The right for gay people to marry is a fundamental human right, recognized by dozens of countries around the world.
I am confident that if a poll were taken today in Anguilla, most persons would be in favour of giving gays and lesbians the same right to marry as heterosexuals presently enjoy. Yet, a voluble minority still oppose it.
Many liberal church members, in all religions, have been outspoken supporters of gay rights. Movements within churches, have been aiming for a wider acceptance of gay rights. However, some religious leaders have been accused of sparking hatred and violence by arguing against gay rights.
Because
of their very verbal opposition, some church leaders are guilty of causing
suicides, murders, and great suffering for members of the gay and lesbian
community. By preaching against gay
rights, church leaders have furthered discrimination and vengeance upon the gay
community. In addition, by turning away
from gays and lesbians, churches have added to the alienation felt by same sex
couples.
We can obtain some
guidance on how to view the question of gay marriage by looking at what
happened in the United States. There, in
2015, in the case of Obergefell v Hodges, the Supreme Court
clarified that the “right to marry” applies with “equal force” to
same-sex couples, as it does to opposite-sex couples.[1] It held that the Constitution requires a
State to license a marriage between two people of the same sex. In so holding, the Court recognized marriage
as being an institution of both continuity and change. Recent shifts in public attitudes respecting
gay individuals necessarily informed the Court’s conceptualization of the right
to marry.
The Court recognized
that the right to marry is grounded in four principles and traditions. These involve the concepts that
(1) marriage (and
choosing whom to marry) is inherent to individual autonomy;
(2) marriage is
fundamental to supporting a union of committed individuals;
(3) marriage safeguards
children and families; and
(4) marriage is
essential to the nation’s social order because it is at the heart of many legal
benefits.
With this
conceptualization of the right to marry in mind, the Court found no difference
between same- and opposite-sex couples with respect to any of the right’s four
central principles. It concluded that a
denial of marital recognition to same-sex couples ultimately demeaned and
stigmatized those couples and any children resulting from such
partnerships. Given this conclusion, the
Court held that, while limiting marriage to opposite-sex couples may have once
seemed “natural,” such a limitation was inconsistent with the right to
marriage inherent in the “liberty” of the person as protected by the Constitution.
It
is my view that Anguillans ought to embrace the opportunity of the coming new
Constitution and to ensure that it includes language that does not stop gays
and lesbians from enjoying the right to marry.
In
support, we recall the words of Archbishop Desmond Tutu, the prominent
anti-apartheid campaigner, Nobel Prize laureate, and Chairperson of the Truth
and Reconciliation Commission. In 1984
he wrote
“Apartheid’s
most blasphemous aspect is … that it can make a child of God doubt that he is a
child of God. For that reason alone, it
deserves to be condemned as a heresy.”
More
than a decade later, he used very similar words to denounce homophobia and
heterosexism. He wrote that it was “the ultimate
blasphemy” to make lesbian and gay people doubt whether
they truly were children of God and whether their sexuality was part of how
they were created by God.
After
he retired in 1996, he campaigned actively and successfully for the
post-apartheid Constitution to be non-discriminatory in relation to
marriage. In 2013 he made headlines with
the clear and succinct statement that he would rather go to “the other place”
than to a homophobic heaven. All
freedom-loving people everywhere would happily join Archbishop Tutu wherever he
is going to end up.
A second principle in
the US Supreme Court’s jurisprudence on marriage is that the right to marry is
fundamental because it supports a two-person union unlike any other in its
importance to the committed individuals.
This point was central to Griswold
v. Connecticut, which held that the Constitution
protects the right of married couples to use contraception.[2] Suggesting that marriage is a right “older
than the Bill of Rights,” Griswold
described marriage this way:
“Marriage is a coming together for
better or for worse, hopefully enduring, and intimate to the degree of being
sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not political faiths;
a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a
purpose as any involved in our prior decisions.”
A third basis for
protecting the right to marry is that it safeguards children and families and
thus draws meaning from related rights of childrearing, procreation, and
education. The Court has recognized
these connections by describing the varied rights as a unified whole. It held that the right to ‘marry,
establish a home and bring up children’ is a central part of the liberty
protected by the Constitution.[3]
Marriage also confers
more profound benefits. By giving
recognition and legal structure to their parents’ relationship, marriage allows
children
“to understand the
integrity and closeness of their own family and its concord with other families
in their community and in their daily lives.”
