The curious interplay between religion, equality and private male homosex in Singapore: time to cut the Gordian Knot?

ABSTRACT

This article examines the controversy arising from the statutory proscription of private male homosex in Singapore vide section 377A of the Singapore Penal Code, and its subsequent judicial treatment. It traces the religious roots of the spread of anti-homosex laws to British colonies, and considers how the debate remains centred on the interplay between religion, morality and the law. It argues that while individuals must be entitled to maintain their own religious beliefs, these are no longer a legitimate basis to justify the imposition of legal sanctions on others – especially in a secular state built on the foundations of a multi-cultural social milieu. Neither society nor the state should trespass into the sphere of private morality, unless authorised to do so by the constitution or on a patent ‘harm’ rationale. In addressing the conflict between the Christian right minority and the male homosexual community in Singapore, Article 15 (‘freedom of religion’) should be read harmoniously with Article 12 (‘equality’) of the Singapore Constitution: freedom of religion must also include the converse – freedom from narrow religious beliefs in the context of private morality.

KEYWORDS:

• Homosexuality
• sodomy
• law and religion
• human rights
• morality
• Singapore

Acknowledgements

The author would like to express her deep gratitude to Dr Myriam Hunter-Henin, for her critical insight on a previous, shorter version of this paper, which was awarded the John Frederic Whitehouse Essay Award at University College London in 2014, as well as the anonymous peer reviewers, for comments that have helped improve and clarify this paper. Any and all errors are the author's own alone.

Disclosure statement

No potential conflict of interest was reported by the authors.

Note on contributor

Meera Rajah is a lawyer admitted to the Singapore bar. She practices locally at a Southeast Asian law firm, and has a keen personal interest in human rights and discrimination law. She graduated with a LLB (Hons) from University College London in 2014, where she won several academic and mooting prizes, including the Blackstone Chambers Commercial Law Prize, the John Frederic Whitehouse Essay Award and the Bentham Prize for High Achievement.

ORCID

Meera Rajah http://orcid.org/0000-0002-4391-6057

Notes

1 Adam Smith, Essays on Philosophical Subjects (first published in 1795, Oxford: Oxford University Press, 1980), 77.

2 Jonathan Haidt, The Righteous Mind (London: Vintage Books, 2012), xxii.

3 Ibid., 3–31.

4 (Singapore) 2008, c. 224.

5 Section 11 of the Criminal Law Amendment Act 1885 (UK), which removed the need for ‘anal penetration’, to make any acts of ‘gross indecency’ between males an offence: Douglas E. Sanders, ‘377 and the Unnatural Afterlife of British Colonialism in Asia’, Asian Journal of Comparative Law 4, no. 1 (2009): Art. 7, 16.

6 Ibid.

7 Act No. 45 of 1860.

8 Sanders, ‘377 and the Unnatural Afterlife of British Colonialism in Asia’, 8.

9 Ibid.

10 Leviticus 18:16–20, 22–23 (King James): ‘Thou shalt not lie with mankind as with womankind; it is an abomination’; Don Gorton, ‘Timing of Henry VIII's Sodomy Law Matters’, Gay and Lesbian Review (January–February 2004): 6; also note: John Eekelaar makes the pertinent point that: ‘[T]he Levitical prohibition gives no reason for the injunction other than describing the practice as an “abomination”’, ‘Perceptions of Equality: The Road to Same-Sex Marriage in England and Wales’, International Journal of Law, Policy and the Family 28 (2014): 1, 5.

11 Genesis 19:24.

12 Ronald Hyam, Empire and Sexuality: The British Experience (Manchester: Manchester University Press, 1990), 59.

13 Islam has a pervasive influence in the Straits archipelago. Injunctions against homosexuality in the Qur-an derive from interpretations of passages referring to Lot, his family and the destruction of Sodom and the hadith (‘tradition’) strictly declares all sexual acts between males to be criminal: Prods Oktor Skjaervo, ‘Islam’, in Gay Histories and Cultures: An Encyclopedia, Vol. II, ed. George E. Haggerty (New York: Garland Publishing, Inc., 2000), 478. Similarly, many of the Chinese migrants in Singapore were informed by Qing era pro-family and anti-sodomy laws, inspired by Neo-Confucian ideals of family: see Bret Hinsch, Passions of the Cut Sleeve: The Male Homosexual Tradition in China (Oakland: University of California Press, 1990), 142–4, 162.

14 Ibid.

15 See UK Parliament, ‘Parliament, Church and Religion’ (undated), http://www.parliament.uk/about/living-heritage/transformingsociety/private-lives/religion/overview/church-and-religion/ (accessed 16 April 2016).

