing with a partner are immoral activities. Despite this, these activities are not considered to be illegal and therefore individuals are free to participate or not participate in them. The concept of immorality is a very elusive one, and in fact it varies from society to society. What may be considered to be immoral in one society may not be so considered in another. For example in one society one may not have more than one wife, whilst in another society more than one wife is permissible. Moreover, what may be considered to be immoral today may not be so considered in the future and vice versa.  Nonetheless, morals and law often coincide, but it does not necessarily have to be so. Therefore in situations where sections of the society consider certain activities to be immoral and other sections do not, tolerance must be exercised.

     It seems clear to many in the Grenadian society that persons who are engaged in homosexual behaviour are immoral. However, as the previously mentioned article suggested, the trend in the world today, especially since the turn of the century, seems to favour increasing support for homosexuality. This is a fact that has to be recognized so that adequate consideration could be given to how to deal with the phenomenon. It is pointless to have our heads buried in the sand. Conversations on the topic must be encouraged. There is nothing wrong with efforts being made by individuals and groups to dissuade persons from engaging in homosexual activity. However in the first instance, a certain measure of tolerance must be shown to those persons as they too have their rights.

     One is reminded of the story in Luke Chapter 7, verses 36 to 50, where Jesus showed immeasurable tolerance to a prostitute who washed his feet with tears and dried those feet with her hair. She was saved because of this.

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