Disparate bedfellows: same-sex marriage and human rights
by Barend Vlaardingerbroek | April 17, 2014
The acceptance that SSM is a basic human right has spread like wildfire across the western world. – Irish Examiner, 6 February 2014
So it would appear. The argument with which we are all familiar is that marriage is a universal human right, and it is accordingly arbitrary and discriminatory to disallow two people of the same sex to claim the right to marry. But does a right to same-sex marriage (SSM) stem from international human rights (HR) declarations?
The right to marry as a fundamental human right is enshrined in three of the ‘big four’ HR declarations: the Universal Declaration of Human Rights 1948 (UDHR), the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights 1950 – ECHR), and the American Convention on Human Rights 1969 (ACHR). (The African Charter on Human and People’s Rights 1981 does not mention the right to marry per se, but does talk about the family unit as we shall see a bit later.) The UDHR is now customary international law while the ECHR has legal teeth as a treaty and has the European Court of Human Rights (ECtHR) behind it. Let’s take a look at the exact words used:
UDHR: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family.”
ECHR: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
ACHR: “The rights of men and women of marriageable age to marry and to raise a family shall be recognized, if they meet the conditions required by domestic laws, insofar as such conditions do not affect the principle of nondiscrimination established in this Convention.” (The Convention lists as grounds for discrimination “race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.” )
Two important observations emerge from these statements. First, the right to marry does not exist in isolation but is tied to the right to ‘found’ (in the American convention, the near-synonym ‘raise’) a family. The word ‘found’ is being used in a somewhat quaint way here; my computer thesaurus includes as synonyms ‘establish’, ‘originate’, ‘start’ and ‘initiate’. All these words allude to a first step in a building-up process; to ‘lay the foundations for’. Clearly, the two aspects are intended to be read as aspects of the same right. “The right to marry” is capable of standing alone, but this was an option the drafters did not take up; the purport of the right may be expressed as being “to marry and [thereby] found a family”. To dispense with a common red herring straight away, none of this means that marriage is only or all about having children. On the contrary, the right to found a family does not carry with it any obligation to then proceed to produce a family. Childless ‘hetero’ couples have in fact ‘founded’ a family in the sense of ‘laying the foundations’, but have chosen not to build upon those foundations. The same reasoning applies to an involuntarily infertile couple: in their case , they were unable to subsequently build upon them.
Secondly, the regional conventions explicitly allow for the ‘margin of appreciation’ – the leeway given to law-makers at the national level when passing legislation intended to conform with international (or, in the case of Europe, supranational) directives. Thus, domestic laws may vary considerably with regard to such issues as bottom age limits and consanguinity restrictions (in federal systems, these may actually differ between state jurisdictions). But the ‘margin of appreciation’ is not infinitely elastic, and the question now arises whether it can stretch to accommodating SSM.
Given the organic connection between ‘marry’ and ‘founding a family’, we need to ask what exactly is meant by ‘family’ in these documents. Both the UDHR and the ACHR refer to the family as “the natural and fundamental group unit of society”. The African Charter likewise speaks of the family as “the natural unit and basis of society”. (The ECHR has an article addressing the right to a family life, but it does not define ‘family’.) The word ‘natural’ in these contexts evokes ‘Mum, Dad and the kids’ families – family units that have come about the ‘natural way’, which is through heterosexual relations. It takes a great deal of distortion of the English language to bring a gay male couple who have adopted a child, or a lesbian couple one of whom conceived a child through sperm donation, into the fold of ‘natural families’. Only a male-female couple can “found a [natural] family”, and so the right to marry as posited by these authoritative statements of HR implicitly defines marriage as a heterosexual union.
As noted earlier, there is no requirement, legal or otherwise, for a couple to actually produce children – the inherent potential of the male-female combination satisfies the ‘right to found a family’ clause. This holds even for couples who cannot possibly produce offspring and where that is known in advance. Instructive in this regard is Goodwin v UK 2002 where the ECtHR held that transsexuals should have the right to have the sex on their birth certificate changed and should not be prohibited from marrying. The upshot once translated into domestic law was that a male-to-female transsexual could marry a man, but only after being officially declared a woman (switch genders for the opposite scenario). There is no grist for the SSM mill here, as this outcome reinforced the hetero-exclusivity of marriage by requiring that what began as a M-M couple morph into a M-F couple before tying the knot.
This was when SSM law was at the fledgling stage. A couple one (or both) of whom are transsexual need no longer take their case for being allowed to marry to any court at all in a jurisdiction that enables SSM. Goodwin still applies to the right of a transsexual to be recognised as a woman or man (for someone born male or female respectively), but with regard to the marriage aspect, it has been made redundant where SSM has been brought in. Not that the ECHR demands that SSM is legislated for; the ECtHR held in a 2012 case concerning adoption rights that “The European Convention on Human Rights does not require member states’ governments to grant same-sex couples access to marriage.” The ‘margin of appreciation’ allows for states to amend their domestic laws to accommodate SSM, but there is no legal need for them to do so.
Where the marriage statute has been amended to accommodate SSM, the legislation has created a discrepancy between national law and international statements of HR with regard to the scope of the word ‘marriage’. SSM does not qualify as ‘marriage’ as the term is used in international declarations of HR, i.e. as the ‘founding’ of a ‘natural’ family. It is not that SSM is unlawful in the international HR context; rather, it does not fall under those provisions pertaining to marriage and so its promoters can not appeal to the “right to marry” as a “basic human right” to support their case.
Many (including parliamentarians) have been duped into regarding SSM as a basic HR issue – the right to marry – but the reasoning that underlies this stance is seriously flawed as it is based on an incomplete reading of HR dicta. The SSM propaganda machine has doggedly peddled the line that the right to freedom from discrimination for being gay automatically permutates into the right to marry someone of the same sex as a matter of basic HR. A close reading of international HR declarations provides no support for that specious assertion – in fact, quite the opposite.
Barend Vlaardingerbroek PhD is associate professor of education at the American University of Beirut in Lebanon. He also has academic qualifications in science, arts/humanities and law. Feedback welcome at firstname.lastname@example.org.