Ethical and Legal Evaluation

Ethical theories try to describe an overarching view of what is good for human beings and to describe ways of distinguishing among states, choices, and behaviors that contribute to—or at least do not detract from—that overarching good. Ethical theories vary in their interpretations of homosexuality.

PREMODERN ETHICAL THEORIES. In ancient Greece, there were disagreements among intellectuals about erotic interactions between males. According to his chroniclers, Socrates (470—399 b.c.e.) experienced attraction toward other males, but he saw it as a means to achieve spiritual wisdom rather than physical gratification. Plato's (427—347 b.c.e.) views modulated over his long lifetime—from prudential accommodation of the spiritual aspects of homosexuality to more or less outright condemnation of this sexuality as being contrary to nature (Dover). His sympathetic references to erotic attraction between adult and adolescent males do not undercut his more fully considered view. Aristotle (384-322 b.c.e.) had less to say about homosexuality, though he also disapproved, describing homosexuality, in his Nicomachean Ethics, as a pleasure of those with bad natures.

In Medieval Europe, it was Thomas Aquinas (1225-1274) who—from a Catholic background—offered the next major treatment of homosexuality, calling it the most sinful species of lust. He did so in the context of natural law—a law defined in terms of the goals said to be inherent in human life. In his Summa Theologiae, he describes homosexuality as a violation of animal nature and of the order of sexual acts generally. The historian John Boswell has criticized this view by arguing that bodies and body parts have multiple purposes, and that the use of human genitals is meaningful only in sexual acts capable of begetting children. It is also the case that that there are analogues to homosexuality in other animals (Bagemihl), though even if there were not, it is unclear why animal behavior should be taken as a guide for human beings capable of reasoned evaluations of their choices.

MODERN ETHICAL THEORIES. The German philosopher Immanuel Kant (1724-1804) had a number of things to say about homosexuality, though he found doing so distasteful. Kant defended the categorical imperative as the central guide to human action. There are various formulations of the categorical imperative. What they share in common is the counsel to abide by rules that one would wish to see function as universal law. To use a negative example of how this would apply, one should not like because one would not wish to live in a world where lying was the universal norm. To use a positive example, one should be charitable because one could possibly want charity from others in the future. Kant argued that homosexuality was wrong because it could not function as a universally accepted practice. Applied to everyone, the sterility of homosexuality would put an end to the birth of children. Kant also found same-sex erotic behavior especially degrading to the parties involved.

By way of response to the Kantian view, it should be noted that it is sometimes difficult to see how precisely, or how broadly or narrowly, a moral maxim should be drawn. For example, it might be possible to frame a maxim of behavior this way: if—and only if—people find themselves sexually attracted to their own sex, then they should act accordingly, but not otherwise. In this way, the future of the human race would be secure and people would not have to act contrary to their actual sexual interests. And, of course, some heterosexual acts are just as disrespectful of sexual partners as homosexual acts—selfish sexual gratification is not the province of one sexual orientation alone.

In striking contrast to Kant, the British utilitarian philosopher Jeremy Bentham (1748-1832) came to almost the opposite conclusion about the morality of homosexuality. In works that were not published in his lifetime, he defended homosexuality for those inclined to it, saying it gives them pleasure and leads to happiness. In keeping with his utilitarian view that actions should be judged in terms of their capacity to contribute to human happiness through pleasure, Bentham thought it undeniable that homosexuality was one way to human pleasure. For some people, therefore, the pursuit of same-sex relations would be a positive good. Bentham was not especially worried that social accommodation of homosexuality might lead to more homosexuality, for if there is nothing wrong with homosexuality (for those interested in it), then increasing the amount of homosexuality in a society is not wrong either. He was convinced, too, that the forces of heterosexual lust were stronger than any threat to the birth rate that homosexuality might pose. In a strict sense, from this point of view, homosexual orientation and behavior are not of inherent moral interest.

Another utilitarian philosopher, John Stuart Mill (1806— 1873), also believed that actions were moral to the extent that they promoted happiness. Given that adults are ordinarily the best judges of what makes them happy, Mill wanted to limit social interference with individual pursuits. He articulated his "liberty principle" in order to define a sphere of behavior that did not warrant social action. To Mill, social interference with the actions of others is justified only to prevent harm to others. Harm to one's own self is not a sufficient reason for interfering with an adult's beliefs and choices. With this conceptual background, it is possible to articulate a formidable boundary against social interference with homosexuality. Unless their behavior harms others—as in rape, for example—men and women should be able to pursue same-sex partners without social interference.

Alan H. Goldman, a commentator on sexual ethics, has argued that there are no moral rules specific to sexuality alone. He argues that the moral rules or precepts that apply across the range of human relations are the rules that should apply to sexuality as well. This means that the same rules that apply in heterosexual relationships should apply in others as well: if sexual fidelity is promised, it should be honored; there should be no deception or mistreatment; and so on. In one sense it is this very attempt to make social relations consistent across sexual orientations that has led to ambitious attempts to reform laws that criminalize homosexuality.

DEVELOPMENTS IN THE LAW. The ethical standards reflected in laws around the world are widely variable. In some nations, sex between males or between females is strictly forbidden and severely punished. In others, homosexuality is illegal as a matter of formal statutes but is not punished in practice. In other countries, homosexuality is not an object of legal interest in itself, only insofar as sexual relations may be involuntary or public. In 1957, in England, the Committee on Homosexual Offenses and Prostitution issued a report, commonly known as the Wolfenden Report, that recommended that the United Kingdom decriminalize consensual "sodomy" among adults. In coming to this conclusion, it drew heavily on notions of privacy and protection from social intrusion. In this regard, the report shared parallels with the Napoleonic Code, put in place in 1804. In that code there was no explicit mention of homosexuality, only of criminalization of involuntary and public sexual crimes, regardless of the sex of the parties involved. Lord Patrick Devlin argued against the conclusions of the Wolfenden Report by saying that society's moral revulsion toward homosexuality should count as a valid reason for legal restrictions. Devlin argued that a society requires shared moral values and political beliefs and that even acts that occur in private threaten the existence of society, and are not beyond the reach of social suppression. Nevertheless, Britain did decriminalize homosexuality among adults.

In 1986 the U.S. Supreme Court, in Bowers v. Hardwick, affirmed the right of states to enact laws prohibiting homosexuality among adults. In the case of Romer v. Evans (1996), however, the Court maintained that states could not deprive homosexual men and women of particular rights. As of this writing, the Court has heard a sodomy case which may undercut the conclusions of Bowers v. Hardwick.

In general, there is a trend in the United States to decriminalize homosexuality. In many other jurisdictions around the world, the legal battles have shifted away from the simple question of whether sexual relations between men and between women should be criminal or not. Newer legal battles have engaged such topics as protection from discrimination in employment, housing, and public accommodations, and many jurisdictions are debating broader civic rights for same-sex couples. For example, the Netherlands and Belgium have recognized same-sex marriage. In the United States, the state of Vermont recognizes a civil union that parallels marriage. Other issues advancing on the legal frontier for homosexual men and women are the right to custody of children and the right to serve openly in the military.

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