Same Sex Marriage Rights -The US Supreme Court Ruling in Obergefell v. Hodges is RIGHT – Here’s why….

Photo Source; utahpoliticohub.com

United States Supreme Court – Photo Source; utahpoliticohub.com

INTRODUCTION

Today, I will attempt what may be deemed the impossible, by some. That is to invoke at least a “discussion” on this matter, rather than a session of butting heads. For you see, the US Supreme court decision in Obergefell v. Hodges is correct. It is a “legal” decision and as such should be assessed on a legal basis. On that premise, it has arguably long been established that legally, different and less favourable treatment of persons due to the sexual orientation (among other attributes) is wrong.

There is a reason I used the word “legal” and “legally” as many times as I did in the paragraph above. That is because the contention over this ruling arises when people fail to look at it legally and instead argue it upon “personal” bases, “moral” bases and  the most widely used “religious” bases. Therein lies the problem. The law is not your personal thing, it belongs to society, and society as a whole must benefit from it’s protection. The law is also not a strict enforcer of morals. Possibly because morality is relative and to treat all matters upon a foundation of morality, is dangerously close to crossing the line between democracy and a “moral” dictatorship. Thirdly, the law is not a vehicle to advance the policies engrained in religion. If I may say, the law and the bible have not been in line for quite some time and for the most parts we have been okay with it. Don’t think so? Well I ask you to take the time to consider the many sins and transgressions upon which the bible is clear on it’s position. Yet still they have not had a proper place in modern law for a while. Case in point the criminal offence of adultery ,which stood firmly in the days when women were treated as property. That’s right, from a legal standpoint, it basically and practically seemed to apply more harshly and strictly towards women. That is why the law had to step in to remedy the injustice.

Before I start the formal discussion, I’d like to make an observation. The wide discussion, Facebook posts, Memes, Vines and alike being initiated, created and shared around our region since the US Supreme Court ruling, reveals at least one thing; Our apparent obsession with anything coming out of the United States. Most of us don’t even realize that England and Wales, another global superpower, and a better fit for legal comparison to the Caribbean, has since 2013 made same sex marriage legal and it was not even by the ruling of a court, but by the passage of an Act of Parliament.

THE FLAW IN MAKING THIS AN ARGUMENT BASED ON ANYTHING ELSE BUT LAW

First off, I consider myself to be a Christian. I have been raised in the faith and even after careful consideration over the years of my life, accept it and try to live my life in accordance with the principles which it promotes. I am also of the firm belief that the ideals and teachings of Christianity should not be forwarded as being “all there is.” For example, the argument of the Bible versus Science, should not be an argument at all. Instead, our intelligence should tell us that they actually CAN exist together. For I believe that even the most skeptical of evolutionists still cannot definitively say what actually triggers evolution. Yes it is based upon  concepts of survival, adaptation and so on, but what actually makes it happen? God perhaps?

Moving along. With my christian belief fully declared, I would also like to declare my love and passion for Law. It is a field of practice that invites thought, discussion, arguments and solutions, through an ever speaking and ever evolving body of knowledge and reasoning. I would like to pose a challenge to any one who reads this. As you follow along with what I am presenting, try your best not to inject concepts of the bible, morals and alike, unless I do so. I am trying to achieve the result of sharing the perspective that is grounded wholly (or mostly) in Law. Though even I must admit that God, the Bible and what they represent cannot be extracted from the law, I do not think it fit that the law of our modern society be splashed with a bucket of spiritual paint, thus making it a restatement of the good book. That it is not proper for a number of reasons. Including the fact that the good book is God’s word, upon which only God can pass judgment. The aim in this life should be to achieve balance. The type of balance that allows us all to live peacefully in this life and be poised to be judged when our day arrives. Whether before the courts or before the father.

Taking the discussion outside of the sphere of the law creates contention, as you can’t perfectly merge the law with other concepts of authority and control. The law must stand in authority above all in this life. The Bible, in even it’s most strictest of applications cannot stand as a badge for man to pass judgment upon another man. Instead, in my humble opinion, it should be taken as a guide left by God upon which we are to live our lives. It is then up to God to pass the the judgement as only God can.

With that said, the idea that legally, same sex rights are totally within the boundaries of Law is supported immensely by the law itself. That is where the remainder of this discussion will lie. The idea behind our laws is to serve democracy and society as a whole. They exist to maintain order, prevent chaos and guide our actions with the authority to impose sanctions of various kinds. The foundation of any and all laws can arguably be brought within one, or all of the following;

1. EQUALITY

This is a term under which laws of all types must be balanced. The Constitutions of the various democratic states of the world would be incomplete if equality was not part of the foundation upon which society functions lawfully. The very first words uttered in the Constitution of Saint Lucia which we must note to be the “Supreme Law” of St. Lucia is as follows:

WHEREAS the People of Saint Lucia—

(a)     affirm their faith in the supremacy of the Almighty God;

(b)        believe that all persons have been endowed equally by God with inalienable rights and dignity

The Constitution recognizes God as Supreme. However, the rights of the persons, all persons (yes same-sex orientation persons as well) have been endowed equally by God. That makes sense don’t you think. “All persons” is as simple as it sounds; “all persons.” Though admittedly there is much debate over the application of fundamental rights and freedoms to persons of a same-sex orientation, I believe the discussion should be grounded on the fact that “all persons have been endowed equally by God with inalienable rights and dignity.”

