Defining Marriage in our Constitution -- A Response to William and Paula

Following is a response to this post on a blog that I follow. I'm saving it for posterity.

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This is quite an interesting post, William. I think our society is a strange one. When I read Paula's letter, I didn't make much of it. There'd be responses, I wagered -- there always are. But I didn't expect anything like what you described on the panel.

I see at least three broad issues in your post. The first two -- protecting marriage and same-sex marraige -- are related and are as difficult to distinguish in your post as they are in the contentious clause. I suspect they'll be similarly difficult to distinguish in this response, but I'll try to set them apart where I can. The third is on the issue of separation of church and state. I'll start with protecting marriage in general.

It's worth noting, firstly, the entirety of section 17.

17. (1) The State acknowledges the family as the natural basic group unit of society. Consequently, the State accords the family recognition, respect, protection and support; asserting that men and women of the age of civil legal and societal responsibility have the right to marry and establish a family.

(2) The State shall protect marriage, which shall be a legal union only between a person who is biologically male at birth and a person who is biologically female at birth

The note in the left-hand column reads "The family". This isn't (just) about 'discriminating' against people who want to marry another person of the same sex. This is about making it clear that families are important to society. From this -- if, indeed, this clause matters as much as we're making it out to -- the government is mandated to continue supporting families, to protect everyone's right to marry, and to protect marriage.

Yes, and to protect marriage. The climate we're in makes it seem like this is purely an anti-same-sex (too many hyphens there?) marriage amendment. It is, of course, largely an anti same-sex marriage amendment. But it isn't entirely one. It sets out the norm for marriage and, in so doing, excludes many things, including same-sex marriage. Marriage is to be an exclusive union between two people -- one male and one female. This not only prohibits same-sex marriage, but it also prohibits polygamy (which is right around the corner) and other less-heard of things that some people call marriage, such as unions with animals, trees and inanimate objects. (I can provide links to news stories on people doing or wanting to do all of these if you wish.)

The next thing to note here is that the people who support this amendment aren't the only ones giving exclusive definitions on what marriage is. Perhaps they wouldn't want to put this definition into the constitution, but you can see from the language of the provision's opponents that most of them still think that marriage should be monogamous, that children shouldn't have the right to marry, and that marriage is something between two humans. It's really just a fairly modest modification of the Christian norm of marriage.

We may then note the context in which this definition of marriage occurs. You'll see that it comes on the heels of talk of the family and its importance, and on the right of everyone to marry. This strongly hints at something else -- the purpose of marriage. What is it? Well, Paula wasn't clear on what she thinks it is. She just seems to think that preventing consenting adults people from marrying someone of the same sex is discriminating against adults who want to marry someone of the same sex. That position is typical of people who think that a (or the?) purpose of marriage is for the state (or a religion) to recognise, formalise and 'bless' a union between two people who are in love with each other. That is, no doubt, part and parcel with the current understanding of marriage, but it isn't all. From the context, we can see that marriage is being linked to forming a family. 17(1) reads "men and women of the age of civil legal and societal responsibility have the right to marry and establish a family." This link between marriage and family is common sense. It is not universal (though one could argue that it should be normative), but it's common sense. It also parallels the first part of Article 16 of the Universal Declaration of Human Rights (http://www.un.org/en/documents/udhr/index.shtml), and it is quite clear from the fact that gays and lesbians fight for the right to adopt children and even for access to technology to have their own biological children.

The final thing to note here is that the mandate to protect marriage is broad. With this mandate, the provided definition of marriage, and the context of subsection 17(1) that links it to the family, a reasonable legislature and a reasonable judiciary can use this mandate to do some of the things that are mentioned, including to fight divorce and criminalise adultery (though I don't see that happening).

That just about covers the protecting marriage and same-sex marriage issue. There are some other things that you and Paula said that I should probably address, though.

