is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
Recently, a television talk show host had a discussion on gay marriages, which ended with her labeling those opposing such marriages as "living in the dark ages." Such display of self-righteousness exemplifies the problem faced by those who seek an honest and intelligent discussion on the subject. Uninformed categorizations, resort to insults of bigotry or intolerance, and popular media’s penchant for emphasizing emotion rather than facts will not make us nearer to approaching a proper national determination on the issue of same sex unions.
On several aspects, same sex unions present a bewildering number of complications, particularly in relation to constitutional, labor, civil status, contract, education, welfare, tax, and even penal law provisions. The most obvious area of contention would be with regard to the extent that conscience rights of citizens have leeway in approaching the issue. From there would be a gamut of other questions, from adoption to welfare and tax benefits to employer rights (and, yes, employers have rights), specifically in education, the military, or charitable institutions.
Contrary to the CNN-fixated, the announcement by US President Barack Obama supporting gay marriages is, in the larger scheme of things, virtually inconsequential. The statement (a change in position that Obama defenders declare as an "evolution") was made in the midst of an impending campaign to retain the presidency and -- this according to gay rights activist Andrew Sullivan himself -- to acquire funding from gay supporters and to court the youth vote.
However, this does not eradicate the fact that of the 50 states that make up the United States, only six allow gay marriages, while 42 states have laws specifically banning it. There is also the federal Defense of Marriage Act, which declares that no US state can be compelled to recognize same sex unions, marriage being defined as that between a man and a woman. It is worth noting that the Act was signed into law by US President Bill Clinton and supported by huge majorities in Congress.
All of this must be taken under the context of international law. The UN Human Rights Committee (in Joslin vs. New Zealand, Communication No. 902/1999) declared that marriage under Article 23.2 of the International Covenant on Civil and Political Rights refers expressly to "’men and women’, rather than ‘every human being’, ‘everyone’ and ‘all persons’" and, thus, the conclusion that, under the ICCR, marriage could only be a "union between a man and a woman."
The European Court of Human Rights certainly supported this reading, repeatedly holding that gay marriage is not a human right. In Gas and Dubois vs. France (Application No. 25951/07; 2012), the ECHR stated that the European Convention on Human Rights do not require member states to allow marriage to homosexual couples. The ruling essentially reiterated the ECHR’s finding in Schalk and Kopf v. Austria (Application no. 30141/04; 2010), which pointed out that, despite very detailed arguments by the homosexual lobby, there is simply "no right to marriage for homosexuals under the European Convention of Human Rights."
The substantive take-away from both rulings is the fact that there is no international legal obligation for States to recognize homosexual unions. Definitely, no such obligation exists under the ICCR or ECHR. And neither can such obligation be found under customary international law. The latter requires the combination of two elements: "practice" and "opinion juris." The latter is arguably absent considering the two above-mentioned rulings. In the case of "practice," it would be very hard to argue the presence of such when one considers that amongst the around 200 countries in the world, only 10 authorize same sex marriages. Again, context is important. As pointed out by Time Magazine’s Dan Fastenberg ("International Gay Marriage," 2010), "nine of the 10 countries that have legalized gay marriage operate under the civil-law system. That tradition...was the basis of the Napoleonic Code, created by the French leader to subvert the church." In other words, politics and power, rather than social, familial, or cultural considerations, contributed to the legalization of such unions.
Finally, the ECHR in Gas and Dubois made a crucial point: in denying such same sex unions, no wrongful discrimination was made. Again, contrary to what most people think, laws (including our Constitution) do allow for discrimination. What a just system does not allow is "wrongful discrimination." As Richard W. Garnett, Law Professor at Notre Dame Law School, says: "it is not true that ‘discrimination’ is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it -- say, through its expression and spending -- even when it is wrong. ‘Discrimination,’ after all, is just another word for decision-making, for choosing and acting in accord with or with reference to particular criteria."
One thing to be noted: no religious doctrines were resorted to in this article. Instead, legal (particularly international law, indirectly natural law) form the core of the discussions made above.