Follow this link to read Chapter 4
Chapter 5
Something New
I love thee to the depth and breadth and height / My soul can reach - ‘How Do I Love Thee?’, Elizabeth Barrett Browning
The Marriage (Same Sex Couples) Act addresses the fundamental human right to marry another consenting adult of your choosing. Without this right, the love expressed between two people cannot be formally recognised by society and government, across families and countries, through cultures and history. Without that right, Rena and I might never have been allowed to become a couple, to live together, to raise our children and be a family. We did not have that right, not then. But we were lucky enough to find each other at a time when there was a glimpse of change on the horizon. Hundreds of thousands of couples around the world are searching for their rights just as we did. Hannah Arendt showed the utmost importance of this search, famously asserting that: “Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to “life, liberty and the pursuit of happiness’.”[1]
Such rights have been established as the basis for human existence. Those countries that have legalised marriage for same sex couples have acknowledged that gay men and lesbians are equally entitled to those fundamental rights and responsibilities. To deprive gay people of full citizenship is to discriminate in a way that effects every aspect of their life, regardless of whether they want to get married, or have children. Where there is no choice there is no freedom.
In 2001, the Netherlands became the first country in the world to legislate for same sex marriage. One of the principle motivations behind the legislation was the observation of depression, the higher rates of suicide and attempted suicide, and increased hospitalisation amongst the gay and lesbian community. The advocates for this change in law were the health care professionals who treated the depressed patients, in this case, at the Catholic psychiatric hospitals.[2]
There have been many studies on the adverse effects that a ban on same sex marriage can have on the mental health of gay men and lesbians. From the improvement found in the mental health of homosexual men in Massachusetts once the State had legalised equal marriage[3] to the issues of institutionalised discrimination,[4] the correlation between the mental health of gay people and the openness with which they can live is clear. Simply put, when the government stops telling its citizens that there is something wrong with being gay, the mental health of gay people improves. Legislating against homophobia and giving gay people the same civil rights as straight people, is one way of a government leading the way in helping to end discrimination and improve the wellbeing of all its citizens.
Other European countries soon followed the Netherlands: Belgium, Spain, Norway, Sweden, Portugal, Iceland, Denmark and most recently, France. In England and Wales, the new legislation would come into effect in 2014.
Of the few countries outside Europe to pass same sex marriage laws as of November 2013, three are on the South American continent: Argentina, Brazil and Uruguay. Argentina was the first country in Latin America to legislate for same sex marriages, having established civil unions in some jurisdictions in 2002. By 2010, polls showed that nearly 70% of the country supported same sex marriages but the government had to contend with strong opposition from the Roman Catholic Church. The President of Argentina, Christina Fernández de Kirchner, argued that, because same sex couples already existed, the Church was wrong to claim equal marriage was a moral issue which presented a threat to the social order. Prior to the debate in Argentina’s senate, Mrs. Kirchner said that, “It would be a terrible distortion of democracy if they (church leaders) denied minorities their rights.”
When Uruguay’s senate passed the Marriage Equality Bill in April 2013, the objections from the Roman Catholic Church centered on the undermining of the family. But Senator Monica Xavier, president of Broad Front a left wing coalition group, stressed that the issue for Uruguay was one of civil rights, ‘Here we are speaking about RIGHTS, with capital letters. Rights that were denied and repressed for a long time … Rights that are inherent to people, that are not a legislative creation, but something that the law must recognize.”
The question of civil rights was again central to the decision of the National Council of Brazil in 2013 when it voted by 14–1 to legalise same sex marriage in the entire country, unifying the many policies followed by different states. In the preceding years, there had been much debate about civil unions and same sex marriages but Jose Luiz Bednarski, the lawyer acting for the Sao Paolo state attorney general wrote in his opinion to the court, “The federal constitution establishes as a fundamental objective of the Federal Republic of Brazil to promote the good of everyone without bias of gender or any other form of discrimination. This certainly includes the choice or sexual orientation of a person.” The Sao Paolo ruling meant that existing same sex civil unions could be converted to marriages.
All three Latin American countries faced considerable opposition from the Church. In Brazil, only half the population supported the legalisation of same sex marriage. But in each country, the government argued that the case for equal marriage would not weaken the institution of marriage, rather it would strengthen the constitution by honouring the civil rights of its citizens.
