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Same-sex ‘marriage’ – another human right?

Tourists take photos of the U.S. Supreme Court building in Washington Sept. 28. (CNS photo/Tyler Orsburn)

A monthly column by the Emmanuel Community: 46 Rosalino Street, Woodbrook.Tel:628-1064;

Advocates of same-sex marriage argue that same-sex couples have the same right to marriage as opposite-sex couples, and that to deny them that right is to discriminate against them on the basis of sexual orientation, much in the same way that one discriminates against people on the basis of race.

It was the appeal to this right to “marriage equality”, a phrase that immediately conjures up concerns regarding the fairness of withholding a right from certain members of society, which led to the 2015 decision of the United States Supreme Court that legalised same-sex marriage throughout the nation.

Four principles undergirded this decision:

  • The right to personal choice regarding marriage is inherent in the concept of individual autonomy.
  • Same-sex couples have the same right as opposite-sex couples to enjoy intimate association.
  • Without the recognition, stability, and predictability that marriage offers, children suffer the stigma of knowing their families are somehow lesser, as well as the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The Court concluded therefore that traditional marriage laws harm and humiliate the children of same-sex couples.
  • Marriage is a keystone of the nation’s social order. It is therefore demeaning to lock same-sex couples out of a central institution of the nation’s society, for they too may aspire to the transcendent purposes of marriage.

Notwithstanding all of the above, the marriage equality claim is not borne out by the decisions of the highest human rights authorities in the international order, said Australian lawyer Mark Fowler in an August 2017 Australian Broadcasting Corporation online publication.

While acknowledging that equality is a human right, he said that both the United Nations Human Rights Council (UNHRC) and the European Court of Human Rights have held that there is no inequality where a state retains the traditional definition of marriage, and that both have declined to endorse claims that same-sex marriage is a human right.

In June 2016, the European Court of Human Rights ruled that same-sex marriages are not considered a human right, making it clear that homosexual partnerships do not in fact equal marriages between a man and a woman. No EU member state is therefore obliged to grant the possibility of a marriage to people with same-sex attraction based on their human rights.

The only UNHRC decision on the matter goes as far back as 2002, when it held in Joslin et al. v New Zealand that defining marriage as being between persons of the opposite sex was not to render people of the same sex as unequal and that “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective…”

Is it really only a matter of time before a different judgement is handed down, especially in light of increasing pressure on nation states to reform their marriage laws? To date, 24 countries have so done. TO BE CONTINUED NEXT MONTH