Wednesday, March 08, 2006

Arguments that shouldn't be hard to answer

I didn't become involved in this issue because of personal religious beliefs. I didn't get involved because of a personal stake in the advancement of gay rights. I got into it because every debate must have "rules," and because the Church, which was once persecuted, should know that viscerally.

We protect the rules because twisting them, even at a temporary advantage, fashions the very weapon that would one day take us down. The "rules" are simple. Tell the truth. Don't lie. Don't change the subject unless the premise is demonstrably flawed. But most imporant, accept beforehand that you may never change the other's mind, and don't incarcerate, hurt, or kill them if you can't. The party that breaks these rules for temporary gain will or ought to be the first against the wall when the revolution comes.

It is because these rules are broken on a daily basis in politics that we don't look to Congress or the White House for real debate. "Debate" in government is about power and the shrewd application of short-term advantage toward the attainment of long-term goals. Politics avoids the normal bcklash that comes from breaking the rules because of the near infinity of means available to politicians to avoid blame -- mostly by changing the subject, but most importantly by hiding behind public opinion. If a politician is popular and supported by a clear majority, he or she can do nearly anything they like.

I must confess that my objection to the Nigerian legislation that would ban speech in defense of homosexuality was not because of its the human rights violations it contains. I feel guilty about that. We should be standing up for those rights everywhere -- not just here in the United States.

No, what got my attention was that that the Anglican Church of Nigeria lent its endorsement to the legislation. And because American conservative Anglicans have failed to voice any kind of dismay at that endorsement. Also, I was and continue to be very disturbed by the involvement of Archbishop Akinola in the incitement of violence in the Nigerian south by Christians against Muslims (see here and here).

But really this is about is breaking the rules.

John, writing about the Martyn Minns letter at TitusOneNine, made the following arguments for why the Archbishop is justified in his support of the Nigerian legislation (read the whole thing there). I'll answer parts of John's comment a bit at a time (I hope he doesn't mind -- I picked his comments because I believed them to be both representative and fair):
Bishop Chane goes on to say, "[The Nigerian law] reads in part: 'Publicity, procession and public show of same sex amorous relationship through the electronic or print media physically, directly, indirectly or otherwise are prohibited in Nigeria.'" I am sure the good Bishop is well aware that in certain societies "public show" of not just "same sex amorous relationships" but even "heterosexual amorous relationships" are not encouraged. In such societies, what is the good Bishop suggesting the church do?
Simple, don't endorse those laws. Akinola has the right to stand up for a belief that is central to his position as a spiritual leader in the Anglican Communion -- conversely, his dissenters have the right to voice their beliefs, and neither Akinola nor the government should have the power to give that right or take it away.

Besides, heterosexual Nigerian couples are not legally barred from public shows of affection, so what happens in other countries is beside the point. Respectfully, John is "breaking the rules" by changing the subject without first addressing the question at hand. John goes on:
The supporters of the law see homosexual behavior as a decadence of the West (like the excesses of the Roman empire) rather than something to be emulated. They support the law because of its "moral" component, which the link (UN) Matt posted, clearly recognizes. The UN covenant also does not recognize or condone same sex marriage or civil unions nor does it provide for homosexuals as a "minority."
And yet the detractors see it as an infringement of their basic freedoms. If the law is enacted, those detractors will never again be able to legally voice their opinions. Remember, the law is not just about banning gay marriage, but about denying the right to defend it, if one so chooses.

As far as the UN International Covenant on Civil and Political Rights (UN-CCPR) is concerned, I have to agree with John that while Nigeria is a signatory, and is bound by that covenant, its articles on speech contain a "public order and morals" exception, much like that found in the constitutions of countries in continental Europe. In fact, the UN-CCPR was based largely on those constitutions in order to guarantee, for example, the right to assemble, but not the right to disturb public order. My attorney wife tells me this is one of the critical ways in which continental European civil rights differ from those of the United States or the United Kingdom.

However, while John focuses on the "public morals" clause of the Articles, I would like to draw attention to another important clause, which provides for assembly only insofar as it protects "the fundamental rights and freedoms of others." In other words, rights can be abridged when public morals are at stake, but only insofar as the political speech of the limited party is not affected, or so my attorney wife tells me.

John is right that the UN Covenant does not recognize same-sex unions, not does it claim homosexuals to be a recognized minority. However, the spirit of the Covenant (and all similar documents) is to protect the rights of individuals against governments. As soon as governments become involved in limiting the right to speech, it loses legitimacy. I strongly recommend the recent short essay by Ronald Dworkin in the New York Review of Books on the "Right to Ridicule." Money quote:
Freedom of speech is not just a special and distinctive emblem of Western culture that might be generously abridged or qualified as a measure of respect for other cultures that reject it, the way a crescent or menorah might be added to a Christian religious display. Free speech is a condition of legitimate government. Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if government has prevented anyone from expressing his convictions about what those laws and policies should be. [emphasis mine]
John goes on:
The law itself is clearly better than a Shari'ah law which would have homosexuals and homosexual acts punishable by death. I think [Archbishop] Akinola did very well, considering the circumstances; he supports democratic legislation that the people of Nigeria want, preserves the Nigerian culture, and removes the temptation for homosexual tendencies, while providing an orthodox Christian alternative to homosexuality. In a nation where about half the population is Muslim, not establishing a Shari'ah law for homosexuality is a big victory.
A big victory for whom? President Obasanjo, who introduced the legislation? A big victory for Christians? A big victory for Muslims? A big victory for the Church of Nigeria or Akinola? A big victory for homosexuals living in Nigeria who will now no longer have the "temptation" to be homosexual (that's an assumption about the nature of homosexuality that I don't want to get in an argument about)?

