Law and the Culture War

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There was bound to be a backlash to the ‘Me Too’ movement, and the struggle over the nomination of Judge Brett Kavanaugh to the US Supreme Court is clearly part of that culture war. ‘Me Too’ is going to lose this battle unless there is some new and horrendous revelation of Kavanaugh’s past behaviour in the next few days, and lots of people in the US and elsewhere see this as evidence that the war itself is being lost.
That is not necessarily so even in the United States. It is certainly not so in the wider world, where the supreme court of the world’s biggest democracy, India, has just followed up its landmark decision in early September to decriminalise homosexuality with another judgement decriminalising adultery.
Many people deplore adultery, but as Pierre Elliott Trudeau famously said half a century ago, “There’s no place for the state in the bedrooms of the nation….What’s done in private between adults doesn’t concern the Criminal Code.” But adultery was still a criminal offence in India until last week – and a very peculiar offence, because only men could be convicted of it.
The law dated from the time when Britain ruled India, and reflected the Victorian belief that a married woman was her husband’s property. For another man to have sex with a man’s wife was therefore a violation of the husband’s property rights, and the violator should be punished by the law – whereas the woman was presumed to be unable to make her own decisions, and was therefore not legally culpable.
The (male) adulterer was liable to a prison sentence of up to five years. The law was rarely enforced, but it was frequently invoked by husbands in divorce proceedings to smear the reputations of their soon-to-be-ex-wives.
The case was brought before the courts by Joseph Shine, an Italy-based Indian businessman who was distressed by the suicide of a close friend who had fallen victim to the anti-adultery law. Shine just wanted the law to be enforced equally against men and women, but the Supreme Court went a good deal farther than that.
The Indian court’s judgement went straight to the heart of the matter. “It is time to say that the husband is not the master,” said Chief Justice Dipak Misra. “Legal subordination of one sex over another is wrong in itself.” Adultery, he ruled, will no longer be a criminal offence.
On Friday the same court declared that Indian temples have no right to exclude women “of menstruating age” on the specious grounds that they are unclean. “Religion cannot be the cover to deny women the right to worship. To treat women as children of a lesser God is to blink at constitutional morality,” said Chief Justice Misra.
Now, it’s true that Misra was in a rush to get these cases settled before he reached 65, the legally mandated retirement age for judges. (He turned 65 on Tuesday.) It’s also true that there are those on the Supreme Court who do not agree with his liberalisation of India’s laws on sexual matters and gender equality. But there seems to be popular support among the educated public for his reforms, and the cases continue.
Next up is the existing exception in India’s law on sexual assault for cases in which the perpetrator and the victim are married. The lawyer leading the case to make marital rape illegal put it clearly: a woman’s “sexual autonomy is not forfeited at the marital door.”
There are places where these legal principles are still not accepted: many Muslim countries reject them (including Indonesia, where they are drafting laws to prohibit all sex outside the institution of marriage), and many countries in Africa. But nevertheless the example is spreading.
In Kenya, the supreme court has agreed to hear arguments for legalising gay sex later this month on the grounds that the existing law banning homosexual acts in Kenya is identical to the one struck down by the Indian Supreme Court. Adultery has already been decriminalised in more than 60 countries, and abortion is now legal in most.
There really is a culture war, raging simultaneously across all the continents. It is rarely fought with as much tribal ferocity as it is in the United States, but important issues are at stake everywhere. If Judge Kavanaugh joins the US Supreme Court, for example, abortion could once again become illegal in the United States.
But in cultural matters progress often takes the form of two steps forward, one step back. It may feel more like one step forward, two steps back in the United States at the moment, but that is just a snapshot of a moment in time.
Trudeau once told me that his reason for entering politics was “to civilise the law”, and in most parts of the world that project is still making progress. It is very unlikely that the United States will turn out to be a permanent defector from that enterprise either.