is my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
After all the euphoria last week regarding the US Supreme Court ruling in United States v. Windsor,
otherwise referred to as the Defense of Marriage Act (DOMA) case, two
things must be said: the ruling did not create a constitutional right to
gay marriage, and five members of the US Supreme Court Hollingsworth v. Perry effectively decided to disregard the will of the people of California (who, by Proposition No. 8, said no to gay marriage).
What the Windsor ruling did say is that if a state already
legalized gay marriage (which only around a mere 13 US states do, with
around 35 US states maintaining that marriage is exclusively between a
man and a woman), then the federal benefits given to traditional
marriages must also be given to gay marriages. The US Supreme Court’s
ruling, however, took pains to express the fact that it was not creating
a constitutional right to gay marriage. The ruling’s rationale focuses
ostensibly on state’s rights to choose their own definition of marriage
and "equal protection." Which is bizarre considering the US Supreme
Court’s refusal (in Hollingsworth) to uphold the will of the
people of California, as well as its rather overly stretched and
imprecise thinking regarding "equal protection."
A right to same sex marriage certainly does not exist in international
law. Contrary to the CNN fixated, the UN Human Rights Committee (in Joslin vs. New Zealand,
Communication No. 902/1999), for example, 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.’" Thus, even under ICCR provisions,
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 under the
European Convention of Human Rights. This can be seen in Gas and Dubois vs. France, as well as Schalk and Kopf v. Austria.
The substantive take-away from both rulings is the fact that there is
no international legal obligation for States to recognize homosexual
unions.
And neither can such a "right" 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 around 15 authorize same sex
marriages. Also, 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.
The ECHR in Gas and Dubois also made a crucial point: in denying
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 Notre Dame Law School’s Richard W. Garnett says: "it
is not true that ‘discrimination’ is always or necessarily wrong. xxx
‘Discrimination,’ after all, is just another word for decision-making,
for choosing and acting in accord with or with reference to particular
criteria."
So, no right to gay marriage exists. But another fact that must be
emphasized: in the US, as in the Philippines, there is no ban on
homosexual relationships. Any gay couple can live together freely. They
are also very much free to join any religion that approves of their
relationship. And nothing is stopping homosexuals from entering into
contracts governing such relationship, including property arrangements.
The real issue, therefore, is the unreasonable demand by the homosexual
advocacy to force their own definition of marriage on absolutely
everyone.
Unfortunately, these facts are lost amidst the hype and emotion now
substituting rational discussion on the issue. And sometimes, the
application of outright malice. Quite noticeable is the obvious
brainwashing by the media in favor of gay marriage (see Pew Research
Center 2013 report on media bias regarding gay marriage -- http://www.journalism.org/sites/journalism.org/files/EMBARGOED_Same-SexMarriageandNews.pdf).
As Heritage Foundation’s Ryan T. Anderson pointed out ("The Left’s Three
Techniques on Marriage Redefinition -- and How to Counter Them," July
5, 2013), gay marriage advocates have "deployed three distinct tactics:
First, they’ve been successful at oversimplifying the issue,
personalizing it and refusing to engage the complexities of social
reality. Second, they’ve implied that the LGBT community speaks in one
voice. And third, they’ve demonized their opponents as ‘bigots’ and
‘haters.’"
It is everyone’s duty, therefore, to insist that calm and (more
importantly) reason permeate this national conversation on gay
"marriage" considering that it could very well set the country’s
direction.
