“Illegal love”: the criminalization of homosexual acts as violation of rationality in law

, by Giovanni Perrotta

“Illegal love”: the criminalization of homosexual acts as violation of rationality in law
Arguments at the United States Supreme Court for Same-Sex Marriage on April 28, 2015 CC - Ted Eytan, Flickr

LGBT rights are often and rightly defended from a human rights perspective. However, other arguments can be called to defend these rights. Our author Giovanni Perrotta advocates for the “rational-legal” argument to defend and protect LGBT rights. Homophobic criminal law is not only scandalous from a human rights perspective, but also irrational from a legal viewpoint.

The recent homophobic acts which happened in Russia, Egypt and elsewhere in the world urge the international community of jurists not to be indifferent towards the clear violations of fundamental human rights. It is a precise duty of both scholars and jurists to demonstrate the intrinsic irrationality of a homophobic criminal law.

Rationality in the legal system

“Ubi societas, ibi ius”: we can say that the fundamental objective of law is to regulate the life of a social community and the behaviour of its members. The next question is then: quid iuris? What can become a legal norm? From a positivistic point of view, we are allowed to think that every prescription can obtain the “force and status” of law, if recognized and sanctioned by the legal system. We do not have to forget that law comes after society, and we can truly say that law is the product of a precise society set in a precise space and historical period.

However, in choosing what can become a legal norm, we have to keep in mind the fundamental canon of rationality: in order to regulate, the system must be itself regulated. A question we can ask is if religious prescriptions, for example, make the system irrational. Of course not, but the system becomes, consequently, confessional, since it will be based on a “religious rationality”. Nonetheless, in our present, multicultural societies, rationality should be logically joint to laicism. This is why we believe that, when deciding what can become a legal norm, nowadays we have to use the criteria of the “widest possible freedom”: every behaviour which does not affect the other members and their interests should be recognized, allowed and protected by a rational legal system.

Rationality in criminal law

Traditional theorists often say that the first objective of criminal law is to prevent the “attacks” against social peace. Two questions arise then. Is homosexuality juridically relevant? If so, is homosexuality a menace to social peace that justifies the intervention of a criminal norm? The answer to the first question is surely positive, since homosexuality has always been subject to what we can call “social concern”. If we were indifferent, as we are towards hair-colour, the homosexual condition would be juridically indifferent. The second question forces us to think if homosexuality constitutes a danger for the community. What would be the damage against which the legislator has to intervene? Is it possible to conceive an attack to the community?

Homosexuality does not limit freedom, or rights, or any other prerogative. Science itself, which is usually used to support the adoption of certain norms, does not identify any danger, and qualifies homosexuality as a “natural variant of human sexual behaviour”. On the contrary, a number of studies have recognized several psychological disorders, suicides and fear among homosexuals, but this is rather the effect of that “socal concern” which shows itself in discrimination and repression, and against which we need positive norms in favour of these “disadvantaged” members of the community, in order to reestablish their full equality.

The interpretation of the European Court of Human Rights

In this regard, the European Court of Human Rights (ECHR), by interpreting widely and bravely the art. 8 of the European Convention on Human Rights, has delivered a number of judgments that confirm the irrationality of the criminalisation of homosexuality. First of all, in the 1988 case Norris v. Ireland, the Court stated that it was not possible to criminalise homosexuality in Ireland on the basis of “imperative social needs”. In particular, even if homosexuality could offend or shock those who considered it as immoral, this could not authorise itself the use of criminal norms. This landmark judgment was confirmed in other cases, such as Modinos v. Cyprus in 1993 and A.D.T. v. United Kingdom in 2000.

An impossible criterion?

In conclusion, if criminal law has no interest in homosexual behaviours, since no offence is caused to the system by these same behaviours, a fundamental role must be recognized to jurists (and first of all to the different Constitutional or Supreme Courts), who have to demonstrate the irrationality of such legislations. To those who deny the universalism of human rights, we can only answer with the ancient motto “volenti non fit iniuria”. Are Saudi homosexuals, for example, willing to be punished for their homosexuality? Only in this case, as Antonio Cassese puts it, we could maybe legitimate such a violation of human rights. But this is only a theoretical, utopian idea, which implies that citizens would be actually free in their choice. While waiting for the victory of human rights, which is then the victory of rational law, we can only urge governments and leaders to honestly respect legal logic and reasoning.

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