16 Wee Chong Jin, Constitutional Commission Report (1966) OCLC 51640681. The Singapore model of secularism seeks to bilaterally remove religion from the political domain while exerting a measured influence over religious matters, granting parity of status to all religions: Tham Seong Chee, ‘Religious Influences and Impulses Impacting Singapore’, in Religious Diversity in Singapore, ed. Lai Ah Eng (Singapore: Institute of Southeast Asian Studies, 2008), 18.

17 [2013] 4 SLR 1059.

18 [2013] 3 SLR 118.

19 [2012] 4 SLR 476.

20 See [2015] 1 SLR 26.

21 (Singapore) 1985 Rev Ed, 1999 Reprint.

22 Singapore Parliamentary Debates, Parliament No. 11, Vol. 83, Sitting No. 14 (22 October 2007).

23 P. M. Lee Hsien Loong (as a speaker in parliament), Parliament No. 11, Singapore Parliamentary Debates, Vol. 83, Sitting No. 15 (23 October 2007); Fook Kwang Han, Lee Kuan Yew: Hard Truths to Keep Singapore Going (Singapore: Straits Times Press, 2011), 377–80.

24 Thio Li-Ann (as a speaker in parliament), supra note 22; Elgin Teo, ‘Lawrence Khong: “There Are No Ex-Chinese, But There Are Ex-Homosexuals”’ (Singapolitics, 9 September 2013) http://news.asiaone.com/news/singapore/lawrence-khong-there-are-no-ex-chinese-there-are-ex-homosexuals (accessed 16 April 2016).

25 Ibid.

26 Ibid.

27 Janadas Devan, ‘377A Debate and the Rewriting of Pluralism’, The Straits Times (Singapore, 27 October 2007).

28 As opposed to the ‘historical critical’ method of liberal Christianity: see ibid; Robert Woodberry and Christian Smith, ‘Fundamentalism et al: Conservative Protestants in America’, Annual Review of Sociology 24, no. 1 (1998): 25–57; see Mathew Mathews, ‘Negotiating Christianity with Other Religions’, in Lai Ah Eng, Religious Diversity in Singapore, 571.

29 See Kirsten Han, ‘Pastors Ignite Debate Over Gay Rights in Singapore’, Asian Correspondent (23 January 2013), https://asiancorrespondent.com/2013/01/pastors-ignite-debate-over-gay-rights-in-singapore (accessed 20 September 2016).

30 Which one author describes as ‘incongruously named’: see Ng Yi-Sheng, Singapore Queers in the 21st Century (Singapore: Oogachaga Counseling & Support, 2006), 226.

31 Based on 2010 statistics; see Department of Statistics Singapore, ‘Census of Population 2010: Statistical Release 1’ (Census 2010, 2010), https://www.singstat.gov.sg/docs/default-source/default-document-library/publications/publications_and_papers/cop2010/census_2010_release1/cop2010sr1.pdf (accessed 16 April 2016).

32 See Alex Au, ‘Religious Affiliation of MPs’, Yawning Bread (August 2007), http://www.yawningbread.org/arch_2007/yax-784.htm (accessed 16 April 2016).

33 Ibid. There is, however, no information available as to which particular religious doctrines these individuals prescribe to, which precludes any further inferences from being drawn.

34 Sanders, ‘377 and the Unnatural Afterlife of British Colonialism in Asia’, 30.

35 Ibid., 43.

36 Terence Chong, ed., The AWARE Saga: Civil Society and Public Morality in Singapore (Singapore: NUS Press Pte Ltd, 2011), 2.

37 See Akshita Nanda, ‘NLB “Saddened by” Reaction Over its Removal of Three Books with Homosexuality Themes, Says Chief Executive’, The Straits Times (Singapore, 13 July 2014).

38 Nurul Azliah, ‘Pink Dot Singapore 2016 Attendance “Exceeds” Hong Lim Park's Capacity’, Yahoo News, 5 June 2016, https://sg.news.yahoo.com/pink-dot-singapore-2016-attendance-exceeds-hong-013751978.html (accessed 15 September 2016).

39 It is trite law that this is the correct test to be applied for such purposes: see, for example, Lim Meng Suang (CA), at [57]; Tang Eng Hong (standing), at [124]; Ong Ah Chuan v. Public Prosecutor [1979–1980] SLR(R) 710, at [37]; Public Prosecutor v. Taw Cheng Kong [1988] 2 SLR 410, at [58]; Nguyen Tuong Van v. Public Prosecutor [2005] 1 SLR 103, at [70].

40 Martha C. Nussbaum, From Disgust to Humanity (Oxford: Oxford University Press, 2010), 194.

41 Singapore Constitution, Art. 4.

42 Ibid., Art. 12.

43 Ibid., Art. 15.

44 See George Selvanera, ‘Gays in Private: The Problems with the Privacy Analysis in Furthering Human Rights’, Adelaide Law Review 16 (1994): 331.