Excluding same-sex
couples from marriage conflicts with a central premise of the right to
marry. Without the recognition,
stability, and predictability that marriage offers, their children suffer the
stigma of knowing their families are somehow lesser. They also suffer the significant material
costs of being raised by unmarried parents, relegated through no fault of their
own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and
humiliate the children of same-sex couples.
Fourth and finally,
jurisprudence and traditions make it clear that marriage is a keystone of our
social order.
In Maynard v Hill, (1888),
the Court explained that marriage is “the foundation of the family and of
society, without which there would be neither civilization nor progress.”[4] Marriage, the Maynard Court said, has long been “‘a great
public institution, giving character to our whole civil polity.” This idea has been reiterated even as the
institution has evolved in substantial ways over time, superseding rules
related to parental consent, gender, and race once thought by many to be
essential.
While government is in
general free to vary the benefits it confers on all married couples, it has
made marriage the basis for an expanding list of governmental rights, benefits,
and responsibilities. These aspects of
marital status include: taxation; inheritance and property rights; rules of
intestate succession; spousal privilege in the law of evidence; hospital
access; medical decision making authority; adoption rights; the rights and
benefits of survivors; birth and death certificates; professional ethics rules;
campaign finance restrictions; workers’ compensation benefits; health
insurance; and child custody, support, and visitation rules.
There is no difference
between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that
institution, same-sex couples are denied the constellation of benefits that the
government has linked to marriage. This
harm results in more than just material burdens. Same-sex couples are consigned to an
instability many opposite-sex couples would deem intolerable in their own
lives. As government itself makes
marriage all the more precious by the significance it attaches to it, exclusion
from that status has the effect of teaching that gays and lesbians are unequal
in important respects. It demeans gays
and lesbians for the State to lock them out of a central institution of
society. Same-sex couples, too, may
aspire to the transcendent purposes of marriage and seek fulfilment in its
highest meaning.
The limitation of
marriage to opposite-sex couples may long have seemed natural and just, but its
inconsistency with the central meaning of the fundamental right to marry is now
manifest. With that knowledge must come
the recognition that laws excluding same-sex couples from the marriage right
impose stigma and injury of the kind prohibited by our basic charter.
New insights and
societal understandings can reveal unjustified inequality within our most
fundamental institutions that once passed unnoticed and unchallenged.
Notwithstanding the gradual erosion of the doctrine of coverture, invidious
sex-based classifications in marriage remained common through the mid-20th
century. These classifications denied
the equal dignity of men and women. One State’s law, for example, provided in
1971 that
“The husband is the head of the
family, and the wife is subject to him; her legal civil existence is merged in
the husband, except so far as the law recognizes her separately, either for her
own protection, or for her benefit.”[5]
Responding to a new awareness, the
Supreme Court invoked equal protection principles to invalidate this law which
imposed sex-based inequality on marriage.[6]
The present law
governing marriage in Anguilla burdens the liberty of same-sex couples.[7] It abridges central precepts of
equality. Same-sex couples are denied
all the benefits afforded to opposite-sex couples and are barred from
exercising a fundamental right. Especially against a long history of
disapproval of their relationships, this denial to same-sex couples of the
right to marry works a grave and continuing harm. The imposition of this disability on gays and
lesbians serves to disrespect and subordinate them.
These considerations
led the Supreme Court in Obergefell v Hodges to the conclusion that the
right to marry is a fundamental right inherent in the liberty of the person,
and couples of the same sex may not be deprived of that right and that liberty.
The Court therefore held that same-sex
couples may exercise the fundamental right to marry.
No union is more
profound than marriage, for it embodies the highest ideals of love, fidelity,
devotion, sacrifice, and family. In
forming a marital union, two people become something greater than they once
were. Marriage embodies a love that may
endure even past death. It would
misunderstand these men and women to say they disrespect the idea of
marriage. Their plea is that they do
respect it, respect it so deeply that they seek to find its fulfilment for
themselves. Their hope is not to be
condemned to live in loneliness, excluded from one of civilization’s oldest
institutions. They ask for equal dignity
in the eyes of the law. Any new Anguilla
Constitution must grant them that right.
[2] 381
U. S. 479, 484–486 (1965)
[3] Zablocki, supra, at 384.
[4] 125
U. S. 190, 211 (1888).
[5] Ga. Code Ann.
§53–501 (1935)
[6] Kirchberg v Feenstra, 450
U. S. 455 (1981)
[7] This is
principally section 13(4)(b) of the 1982 Constitution which permits the
House of Assembly to make a discriminatory law on marriage based on the sex of
the parties. The Marriage Act
contains no language specifically limiting the right to marry to members of the
opposite sex, but it is implied in the language use throughout.
