Same-sex battle

The United States Supreme Court has been hearing oral arguments in two cases Hollingsworth v Perry and United States v Windsor pertaining in the first instance to the Proposition 8 ban on gay marriage in California and in the latter instance the constitutionality of the Defence of Marriage Act which prohibits federal benefits for and recognition of same-sex marriages. Oral arguments have been succinct and the depth of the arguments on both sides are contained in written briefs.

In the Hollingsworth case California has already legitimised civil unions between persons of the same sex but there remains a ban on marriage per se. The proponents of proposition 8 submit that there is a fundamental difference between same-sex couples and couples of the opposite sex with the usual emphasis on the ability to procreate.

Many of the arguments centre on whether sexual orientation can be used to define a group of persons as a class capable of being discriminated against. The court in Hollingsworth pointed out the dearth of cogent statistical or other information on the same-sex “experiment” as opposed the 2000-odd years of empirical evidence in relation to traditional marriage.

Why Hollingsworth cannot be used as a litmus test even in the US far less the rest of the world is that California has legitimised everything else in relation to same-sex unions, including the adoption of children. The United States Constitution is framed differently from ours and their Supreme Court has previously decided that the “relationship of marriage is a personal right…, part of the right of privacy, association, liberty and the pursuit of happiness”.

The arguments are that same-sex marriage is now what interracial marriages and segregation were before. On the flip-side the argument rests upon the question of where it will end. Will we progress to repealing laws against incest and bestiality and so forth?

In the Windsor case the court is concerned with the Defence of Marriage Act which appeared to be passed solely for the purpose of defining marriage in the traditional sense so as to exclude same-sex partners from federal benefits such as joint income tax returns, marital income tax deductions and social security benefits.

Generally our courts do not look to the transcripts of the House of Assembly (Hansard) in interpreting the provisions of a statute. It’s clear, however, that the US Supreme Court does as part of the case for Windsor is that in its infinite wisdom, the US Congress in passing this legislation stated that “Congress decided to reflect an honor (sic) of collective moral judgment and to express moral disapproval of homosexuality” thereby bringing a seemingly innocuous definition under scrutiny and opening it to being struck down as discriminatory which is the danger here.

Interestingly enough, our Marriage Act, Cap. 218 does not define “marriage” which has historically been interpreted as the union of one man and one woman. The provisions of that act speak to parties and “persons desirous of being joined together in matrimony”, which is as gender neutral as one can possibly get.

Marriage may have religious connotations but the civil component is well entrenched and usually brings with it certain legal rights and responsibilities. These rights and responsibilities are collectively referred to as consortium and include the right of a wife to take her husband’s name, immunity from giving evidence against one’s spouse, the duty to live together, rights of property and citizenship and the right to sexual intercourse.

Therein lies the rub for same-sex couples in Barbados and the vast majority of countries in the world. Section 9 of the Sexual Offences Act prohibits the act of buggery and prescribes a penalty of life imprisonment in addition to a number of other offences.

Section 11 of the Constitution makes accommodation for all manner of things such as “race, place of origin, political opinions, colour, creed or sex” in the protection of the fundamental rights of the individual subject only to the rights and freedoms of others and the general public interest but nowhere does it grant specific protection for sexual orientation.

On this basis one posits that in Barbados there can be no constitutionally based argument for same-sex marriage. To be fair to the framers of the Constitution, the concept of open same-sex relationships would have been as foreign to them in 1966 as aliens are to the rest of us today.

There will come a time when the US has fully legitimised gay marriages in all its states and the day after they have done that they will as usual bully the rest of the world into following suit. We might as well be prepared for it.

If one divorces the religious arguments from the civil or legal ones the reconciliation becomes easier. Statutes are based on the social mores prevailing at the time and the secular law can be changed.

Even our Marriage Act accepts the dichotomy, for example, in legitimising marriages between a person and the sister or brother of their deceased spouse a specific provision was included which granted immunity to priests who refuse to perform such marriage ceremonies on religious grounds. The church has its own law and need not sway with the whims and fancies of the populace. Caesar’s law on the other hand has always been based on that which is politically expedient.

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