dismantling the right to marry


The discussion on the institution of marriage comes up any time it is challenged by various social groups that have been (or still are) discriminated at some point of the time, be it women, people of colour, or most recently the LGBT+ community. I have attempted to do some deconstruction and research to find out the most recent definition of marriage, figure out whether it is a human right, and give my opinion on the way toward marriage equality based on one’s sexual and gender identity. Apparently, there is much more controversy and Christian influence in the legal matters than I imagined.

First of all, how is the “marriage” defined in the dictionaries used by both regular folk and lawyers in the highest courts? The more traditional and legal definitions of the marriage can be tracked to 18-19th century dictionaries. I would like to stay in the matters of secularism and keep religion out of the discussion, as that is a wholly different matter. However, one explanation from 1828 by Noah Webster still puts religion as the central focus. He described marriage as a union between a man and a woman for life, an institution “instituted by God himself for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children”. Clearly, this definition is not suitable for our age, because secularism, divorce, and childless family. Nevertheless, a more recent definition of 2003 from Merriam-Webster’s Collegiate Dictionary has a different, more inclusive feeling:

(1) the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law

(2) the state of being united to a person of the same sex in a relationship like that of a traditional marriage

The same with the Oxford English Dictionary:

Persons married to each other; matrimony. The term is now sometimes used with reference to long-term relationships between partners of the same sex

Nonetheless, despite the fact that dictionaries change with the society they are not created based on the law, but based on how the people use certain terms and words, thus in order to find out whether universal equality of marriage can ever be reached the law should be brought in. And my personal favourite is the Universal Declaration of Human Rights.

Before delving into the words of the Declaration, it is useful to know what human rights actually entail to. According to the wide web, human rights arise simply by being a human, they are seen as necessities of the human existence. Furthermore, they are inherent, universal, and cannot be taken away. Based on the Universal Declaration of Human Rights (1948) of the United Nations, first of all

Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

This article clearly states that all the rights pronounced in the declaration are universal and people cannot be discriminated based on any kind (race, sex, language, etc.). Furthermore, no matter the country these rights apply to everyone equally. It is well known that this is not the case in many parts of the world, otherwise we would not need so many human rights organisations and activists. Now, as for the marriage, the Declaration states

Article 16.  (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.

Once again, the most important matter is the non-discrimination based on race, nationality, religion. I have highlighted “men and women” intentionally, as it does not say “a man and a woman” or “two people of opposite genders”. No, it says “men and women”, plural, which can be interpreted as “a man and a woman”, “a man and a man”, or “a woman and a woman”.

Still, despite the rather obvious clarity on the non-discrimination and universality of the right, many arguments rise. I would like to give two different opinions on the matter – one from Amnesty USA and one from the European Union Court.

Amnesty USA has been working hard and long for the equality of marriage and to quote one of their statements “the right of adults to enter into consensual marriage is enshrined in international human rights standards”. They also quote the Declaration to strengthen their point. The organisation clearly states how preventing same-gender couples from entering into a civil marriage denies them of the right to something that is universal and also prevents them from accessing a range of other rights that married couples acquire, such as letting a partner to make decisions on partner’s behalf when he or she is sick. It also stigmatises the relationship, discriminates against its validity and value.

On the other hand, a certain website claims that the European Union Court stated gay marriage is not a human right. I do not want to take this claim for granted, as I could not find any more proof on such a statement, especially when one looks into the overall progress Europe has made in regards to LGBT rights (Western Europe to be exact, Eastern Europe is still lacking behind with Lithuania having laws that restrict freedom of expression and association of the LGBT groups). Nevertheless, the website clearly being pro-traditional family gives some insights into the other side of the argument. According to them the courts are ought to protect the traditional institution of marriage, therefore there is a view “that relations between persons of the same sex are not identical between a man and a woman, and may be treated differently in law”. They base the claim on the definition of the traditional marriage. Some other predominantly Christian websites also used this claim saying that sexual relationship is the base of a marriage and distinguishes it from a business venture or any other domestic union. Completely disregarding people who feel no sexual attraction or due to some reasons are unable to engage in sexual relationship.

In addition, I have found sources saying that a civil union should be enough for the same-sex couples. However, if the rights given to both couples in “marriage” and “civil union” are basically the same, why have a different law? The institution of marriage is not a sacred matter, but a social construct, thus laws and norms around it should be flexible and adaptable. Moreover, “civil unions” take away the emotional meaning of a marriage, making it more similar to a business venture than a loving union.

Finally I would like to draw some conclusions and give my opinion on this whole matter. I have known for a long time that anything having to do with LGBT+ rights is a controversy, especially in my home country, but after looking at all the definitions and legislations it seems more and more mind-boggling as to why it is this way. I believe that marriage is a human right, thus it should not discriminate against gender or sexual orientation. Furthermore, marriage is not a sexual relationship, marriage and love can exist outside sex, just like sex can exist without love. Once again, children are not the ultimate goal of a family or marriage, besides not everyone can or want to have off-springs, that is why adoption is a possibility (of course, restricted for same-gender couples…). Through the research I have encountered a number of arguments coming from more traditional, usually Christian people. They often claim that if we were to allow homosexuals to marry, polygamy would become legal again. Well, it is in many parts of the world even today. And it is not renounced by the Bible, look at the Mormon families with several wives. Further, people say that after homosexuals we will start marrying animals and inanimate objects. That goes outside the realm of human rights that only attain to humans, leave your cat out of this.

In the end, progress and society change laws and social constructs, they are not and have never been written in stone. Otherwise in developed countries slavery would still be legal, interracial marriage would not be in discussion, and women would be stoned to death from extra-marital relationships. Times change, institutions should adapt.

 

 

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