45 (India) 1950; e.g. PUCL v. Union of India AIR 1997 SC 568 (Indian Supreme Court). This point was addressed in Suresh Kumar Koushal v. NAZ Foundation (Civil Appeal No. 10972 of 2013) (Indian Supreme Court).

46 See Lo Pui Sang v. Mamata Kapildev Dave [2008] 4 SLR(R) 754, at [6]: the courts have eschewed a ‘wide’ interpretation of the term ‘personal liberty’: it refers ‘only to the personal liberty of the person against unlawful incarceration or detention’, not a ‘personal liberty to contract’. The Court of Appeal in Lim Meng Suang (CA) reaffirmed this definition as ‘supported by the context and structure of Art 9 itself’: see [46].

47 Taw Cheng Kong, [170].

48 Lim Meng Suang (HC), [119].

49 Ibid.

50 See William Draper Lewis, ‘Address’ (Archive, 1 March 1900), archive.org/stream/jstor-3306914/3306914_djvu.txt (accessed 16 April 2016).

51 Benjamin N. Cardozo, The Nature of the Judicial Process (New York: Dover Publications Inc, 1921), 22.

52 (1783) Mass. Hist. Soc., Proceedings (1873–1875) 292–5.

53 (1967) 388 U.S. 1.

54 Lim Meng Suang (HC), [119].

55 Singapore Constitution, Art. 4.

56 On this particular point, i.e., the limits of protection that can be afforded to the right to religion (separate from the effluxion of time), Laws LJ perceptively noted in McFarlane v. Relate Avon Ltd [2010] EWCA Civ 880 at [23]: ‘[T]he conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled.’

57 Tham Seong Chee, ‘Religious Influences and Impulses Impacting Singapore’, 16–17.

58 Myriam Hunter-Henin, ‘Why the French Don’t Like the Burqa: Laïcite, National Identity and Religious Freedom’ International & Comparative Law Quarterly 61 (2012): 613–39.

59 Lim Meng Suang (HC), [146].

60 Ibid.

61 Lim Meng Suang (CA), [12].

62 Cf. a descriptive recount of the Hart-Devlin debate at Lim Meng Suang (CA), [162]–[174].

63 Ibid., [77].

64 In contrast to ‘religion’, ‘race’, ‘descent’ and ‘place of birth’, which are expressly listed as protected characteristics within Article 12(2).

65 See Lim Meng Suang (CA), [102].

66 Asia Pacific Journal of Human Rights and the Law 16, no. 1–2 (2015): 150.

67 Singapore Journal of Legal Studies (March 2016): 95.

68 Lim Meng Sang (HC), [47].

69 Lim Meng Suang (CA), [67].

70 Ibid.

71 Ibid.

72 See Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 K.B. 223, 229.

73 Neo, ‘Equal Protection and the Reasonable Classification Test in Singapore’, 112.

74 Lim Meng Suang (CA), [65].

75 Tan Eng Hong (standing).

76 Ibid., [126].

77 Lim Meng Suang (CA), [67].

78 Neo, ‘Equal Protection and the Reasonable Classification Test in Singapore’, 102.

79 Lim Meng Suang (HC), [66] and [70].

80 Ibid., [31].

81 Cf. Yong Vui Kong v. Public Prosecutor [2015] 2 SLR 1129, where the abolition of female whipping was justified based on scientifically grounded considerations, i.e. differences in male and female physiology: see [109].

82 See Martha C. Nussbaum, Hiding from Humanity: Disgust, Shame and the Law (Princeton: Princeton University Press, 2006), 75–85.

83 Taw Cheng Kong, [46].

84 Ibid., [54].

85 Neo, ‘Equal Protection and the Reasonable Classification Test in Singapore’, 102.

86 Lim Meng Suang (CA), [142].

87 Ibid., [142].

88 Ibid., [133] and [146].

89 Ibid., [143].

90 Ibid.

91 Ibid.

92 Ibid., [118].

93 Sanders, ‘377 and the Unnatural Afterlife of British Colonialism in Asia’.

94 In his speech introducing the Penal Code (Amendment) Bill 1938, Proceedings of the Legislative Council of the Straits Settlements (13 June 1948) at B49.

95 See [39]; similar observations were made in the Annual Reports on the Organisation and Administration of the Straits Settlements Police and on the State of Crime for the years 1936 (at [40]) and 1938 (at [48]). The report did not treat ‘male prostitution’ and ‘sodomy’ as two separate issues; ‘sodomy’ was discussed only in connection with ‘male prostitution’ under this same paragraph.

