Tue | Sep 25, 2018

If Peter Espeut would just bugger off

Published:Wednesday | September 17, 2014 | 12:00 AM

It is ironic that on roughly the same day the world was exposed to the intellectual brilliance in United States Appellate Judge Richard Posner's opinion overturning bans against gay marriage in the states of Wisconsin and Indiana, we had to suffer through Deacon Peter Espeut's column criticising Javed Jaghai's just lawsuit, which sought to overturn our archaic buggery law.

Indeed, the contrast between these two men couldn't be more palpable. On one side is Richard Posner, one of the ablest jurists of our time, a professor of law at the University of Chicago, and an appointee to the Bench by the late President Ronald Reagan. Judge Posner's conservative credentials are beyond reproach, but unlike lesser men hiding behind ideology, he has consistently allowed the facts, applicable laws, and objective reasoning to guide his decisions.

On the other is Peter Espeut, a Roman Catholic deacon, a member of a religious movement that some would say is appropriately depicted by the setting sun. This is already the case in wealthy Western countries, where the average citizen is scientifically literate and more capable of distinguishing mythology from reality. Hopefully, some day we will eventually reach this milestone.

Deacon Espeut opens his column with a blistering, but completely unfounded criticism of Mr Jaghai's contention that the buggery law improperly circumscribes his constitutional rights to equality and privacy. The deacon bases his opinion on a rather unusual interpretation of Mr Jaghai's privacy argument. Inexplicably, he seems to think Mr Jaghai acknowledges the buggery law's constitutionality, and is merely challenging its extension to acts conducted in private. Who would have thought such an interpretation was even possible?

conventional meaning

Obviously, common sense would attach a more conventional meaning. Mr Jaghai argued that the buggery law itself should be found unconstitutional because it conflicts with the fundamental right that all of us have to privacy, the right to be free from unwarranted governmental intrusion. This right is implicit in many of our laws and is also recognised in the Universal Declaration of Human Rights.

In contrast, Judge Posner uses the more relevant definition of privacy in the same-sex marriage case. Quoting the 19th-century English philosopher, John Stuart Mills, the judge observes:

"But there is a difference, famously emphasised by John Stuart Mill in 'On Liberty' (1869), between the distress that is caused by an assault, or a theft of property, or an invasion of privacy, or, for that matter, discrimination, and the distress that is caused by behaviour that disgusts some people but does no (other) harm to them."

He adds: "... While many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognisance of."

In other words, the standard for government invading our privacy should be compelling, a clear demonstration of harm to others or to the society as a whole. Mere disapproval, as is the case with the buggery statute, is simply not enough justification.

The deacon's analysis of the equal-protection element in Mr Jaghai's pleading is even wackier:

"But this is not what equality before the law means in the Jamaican Constitution! Because homosexuals and heterosexuals are equal before the law, it means that the same law will be applied equally and fairly to both; both will receive a fair hearing and a fair trial. It does not mean that if I can do my preferred type of sex, you can do yours, whatever you feel to do."

A more sophisticated analysis would first consider whether the law was inherently unequal in its wording and application, whether the inequality was based on an immutable or at least a tenacious characteristic (as Judge Posner notes), and if it were, whether the unequal treatment was necessary to satisfy an important societal need.

That the buggery law is unequal is not debatable; at its core, it requires celibacy for homosexual men, a particularly difficult condition for anyone, while giving a pass to heterosexual men. And this discrimination is based on an immutable characteristic, much like skin colour, which makes it particularly egregious.

Without a persuasive showing of need, the buggery law can only be seen as a raw expression of tyranny by the majority, an immoral disgrace in 21st-century Jamaica, and a complete repudiation of the Greatest Christian Commandment, "Do unto others as you would have them do unto you."

Patrick White, PhD, is a member of the Advisory Council at the University of Pittsburgh, School of Information Sciences, and consultant on communications strategy for the CEO of Goodman Networks in Plano, Texas. Email feedback to columns@gleanerjm.com and pew_com@me.com.