‘When women got the vote, they did not redefine voting. When African-Americans got the right to sit at a lunch counter alongside white people, they did not redefine eating out. They were simply invited to the table. That is all we want to do; we have no desire to change marriage. We want to be entitled to not only the same privileges but the same responsibilities as straight people.’
– Cynthia Nixon.
In Ireland, homosexuality was decriminalised in 1993. In England and Wales the law criminalising homosexuality had been repealed in 1967. It was not until 2003 that the US Supreme Court finally invalidated all sodomy laws in Lawrence v Texas and in 2011 the military ‘don’t ask, don’t tell’ policy was lifted. None of these massive developments in LGBT human rights changed the definition of privacy or sexual liberalism. Privacy and personal autonomy rights already protected heterosexuals from the type of interference and restrictions invalidated in Ireland, the UK and the US. The decriminalisation of homosexuality impacted upon no individual or group of people negatively: no individual’s or group’s rights were infringed by the decriminalisation, and no individual’s or group’s conception of how one should live their own personal life was interfered with – they were merely no longer permitted to impose that conception on all of society. Decriminalisation of homosexuality did not redefine personal autonomy – that which we hold central to not only our democracy but our very being. There was merely an acknowledgement that personal autonomy (like all things should be in a democratic society) is all inclusive.
Following the Norris Case (the case which declared criminalisation of homosexuality as contrary to Ireland’s human rights obligations), Ireland slowly embraced the concept of equality and that there could be no discrimination on the basis of sexual orientation. Across the US there had been an LGBT rights movement long before Lawrence in 2003, often attributed to being initiated by the Stonewall Riots of 1969. In the late 1980s and early 1990s, recognition in New York of two homosexual men as a family for the purposes of New York City’s rent control regulations and a court ruling in Hawaii that the State must show a compelling interest in prohibiting same sex marriage, as well as recognition elsewhere in the world of same sex unions (Denmark introduced registered partnerships in 1989), raised fears in certain sectors of US society that same sex marriages could be upheld across the country as legally valid.
This concern manifested itself in DOMA, the Defence of Marriage Act, 1996. DOMA defined marriage for all federal purposes as that between a man and a woman and confined the obligation of States to recognise marriages from other States to marriages between a man and a woman. The Act was severely criticised in the US and beyond. It could be said that DOMA sparked the recent surge in LGBT rights activism as suddenly the LGBT rights movement had opposition in the form of a federal statute; a statute it would take a US Supreme Court or a heavily lobbied government to repeal. Even homosexuals in liberal states were under attack. DOMA raises the all-important question: what do opponents of same-sex marriage fear?
Legalisation of same-sex marriage, as has been done in Demark, Belgium, Spain, South Africa, Sweden and certain US states, does not change the definition of marriage. The fundamental definition and meaning of marriage will not be altered if same sex couples are granted the right to marry – the definition of marriage has been and always will be inherently subjective. The State defines marriage for legal and social benefit purposes. It cannot be said that the State definition of marriage as a union between one man and one woman for life captures the true essence of marriage for every individual; a State definition will never capture what marriage is and means to every individual because individuals define marriage in a million different ways.
Some people marry for financial reasons or religious reasons, or on the back of whirlwind romances or, in contrast, on the back of ten year relationships. Once married, people participate and engage with the institution in a variety of ways. Some couples prefer an open marriage, and many others believe in a monogamous sexual relationship. Some couples choose to have children, some couples do not, and other couples adopt children. The majority of couples live together full-time, but often spouses live together only part time. In many marriages people get hurt or hurt someone – sometimes the marriage survives, and sometimes it does not. Marriages come to an end by way of separation or divorce. Other marriages are maintained for reasons related to maintaining the family unit, family pressures or a fear of growing old alone. In some marriages the couple loves one another passionately, in other marriages there is little love between the parties at all. In every marriage the concept of the union is variable and whether the union will last for life is never guaranteed.
The only common thread between every state recognised marriage in Ireland today is that they are between a man and a woman.
Extending the right to marry to same-sex couples does not change any of these formulations of marriage and does not alter men and women’s ability to make their decision to marry someone of the opposite sex for any reason they so wish – be the reason romantic or convenient. If we believe, according to the State, that homosexuals have the same human rights as heterosexuals to food, to shelter, to vote, to work and so forth, why do homosexuals not have the ability to make the same financial, convenient, romantic or reckless decisions as everyone else? Why does a man choosing to marry a man for tax reasons damage society or offend against a notion of marriage any more than a woman choosing to marry a man for such reasons? Why do two women drunkenly getting married in Las Vegas offend more than a man and woman doing so? Why do two men or two women who have been in a committed, loving relationship for ten years or more threaten marriage while divorce does not?
Marriage, it can be seen, takes varying forms and is entered into for varying reasons – none of which is more valid than the next. No individual’s conception of what the marriage union constitutes redefines marriage for everyone else. The definition of marriage is subjective, as evidenced by the different circumstances in which people enter into it and participate in the institution. So why is there such a struggle to extend the right to marry to all people?