96 See, for example, Rex v. Captain Douglas Marr [1946] 1 MLJ 77; the Respondent was prima facie a sailor. He was accused of committing an act of gross indecency with a young male prostitute, who had later stolen a watch from him.

97 Lim Meng Suang (CA), [117].

98 Ibid., [142].

99 See United Nations Committee on the Elimination of Discrimination Against Women, ‘Response to the List of Issues and Questions with Regard to the Consideration of the Fourth Periodic Report to the United Nations Committee on the Elimination of Discrimination Against Women’ from Singapore (12 May 2011).

100 Lee, ‘Equality and Singapore’s First Constitutional Challenges to the Criminalization of Male Homosexual Conduct’, 169–70, citing Jack Tsen-Ta Lee, ‘The Text Through Time’, Statute Law Review 31 (2010): 217, 228.

101 Yap Po Jen, ‘Section 377A and Equal Protection in Singapore: Back to 1938’, Singapore Academy of Law Journal 25 (2013): 630, [10].

102 Neo, ‘Equal Protection and the Reasonable Classification Test in Singapore’, 104.

103 See Singapore Parliamentary Debates (22 October 2007), above note 22.

104 As noted, the language of the section itself only proscribes the commitment, abetment, procurement and/or attempts to procure the commission of ‘any act of gross indecency’ between two males, in public or private.

105 Lim Meng Suang (CA), [134].

106 Kay v. Goodwin (1830) 6 Bing. 576 at 582, per Tindal C.J., cited in Lemm v. Mitchell [1912] 1 A.C. 400, 406.

107 (Singapore) 2002, c. 1.

108 Duport Steels Ltd v. Sirs [1980] 1 All ER 529, 541.

109 Taw Cheng Kong, [46].

110 Ibid.

111 Ibid.

112 Ibid.

113 Lim Meng Suang (CA), [153].

114 See Neo, ‘Equal Protection and the Reasonable Classification Test in Singapore’, 107.

115 Lim Meng Suang (CA), [68].

116 Ibid.

117 Ibid.

118 Ibid., [85].

119 Ibid., [114].

120 Ibid.

121 Ibid.

122 Ibid.

123 Ibid.

124 Ibid., [153].

125 Ibid., [61].

126 Ibid.

127 Ibid., [62].

128 Tan Eng Hong (standing), [125].

129 Ibid.

130 Ibid.

131 Seow Hon Tan, ‘Pragmatism, Moral Legislation and Criminalization of Homosexual Acts in Singapore’, Journal of Comparative Law 3, no. 2 (2008): 285–304.

132 Hyam, Empire and Sexuality, 59.

133 See Phil C. W. Chan, ‘Shared Values of Singapore: Sexual Minority Rights as Singaporean Value’, International Journal of Human Rights 13, no. 2 (2009): 279, 280; Thio Li-Ann, ‘An “I” for an “I”? Singapore's Communitarian Model of Constitutional Adjudication’, Hong Kong Law Journal 27, no. 2 (1997): 152, 155.

134 John Stuart Mill, On Liberty (first published 1859, London: Everyman's Library, 1965).

135 Virginia Mantouvalou, ‘Human Rights and Unfair Dismissal: Private Acts in Public Spaces’, The Modern Law Review 71, no. 6 (2008): 912–39.

136 Mill, On Liberty, 72–3; Jeremy Bentham employed a similar argument in his 1785 essay ‘Offences against One's Self’ (Stonewall and Beyond: Lesbian and Gay Culture, undated), http://www.columbia.edu/cu/lweb/eresources/exhibitions/sw25/bentham/ (accessed 16 April 2016).

137 Joel Feinberg, Harm to Self (Oxford: Oxford University Press, 1989), 135.

138 See Matthias Yao Chih (as a speaker in parliament), supra note 23.

139 Christopher De Souza and Thio (as speakers in parliament), supra note 22; PM Lee Hsien Loong (as a speaker in parliament), supra note 23.

140 H. L. A. Hart, Law, Liberty and Morality (Stanford: Stanford University Press, 1963), 32–3.

141 Ibid., 46; this is aligned with Mill's own views that ‘offences against decency’ can be construed as harm against others.

