Siya Khumalo | Are "sodomy laws" legitimate legislation or the legacy of colonial religious control?

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In 2019, the Gaborone High Court found sodomy laws inconsistent with Botswana's Constitution.  However the author writes that the Attorney General appealed this judgment for not sufficiently involving lawmakers and the public.
In 2019, the Gaborone High Court found sodomy laws inconsistent with Botswana's Constitution. However the author writes that the Attorney General appealed this judgment for not sufficiently involving lawmakers and the public.

Botswana's High Court declared anti-LGBTI legislation unconstitutional in 2019. A recent appeal argued that changing laws is Parliament's job. So are Sodomy laws legitimate? No, writes Siya Khumalo.


In 2019, the Gaborone High Court found sodomy laws inconsistent with Botswana's Constitution.  Still, the Attorney General appealed this judgment for not sufficiently involving lawmakers and, through them, the public.  

In response, the appellate court judges hinted they would read individual rights (not majoritarianism) into Botswana's Constitution. "The bench was swift to query whether a body of politicians elected by a majority would be the best representatives of a minority that was oppressed by laws that the very politicians benefited from."    

The High Court had been informed that Batswana, "through their Members of Parliament", agreed that "there shall be no discrimination based on sexual orientation in the Employment Act". Additionally, the Afro-Barometer Study indicated that 43% of Batswana weren't homophobic.

Activists have repeatedly noted the risk of leaving society behind on the journey towards a fuller realisation of gender, sexual and reproductive health rights. This article questions the practice of lumping sexual misconduct and same-sex intimacy together in sodomy (or "anti-sodomy") laws so that society, in whose name such laws are passed, will understand what's at stake.  How does the law decide that an act within an opposite-sex couple is lawful but illegal for a same-sex couple?

READ | Siya Khumalo: To Christians, comparing homosexuality to paedophilia, bestiality, call me when you're vegan

Botswana is 70% Christian.  Many gay rights' activists, therefore, advocate for less "literal" reading of the bible. But while this works in some cases, straying from a conservative approach to the bible is a greater fear to many Christians than affirming gay people within that conservative approach (if doing so can be proven consistent with that conservatism).

Other gay rights' activists respond by clarifying what the original Greek and Hebrew words, or cultural contexts in which Scripture were written, "really meant". This works for people who are more attuned to context or the doctrine of the dynamic inspiration of Scripture than, for example, plenary verbal inspiration. For the latter, it's a more significant challenge to trust the teachers of contextual meaning even if their academic work is impeccable.

Indoctrination 

Then there's the approach where queer and affirming people share their stories to appeal to listeners' humanity. This works up to a point because religious institutions work hard to desensitise believers to this approach while teaching them that the refusal to indulge people's "whims" (what you would ordinarily call listening) is the definition of love.

Racism flourished under apartheid South Africa despite black people's humanity because the church's role was to replace people's conscience and compassion with religious indoctrination. When progressive people forget this, they project what works on themselves onto religious people.

Then there's the defeatist option where progressive people figure it's pointless trying to reason with Christians (remember Hilary Clinton's comment that Donald Trump supporters were a "basket of deplorables"?). But religious people are often a voting majority; if their fence-sitters can't be won over and pull others along, the global rise in conservatism will continue threatening democracy. So while each of the aforementioned approaches is appropriate sometimes, I often challenge Protestants and Evangelicals to take the bible more seriously. In the very religion that traps their conscience, they will find a door that they feel safe walking through to the inclusive perspective. That's what I'm doing here.

READ | Siya Khumalo: Church weep not for LGBTI deaths but for yourselves and your children

The term "sodomy" comes from the name of one of the two cities (Sodom and Gomorrah) whose destruction is described in Genesis 19. Mainstream Christendom assumes the cities' end was a punishment for homosexuality.  But we don't hear anti-heterosexuality sermons based on Judges 19, a passage that tells a story similar to Genesis 19. One notable difference between these stories is that the figures in the Judges narrative are of opposite sexes.

The creators of sodomy laws also neglect elements of Genesis 18 from their jurisprudence. In verses 20 — 33 of this chapter, God says, "The outcry against Sodom and Gomorrah is so great and their sin so grievous that I will go down and see whether they have done altogether according to the outcry that has reached me. If not, I will know."

Classical theology says God is all-knowing, everywhere-present and all-seeing. But this story has him manifest to conduct a personal investigation. He treats everything he knows before this investigation as hearsay, I submit, to set an example that's often marginalised in the drafting and enforcement of so-called sodomy laws.

A court transcript

God is also curious about the extent of the evil perpetrated by Sodom and Gomorrah. The Genesis 19 encounter with that evil, as well as the balance of Scripture, suggest that the well-off cities enforced xenophobia through violence and rape. The British Empire that created sodomy laws had a blind spot to the difference between consensual sexual behaviour and violation, lumping the two together, because it, too, was a coloniser. Instead of recognising itself in Sodom and Gomorrah, it projected its own shadow over those it subjugated.  

But Abraham wouldn't have accepted such an abuse of power — not even from God. "Will you sweep away the righteous with the wicked? What if there are fifty righteous people in the city?  Will you really sweep it away and not spare the place for the sake of the fifty righteous people in it? Far be it from you to do such a thing — to kill the righteous with the wicked, treating the righteous and the wicked alike. Far be it from you! Will not the Judge of all the earth do right?" 

The relevance of this plea in Genesis 18 for any sodomy laws based on (or simply named after) Genesis 19 is that chapter 18 is largely a court transcript and therefore a basis for precedent on any law that uses the term "sodomy". I say this because Abraham refers to God as Judge. God and Abraham agree on the need to prove that the evidence corroborates the charge, that the charge is as bad as reports indicate and that the innocent aren't punished with the guilty.

Some Christians would argue, "All humans are wicked", but God didn't say that in this passage. There's no room for sugarcoating tastes, fears and prejudices with moralism. Therefore, conflating consensual gay sex with biblical sodomy (which is xenophobic rape) is something like crimen injuria, impugning the reputations of "the righteous and the wicked alike" the way homosexuality and paedophelia were once regarded as one thing. 

READ | Siya Khumalo: But do you have to know God to be gay?

God is here called "Judge of all the earth". No court that's since ruled on sodomy charges has had that type of jurisdiction (though the British Empire tried to gain it for the Crown) or created the option to appeal to a court that actually had it. This is procedurally off.  

Christians are told to exercise faith by believing God would sign off any judgment against anything that a secular court labels as sodomy, but criminal law generally requires that guilt be proven beyond the shadow of a doubt. Being manipulated this way is how other generations of Christians embraced pro-slavery/anti-Semetic/racist/Islamophobic readings of the bible as the exception to the rule in criminal law. When we're told the sin of Sodom was homosexuality, we're likewise relying on hearsay.

One person I shared this view with raised Jude 1:7, which warns against sexual immorality and "going after strange flesh".  But the bible always warns against sexual immorality, and the word hetero in hetero sarx (the Greek expression used in this passage) is the opposite of the homo in homosexual. 

The indisputable lesson is, "Don’t go around trying to rape strangers who may turn out to be traveling angels" because that’s what the people of Sodom and Gomorrah tried to do.  But assuming that sexual immorality always includes homosexuality is a fallacy known as begging the question.

Christians can therefore affirm the authority of Scripture while also affirming that judging people who practice consensual same-sex intimacy is a violation of Scripture as well as secular law.

- Siya Khumalo is the author of You Have To Be Gay To Know God (2018). He is also a Mr Gay South Africa runner-up and Mr Gay World Top 10 finalist.

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