I really can't say what the motivation of the drafters was, but I doubt it was to make BBC Caribbean. As you said, there is overwhelming support for this provision. If this were to be put to the ballot alone, I don't think any of us doubt it would comfortably pass the 66% threshold required. I think there may be less support among the 'young people' than the 'old people', but I doubt it would be significantly less. The origin of the amendment is apparently from the people, not drafters seeking additional airtime. The CRC's Revised Final Report of 2006 says that this amendment was proposed by many respondents. I quote from item 14 under A. General Comments (it's on page 6 of the paper version of the document that was on the government's website, page 13 in that same pdf):

The seriously contentious issues in Human Rights have been the question of capital punishment and the question of same-sex marriages. The respondents have been overwhelmingly in favour of the retention of capital punishment, and virtually unanimous against the notion of same-sex marriages. Many respondents told us that they had attended consultations for the sole purpose of stating their views on those two issues.

The issue is also mentioned in comment 350: Protection from Discrimination, where it is recommended (or it is noted that people recommended?) that the constitution make clear the definition of marriage as between a biological male and a biological female, and that, "in light of overwhelming public aversion to homosexuality", no further recommendations were being made. (I take it that this explains why the constitution does not add sexual orientation as a basis for claiming discrimination.) In light of this -- and the fact that every amendment like this eventually passed in every single US state where it was put to the ballot -- I think the Victorian-era origination of the law criminalising sodomy is of nearly no significance here.

I'm not sure what to make of what she says about married homosexuals. The things she describes are lamentable, but she can't really expect people who think that marriage should be between a man and a woman and that homosexual activity is wrong to agree with her that a way to fix this is to leave open the way legalise same-sex unions. Clearly, the truly homophobic won't care to address those issues. I'm not homophobic. I think that those things would be addressed if homosexual actions were treated like the more popular fornications, but I no more think that we should fail to establish a norm for marriage that excludes same-sex marriages than I think that, because of adultery and pre-marital sex, we should do away with marriage altogether.

For me, this isn't about beating up homosexuals.

She says that the issue is utterly insignificant in the grand scheme things. Obviously, none of us think it is. She wouldn't write the letter if she thought it were, and the seriousness of the orthodox Christian position on fornication is well-known.

I really, really don't see how prohibiting same-sex marriage amounts to according homosexuals second-class citizenship. Like every other usable word, 'marriage' has to be defined if it is to have any meaning, and it is in the nature of a definition to exclude some things when it carves out space for itself. Is she saying that her definition of marriage accords second-class citizenship to the people whose relationships it doesn't legitimise?

The issue of the intersexed is an interesting one. Firstly, though, it should be noted that the constitutional definition clearly deals with someone's sex and not his/her gender. The clear intention is to prevent those who undergo gender reassignment from marrying someone based on their reassigned gender. As far as I know, the biological definition of sex is concrete and immutable. The same isn't the case for gender. That being said though, the case of the intersexed must be considered, but that asks for a more fundamental redefinition of our understandings of sex. My preliminary statement would be that the intersexed are legally assigned a sex based on biological characteristics and would therefore be able to marry someone of the other sex.

I think that addresses most of the points in her letter. Now for the other ones in your post.

The law proscribes the behaviour of consenting adults all the time. But this isn't even about that. This provision doesn't outlaw sodomy; it outlaws same-sex marriage. Marriage is obviously more than a religious convention -- that's why (almost?) every country in the world recognises it and accords married couples special benefits. The human rights angle is interesting, but there are some people's rights that are often ignored -- the children's. It seems that France is, for the moment, holding out on legalising same-sex marriage and on granting same-sex couples adoption rights on the basis of the rights of the child. And I'm fairly certain that Sabrina's views on this issue do not represent the younger generation.

Finally, the matter of separation of church and state. Nothing happened to it because it never existed in St Vincent. In fact, I think it's only constitutionally required in three countries -- France, Turkey and the USA. Despite that, it's true that most developed countries have a de facto separation of church and state in most matters, and that even in the cases where they have state churches. Consider the case of the UK, where the Church of England holds seats in the House of Commons. I'm not sure what you mean by a 'morality bias', and even with my best guess as to your meaning, I don't know the point you wish to make with it.

Yeah, this can lead us down the path to theocracy. And secularism can lead us down the path to Stalin-like communism.