142 Committee on Homosexual Offences and Prostitution (London: Her Majesty's Stationery Office, 1957).

143 See Hart, Law, Liberty and Morality, 140; Patrick Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1965).

144 Singapore Parliamentary Debates, see notes 22 and 23.

145 Chan, ‘Shared Values of Singapore’, 280.

146 Ibid.

147 See Mill, On Liberty.

148 Ibid.

149 Wolfenden Report, 24.

150 Ibid.

151 Ibid.

152 Devlin, The Enforcement of Morals, 1–25.

153 Nussbaum, From Disgust to Humanity.

154 Devlin, The Enforcement of Morals, 1–25.

155 Ibid., 13.

156 James Fitzjames Stephen, Liberty, Equality, Fraternity (first published 1873, Indianapolis: Liberty Fund 1993).

157 Devlin, The Enforcement of Morals, 4.

158 Ibid., 23.

159 Ibid., 25.

160 Ronald M. Dworkin, ‘Lord Devlin and the Enforcement of Morals’, Yale Law Journal 75 (1996): 986–1005, 992.

161 Hart, Law, Liberty and Morality, 50–1.

162 Ibid.

163 Ibid., 142.

164 See Christine Davies, The Strange Death of Moral Britain (New Brunswick: Transaction Publishers, 2006), xvii, xxii.

165 Nussbaum, Hiding from Humanity, 76–7.

166 Dworkin, ‘Lord Devlin and the Enforcement of Morals’, 1002.

167 Devlin, The Enforcement of Morals, 13.

168 Thio Li-Ann, A Treatise on Singapore Constitutional Law (Singapore: Academy Publishing, 2012), [3.108], citing the United Nations Convention of the Elimination of All Forms of Discrimination against Women, Art. 7.

169 Lim Meng Suang (HC), [27] and [29].

170 See ‘2. Theoretical Overview: Parts I and II’ above.

171 Ibid.

172 Ibid.

173 An independent study conducted in 2005 found that, inter alia, both Christians and Muslims held significantly more negative attitudes towards homosexuals. Significantly, the authors also observed that existing studies conducted with Singapore by both government ministries and activist group lacked the ‘depth, objectivity and representativeness’ necessary to ‘inform debate’: see Benjamin H. Detenber et al., ‘Singaporean's Attitudes Towards Lesbians and Gay Men and their Tolerance of Media Portrayals of Homosexuality’, International Journal of Public Opinion Research 19, no. 3 (2007): 367; see also Meredith L. Weiss, ‘Diversity, Rights, and Rigidity in Singapore’, North Carolina Journal of International Law and Commercial Regulation 36, no. 3 (2011): 625, 638 and Jianlin Chen, ‘Singapore's Culture War Over Section 377A: Through the Lens of Public Choice and Multilingual Research’, Law & Social Inquiry 38 (2003): 106, 111.

174 Lim Meng Suang (HC), at [86].

175 Singapore Government, White Paper on Shared Values, Cmd. 1 of 1991 (Singapore: National Printers, 1991).

176 See C. J. W.-L. Wee, The Asian Modern: Culture, Capitalist Development, Singapore (Singapore: National University Press, 2007), 102.

177 See Singapore Government, White Paper on Shared Values.

178 Simon S. C. Tay, ‘Human Rights, Culture and the Singapore Example’, McGill Law Journal 41, no. 4 (1996): 743, 762.

179 Chua Beng Huat, Communitarian Ideology and Democracy in Singapore (London: Routledge, 1995), 23–5; Chan, ‘Shared Values of Singapore’, 283.

180 Singapore Government, White Paper on Shared Values; ibid.

181 Ibid.

182 Ibid., para. 2.

183 See Terence Chong, ‘Filling the Moral Void: The Christian Right in Singapore’, Journal of Contemporary Asia 41, no. 4 (2011): 566–83.

184 See Baden Offord, ‘The Burden of (Homo)Sexual Identity in Singapore’, Social Semiotics 9, no. 3 (1999): 309, 313.

185 See P. M. Lee Hsien Loong (as a speaker in parliament), Singapore Parliamentary Debates, col. 2397.

186 Chan, ‘Shared Values of Singapore’, 280.

187 Thio Li-Ann, A Treatise on Singapore Constitutional Law, 155; see also Kenneth Paul Tan, ‘Imagining the Gay Community in Singapore’, Critical Asian Studies 39, no. 2 (2007): 179, 186.

188 Thio, A Treatise on Singapore Constitutional Law.

189 Simon Obendorf, ‘A Few Respectable Steps Behind the World? Gay and Lesbian Rights in Contemporary Singapore’, in Human Rights, Sexual Orientation and Gender Identity in The Commonwealth: Struggles for Decriminalisation and Change, ed. Corinne Lennox and Matthew Waites (London: School of Advanced Study, University of London, 2013), 238; see also Chan, ‘Shared Values of Singapore’; and Thio, A Treatise on Singapore Constitutional Law.

190 Thio, A Treatise on Singapore Constitutional Law, 174.

191 Chan, ‘Shared Values of Singapore’, 292.

192 Ibid., 288: ‘[I]f Singapore is essentially a Confucian polity, why should the National Council of Churches of Singapore that represents Anglican, Methodist, and Presbyterian churches have such influence on governance in Singapore as was apparently reflected in Prime Minister Goh's speech?’

