Striving for marriage equality and a fair society

By Jaime Netto

What has prompted me to write on this subject are the flawed arguments made by Mr. Charles Harrison in GBC. It seems obvious that the self-proclaimed “Defenders of the ‘True’ marriage inheritance” are nothing more than a group of individuals with orthodox religious views that wishes to stop the onward march of equality from progressing into our Statute laws.

A fair definition of their concept of marriage is based on a legal contract between two heterosexual individuals in accordance with their theological doctrine, thereby regulating sex, reproduction, and family life. It is also true to say that the views of this group in the past have dominated, influenced and shaped the political institutions which regulated human relationships not just in Gibraltar but on a world basis.

That said, the advent of hard fought campaigns for equal rights have replaced the previous male dominated doctrine, that prevailed before the Second World War. Today, much of the modern jurisprudence in this field emanates from the United Nation’s Universal Declaration of Human Rights and more specifically to us from the European Convention of Human Rights.

It is worth recalling that our own Constitution (2006) under the heading of ‘Protection from discrimination on the grounds of race, etc’ states:

14. (3), In this section, the expression “discrimination” means affording different treatment to different persons attributable wholly or mainly to their respective description by race, caste, place of or social origin, political or other opinions or affiliations, colour, language, sex creed, property, birth or other status, or such other grounds as the European Court of Human Rights may, from time to time, determine to be discriminatory, whereby  persons of one such description are subjected to disabilities or restrictions to which persons of another description are not made subject or accorded privileges or advantages that are not accorded to persons of another such description.

However, the question remains whether or not the arguments raised by orthodox religious individuals in this matter are valid, sound and cogent sufficient to block further progress in affording equal treatment to the Lesbian and Gay community. So far, our Statute Books provide a two-tier arrangement in which the title of marriage is granted for opposite-sex couples only and another for civil partnerships which allows both same-sex and opposite sex couples. Whilst it is true that in our legislature we decided to grant most of the benefits accrued to marriage into the civil partnership arrangement, affording the title of marriage was excluded from the legislation, thereby maintaining a distinction based on sexual orientation.

Such a distinction surely cannot be based on articulating an argument on the basis that Lesbians and Gays cannot have a loving, or voluntary intimate relationship with another person of the same sex, as evidently same-sex persons do have relationships which are similar to heterosexual ones and recognised as marriages, yet to advocate a difference on this basis would be arbitrary and unjustly discriminatory.

Another argument by proponents to retain the status-quo is based on the statement that marriage is essentially heterosexual, therefore the title “same-sex couples” does not amount to unequal treatment. In other words, same-sex relationships simply do not qualify as marriage. This is not a valid argument because it is a linguistic definition which confuses meaning with reference. Yet past application of a term need not support necessary and sufficient criterion for applying it. The term marriage like citizen, may be extended to new cases without changing its meaning.

Orthodox religious individuals also purport that the purpose of marriage is to foster reproduction as a means to further the human race. Yet, marriage per se does not require that heterosexual couples have to procreate, or that all heterosexual couples intend to procreate at all. Here we observe the double standard applied by the ‘True’ Defenders in keeping   quiet when heterosexual couples cannot have children not even with third-party assistance, or if their choice is not to have children. If their argument where to be that heterosexual couples that cannot have children even with third-party assistance, or choose not to have children, that   this would negate the granting of the title of marriage. On this basis their argument would be valid, but not cogent, yet they deliberately keep quiet on this issue as they are conscious of the weakness of their position.

Furthermore, acceptance of third-party assistance to same-sex couples for the purpose of   procreation is possible, but ‘True’ defenders reject allowing same-sex couples the title of marriage, making their position untenable and contradicted. This attitude of rejection is extended even to the position when same-sex couples intend to foster or adopt a child. Here the argument is one that homosexuality is some kind of mental derangement which makes the looking after children unfit for lesbians and gays.

This is an issue that needs to be rebutted given that it is based on prejudiced and scaremongering allegations.  There is no independent and trusted empirical data to show that gay people who fosteror adopt children are detrimental to the welfare of the children in question. As Social Workers have known for a long while the criteria to determine suitable foster and adopting couples has nothing to do with sexual orientation, but rather whether such person or couples are either financially and optimally apt to be trusted with these responsibilities. This is a criteria based on the harm principle to the child, and under that criteria either heterosexual or same-sex couples may or may not be appropriate candidates.

Having dealt with the irrationality of the ‘True defenders’ views, there is an important consideration that needs highlighting in favour of the same-sex marriage Bill. In my view, denying gays and lesbians the right to marriage is tantamount to place them in a position of oppression, making them second-class citizens by maintaining a different treatment which is discriminatory. Our cultural values drive our daily life in many ways. Marriage is central to our concept of a good citizen, so exclusion from it displaces gays and lesbians from full and equal citizenship. Being fit for marriage is intimately bound up with our cultural conception of what it means to be a citizen. Therefore, to deny them equal treatment is to belong to a society that hasn’t attained equal treatment for its entire people. Do we really want to be anchored to the past through dogmatic slumber, or do we want to continue the path of those that have strived to make a better society for all. A society where the happiness of all its citizens matters and not of some whilst keeping others in a second-class position.

Finally, to today’s Parliamentarians on both side of the House may I say to them, do not place any doctrinaire, partisan or partial affectations and considerations that cloud the arguments placed before you, put the interest of all before you and then vote for rationality and for making Gibraltar a more equal society.