Don’t criminalise gay people
Should gay sex be criminalised? Here I’m talking about acts between consenting adults. Most Christians I know would say ‘no’. Obviously views differ on this issue globally; recent events in Ghana show that at least some people disagree with us. However I do not think that this sexual behaviour between consenting adults should be criminalised, any more than any sex outside biblical marriage should be criminalised (such as living together before marriage). Indeed, there are a great many behaviours that people may consider morally wrong – that the whole of British society might even consider morally wrong – that Christians and non-Christians agree should not be a matter of criminal law, or indeed a matter of any part of the legal system at all.
The nature of criminal law
Criminal law theory is complicated, and I do not pretend to be any kind of expert. The question of what should be considered criminal in any society, and on what grounds any such decision should be made, or what is the justification for having criminal law in the first place, is all very thoroughly discussed and debated and thought about by legal theorists. So that is a (very big) disclaimer that has to be made at the start – exactly what should be criminalized, and how such a decision should be made at all, is much debated, and requires much reading and thought. (For an excellent summary see Edwards, James, "Theories of Criminal Law", The Stanford Encyclopedia of Philosophy (Fall 2021 Edition), Edward N. Zalta (ed.).)
Criminal law has various functions, although theorists disagree over which is primary, or how many apply. Some think the point of criminal law is to deliver justified punishment (some think this is the only function); or to call people to account publicly; to censure or condemn wrong behaviour; or (possibly) to prevent crime, at least to some extent. Criminal law theorists also disagree on the correct justification for criminal law, as well as what in particular should be criminalised.
Theology and criminal law
Some versions of criminal law theory may be supported by theology. For instance, the punitive view, that says it is right to punish wrongdoers, is supported by the Bible directly (Romans 13:4 says, for instance, that the governing authorities are God’s servants to bring punishment on the wrongdoer). Other aspects of criminal law are supported by biblical principles indirectly; for instance, the value of preventing to harm to the public, of protecting the vulnerable, of making an effort to call wrongdoers to account, and to assert moral goods in community. None of these principles, however, necessarily help criminal law theorists to determine which wrongs should be criminalized. Theorists could agree that some particular act is wrong – conspiracy to harm that in the end came to nothing, for instance – without agreeing on whether that act should rightly fall under criminal law, or what the precise justification for it doing so would be.
For the most part, then, theology does not speak to the details of such debates. Some Christians follow theonomy, importing Old Testament law into today’s society. However this is certainly not a mainstream view; as the 39 Articles say,
Although the Law given from God by Moses, as touching Ceremonies and Rites, do not bind Christian men, nor the Civil precepts thereof ought of necessity to be received in any commonwealth; yet notwithstanding, no Christian man whatsoever is free from the obedience of the Commandments which are called Moral (Article 7).
In other words, it is not necessary to follow the civil laws of the Old Testament to be a godly society. Morality is not necessarily a matter of law.
What should be criminalised?
We are left with a great deal of freedom to use our biblical wisdom in consideration of details. Any particular society must decide for itself what to criminalise under law. There are certainly general Christian principles that may help to do so. We may want to consider, for instance, the effect on evangelism, or the freedom to teach God’s word, or doing good to everyone, or making every effort to live at peace with everyone. For Christian lawmakers, there is much wisdom in Scripture concerning how humans best flourish, what helps societies be loving, and the nature of justice. There is not much, however, as to which specific laws are right for a particular nation.
Yet we know that, whatever a society’s criminal law does, it is not there to punish all sin. I have probably sinned multiple times since I got up this morning. I know I have had some uncharitable thoughts. I have failed to love my neighbour as myself. I certainly have not loved the Lord with all my heart, soul, strength and mind every moment. The only reason I am in relationship with God at any time is because of his grace, not because I am morally good enough. If all sin was to result in criminal sanctions, we would all be in prison, all the time.
So how should any society decide what is worthy of criminal sanctions?
Is criminal law about punishing immorality?
It is not just about moral wrongdoing. Some moral failures are no business of criminal law. For instance, most of us probably consider it morally wrong to fail to help one’s mother carry the shopping simply out of pure laziness. Yet I doubt anyone would argue that it deserves criminal sanctions.
Some argue, furthermore, that there are things that are not morally wrong (for instance, speeding when there is no danger to others; owning a gun that is never fired), but are the business of criminal law, because the aim is a stable and safe society. This may require rules that are necessary to benefit the majority in most situations, even if they end up penalizing people who are doing nothing wrong.
How to set the limits of criminal law is also highly contested. On what grounds should something be included? Is it the risk of harm? But how do we define harm? What if certain kinds of harm are consented to and desired? Is it to do with violation of rights? As defined by whom? Some theorists say there is no definite rule about how to decide whether any particular thing should be criminalised; it will always be messy, involving a lot of different considerations.
There certainly should be limits to criminal law, and not just for practical reasons. There is value in people freely choosing to do good, choosing not to do wrong, and for good reasons (not just because they are forced by law to do so). A society of people who have learned to do this, who have learned to have moral standards and keep them, is of benefit to all. There also is a value in learning toleration and the ability to express one’s objections to differing views gently and calmly, without calling the police. For almost everything we consider a moral wrong, it is better to teach people morality, and the value of self control and having an educated conscience, than merely to throw people into prison for everything.
A way forward
I consider, then, in view of the broad range of views about the justification and function of criminal law, consensual adult gay sex is not something that should be included under any of them. It is no more immoral than a couple living together before marriage. It is of no more harm to others than any other sexual sin; indeed, probably considerably less than adultery, which is also adult and consensual. While those who consider it immoral might want to censure such behaviour, there are far better ways to do so than by criminalisation, if the goal is educating moral consciences and teaching God’s law. We must also always remember that salvation comes through repentance and forgiveness by God’s grace, not by a morally correct society. We want whatever benefits the ability to preach Christ crucified.
A society in which people can openly discuss different views, and agree to disagree without calling the law on each other, is not only a much better one, but the only kind of society that can hope for fairness in the face of the actual diversity of humanity. I would also argue that the only kind of society that can hope to function like this is a largely Christian one, which actually values tolerance, forbearance, concern for the other regardless of whether you agree with him or her, and striving to live at peace with all. Any attempt to criminalise free moral discussion, from any viewpoint, will hurt society. No society will ever be perfect this side of glory; but these are the values which promote community, and can truly allow and celebrate diversity.