The issue of decriminalizing homosexuality is a matter of wide public concern in this country. It raises matters far beyond the mere idea of changing the criminal law.
I regard public debate as central to the integrity of our democracy, because it involves interests over and above those of the homosexuals themselves.
Careful analysis is necessary if we are to understand what may be at stake here. A change in the criminal law is easy to achieve. The Government could simply amend the law using its simple majority in Parliament.
But there would need to be a host of other changes in the law if there is to be meaningful change. At what age would young men be permitted to consent to such activity? Would it be 16 years, or some older age? And then why could same-sex partners not be permitted to marry? Or adopt children, as some homosexuals have done in other countries?
It would be immature not to recognize what the argument is about. It is not simply changing the criminal law, for that would be half the job and might not do much for the gay community who clearly want much more than the legalisation of homosexuality but are confusing two issues.
Some months ago, an English homosexual couple were able to secure a judgment against a husband and wife team of guest house owners when they were refused rooms. The owners refused to let them rent a room on the grounds of their deeply-held Christian faith and their adherence to biblical teachings. The homosexuals successfully sued, with the right of the homosexuals trumping whatever rights the hoteliers had to practise and hold fast to their religious beliefs.
That may not be the position here, because the specific laws are different, so that a careful campaign is required if the gay community hopes to secure effective and functionally useful change in the law.
A simple change in the criminal law would not necessarily by itself in Barbados confirm a right not to suffer discrimination, for there is no protected right to the expression of sexual orientation.
Moreover, the implications of sovereignty of a people to choose for themselves means that there is no necessary universality of rights.
And the law in one country recognising a particular human right may not be present in another country. In other words, what is good for the goose in Britain may not be good for the gander in Barbados.
There may indeed be need also for a change in our Constitution and changes of this sort require a two-thirds majority in both houses of Parliament, and no Government ever has a built-in two-thirds majority in our Senate. The independent senators would therefore have to be involved.
Here is Lord Hoffman, a former British law lord, giving judgment on discrimination in a Privy Council case.
It highlights the problem being debated:
“Of course, persons should be uniformly treated, unless there is some valid reason to treat them differently. But what counts as a valid reason for treating them differently? And, perhaps more important, who is to decide whether the reason is valid or not?
“The reasons for not treating people uniformly often involve, as they do in this case, questions of social policy on which views may differ. These are questions which the elected representatives of the people have some claim to decide for themselves. The fact that equality of treatment is a general principle of rational behaviour does not entail that it should necessarily be a justiciable principle . . . .”
Changing the law in this area involves complex issues, no matter what British leader Mr David Cameron says. His views may be regarded as enlightened, but changing the deliberate views of the framers of the Constitution who determined that sexual orientation is not protected from discrimination, necessarily involves serious public participation.