193 Ibid., citing Oliver Phillips, ‘A Brief Introduction to the Relationship between Sexuality and Rights’, Georgia Journal of International & Comparative Law 33 (2005): 451, 453.

194 Since the 1990s, homosexual rights began to develop in ‘limited ways’ in Japan, Korea, Taiwan and Hong Kong: Douglas E. Sanders, ‘Flying the Rainbow Flag in Asia’ (2005), https://openresearch-repository.anu.edu.au/bitstream/1885/8691/1/Sanders_Flyingtherainbowflaginasia2005.pdf (accessed 27 November 2016).

195 Chan, ‘Shared Values of Singapore’, 290.

196 Devlin, The Enforcement of Morals, 4–5, 25.

197 This family model reflects Christian views, as both Judaism and Islam permit polygamy, a practice not generally accepted as consistent with human rights law within the international community: see Aaron Xavier Fellmeth, ‘State Regulation of Sexuality in International Human Rights Law and Theory’, William & Mary Law Review 50 (2008): 797, footnote 608, citing the United Nations Human Rights Commissioner, General Comment 28, Equality of Rights Between Men and Women (Article 3) (29 March 2000).

198 Richard Posner, Sex and Reason (Cambridge: Harvard University Press, 1994), 15.

199 Lim Meng Suang (HC), [127]; see Baey Yam Keng (as a speaker in parliament), supra note 22.

200 Ibid.

201 See John Finnis, Natural Law and Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011); and John Finnis, ‘Law, Morality and “Sexual Orientation”’, Notre Dame Law Review (1994): 1049–76.

202 See George Bradley and Robert George, ‘Marriage and the Liberal Imagination’, Georgetown Law Journal 84 (1995): 301, 303–4.

203 Finnis, Natural Law, 95–7; and Finnis, ‘Law, Morality and “Sexual Orientation”’, 1066–7.

204 Finnis, Natural Law, 28.

205 Jean-Pierre Torrell (translated by Bernhard Blankenhorn), Christ and Spirituality in St. Thomas Aquinas (Washington, DC: The Catholic University of America Press, 2011), 23–4.

206 Ivan Hugh Walter, No Sacred Place: Bad Faith, Lies, and Illusions, (Indianapolis: iUniverse Publishing, 2011).

207 Finnis, Natural Law, 81–99.

208 Thomas Aquinas, Quaestiones de Quolibut (VII-XI), as cited in John Finnis, ‘Sex and Marriage: The Substance and Soundness of Aquinas’ Account’, in Human Rights and Common Good: Collected Essays, Vol. III (Oxford: Oxford University Press, 2011).

209 Aquinas, Scriptum super Libros Sententiarum Petri Lombardiensis (IV), ibid., 7.

210 John Finnis, ‘Sex and Marriage: Some Myths and Reasons’, in Human Rights and Common Good, 385.

211 See, for example, Simon LeVay, Gay, Straight, and the Reason Why: The Science of Sexual Orientation (Oxford: Oxford University Press, 2011); and Alicia Garcia-Falgueras and Dick F. Swaab, ‘Sexual Hormones and the Brain: An Essential Alliance for Sexual Identity and Sexual Orientation’, Endocrine Development 17 (2010): 22–35; discussed further in later sections.

212 Stephen Macedo, ‘Reply to Critics’, Georgetown Law Journal 84 (1995): 329, 334.

213 Stephen Macedo, ‘Homosexuality and the Conservative Mind’, Georgetown Law Journal 84 (1995): 72, 79.

214 [2004] UKHL 30.

215 Posner, Sex and Reason.

216 Interestingly, prior to the repeal and replacement of section 377 of the Singapore Penal Code in 2007, such non-sexual procreative acts were legislatively proscribed in Singapore unless they were a prelude to heterosexual coitus: see Public Prosecutor v. Tan Kuan Meng [1996] SGHC 16 at [17].

217 Herbert L. Packer, The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968), 304.

218 It is easily distinguishable from sadomasochistic sex, where there is a clear risk of serious physical injury: see R v. Brown [1993] 2 All ER 75, where the majority of the House of Lords approved the Court of Appeal's holding in Attorney-General's Reference (No 6 of 1980) [1981] Q.B. 715: ‘it is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason’.

219 See Lim Meng Suang (HC), [30] and [87].

220 See Myrna E. Watanabe, ‘Origins of HIV: The Interrelationship between Nonhuman Primates and the Virus’, BioScience 54, no. 9 (2004): 810–14; The Aids Institute, ‘Where Did HIV Come From?’ (The Aids Institute, 2011), http://www.theaidsinstitute.org/education/aids-101/where-did-hiv-come-0 (accessed 16 April 2016).

