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Legitimising same-sex relationships

Sunday, July 26, 2015
Douglas Mendes

No sooner had the ink dried on the judgment of the United States Supreme Court declaring the constitutional right of same-sex partners to marry, than the European Court of Human Rights weighed in on the issue. The court held last week that the Italian Government had failed to fulfill its obligations under Article 7 of the European Convention on Human Rights to ensure that homosexual men are accorded “a specific legal framework providing for the recognition and protection of their same-sex unions.” 

That is not the same as an obligation to permit same-sex partners to marry. While the court had said on previous occasions that it did not think that the right to marry must in all circumstances be limited to marriage between two people of the opposite sex, it was not prepared to compel members of the European Union to grant same-sex couples access to the institution of marriage. That decision was best left to the national authorities who it thought were “best placed to assess and respond to the needs of society.” 

But that did not mean either that same-sex couples could be deprived altogether of the state benefits extended to heterosexual couples who choose to marry. Hence, the ruling that some form of legal institution mirroring traditional marriage had to be created for same-sex couples. The court reiterated “that same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships” and were accordingly entitled to similar legal protection. If marriage was not accessible to them, then some form of civil union or registered partnership had to be created. While not going as far as the United Sates Supreme Court, then, the ruling nevertheless went quite a way towards legitimising same-sex relationships among European Member States.

Judicial legitimisation of same-sex unions now has quite a formidable pedigree. 

In 2003, the British Columbia Court of Appeal held that the exclusion of same-sex couples from legal marriage amounted to unlawful discrimination. The court rejected out of hand the notion that "according same-sex couples the benefits flowing to opposite-sex couples in any way inhibits, dissuades or impedes the formation of heterosexual unions.”

That same year, the Ontario Court of Appeal came to the same conclusion, ruling that depriving same-sex couples the benefits which the law makes available to married people “perpetuates the view that same-sex relationships are less worthy of recognition than opposite-sex relationships ... [and] offends the dignity of persons in same-sex relationships.” 

In 2005, South Africa’s Constitutional Court, ruling that statutory obstacles to marriage for same-sex couples were discriminatory under the South African Constitution, declared: “The exclusion of same-sex couples from ... marriage ... represents a harsh if oblique statement by the law that same-sex couples are outsiders ... that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples ... that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples.” 

Similar findings were made by the Brazilian Superior Tribunal de Justiça in 2011, by Mexico’s Supreme Court in 2012, and by the Columbian Constitutional Court in 2013. And then came the decisions of the United States Supreme Court and the European Court of Human Right this year.

There have also been significant legislative initiatives to match. Eleven of the member states of the European Union have passed legislation recognising same-sex marriage and the law in 18 others authorise some form of civil partnership for same-sex couples. Outside Europe, Argentina, Australia, Canada, Mexico, New Zealand, South Africa and Uruguay, 21 of 50 American states and the District of Columbia have granted legal recognition to same-sex couples, through access to marriage, civil unions or domestic partnerships.

And who can forget the spectacular results of the Irish Referendum earlier this year legalising same-sex marriage.

So what is the position in T&T?

Our Constitution guarantees the right of the individual to respect for his or her private and family life, the very same right which the European Court relied on in finding that the Italian Government was duty bound to provide legal protection for same-sex unions. This is important because our Marriage Act does not define marriage as a union between a man and a woman. It is neutral as to the gender of the respective parties. Even so, when the legislature passed the Marriage Act it is beyond doubt that they had only heterosexual unions in mind. Nevertheless, judges are obliged to interpret legislation in such a way as to give effect to constitutional rights. So who knows, maybe T&T might one day join the list of countries in which same-sex couples can legally marry, at least in the Red House. 

Colin Robinson is wary of any campaign for the equal right to marry. He is not impressed by the institution and does not think that so much energy should be spent on storming its ramparts. Better to use scarce resources to fight against discrimination in employment, housing, insurance, and other services. He has a point. But I can’t help thinking that the weight and pace of developments on the marriage front can go a long way towards changing people's attitudes to homosexuality and make it that much easier to persuade our representatives in Parliament to initiate the necessary legislative changes.


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