PeeCeeJay

The Politics of Same Sex Marriage

By

Jideofor Adibe

pcjadibe@yahoo.com

The bill passed by the Senate on December 1 2011 banning same sex marriage has continued to generate furore. While some question whether such legislation merited to be an issue at all when there are apparently more pressing issues, I understand that the trigger for the bill was that two gay men went to a registry somewhere in Edo State to get married and were refused. The gay partners and their organisation were said to have threatened to sue the registrar for discrimination who then alerted the authorities that there were no laws in the land specifically banning same sex marriage. If this were true, then it is understandable why the Senators felt a bill against same sex marriage was indeed urgent.

The bill, if signed into law by the President, would punish individuals who engage in same sex marriage with 14 years imprisonment and a ten- year jail term for individuals or groups involved in the formalisation of such relationships in the country. The bill  irked both Britain and Canada, with the British Prime Minister David Cameron reportedly threatening that his country would not give any  financial assistance or aid to countries that were opposed to same sex marriage.  The arguments of the British and Canadian authorities were that such a law would trample upon the fundamental human rights of homosexuals and gay people. It was also reported by Next (online) of December 6 2011 that following the passage of the bill, a group of about 15  Black and White people protested around the Nigeria House in New York.

My personal opinion is that the same sex marriage debate has been clouded by too much emotionalism, half truths, scaremongering and grandstanding by both the proponents and opponents. This has made it difficult for many people to grasp the real  issues in the discourse.

I need to make a disclosure here. Personally I am very uncomfortable with the idea of same sex marriage but I also recognise that those pushing for the legalisation of such a marriage are also likely to be uncomfortable with my personal taste. I am equally conscious that my version of morality has no universal validity. The issue for me then is how to interrogate the issues in the debate dispassionately. What are really the issues? There are several of them.

Those who are vehemently opposed to the ban on same sex marriage often premise their position on the need to respect the civil liberties and human rights of minorities.  They often equate discrimination against gays to the historic discriminations against Blacks, Jews and women, and argue that the campaign for same sex marriage should be seen as a continuation of the civil rights struggles for minorities and those historically discriminated against. In fact gay activists regard Lawrence v Texas (2003) - where the US Supreme Court declared that the sodomy laws in Texas were an unconstitutional breach of privacy - as their own version of Brown v Board of Education (1954). The latter was a landmark decision of the US Supreme Court, which declared state laws establishing separate public schools for Blacks and Whites unconstitutional. Brown paved the way for the civil rights movement and the integration of Blacks into the American mainstream.

Framing the same sex marriage discourse in this light often puts many politicians in countries like US and the UK in a quandary because few mainstream politicians want to be seen publicly as homophobic or intolerant of minorities. This has often led to many politicians speaking from both sides of their mouth on the issue.  For instance  while President Obama  favours  a ‘civil union’ for same sex couples in the US and regards the U.S. Defence of Marriage Act (DOMA) - a 1996 legislation which defined marriage solely as a union between a couple of the opposite sex for all federal purposes -  as unconstitutional, he has not embraced same sex marriage. But typical of politicians, he seems to want to please all the critical constituencies on the issue by adding that his views on the subject were ‘still evolving’.

But is a ban on same sex marriage really a breach of the fundamental human rights of gay people? In a key judgment issued on June 24 2010, the European Court of Human Rights (ECHR) held that there was no violation of the human rights of two homosexuals in Austria who were denied the right to marry by the government.  The applicants, Schalk and Kopf,   had complained both under Article 12 (right to marry), Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to privacy and family life). While the court found no violation of the applicants’ human rights, it was divided on the issue of discrimination. With four votes against three, it held that Austria did not discriminate against them.

Under the notion of ‘protection of morals’ the ECHR provides a lawful basis  for signatories to the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) to restrict particular rights and freedoms contained in the Convention. In this sense, David Cameron’s argument that banning same sex marriage means abridging their civil liberties cannot wash because within the European Union member countries have rights to abridge such freedoms on grounds of ‘protecting morals.’  While Nigeria is not a member of the European Union, it must be seen as also having the rights to ‘protect morals’.  

Additionally, there is sometimes a big paradox in the use of human rights argument to push for the legalisation of same sex marriage. For instance while the proponents of legalisation  accuse the  ‘refuseniks’ of intolerance,  they often  display a similar intolerance to those who refuse to share their version of truth  as we can see with  David Cameron’s threat to cut off financial aid to countries that pass laws prohibiting same sex marriage.

I have also issues with those who rely exclusively on religious arguments to oppose same sex marriage.  For such people, same sex marriage is against God’s design for marriage because God deliberately created Adam and Eve to signify that marriage should be between a man and a woman. The danger in relying on religious sentiments to oppose same sex marriage however is that that there are several injunctions in the Holy Books which appear to be observed only in the breach. What, one may ask, happened to those religious injunctions against adultery, fornication, taking God’s name in vain or loving your neighbour as yourself?   To single out the religious notion of marriage and insist on its strict observance will therefore seem hypocritical.

What I regard as a critical issue in the discourse is a non- recognition by both sides in the debate that attitudes do change - but at its own pace.  For instance not long ago most countries in the world had laws against sodomy, which was punished harshly. Today attitudes have relaxed in the US and several European countries such that seeing a gay couple is no longer something that will make people cringe. However while people have become more tolerant of homosexuals in these countries, their attitudes do not seem to have changed sufficient enough to be comfortable with same sex marriage. This could be seen in the fact that the first legalisation of same sex marriage in the world took place only as recent as 2001 in the Netherlands. Again of the more than 190 countries in the world, only ten countries have legalised same sex marriage, and David Cameron’s United Kingdom is not among these. Of the 50 States in the United States of America, same sex partners can legally marry only in six States (Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont) and the District of Columbia.

The implication of the above therefore is that attitudinal change, even in countries that have accepted homosexuality, does not seem to have caught up with the quest by homosexuals to be allowed to marry. This means therefore that in countries like Nigeria where the idea of homosexuality has not even been accepted (and many continue to deny its existence in the society), asking people to accept gay marriages will simply be difficult - for now. This is the point I believe both Canada and the UK miss. And the manner they threw diplomacy to the wind and publicly took a position against a bill passed by a sovereign country, will only amount to campaigning against the very group they claim to be protecting.