221 The cumulative total was measured between 1985 and 31 December 2014: UNAIDS, ‘Global AIDs Response Progress Reporting (GARPR) 2014 – Country Progress Report Singapore’, http://www.unaids.org/sites/default/files/country/documents/SGP_narrative_report_2015.pdf (accessed 14 September 2016).

222 Ibid.

223 Lim Meng Suang (HC), [30].

224 See Fellmeth, ‘State Regulation of Sexuality in International Human Rights Law and Theory’, 918.

225 See Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford University Press, 2004), 5.

226 Ibid.

227 Michael J. Klarman, From the Closet to the Altar (Oxford University Press, 2013), ix, 170.

228 Lim Meng Suang (CA), [101].

229 Ibid., 920.

230 Fellmeth, ‘State Regulation of Sexuality in International Human Rights Law and Theory’, 916–17, citing, inter alia, John Gallagher and Chris Bull, Perfect Enemies (1996), 13–24, 78, 209 (US); and Didi Herman, The Antigay Agenda (1997) 78–80 (US).

231 (2003) 539 U.S. 558.

232 (1980) 51 N.Y.2d 476.

233 Lawrence v. Texas, 577; People v. Onofre.

234 People v. Onofre, 489–90.

235 (1973) 12 Crim. L. Rep. 2531.

236 Ibid., 2533.

237 (1998) (12) BCLR 1517 (CC), 26.

238 Cf. the Court of Appeal's analysis of the second limb in Tan Eng Hong (standing), [125].

239 Lim Meng Suang (CA), [70].

240 Ibid.

241 Ibid., [70] and [77].

242 Vernon Bogdanor, ‘The Sovereignty of Parliament or the Rule of Law?’ Magna Carta Lecture (15 June 2006).

243 Lim Meng Suang (CA), [84].

244 Ibid.

245 Ibid.

246 Singapore Constitution, Art. 4 provides that ‘This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.’ Deference must be given to the constitution. An analogy can be made to the European Court of Human Rights’ approach in Norris v. Ireland (6/1987/129/180), where the criminalisation of private male homosex was found to be incompatible with the European Convention on Human Rights.

247 George Letsas, ‘Lord Sumption's Attack on Strasbourg: More than Political Rhetoric?’ (UCL European Institute, December 2013), http://www.ucl.ac.uk/european-institute/highlights/2013-14/sumption (accessed 16 April 2016).

248 See Jürgen Habermas, The Theory of Communicative Action, Volume 2: Lifeworld and System (Boston: Beacon Press, 1987), 357.

249 Ibid.

250 See Jürgen Habermas, Between Facts and Norms (Cambridge: MIT Press, 1996), 7.

251 In terms of both political and personal rights: see ibid., 122–5.

252 Jürgen Habermas, The Theory of Communicative Action, Volume 1: Reason and the Rationalisation of Society (Boston: Beacon Press, 1985), 69.

253 John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 150, 226.

254 Sanders, ‘377 and the Unnatural Afterlife of British Colonialism in Asia’, 33.

255 Thio (as a speaker in parliament), supra note 22; and Teo, ‘Lawrence Khong’.

256 Although the Singapore Court of Appeal in Chan Hiang Leng Colin v. Minister for Information and the Arts [1996] 1 SLR(R) 294 held that the prohibition of the importation, sale or distribution of publications of the International Bible Students Association, an organisation of Jehovah's Witnesses, did not violate ‘a citizen's right to profess, practice or propagate his religious belief’ under this Article, it did not define this key term.

257 Stanislaus v. State of Madhya Pradesh [1977] AIR SC 908. Art 25(1) of the Indian Constitution is identical to Art 15(1) of the Singapore Constitution; it also guarantees individuals the right to ‘profess, practise and propagate’ their religions.

258 Ibid.

259 See Lim Meng Suang (CA), [92] and [187].

260 ‘Response to the List of Issues and Questions with Regard to the Consideration of the Fourth Periodic Report’ to the ‘United Nations Committee on the Elimination of Discrimination Against Women’ from Singapore, see note 99, at [31.3].

261 Lim Meng Suang (HC), [61].

262 ‘Like cases should be treated alike’: Aristotle, ‘Nicomachean Ethics’ (Vol. 3, 1131 a10-b15); and Aristotle, ‘Politics’ (Vol. 3, 9.1280 a8–15, 12.1282 b18–23), in The Complete Works of Aristotle, ed. Jonathan Barnes (Princeton: Princeton University Press, 1984).

