Should same-sex marriage be considered a human right?

Opening Statement - Dora

For some people, marriage may be a trivial matter. For others, however, it may represent the pursuit to happiness; something to aspire to. Therefore, being told ‘You cannot get married’ is often perceived as a direct interference with their personal life.

As a preliminary note, the concept of marriage must be defined. Marriage is plural in both content and meaning, this institution housing many aspects of human life, much as sexual relations, friendship and mutual responsibility. Intimate partnership can mean different things to different people at different times.

For many people it would (ideally) involve caring for each other, living together in the same house, raising children together or having some things in joint possession. However, none of these characteristics seems to be a universal sine qua non condition for marriage.

Why is marriage so important to some? Being seen as a statement of love and commitment, in front of witnesses, it’s a fair trade: we declare commitment, and society, in response, recognises this commitment. On the other hand, marriage is important in the light of some benefits such as favourable tax treatment, inheritance, rights in health, insurance status and so on.

Until very recently, marriage was a lifelong commitment by one man and one woman, sanctified by God and the State, having as purposes companionship and children rearing. In the light of recent case law, e.g. Obergefell v. Hodges, the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples. I would limit myself to only highlight the main arguments the Court had emphasised:

• The Constitution promises liberty to all within its reach. This apparently in abstracto notion of liberty actually refers to the fact that it includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. It extends to certain personal choices i.e. marrying a same-sex person, central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. The reasoning of the Court is extremely coherent as it refers to the personal choice regarding marriage as being inherent in the concept of individual autonomy.
• Moreover, the Court emphasised that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals, its importance being illustrated supra.
• Finally, the Court had raised the issue of the safeguarding of children and families (linking it to child rearing, procreation and education).

This issue of the supposedly main purpose of marriage – procreation – seen as a widely spread objection to same sex marriage, must be rejected. We should all agree that procreation and the protection of children are important public purposes. Protecting an institution that serves this purpose is a legitimate public interest and so there is a legitimate public interest in supporting potentially procreative marriages. Does this mean these is also a public interest in restraining marriage to only those cases where there may be procreation?

From my point of view, the difficulties traditional marriage seems to face are highlighted by the rising divorce rates and evidence that children are being damaged by lack of parental support. If society really wants to defend traditional marriage, as it’s surely entitled to do, it should offer support for marital counselling, drug and alcohol counselling, strengthening punishments against domestic violence etc., and not protesting against same-sex marriage.

As a final note, I would like to add that achievement of marriage equality is a further step towards recognition that discrimination based on sexual orientation and gender identity is unacceptable. There are circumstances where the enjoyment of a right may interfere with another. Human rights are an abstract notion, created, protected and destroyed by political action. Our laws are flexible and enable us to balance rights and competing public interest considerations, striking the right balance being the central task for the legislator. These laws can allow same-sex couples to marry while simultaneously allowing religious bodies to adhere to their beliefs and balance these rights. As Justice Kennedy stated while ruling in the Case mentioned supra, these individuals seeking to marry don’t disrespect the idea of marriage, on the contrary, they respect it so deeply they seek to find its fulfilment for themselves.

Opening Statement - Andrei

In the case of Schalk and Kopf v. Austria, the European Court of Human Rights has clarified that the term ‘marriage’ in the European Human Rights Convention must be understood today as it was understood back in 1950, the year when the Convention came into force. As a consequence, the right to marry and to form a family, set out in Article 12 of the Convention, is only enjoyed by different-sex couples. According to the Court this does not prevent states from legally recognising same-sex ‘marriages’, but at the same time it cannot be said that they are obliged to do so.

It is difficult to judge and assess the right time to make a change and I do not think that one must wait until the last moment (in this case, when you are legally bound to take action) to do so. However, if history has taught us anything, it is that the moment you can be certain that a deeply-rooted social conception, such as the marriage between man and woman being the only one regarded as a human right, must be changed is when a highly powerful and respected institution is enforcing it and when the general consensus can be described as ‘enough is enough’. I do not think we are there with the issue at stake and I believe it will take a long time before we reach that hypothetical breaking point, hence the Court’s rather neutral position.

Nonetheless, in the same decision of Schalk and Kopf v. Austria, the Court, for the first time, advanced the theory according to which the relationship between two same-sex ‘partners’ was a kind of ‘family relationship’ that deserves protection under Article 8 of the Convention.