The only African country to legislate for same sex marriage is South Africa and its ruling underlines the importance of recognising equal marriage as a civil right. In a test case launched by Marie Adriaana Fourie and Cecelia Johanna Bonthuys, the Supreme Court of Appeal found that enshrining homosexual discrimination in law could be compared, theoretically if not materially, to the ways in which race discrimination had been enshrined in South Africa’s law and so ruled in favour of the couple. Consequently, same sex marriage was legalised in 2006. Justice Albie Sachs ruled that: “The exclusion of same-sex couples from the benefits and responsibilities of marriage … represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples.”[5]
Again, the change in law faced considerable opposition. Violence and prejudice against LGBT people continues in South Africa. But the judgement from the Constitutional Court makes for particularly interesting reading, covering as it does, the right to be different and the right to have your relationship recognised by law. One of the findings of the court stated, ‘Prejudice can never justify unfair discrimination … Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly.’[6] The finding is significant given the context of the prejudice endured by South Africa’s black citizens. In its ruling, the court recognises that the hard won civil rights established in the new constitution must extend to all the country’s people or the battle against discrimination has not been won.
The only other countries to allow same sex marriages are Canada and New Zealand, although in parts of Mexico and the United States same sex marriages are recognised at State level. On the debate for equal marriage at a federal level, the United States vice-president, Joe Biden, has said of equal marriage, ‘It’s the civil rights of our day. It’s the issue of our day.’ Like Israel, the American government also recognises same sex marriages that have been performed elsewhere. However, Israel recently rejected a bill legislating for same sex marriage even though polls show that the support for equal marriage is stronger among Israelis than in many other countries where same sex marriage has been legalised.
Countries that (at the time of writing) have equal marriage laws under consideration include Colombia, Finland, Germany, Ireland, Luxembourg and Vietnam. Many other countries, such as Australia, Croatia, the Czech Republic, Hungary and Switzerland have civil partnership laws.
In all, there are around thirty countries where equality for same sex couples is recognised by law. There are also many tribal customs and cultural exceptions to be found across continents. The desire for same sex marriage is not a modern phenomenon; it has been the hope of many couples, all over the world and throughout history. The difference now is that same sex marriages are being recognised as equal. When the New Zealand parliament passed the legislation for same sex marriage in 2013, the public gallery led the House in celebration by singing a traditional Maori love song, ‘Pokarekare Ana’. The New Zealand MP, Louis Wall, said at the time, ‘[Marriage equality] is not about gay marriage, same sex marriage or straight marriage. It’s about marriage between two people. There’s no distinction to be made. That is equality.”
True equality, where your rights as an individual are recognised by law and by society, does not happen overnight. But with the advent of same sex marriage we start to see how legal equality can work. Some in the LGBT community have argued that with the change in law and in attitudes, they may feel a pressure to answer questions about marriage and children, to conform, which they did not expect when they realised their gender and sexual orientation. The identity of “otherness” is not one to surrender lightly. But difference is not about whether you love someone of the same sex or the opposite sex, or whether you accept a binary gender assignment. As we are discovering, these differences are only part of our identity, they do not necessarily define us. With laws that recognise the absolute right of individuals not be discriminated against for their differences, we can imagine our non-conformity in other ways, in what we create and how we contribute. Otherness is not determined by the mainstream, it is not to be found in prejudice and ignorance, in criminalisation and taboo. With absolute equality, we can define ourselves.
If you would like to read the A Marriage Proposal in full now, you can purchase the ebook via the links on the Guardian Shorts website, prices from £1.99.
[1] Hannah Arendt, Reflections on Little Rock, (1958).
[2] For an assessment of the impact of the Dutch legislation, see ‘Reflecting on 12 years of gay marriage in the Netherlands’ at Euronews.com.
[3] Mark L. Hatzenburger, Conall O’Cleirigh, Chris Grasso, Kenneth Mayer, Steven Safren, and Judith Bradford. Effect of Same-Sex Marriage Laws on Health Care Use and Expenditures in Sexual Minority Men: A Quasi-Natural Experiment, American Journal of Public Health: February 2012, Vol. 102, No. 2, pp. 285–91.
[4] Mark L. Hatzenbuehler, Katie A McLaughlin, and Deborah S. Hasin, The Impact of Institutional Discrimination on Psychiatric Disorders in Lesbian, Gay and Bisexual Populations: A Study, American Journal of Public Health, 2010, vol. 100, issue 3.
[5] See paragraph 71, Judgment of The Constitutional Court of South Africa.
[6] See paragraph 113, Judgment of The Constitutional Court of South Africa.
