Criminalising Homosexuality and Understanding the Right to Manifest Religion Yet, while the Constitution protects the right of people to continue with such beliefs, it does not allow the state to turn these beliefs – even in moderate or gentle versions – into dogma imposed on the whole of society. Contents South African Constitutional Court, 19981 Overview 4 Religion and proportionality 11 Religion and government policy 21 Statements from religious leaders on LGBT matters 25 Conclusion 31 Appendix 32 This is one in a series of notes produced for the Human Dignity Trust on the criminalisation of homosexuality and good governance. Each note in the series discusses a different aspect of policy that is engaged by the continued criminalisation of homosexuality across the globe. The Human Dignity Trust is an organisation made up of international lawyers supporting local partners to uphold human rights and constitutional law in countries where private, consensual sexual conduct between adults of the same sex is criminalised. We are a registered charity no.1158093 in England & Wales. All our work, whatever country it is in, is strictly not-for-profit. 1 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others [1998] ZACC 15 (Constitutional Court), para. 137. 2 3 Criminalising Homosexuality and Understanding the Right to Manifest Religion Overview 03. The note then examines whether, as a The origin of modern laws that expanding Empire in Asia, Africa and the matter of international human rights law, Pacific. For instance, the Indian Penal Code 01. Consensual sex between adults of the adherence to religious doctrine has any criminalise homosexuality of 1860 made a crime of ‘carnal knowledge same-sex is a crime in 78 jurisdictions.2 bearing on whether the state is permitted to 05. In 1533, as a part of England’s against the order of nature’ and was later These laws, in general terms, originate from criminalise homosexuality. The answer to disengagement from the Roman Catholic amended to include the crime of ‘gross two sources: the British Empire and Islam. this is clear: the right to freedom of religion Church, King Henry VIII passed the indecency’. The references to ‘the order of The British variety was born out of political must be respected, but this right can never ‘buggery’ law, which for the first time nature’, ‘gross’ and ‘indecency’ gave these manoeuvring against religious authority, not justify criminalising homosexuality or made a secular crime of an act that had crimes a distinctly moralistic religious adherence to religious doctrine, albeit these inflicting harm on lesbian, gay, bisexual previously been an infraction of undertone. The provisions of the Indian Penal 3 laws later took on a religious guise. Islamic and transgender (LGBT) people. ecclesiastical law. The Buggery Act of Code were exported to Britain’s colonies in countries that criminalise do so, generally, To think otherwise is fundamentally to 1533 was one of many steps taken by Malaysia and East Africa, for example. At the due to the influence of Sharia law on their misunderstand the right to manifest Henry VIII to break the influence of Rome same time, British laws including the 1861 criminal law. one’s religion. in England and to seize the Church’s land Offences Against the Person Act and the and property. Monasteries in England were 1885 Criminal Law Amendment Act were 02. This briefing note covers three points 04. The third part of this note then sets portrayed by Henry’s investigators as rolled out across West Africa.6 Today, 40 of connection between religion and the out statements from religious leaders dens of ‘manifest sin, vicious carnal, and Commonwealth countries retain their British- 4 criminalisation of homosexuality. confirming that the state has no business abominable living’. Henry’s buggery law era laws that criminalise homosexuality, as do First, it looks at the origins of today’s laws criminalising homosexuality, no matter was passed to carry the death sentence up to 10 further jurisdictions whose laws are that criminalise consensual same-sex the religious beliefs of those in power and, importantly for his aims, provided for based in whole or in part on the laws of intimacy. To say that these laws were based or the population at large. the seizure of property and applied to the England (see Appendix). France, Spain, on religious doctrine is only partially true. clergy and layman alike. Belgium, The Netherlands and their colonies In fact, ‘buggery’ laws were initially used by did not criminalise, as their legal systems 06. As England colonised North America and the state against the Church to wrestle were based on Napoleon’s civil code that then as Britain’s Empire spread, buggery power from the Pope in Rome. To the did not criminalise homosexuality. extent that these laws were based on laws went global. In this process, these religion, they were contemporaneous with laws were associated with religion. 