It may seem as though the Court’s theory does not help the opposition I am trying to make, but, actually, it serves it just right. Leaving aside the Court’s failure of providing any kind of solid legal arguments in this ruling or those that followed, this theory just goes to show that the Court was not ready to take a more decisive route, which in this case would be raising same-sex marriage to the exact same legal status as the traditional marriage. Why would they not go all the way with the ruling giving the apparent laissez-faire social attitude most developed countries have adopted?

The answer to these questions coincidentally leads to my next argument: because we, as a society, are not ready yet. Such decision would be way too advanced for our current general level of understanding and tolerance. Every law, before being passed, should pass the following common-sense test: is its target prepared for its effects and does said law reflect and incorporate the mentality of its targeted demographic? In my opinion, making same-sex marriage a human right would not pass this test. The reason is very simple: we need more time. The vast majority of the fundamental changes our society has gone through took decades to reach their final form. For example, regarding the American women’s rights movement, it was in 1868 that the 14th Amendment guaranteed civil rights to all citizens but gave the vote to men only and it was not until 1919 that the American Senate passed the 19th Amendment (by only a two-vote margin) which stated that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex’. There you have it: 51 years between these two crucial moments in women’s rights’ history.

But the 19th Amendment did not change the general perception of women in the American society, which leads us to my final point: making same-sex marriage a human right would not fundamentally change anything for the persons involved. What is, after all, the root of the problem? To some degree, unfortunately, discrimination and to a much larger degree the social stigma. I personally do not think any of these issues will change overnight, no matter how many laws will be passed. It is an organic process that society needs to go through that cannot be rushed.

Rebuttal - Dora

It has been argued that the term “marriage” must be understood today as it was understood back in 1950 and therefore must be enjoyed only by different-sex couples. There are several arguments to refute this statement. Firstly, the society must adapt. We used to live in that golden age of marital purity but, in the present, we need to adapt to the social needs of the individuals and evolve towards them.

In the absence of conclusive social science that all can agree upon, society still needs to make decisions. Living in a time of rapid social change, public support for same sex marriage has risen considerably not only in the United States but also in Europe. Over the last 40 years there have been countless situations in which the traditional institution of marriage appeared to be under attack by communities supporting same-sex marriage, at least in the eyes of the many political actors tasked with its defence. With each passing year, however, from the first gay rights approved by democratic parties to the first civil unions recognised in 2000, to the first recognised gay marriage in 2004, it has become clearer that denying same-sex couples the right to marry has been at the centre of the most recent fights for equal protection under the law.

However, the future of marriage looks, in one way, a lot like its past. People will continue to unite, form families, have children, and, sometimes, split up. What the Constitution dictates, however, is that whatever the state decides to do in this area will be done on a basis of equality. Government cannot exclude any group of citizens from the civil benefits or the expressive dignities of marriage without a compelling public interest. The full inclusion of same-sex couples is in one sense a large change, just as official recognition of interracial marriage was a large change, and just as the full inclusion of women and African Americans as voters and citizens was a large change.

As far as the common-sense test my opponent refers to is concerned, I would say that making same-sex marriage a human right would fundamentally change a variety of things for the persons involved, so it most definitely passes the test. I am referring especially to significant changes, such as the adoption of children. The formal conditions required to adopt would be consistently easier, because right now there are states which prohibit the jointly adoption by unmarried couples. Moreover, I would also mention the benefits that immigration laws provisions state, such as the green card. In addition, hospitalisation, taxes, social security and insurance would be other examples where effects of considering the same-sex marriage equal to traditional marriage would de facto create a wide set of benefits to the individuals.

The root of the problem may be, indeed, discrimination, as my colleague mentioned. Bishop Gilbert Thompson who is African-American said “I was born black…I was born male. Homosexuals are not born, they're made. They don't qualify”. This quote illustrates that there is a true separation in our society. Even groups of people that were once discriminated against, and still are, have such a strong hatred for others. Homosexuals are discriminated against every day and will continue to be until they are granted the same rights as heterosexuals. Until generations fade out and religious views begin to change, there will always be controversy when discussing the arguments in favour of and against same-sex marriage.

Rebuttal - Andrei

It has been stated that ‘the difficulties traditional marriage seems to face are highlighted by the rising divorce rates and evidence that children are being damaged by lack of parental support’ and that we should focus on fixing these problems instead of protesting against same-sex marriage. First of all, I do not believe that in order to support same-sex marriage one has to bring down or point out the flaws of traditional marriage. Secondly, the causes of failed traditional marriages and the damage the children suffer because of their parents’ actions are related to the basic human nature, to the way we deal with and respond to external factors and to the way we are programmed as individuals, not to the fact that said marriages involve straight people. Same-sex marriages are exposed to the exact same risks as traditional marriages.