I don't yet understand who wins and how they win. The only political scenario I can think of -- and it's pretty cynical even for an Oyinbo like me -- is that Obasanjo, a Christian, has presented the legislation in order to shore up support among moderate Muslims in the north. Why would he do that? After all, he's constitutionally term limited to two four-year terms as President, which he will complete in March of 2007. It turns out that Obasanjo has for some time now been testing the waters for a change in the constitution (as part of the currently ongoing constitutional review process) that would grant him the possibility of a third term. Muslims are largely dead-set against it. Even John Negroponte thinks its a bad idea.

Besides, I don't think you're going to get an argument from me that Shari'ah is a good thing for Nigeria. But is it likely that Shari'ah is going to become the law of the land? By enacting this legislation (and by the way -- sodomy is already illegal in Nigeria and punishable by 14 years' imprisonment) they are doing nothing but limiting speech. John goes on:
If the state and church are to be separate why does the church keep insisting that it fight social battles? After all, social issues are political and in a democracy, the people (all people) must decide what laws they want. Shouldn't the people of Nigeria have the freedom to make their decisions without being held to some ambiguous "Western" standard and without interference from religious bodies especially those far removed from the Nigerian culture? And weren't sodomy laws in some colonies brought by the European powers in the name of "civilizing the heathen"?
Again, this ain't about sodomy -- which is already illegal -- it's about speech. But by using the word "democracy," John is making my argument for me. Like Dworkin says, "Freedom of speech is not just a special and distinctive emblem of Western culture." Although I don't like it, I'm not going to argue with the Church's endorsement of a law that would ban gay marriage, especially if public support for the law is massive. But I will not sit by and watch the Church endorse the curtailment of that law's dissenters' right to disagree.

Church/state issues in the US revolve predominantly around the 1st Ammendment, and whether the government should be allowed to establish a state religion. The "establishment clause" of the 1st amendment, however, does not bar religious people from voicing their opinions and influencing their government. The views and practices of an aggrieved minority might even be threatened by what the government then does -- but under no circumstance (in the US, the UK, France, or just about anywhere) is that minority's speech limited, nor should it be.

Let the Church fight social battles! But let's not allow the Church to quell speech.

And in the interest of being constructive:

How about this compromise: Akinola endorses the law, but with the provision that it places no limit on speech, assembly or the press? Perhaps, knowing that sodomy is already illegal, he could ask that the proposed punishment for participating in a same-sex marriage be reduced to one year's imprisonment.

I'm sure the majority of Nigerians will publicly support the new law, but can't they handle dissent without putting the dissenters in jail?


John said...

Thank you for taking the time to reply to my post. First, the post is not a "justification" for Abp Akinola's stance - he is entitled to his opinion and what he thinks is best for Nigeria and the Anglican Church in Nigeria. I will also not comment on the political situation there with regard to President Obasanjo's third term. I don't know if it is likely that the Shari'ah (all or parts of it) will become law in Nigeria under a Muslim President. (It is already enforced in many states in Northern Nigeria.) In many countries where the Muslims are a majority, the Shariah, has already influenced the law, if not become the law. What do you think will happen to homosexuals in Nigeria if the Shari'ah becomes the law? You seem to suggest that the Shari'ah becoming the law is not likely to happen, while Abp Akinola holds a different view.

While reading your articles (from a human rights perspective) and Bishop Chane's op-ed in the WaPo, the main point of contention appears to be the new law would shut down "advocacy of gay rights" in Nigeria - you extend that to mean "free speech, free assembly and free practice of religion would all be abrogated by the new law" (from your post on T19). Now, the Anglican Church in Nigeria does not recognize or authorize gay marriages, neither do the mosques or churches of other denominations currently existing. It appears to me, that this law prevents the establishment of new Churches and organizations specifically funded by ECUSA and its bishops like Bishop Chane. Is it any wonder that the organizations are found only in the southern (Christian) region of Nigeria rather than the Northern regions which have implemented Shari'ah? Hence the huge hue and cry about "human rights". In the name of "human rights" what is happening is a systematic assault on cultures that are different from the West and reject the "Western" notion of "liberalism", funded by affluent Western countries and their churches. The problem appears to be that the Anglican Church in Nigeria refuses to be cowed down or swayed by such rhetoric.

Simple, don't endorse those laws....

Abp Akinola is a citizen of Nigeria and if his social customs call for barring "public shows of affection", that is what he should and would do. I don't think Bishop Chane would go against the wishes of his social customs or peers or "constituency", either. So your response of not "endorsing" the laws does not work.