2. FAIRNESS

This one is a bit touchy. It requires that we recognize a huge disparity that many tend to over look. That being the fact that most laws against same-sex activity is gender specific. Applicable only to male same-sex activity. The crime that is “buggery” is by all accounts described as same sex activity between men.  Section 133(3) Criminal Code of St. Lucia states “In this section “buggery” means sexual intercourse per anus by a male person with another male person.”

Why is this relevant? Because it shows some disparity. Is it that lesbianism is not to be seen as the type of same-sex activity that offends society, our morals and our God? I would hope so, since it is in effect the same thing. This is also relevant to demonstrate where the law fell short and why it should change. It also aids in showing that the law has the potential to be discriminatory. That is where the inherent power of the law to change to meet it’s aim of promoting justice under the authority of the Constitution must be activated.

So as far as fairness goes, the rights which same-sex couples seek go beyond just the right to say “I do.” We should remember that marriage comes with other duties, rights, responsibilities and benefits. For example; Is it fair that if a person who has been with another for countless years, retains no rights to assets and wealth (which they may have helped in gaining) when their partner dies without a will? Picture a young man or woman, shun by their family, disowned and expelled from under the family roof. This broken person meets another, with whom they build a life, garner a considerable amount of valuables and possessions through hard work and dedication. All with the support and assistance of their partner. In the event of an untimely and unforeseen death; is it fair that the same family who shunned the individual, is to reap any benefit of their efforts? Of course not. Regardless of whether the parties are of same sex orientation or not.

3. JUSTICE

A friend of mine, who holds their own view on this matter, alluded to the fact that it is our duty to acknowledge injustice and to seek to help. I’m not sure if they realized it, but this is actually the type of argument which throws support for the disposal of such restrictions. Because “injustice” is what happens when both equality and fairness are not considered or are overlooked.

The law is supposed to be balanced. It seeks to give to all equally and deprive of all just the same. When it does give to some and deprive of some, it is for the purpose of the greater good of others, when balance is the aim sought. A convicted murderer has his liberty (and in some cases his life) taken away for the purpose of protecting the whole of society and deterring those within society from following the same. That is how justice reconciles the course of things.

The argument seems hardly applicable to the debate it hand. At least in a legal sense. There is no legal basis for the difference in treatment of same sex couples from that of couples consisting of persons of the opposite sex. Who is the ban benefiting? What is it’s purpose? What is the effect of the deprivation which it promotes? Some may argue this to be different, but there are stark similarities between the effect of same-sex marriage bans and the unjust effect of the inter-racial marriage bans which existed in the United States. These stood strong until the landmark decision in Loving v. Virginia in 1967. This is a demonstration of the laws ability and requirement to change, as society does. Before anyone becomes appalled at the idea of a law evolving to societies needs, remember this; Not too long ago, the law, in essence, regarded woman as essentially being property of the man whom she wed.

We also easily forget the human plight which persons of same-sex orientation must endure. Especially the gay man. We easily forget that because of the “legal” backing to discriminate against them, the constant hashing out of the topic in a context that suggests it to be the worlds worst atrocity, as well as the general fear of those in society to speak up against injustice, persons of the LGBT community must endure tremendous societal pressures. Some are abused, ill-treated, dehumanized  and not to mention the countless ones who have lost their lives. These killings are sometimes  at the hands of people who see themselves as soldiers for righteousness. Of course such a step as same-sex rights won’t immediately put an end to the killings. However, isn’t it a step in the right direction. Won’t it do some good in assisting society as a whole to stop treating certain individuals as second class citizens (deserving of death in some cases), if the law does not arguably treat them as such.

CONCLUSION

It may not be the best of circumstances if the Law of man is looked upon to enforce the laws of God. Let it be that the line is drawn where it needs to be the drawn. The Law should not stand as an avenue to deprive a human being of something without a just cause. Yes, we are all aware of the arguments, it is an abomination, a sin against the Lord, wrong in the eyes of God. We also must face the fact that the argument which is based upon the definition of marriage, and that to change the definition of marriage by including same sex couples is wrong, has very little to back it up (legally). Marriage was legally redefined a long time ago, when for example, the concept of divorce became so commonplace that statistically, practically every marriage is at a constant risk of ending in divorce.

What I have tried to do here, was to keep it within the confines of the law. I tried my best to show that when the discussion is being had in a legal context, the US Supreme Court had very little choice in their decision. Among the deciding judicial panel, even those who did not agree within the 5 to 4 majority decision held such sentiments as the following:

“The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws.”

– per Scalia J – dissenting.

And that is really the point. This law, like many others before of a controversial nature, is likely to have effects on society, adverse or otherwise. That however, is a feature of certain laws. The idea should be that the underline aims of the law are what need to be preserved. Such aims as equality, fairness and justice. In this modern day, there is hardly place for a legal ban on same sex marriage. A moral abhorrence for it cannot be prevented. It is within everyone’s right to hold a view. However, we must appreciate that our views are not always to be seen as the best avenue in practice. And in the legal practice the outcomes must reflect the views of society as whole, in accordance with other relevant principles. I invite you, moving forward, to take an approach that is more of a commentary as opposed to that of a judgmental one. No one stands as an expert on sin or the law. Nevertheless; Let men deal with the laws of man (as has the US Supreme Court) and let God deal with sin.

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Jayde Jean is an Attorney-at-law of the Bar of the Eastern Caribbean Supreme Court, Saint Lucia circuit. He holds interests in various areas of the legal and political environment within the Commonwealth Caribbean region, with special interests in Intellectual Property, Human Rights and Criminal Practice.

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