78 countries criminalise For instance, the East New Jersey law laws that punish witchcraft, heresy and homosexuality blasphemy, which have long since been of 1683 described the crime of buggery repealed or fallen into obscurity. as an ‘offense against God’, and the Commonwealth countries Massachusetts Bay code of 1641 imposed 5 the death sentence for buggery, heresy, 7 Laws are based in part or whole on laws of England witchcraft, and blasphemy.5 Thankfully Massachusetts’ heretics, witches and 16 40 Incorporate Islamic law blasphemers are no longer criminalised, and since 1974 nor are its gay and Muslim majority population bisexual men. 10 Other 07. After the 13 American colonies’ formal independence in 1783, buggery laws were spread on two fronts, being simultaneously replicated across the new states of the United States and in the colonies of Britain’s 3 Katz, J.N., ‘The Age of Sodomitical Sin, 1607-1740’, in Goldberg, J., Reclaiming Sodom, p. 46. 4 Ibid, pp. 46 to 47. 5 Ibid, p. 47. 2 For a full list, see: http://www.humandignitytrust.org/pages/COUNTRY%20INFO/Criminalising%20Homosexuality 6 Metcalf, T.R., Imperial Connections, Ch. 1 ‘Governing Colonial Peoples’, 2008, pp. 24, 25 and 31. 4 5 Criminalising Homosexuality and Understanding the Right to Manifest Religion 08. Of the remaining 28 jurisdictions that [H]omophobic and transphobic violence 11. Yet, not all countries with a high level of 12. No matter the source of homophobia criminalise, 16 incorporate Islamic law into against lesbian, gay, bisexual and religiosity and/or a low tolerance of – religion or otherwise – governments, their domestic law and a further seven transgender (LGBT) persons may also homosexuality criminalise homosexuality. legislatures and judiciaries in criminalising have a Muslim majority population be perpetrated in the name of religion… A report by the Pew Center cited by Sexual countries are tasked with determining (see Appendix). However, it is not as simple Violence against women and against LGBT Minorities Uganda (SMUG)11 shows only whether the criminalisation of as concluding that these jurisdictions persons is often justified and given a limited correlation in sub-Saharan Africa homosexuality is lawful. The next section criminalise because they are Muslim;7 legitimacy by discriminatory laws based between the importance of religion in of this note explores whether religious belief at least 19 Muslim-majority jurisdictions on religious laws or supported by religious citizens’ lives and whether the country can ever justify criminalising consensual do not criminalise.8 Whereas for Britain’s authorities, such as laws criminalizing criminalises homosexuality: same-sex intimacy between adults. former colonies there is a clear connection adultery, homosexuality or cross-dressing.9 The answer is clear: it can never be between their laws that criminalise Fig 5: Respondents saying religion legitimate to make a crime of other adults’ homosexuality and their colonial histories, 10. Furthermore, in 2013 a report by the is very important in their lives consensual sexual conduct. in the Islamic world it cannot be said that Pew Research Center provided anecdotal Is homosexuality there is a clear and direct causal connection evidence of a link between religion and Country (%) criminalised? between criminalisation and Islam. homophobia. The report surveyed people in 39 countries, and found that ‘there is Senegal 98 Yes 09. Whether or not laws that criminalise far less acceptance of homosexuality Mali 93 No homosexuality can be said to originate from in countries where religion is central to Tanzania 93 Yes religious doctrine, some proffer religion as a people’s lives’.10 Plotted on a graph, Guinea 90 No reason to retain these laws and to the responses show a reasonably clear Bissau propagate homophobia. Highlighting this relationship between religiosity and Zambia 90 Yes connection, in 2014 a report by the UN intolerance towards homosexuality, Special Rapporteur on freedom of religion albeit with some outlying countries. Rwanda 90 No or belief found that: Cameroon 89 Yes Ghana 88 Yes Correlation between religiosity and tolerance of homosexuality Mozambique 87 Yes 100% Liberia 87 Yes 90% Kenya 87 Yes 80% Nigeria 87 Yes Philippines 70% Chad 86 No Brazil 60% Djibouti 86 No US Correlation: 50% -0.78 Uganda 86 Yes 40% DR Congo 82 No accepted by society 30% Ethiopia 79 Yes % Homosexuality should be South Africa 74 No 20% Russia Botswana 69 Yes 10% 0% 0 0.5 1 1.5 2 2.5 3 Religiosity scale* North America Middle East Latin America Europe Asia/Pacific Africa 7 This topic has been explored by The Economist in its article Straight but narrow, 4 February 2012. Available at: http://www.economist.com/node/21546002 8 Albania, Azerbaijan, Bahrain, Bosnia & Herzegovina, Burkina Faso, Chad, Djibouti, Guinea-Bissau, Jordan, Kazakhstan, Kosovo, Kyrqyzstan, Mali, Niger, Tajikistan, Turkey, West Bank (State of Palestine), most of Indonesia, and Northern Cyprus.