Besides, heterosexual Nigerian couples are not legally barred from public shows of affection, so what happens in other countries is beside the point.

The point I was trying to make was that in different societies "public shows of affection" even among "heterosexual couples" (considered normative in most societies) are considered "offensive". From your comment, it appears that the Nigerian people are being "judged" by "Western" standards of what constitutes "acceptable behavior". I don't know why "Western standards" is the gold standard - can't a society decide for itself what "Western" standards, if any, it chooses to accept? After all if you are all about "freedom" why can't a society, choose freely for itself, where it wants to go without undue interference from aid agencies or human rights organizations? Is "freedom" acceptable only when it supports a "Western liberal" point of view.

You are correct in that there is no "legal" barrier for heterosexual couples "public shows of affection" but when societal pressure performs just as well, why would the "legality" of the "barrier" matter? The answer is obvious - challenge legally and get the Supreme Court to make a decision rather than using a democratic process that involves all citizens.

If the law is enacted, those detractors will never again be able to legally voice their opinions.

The law does not limit the fundamental right of a homosexual individual in Nigeria to vote or express dissent in a number of ways. There was a fair amount of discussion regarding the bill, homosexuals wrote articles in newspapers and there was "advocacy", as you put it. When the bill has been passed, the time for "advocacy" is over - what you are now asking the Anglican Church in Nigeria to do is to disobey their own laws, passed by their own countrymen.

Richard Dworkin's article is interesting, but brings into sharp relief the fundamentals of "free speech". Free speech according to the Dworkin article is a "tax" that weak or unpopular minorities "pay" to be protected from discrimination, in a democracy. But in a multi-cultural society free speech has its limits - it comes with responsibilities.The rights of an individual are always subordinated to the collective good of society. He further states that Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if government has prevented anyone from expressing his convictions about what those laws and policies should be.

Like I stated above, there was a discussion and "advocacy", yet the law was passed.

But I will not sit by and watch the Church endorse the curtailment of that law's dissenters' right to disagree.

The people of Nigeria passed the law - the Church's endorsement has (and should have) little to do with it. The dissenter has the right to disagree - the dissenter can petition the court, can write to the representatives, and more importantly can vote against the measure. All Section 7 does is to restrict the dissenter from organizing "public protests", from publishing in newspapers, advertising on Radio and TV etc. This is a restriction on "free speech" but it is more a restriction on "advocacy" organizations, than individuals - organizations that have been funded by the affluent Western countries and churches trying to split the Anglican Church in Nigeria. Organizations do not have "rights", individuals do.

Matt said...

Hi John,

I'm honored by your contribution. You make good points, but I think we're still going to find ourselves in disagreement.

A point-by-point rebuttal to what you wrote would take a lot of space, so I'll just write down the thoughts I had while reading your comment.

First, the Nigerian law would limit both individual speech and free assembly (among other things). You say that the law would be aimed more at limiting organizations. But organization is the key to fighting political battles. If the law limits assembly, then organizations opposed to the law would be illegal, and the collective voice of many individuals would be effectively silenced. This is canonical. Thus, limiting assembly is effectively the same as limiting speech. Come on!

Second, the law has not yet passed.

Third, in my posts I have bent over backwards (uncomfortably) to allow that the Nigerian people can legitimately decide to ban gay marriage as part of the democratic process. As such, to the extent that you're talking about the process of societies making democratic decisions (vis-a-vis Dworkin's article) then we are effectively in complete agreement. But then you go and say that it's perfectly ok to ban free assembly (and thus collective speech).

Fourth, bringing up the American process of finding constitutional protections for minorities is irrelevant (i.e., "challenge legally and get the Supreme Court to make a decision rather than using a democratic process that involves all citizens"). It sounds like you're bringing into this discussion a frustration over what tends to happen here, rather than would could ever happen in Nigeria.

Fifth, you seem to be arguing that the Nigerian government (which rests only semi-peacefully on its supposed secularism) should be allowed to block new churches from forming, and that Akinola is within his rights to want to oppose that. Here (and on my first point above) is where your authoritarian streak shows itself, and where I (and Chane) start to get worried about your plans for the US.

Sixth, you're being disingenuous or na├»ve if you think that the church’s endorsement of the law carries no weight. And if you think that religious leaders don't have something other than simply banning gay marriage in mind when they endorse this legislation, look at this post.

Seventh (and this is it), in response to your comment on another post of mine, about terrorist organizations and Branch Davidians, I would point out that we're talking about very different things. I don't suppose you would argue that ECUSA is planning churches in Nigeria (they are?) in order to blow things up or horde weapons.

Anyway, John, I really appreciate your perspective. You keep me on my toes, and though we appear to disagree rather deeply on this, I hope you'll keep involved in this discussion. That said, what you say really, really frightens me. Conservative Anglicans in the US support Akinola (if only in spirit), while he endorses a law that abolishes opposition to his teachings? That's like supporting Paul in his effort to perform citizen’s arrests on the Areopagus.