The Real Slippery Slope
The slippery slope argument is often invoked in conversations about 377A. More often than not, it is cited by those who oppose substantive equality for LGBTQ persons. The argument is premised on an assertion, not always supported by evidence, that a seemingly small first step may set in motion a chain of related events which culminates in a significant effect. This significant effect is usually negative, at least in the eyes of those invoking the argument.
Two common themes in slippery slope arguments are irreversibility and unintended consequences.
In the past couple of days alone, we have seen both a former Foreign Minister and a religious group referencing the argument.
CNA reported that the Roman Catholic Archdiocese of Singapore, who argued that the definition of marriage should be enshrined in Singapore’s Constitution before 377A is repealed, said:-
“Otherwise, we will be taking a slippery road of no return, weakening the fabric of a strong society which is founded on the bedrock of holistic families and marriages.”
George Yeo, a former foreign Minister, offered some insights when he was asked about the views of religious groups on Section 377A:-
The problem with 377A is, it was an inherited law. And we say, well, we will not act on it. That is not satisfactory. So at some point in time government will have to rationalise it. But the moment you rationalise it, people will say, look, this is a slippery slope. Then after that there’ll be gay marriage and adoption by gay parents. But if there is an assurance that it’s not a slippery slope. I think we would have diffused the issue.
So to me, the key is what assurance the government can give to these groups that you talk about, that this is not a slippery slope. (There are) red lines which will not be crossed. Not just red tape, which can be easily removed, but something firmer than that, which comforts them, then we would have defused this issue.
The former Minister was of the view that the Government should give some form of assurance to anti-LGBT groups that the repeal of 377A would not lead to the legalisation of gay marriage and adoption. The 2 are separate and distinct issues that should not be conflated.
In a similar vein, during his recent interview with Bloomberg, Deputy Prime Minister Lawrence Wong took pains to separate distinguish the issue of 377A’s repeal and other forms of substantive gay rights. In a more recent interview, the man who could become our next Prime Minister even went so far as to say that the definition of marriage would not change under his watch should PAP win the next General Election.
In our view, there is no need to paint substantive equality for LGBTQ+ persons as a bogeyman. After all, the “mile” that some accuse them of seeking after receiving an inch is the same rights that any heterosexual person has.
We are all human, and we all deserve the same rights.
In reality, there would be no practical change for the LGBTQ+ community before and after formal repeal. However, as this illustration from Protect Singapore’s 82-page report shows, some were afraid of the supposed knock on effects of repealing 377A:-
An actual slippery slope to avoid a fictional slippery slope
However, in attempting to convince and assure this group of the limited impact of 377A’s repeal, we must be extra careful so as to not go down an actual slippery slope to avoid a fictional slippery slope.
The one slippery slope that is potentially irreversible which may lead to consequences that threaten the very foundation of our secular and multi-cultural society is the call by anti-LGBT groups to codify the current definition of marriage in the Constitution.
These groups called for the supreme law of the land, i.e. the Constitution, the most fundamental legal document in Singapore, to be amended to include the current definition of marriage.
To avoid accusations that we are misrepresenting their intentions, we set out Jason Wong’s call in its entirety below:-
We also hope that the government will introduce safeguards recommended in the Protect Singapore Townhall Report (please see https://tinyurl.com/ProtectSGTownhallReport for the full Report), which includes the following:
1. Amend the Singapore Constitution – the highest law of the land – to enshrine the definition of marriage as a man-woman union and the status of Muslim marriage under Article 153 of the Constitution as well as the Administration of Muslim Law Act (AMLA).
We note that the government only referred to amending the constitution to protect the definition of marriage from legal challenge. However, this is not enough, since it can be changed by a simple majority, and not with a super majority of 66% should the definition itself be enshrined. This also doesn’t stop activists for pushing for civil unions.
This was at the top of Jason’s list of “safeguards”.
His other “safeguards” included “Put in place rigorous safeguards to prevent pro-LGBTQ+ teachers, staff and other students from pressuring students to accept pro-LGBTQ+ ideas, values and beliefs, or participate in pro-LGBTQ+ activities.” and “Rigorously enforce laws against people who harass, threaten or use offensive speech against people for having or expressing their pro-family views on sex, gender, marriage and family which do not conform to LGBTQ+ ideologies.”
