Two weeks ago, the Supreme Court heard oral arguments in Hollingsworth v. Perry and United States v. Windsor, both cases concerning the rights of gay and lesbian couples to enjoy the status and benefits of traditional marriage. In Singapore, a more basic right is being questioned: is a law criminalizing sexual contact between homosexual men, and not homosexual women, unconstitutional?
Section 377A of Singapore’s criminal code states: “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.” In 2007, the government announced that it would no longer enforce 377A but seemed uninterested in repealing it. However, in 2010, the government was forced to take a stance after Tan Eng Hong was charged under 377A, allowing the gay community to challenge the law’s constitutionality.
Sentiment about repealing the law remains unclear. A recent survey showed that nearly half of Singaporeans are against homosexuality. However, just as it has in the United States, the percentage of those opposed has been declining over the years. For those still on the fence, a concern is that repealing 377A will naturally lead to gay marriage becoming legal in Singapore. Advocates of repealing the law have dispelled this notion by arguing that if the United States, the “freest country in the world,” can allow gay rights in some states, and not others, then so can Singapore. But if Hollingsworth and Windsor result in gay marriage becoming a fundamental right and, therefore, available to all United States citizens, the concern of those still unsure may be legitimized.
Other concerns about repealing 377A involve the importance of the law to the public. Lawyers from Singapore’s attorney general’s office assert that the law “serve[s] important public morality and public health goals.” Lynette Chua, a law professor at National University of Singapore, disagrees. She notes that “[w]hen the rule [was] first enacted in 1938, the issue of public health was clearly not an explicit consideration since there was no HIV at that time.” Additionally, Singapore’s position on homosexuality remains at odds with the way it wants to portray itself to the world and conflicts with the ideas of many international employers who have “embraced [Singapore] as a regional financial and commercial hub.” Such considerations also affect the public interest and should weigh equally into the court’s decision.
Some think the court’s decision does not require much thought. Prime Minister of Singapore Lee Hsien Loong believes 377A should remain in the books simply because it has been there for a long time. He says gay rights “are not issues we can settle one way or the other, and it’s really best for [Singapore] to leave them be, and just agree to disagree.” Ultimately, the decision will be that of Singapore High Court Justice Quentin Loh who is expected to deliver his judgment on an unannounced date.
While the Supreme Court’s decisions in Hollingsworth and Windsor are certainly important, men in Singapore are fighting for something much more basic than same-sex marriage – they are fighting for the right to be gay. Announcing that the government will not enforce a law does not remove the stigma that is associated with it, and so the harm remains. A law unenforced may lose some of its meaning, but the words still exist. And the reality is, “words are things, and a small drop of ink, falling, like dew, upon a thought produces that which makes thousands, perhaps millions think.” Section 377A should be repealed.
J. Matt Thornton is a first year law student at the University of Denver and a Staff Editor on the Denver Journal of International Law and Policy.