Vikram Johri: Penalising difference

In a curious irony, Justice Antonin Scalia of the US Supreme Court passed away on the eve of Valentine's Day. Justice Scalia, widely regarded as a conservative champion in the court, was one of the dissenters to the legalisation of the gay marriage verdict delivered by the court last year.

In an earlier case too, 2003's Lawrence vs Texas, the outcome of which decriminalised gay sex, Justice Scalia dissented. His remarks were: "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home."

Today these opinions appear decidedly dated. The rise of the gay rights movement has been coterminous with explaining how similar gay people are to the rest of society. Barack Obama and Hillary Clinton have repeatedly invoked them as teachers, farmers and army men in order to press upon the public the urgent matter of equality.

That Justice Scalia should have died on the day the whole world celebrates love (because, well, nothing is marketed with as much fervour as Valentine's Day) brings his legacy into sharper relief. And yet, his dissent, which framed gay rights as an infringement on the United States Constitution, needs to be understood in a broader societal context.

Is gay life different, as Justice Scalia and his supporters claim, and if it is, must it be penalised? The question is especially relevant for us in India as a five-judge bench of the Supreme Court has been tasked with deciding the legality of Section 377. There are two issues here. One, gay men and women do look for and create new ways to find intimacy and relationships in the absence of dominant and prevalent social mores that would legitimise their relationships. This is a chicken-and-egg situation. Since society discriminates, they forced into a cocoon, and since they do so, society thinks them deviant and different.

Part of this faultline has to do with "homosexual conduct" as Justice Scalia wrote in his dissent, this sense that the gays are up to no good. Here, the question is framed not merely as the sexual preferences of gay men but of their sexual habits and the lifestyle they indulge in.

The other issue is one of visibility. Even in India today, where we have begun to hear so much more about gay rights, it would not be wrong to say that a vast majority of gay men (and women) live lives of deception. When - if - they tell their families they are gay the response is not "When are you settling down with your partner?" but "Let's not talk about such things." There is a lot of pressure to conform, to live a double life, one with an opposite-sex partner and children and the respectable shebang, mixed inevitably with another, hidden from the public gaze, where their real desires are sated.

Both these issues, of difference and visibility, are intimately connected. Gay men have reacted to the social milieu with anger and rebellion, but also with coerced acceptance. We have tried fashioning new lives and new relationships from the embers of our broken hopes. Some of us have found solace in sex, and momentary hookups midwifed by sniffing copious quantities of poppers are, indeed, not uncommon.

Equally though, as the gays and the lesbians get older, we have sought newer and more fulfilling relationships. Intense friendships as well as community-style living are both popular forms of social contact within the community. The shadows of a youth lived fast and loose are everywhere, occasioning a desire for some old-school stability.

To look at "homosexual conduct" in isolation, then, and to judge it as a monolith deserving of straight contempt is to deliberately overlook the complex social undercurrents at play. In this regard, the poison of Justice Scalia's legacy must be reiterated. Marriage and children are not straight aims; they are the natural concluding points of a relationship. By working to deny gays these rights in the most disingenuous manner - legally - Justice Scalia became an inspiration for bigots everywhere. Furthermore, dismissing gays for the lives they create, however un-straight those lives are, is to pour woe over indifference.

India is very different from the US but gay rights and the trajectory of gay lives are known to follow similar arcs in different countries. Even in the midst of our vaunted bharatiyata, we Indian gays have created quiet lives of desperation as well as ecstasy. Now the battle is for coming out in the open from our burrows. Justice Scalia, may God rest his soul, and his cohort will need all the reserves of empathy to decipher these connections before they take to the pulpit.

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