We wonder if “Protect Singapore” would be as supportive if the proposals were broadened to also include discrimination against LGBTQ+ persons and teachers who preach about ideas harmful to LGBTQ+ persons.
We are no expert on families, but we would think that there are a lot more pressing issues that actually affect straight marriages than the current legal definition of marriage.
How the proposed Constitutional Amendments would look
Thankfully, the Government has outrightly rejected the suggestion that the definition of marriage should be enshrined in the Constitution.
All it intends to do is to attempt to protect Parliamentary sovereignty by ousting the Court’s powers to review the current legal definition of marriage. As the Minister for Law, Mr K Shanmugam, put it, the amendment protects Parliament’s right to define what marriage is.
“I want to be clear because I think there’s some confusion. The definition of marriage is not going to be in the Constitution. That’s not the intention.”
In other words, in order to change the actual definition of marriage, all that is required is a simple majority in Parliament (50%).
Whereas, if the definition of marriage itself were to be codified in the Constitution, a two-third majority (66%) is required to amend the Constitution.
Although the Government has, in no uncertain terms, rejected the proposition of the anti-LGBT groups, this is something that we must fiercely and zealously guard against. We cannot become complacent.
One practical way to prevent this is to deny the ruling party of the day a supermajority in Parliament. That way, without two-thirds of the seats in Parliament, it would not be able to amend the Constitution at will.
Will the Constitutionality of the proposed amendments themselves be challenged?
Describing what the proposed constitutional amendments may look like, Minister Shanmugam was reported by the Straits Times to have said:-
“…the Government is planning to explicitly state in the Constitution that Parliament can define the institution of marriage in the way it has been defined in the Women’s Charter, and can make other pro-family policies on the basis of that definition.”
Depending on how the actual amendments are drafted, and how they are interpreted, there is a chance that the constitutionality of the amendments themselves may be challenged.
In Singapore, the doctrine of separation of powers operates to prevent abuse of power and ensure check and balance. Pursuant to this, the judiciary operates as a check and balance on executive overreach through its powers to review legislation and executive decisions.
If the proposed constitutional amendments affect the basic structure of the Constitution itself, they may be challenged in the Courts.
We cannot always rely on the assumption that those in power will always act in good faith. This constitutional system of checks and balances is designed to prevent abuse and accumulation of power.
This proposed amendment may also stem from concerns gleaned from the ongoing situation in the USA, where the Court overturned abortion rights. In Minister Shanmugam’s view, such political issues should be decided by Parliament, not the Courts.
The Minister for Law also outlined how political parties or groups that wish to amend the definition of marriage may be able to do so:-
“They will have to put that in their manifesto, fight elections, get a majority and then change the definition of marriage,” he said.
Is the definition of marriage important for substantive equality for the LGBTQ+ community?
Should LGBTQ+ advocates wish to seek substantive rights without affecting the definition of marriage, that may be achieved in one of 2 ways.
First, they can seek to decouple the benefits which have been traditionally associated with marriage from the institution of marriage itself. This way, LGBTQ+ persons would be able to enjoy some of the benefits of marriage without actually getting married.
Second, they can seek the recognition of a new form of legal relationship, like civil unions. This would allow, for example, LGBTQ+ couples to own property or assets together, make decisions on behalf of one another in medical emergencies. It may also affect intestate laws (to allow them to inherit from their partners) and financial matters.
There are also other things that LGBTQ+ persons can fight for, like anti-discrimination legislation and greater media representation, that will not affect the definition of marriage in any way.
377A’s Repeal is a People’s Victory
Ultimately, when we look back at repeal, we must remember the decades of activism that preceded it.
Credit for repeal must go to everyone who spoke up and fought for gay rights, including the lawyers, the plaintiffs, influencers, activists, and allies.
@sgviralvids 377A will be repealed in Singapore #sgtiktok🇸🇬 #377a #lgbtsingapore #pinkdot #ndr2022 #singapore
We go back to what we posted before it was announced that 377A will be repealed.
More than 377A – A roadmap for progress beyond repeal for LGBTQ+ advocacy in Singapore
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