263 Sandra Fredman, Discrimination Law (Oxford: Oxford University Press, 2011), 8.

264 Aristotle, ‘Politics’ (Vol. 1, 1260 a11).

265 Fredman, Discrimination Law, 9.

266 Lim Meng Suang (HC), [44].

267 Bhikhu Parekh, The Future of Multi-Ethnic Britain: The Parekh Report (London: Profile Books, 2000), 2.

268 Lim Meng Suang (HC), [35].

269 Fredman, Discrimination Law, 25.

270 Ibid.

271 Nicholas Bamforth, ‘Same-sex Partnerships: Some Comparative Constitutional Lessons’, European Human Rights Law Review (2007): 47.

272 Taw Cheng Kong.

273 Ong Ah Chuan.

274 Lim Meng Suang (HC), [61].

275 Part IX, Employment Act (Singapore) 2009, c. 91.

276 Thio (as a speaker in parliament), supra note 22; and Teo, ‘Lawrence Khong’.

277 P. M. Lee Hsien Loong (as a speaker in parliament), supra note 23; Fook, Lee Kuan Yew, 377–80; for the scientific support behind this view, see, for example, LeVay, Gay, Straight, and the Reason Why; and Garcia-Falgueras and Swaab, ‘Sexual Hormones and the Brain’.

278 ‘In so far as the supposed immutability of a person's sexual orientation is concerned, the conflicting scientific views on the issue suggest that there is, at present, no definitive conclusion … ’: Lim Meng Suang (CA), [53].

279 See Equality Foundation v. City of Cincinnati 128 F.3d 289 (6th Cir. 1997), per Justice Stevens.

280 [1997] 1 SLR 69.

281 The definition of ‘carnal intercourse against the order of nature’ in section 377 of the Singapore Penal Code has since been repealed and replaced.

282 Kwan Kwong Weng, [29].

283 Ibid., [31].

284 Ibid.

285 See Chan, ‘Shared Values of Singapore’, 298.

286 Robert Plant, ‘Religion in a Liberal State’, in Religion in a Liberal State, ed. Gavin D’Costa et al. (Cambridge: Cambridge University Press, 2013), 18.

287 Harold Berman, The Interaction of Law and Religion (Nashville: Abingdon Press, 1974), 134–5.

288 ‘Religion or belief’ is also protected under section 4 EA.

289 Maleiha Malik, ‘Religion and Sexual Orientation’, in D’Costa et al., Religion in a Liberal State, 74.

290 [2013] UKSC 73.

291 Eweida and others v. United Kingdom [2013] ECHR 37.

292 Malik, ‘Religion and Sexual Orientation’, 88.

293 EA, Sch. 9(5)-(6) and Sch. 23(2): religious exception to prohibition on sexual orientation discrimination where employment in a post is for the purposes of an organised religion. This is likely to be construed in a very restrictive fashion: R. (AMICUS) [2007] I.C.R. 1176.

294 (UK) 2004.

295 Dinah Rose QC, ‘Religion and Belief Discrimination after Eweida and Ladele’, Employment Lawyers Association Lecture (4 June 2013).

296 Minister of Home Affairs v. Fourie [2005] ZACC 19.

297 Ibid.

298 Ibid.

299 Ibid.

300 Bamforth, ‘Same-sex Partnerships’.

301 A similar approach is reflected in how the state often seeks constructive religion-inspired feedback on national policies, to avoid religious insensitivities, while declining to ‘enforce the choices of one group on others, or make these choices the basis of national policy’: see P. M. Lee Hsien Loong, Ministerial Statement by Prime Minister on The Proposal to Develop Integrated Resorts, 18 April 2005.

302 S v. Lawrence, Negal, Solberg [1997] 4 SA 1176, per Sachs J.

303 Parekh, The Future of Multi-Ethnic Britain.

304 Julian Rivers, ‘The Secularisation of the British Constitution’, Ecclesiastical Law Journal 14 (2012): 398.

305 Lim Meng Suang (CA), [11].

306 Maleiha Malik, ‘Religious Freedom in the 21st Century’, Westminster Faith Debates (18 April 2012).

307 Malik, ‘Religion and Sexual Orientation’, 69.

308 Jonathan Elliot (citing Alexander Hamilton), The Debates in The Several State Conventions on the Adoption of the Federal Constitution (Minnesota: University of Minnesota, 1836), 2: 269.

309 See Lim Meng Suang (HC), [31].

310 Nussbaum, From Disgust to Humanity.

311 See Nussbaum, Hiding from Humanity, 24, 83.

312 Ghaidan v. Godin-Mendoza; see Ronald M. Dworkin, Justice for Hedgehogs (Cambridge: Harvard University Press, 2011), 2.