It has been argued that ‘achievement of marriage equality is a further step towards recognition that discrimination based on sexual orientation and gender identity is unacceptable’. Considering the fact that there are several legal mechanisms in place to prevent discrimination based on sexual orientation and gender identity and the fact that the public is growing more and more accustomed to being ‘politically correct’ anyway, I think it is safe to say that we do not need to raise the status of same-sex marriage in order to make sure that discrimination based on sexual orientation is unacceptable. Surely, said discrimination, unfortunately, still exists, but, as I have mentioned in my opening statement, I do not think this is the solution. In fact, I think general outrage is a far more likely outcome than the sudden halt of discrimination.

I have also identified the argument that giving the fact that the Constitution promises liberty to all within its reach, same-sex marriage -being a specific right- is inherent in the concept of individual autonomy and it allows the persons involved to define and express their identity. While I cannot deny that this is a valid point and it could also be applied to many other problematic areas of our contemporaneous society, we cannot forget the fact that while, theoretically, we are given so many rights and liberties, we are also subjected to legal limits. It is not unusual for a right or a liberty to be limited and the right to marry is no exception. After all, the right to marry is not an absolute right.

Last but not least, it has been stated that same-sex couples respect the idea of marriage so deeply that they seek to find its fulfilment for themselves. I agree that in an ideal scenario everyone should get perfectly equal treatment and an abundance of rights to satisfy every individual’s needs. Also, I think equity (which is the main point of the argument) plays (or should play) a crucial role in every legislator’s thought process when drafting a law. Nevertheless, there are other factors that weigh just as much as equity and, as I have mentioned in my opening statement, we cannot ignore the fact that the social context does not always allow for us to be making changes of this magnitude at will. Maybe it is a step in the right direction, but not for now. Compassion and the ache for social justice and equity should never overshadow rational decisions based on the grand scheme of things, no matter how cynical it may sound.

Conclusions - Dora

As a final note, the origins of same-sex marriage didn't just start in the 20th century as it may seem. Gay individuals around the world have had the luxury to be recognised as partners and lovers starting more than 1,500 years ago. Believe it or not, same-sex unions were allowed in ancient Egypt, the southern Chinese province of Fujian in the Ming Dynasty and other ancient European times. During these times, same-sex marriage was widely recognised until Christianity became the most dominant religion in the Roman Empire. It was the Theodosian Code of 312 A.D. that prohibited same-sex marriages in ancient Rome, ordering those who were previously married to a member of the same sex to be executed, so here’s how the laws intervene.
I would say that an analogy to the marriage between different races must be made. As Dr. Martin Luther King Jr. said, “marriage is a basic human right. You cannot tell people they cannot fall in love.” While he said this about marriage between races, the same can be said about homosexuals. However, marriage is not singled out by commitment, or permanence, or children, or love. It is also not distinguished by religion: some marriages are religious, but many aren’t. The real distinction between marriage and unmarried partnership is the role of the state, marriage being a form of relationship recognised and regulated by the state.

The legal recognition of same-sex marriage is undeniably a reflection of social acceptance and vice versa. Decisions such as Obergefell unfortunately prevent discrimination only in the marriage context, as opposed to setting up the framework to prohibit discrimination in areas such as housing and employment.

The right to marry is fundamental as a matter of history and tradition, but rights do not come from ancient sources alone. They rise, too, from a better-informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.

Conclusions - Cătălin

Although Dora raised some very good points in her rebuttal, I stand by what I have preached in my opening statement and my own rebuttal. Yes, society has shown recent tendencies of growing and adapting quicker than in the past, but the very same society has shown us repeatedly why same-sex marriage specifically, and same-sex relationships in general are probably the most controversial topic of the modern era. Therefore, we need to treat it with the utmost caution.

To end my part of the debate, I would like to bring to your attention the following quotes, which express my arguments better than I ever could: ‘Change the way you look at things and the things you look at change.’ (Wayne Dyer) and ‘Not everything that is faced can be changed, but nothing can be changed until it is faced.’ (James Baldwin).

As such, I believe we still have a long way to go as a society before we can consider making one of the greatest legislative changes of the 21st Century. Maybe then we will not even need to have a debate about it.

By Adina Ionescu

Disclaimer: The arguments presented in this debate do not represent the opinions of the two authors. 

This material was published in Lawyr.it Vol. 6 Ed. 2, April 2019. All references used can be found at the end of that issue.