The leading case in Ireland to address the right to marry for same sex couples came before the Irish High Court in 2006 in Zappone and Gilligan v Revenue Commissioners. In Zappone the High Court emphasised the possible risk to children of belonging to a family unit based on a marriage between persons of the same sex. The Court acknowledged there was not a lot of evidence to prove that same-sex marriages posed any risk to children but stated that, in the absence of evidence to prove that there was no danger to children, the Irish legislature was entitled to adopt a cautious approach and subsequently prohibit same-sex marriage. The idea that being raised by two parents of the same sex poses a risk to children appears to be a common global concern. The fear has been articulated in France where protests are on-going against a bill to legalise same-sex marriage which includes a provision permitting same-sex couples to adopt. The theme of children also briefly raised its head in the US Supreme Court as it examined same sex marriage in Hollingsworth v Perry and US v Windsor on March 26th and 27th.
Hollingsworth v Perry challenged a Court of Appeal decision that Proposition 8, an amendment to the Californian State Constitution that confined marriage to opposite sex couples, was unconstitutional. The Supreme Court was asked to determine whether confining marriage to same sex couples breached the equal protection provision of the 14th Amendment of the US Constitution. In US v Windsor the Supreme Court was asked to uphold a Court of Appeal decision that DOMA was unconstitutional. However, in both cases there are technical legal issues relating to whether the parties have a right to bring the claim before the Court and whether the Court has jurisdiction to make a ruling in the cases before it. These technical issues may result in the Court refraining from determining the constitutionality of confining marriage to opposite sex couples.
In Hollingsworth v Perry Justice Kennedy inquired about the interests of children of same-sex couples in having their parents’ relationship legally recognised by the State. He spoke of ‘immediate legal injury’ being inflicted upon such children by denying their parents the right to marry. In contrast, Justice Scalia spoke of the unknown future impact of same sex marriage and the disagreement as to whether single sex families may pose a risk to children. However, Justice Scalia’s comments have been severely criticised by commentators who have highlighted the amicus curiae brief of the American Sociological Association which expressly states that research shows no negative effects of being raised in a single sex family and recent comments of the American Academy of Paediatrics supporting marriage equality.
While it is possible that the Court will not make a ruling on the constitutionality of same-sex marriage, and thus may not promulgate a view, expressly or implicitly, as to whether same-sex marriage impacts negatively upon children, the US Supreme Court cases are of major significance in the global fight for equality.
The US cases highlight the global nature of the debate around the right to marry, and illustrate the similarity of arguments across the globe for and against extending the right to marry to same-sex couples. The cases may have an impact, not just across the US where a Gallup report published in October 2012 by the Williams Institute reported that 3.4% of US adults identify as lesbian, gay, bisexual or transgender, but right across the world. If same-sex marriage is legalised in the US the Court’s opinions may help erode the basis of the Zappone judgment here – UK law permitting same-sex couples to adopt already contributes to this erosion. The UK, France, Ireland and other European countries are held to the same international human and children’s rights standards.
If we are all striving to protect children to the same standard, how can Ireland claim that a ban on same-sex marriage is necessary to protect children in the face of contrary state practice?
The argument that the right to marry cannot be extended in order to protect the family unit is just as subjective as the definition of marriage. There was a time when illegitimate children did not have the same rights as legitimate children, and now, more and more children are being born and raised outside of marriage, there are more and more single parent families, and step families and second families are becoming part of the norm. What constitutes a family unit is one of the most fundamentally changing conceptions of our time.
The backlash of the right to marry being a global issue is that if the US Supreme Court refrain from making a determination as to the constitutionality of same-sex marriage, it may set a trend for the rest of the world. If the ‘Land of the Free’ does not consider the right to marry as integral to equality, what message does that send to the global community? How can we promote homosexual equality to Uganda and the 37 other African countries where homosexuality is illegal if we promulgate a concept of difference and potential danger to children and the family unit? And what impact would a failure of the US courts to issue an opinion on the constitutionality of prohibiting same sex marriage have on the judgment in Zappone? Such a decision could be interpreted as reinforcing Zappone. The legislature is entitled to be cautious; the Court should not attempt to measure public opinion – public opinion should be allowed to develop and it is up to the legislature to respond appropriately.
Homosexual rights have progressed and developed at a phenomenal rate since the 1990s. Progress has come about as a result of a mixture of judicial and legislative activism on the back of public action. Society has suffered no negative effects as a result of the fundamental improvement in the lives of homosexuals. Nothing has been redefined. Democracy has embraced its core value: equality.
When the US Supreme Court issues its opinion in June, it may reveal whether the judiciary will take the next step in this fight for equality or whether the people on the ground need to keep pushing the legislature. The important thing to remind yourself before you participate in this fight for equality is that (despite what Justice Scalia may suggest) you won’t be redefining marriage – not your marriage or anybody else’s. You will simply be extending the same rights and responsibilities to everyone – just like the right to vote or to sit at a lunch counter.