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Modern Culture: Separate but equal
Tagged As: UK, Homosexuality, Germany, Proposition 8, Film, Gender, Equality
I am fresh back from seeing “Milk” and thought it was the right time to put some thoughts on the world wide web (!). Fittingly I saw the movie after Sean Penn won the Oscar in what was also a protest vote by the Academy against California’s proposition 8, and Heath Ledger won a posthumous Oscar amidst outside anti-gay protestations that he has “burned in hell” for his role as a gay cowboy in ‘Brokeback Mountain’.
And yet proposition 8 is all around us, alive and kicking. Here in Germany, where I spend some of my less corporate-law laden days, a country which boasts a constitution and a constitutional court that thrive on equality and the ever-elusive dignity, the Federal Constitutional Court has not considered it constitutionally necessary for homosexual couples to be accorded the right to the label of marriage. Instead, civil partnership and its various counterparts across Europe and the globe are handed over to the gay movement as a token gesture of compromise, much like the time when your parents gave you a Mickey Mouse lollipop instead of taking you to that godforsaken Disneyland (good, but not quite good enough, even if you think it’s overrated).
My talk is as empty as that ‘happy ever after’ money-making wonderland? “It’s the same thing”? “What’s the difference”? If you find yourself saying these things then imagine this. A black man and a white woman go to the relevant authorities to get married. They are told that in fact they can only sign up to the civil partnership, with exactly the same benefits and legal rights and obligations. “Why can’t we get married?” they’ll ask, to be told: “well, by definition, historically etc., marriage is for people of the same race only.”
A crude example, perhaps? I think not. If marriage is about building a family on a monogamous sexual relationship of love and care, and if all human beings are to be treated equally with relation to all institutions of government (marriage being one of them), then the burden is on them, the governments who deny this institution to homosexual couples, to explain why.
And the bottomline is, they can’t.
Making the historical/definitional argument gets you nowhere because on that premise, all men would have been created free and equal and women would still be practically owned by their husbands/fathers. Saying marriage is by definition and throughout history only for heteros is like saying things that we can only now be ashamed of, such as the argument that marriage is only for two people of the same race, invoked in many ‘Racial Integrity’ Acts that were thankfully struck down in the 1960s by the ‘advent’ of racial equality in the US Supreme Court. See the case of Loving v Virginia – only decided in 1967, it rings too close to home. The definitional argument is therefore simply a way to evade the moral question of whether this supposedly value-free/neutral definition results in a violation of human rights, of dignity and of equal treatment for all.
Equality always begs the question of difference, and the question is what is a legitimate distinction and what isn’t. The distinction based on the argument that homosexuals cannot reproduce is redundant – 80-year-olds cannot do that either, yet heterosexual 80-year-olds are not denied their right to marriage. It is made even more redundant now that states including the UK are allowing gay couples to adopt children. So what is different? Granted, there is the difference that in one case, we are talking about a man and a woman, a husband and wife, and in the other about a man and a man or a woman and a woman. But this does not tell us anything about why marriage should be denied to homosexual people on this distinction and instead simply collapses into the difference by definition which is again not only redundant but also repugnant for the above reasons.
So why civil partnership? Why something other than marriage? That is the necessary starting point. And if you consider that there’s no huge difference between the revered institution of marriage and the new concept of civil partnership then put yourself in their shoes. You probably only realise the significance of an institution if you are denied it. Maybe many black children didn’t care much for the white people’s swimming pool in Tennessee. Maybe it wasn’t even such a nice swimming pool and maybe they got one which was just as good. But being denied access to that swimming pool nonetheless was a clear and shameful violation of their dignity.
Homosexuals are being treated differently with the ‘separate but equal’ institution of civil partnership, by being denied the status of the label of marriage, and for no justification.
So there’s some food for thought for those of us comfortable with the ‘separate but equal’ treatment that the majority has thought fit to grant to our gay, lesbian and transgender fellow human beings all over the world.
For more information see proposition 8 in California, and civil partnerships in the UK
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Natasa is an aspiring non-corporate lawyer currently marvelling at the wonders of the LPC and looking forward to Thursdays when she gets to torment first and second years at UCL Law with her ideas of objective morality, equality for fat people and other troublesome questions in Public Law.
She thinks chocolate is the greatest thing ever invented and is a fan of Shakespeare, Dylan and Carol Ann Duffy. She likes to be controversial by stating that her favourite movie is Dirty Dancing.
4 Comments:
What if the marriage is religious in nature? I know for a fact that homosexuality is not accepted in the Christian Orthodox church. So if you legalise marriage for homosexuals won’t the church refuse to perform the ceremony anyway? How does that work?
I don’t know if I’m missing something, I have no background in law…
I agree in that calling a gay marriage a civil partnership is branding and in a way racist.
Yeah, this article is about civil marriage (or πολιτικό as we would call it in Greek, which means political) as an institution of government rather than religion. There are plenty of religions in this world and it is up to them to determine who they accord the status of religious marriage under the right to freedom of religion. However, the same does not apply for the state, which must have this institution open for heterosexual and homosexual couples alike. It’s in this way that the civil partnership is a form of branding - denying them the official status of marriage is the ultimate way of telling homosexual couples that they are different, still, somehow, and not worthy of this label.
A response:
Well, not so much of a response really, because I agree with most of your sentiments. But I differ on a couple of points which I wish to draw out.
As far as where we agree. I think you are totally accurate in making the point that the argument that civil partnerships convey the same legal rights and so are sufficient, is a false one. The issue is not just one of legal rights but of social and psychological rights as well. Further, that the separate but equal premise is unsustainable – Animal Farm taught us that if nothing else! Finally, the conclusion which you reach is persuasive and indeed I would say correct.
Done agreeing. Where I disagree is the battleground upon which the argument is made. You diminish what you define as the ‘historical/definitional argument’ – in fact, I think collapsing the historical and definitional arguments into one is itself problematic: they are in fact different. But the key point is that much turns on the definitional problem and by ignoring that, those on each side of the debate end up talking past each other.
Let us start with some premises. Homosexuals should be treated equal to heterosexuals. Sexual orientation should not be a ground for discrimination. I accept that many people disagree with these premises and thus argue that marriage should be denied to homosexuals on the basis that a homosexual relationship is simply wrong. I don’t wish here to explain why such positions are incorrect, but rather wish to focus on how to resolve the issue of marriage, once we accept the two premises I have just posited.
But when it comes to marriage, the fundamental issue is this. If marriage means ‘a legally binding loving relationship between two persons’ (or something of that sort), then it is totally illegal and wrong for marriage to not be extended to homosexuals. If marriage means ‘a legally binding loving relationship between a man and a woman’ (or something of that sort), then it is much harder to argue for marriage to be extended to homosexuals. The problem is that society seems to be split on the definitional question.
You refer persuasively to the example of race. But what if black people in the US in the 1960s had been advocating that by calling them ‘black’ people rather than ‘white’ people, the State was discriminating against them. We would have said, no that can’t be right, because ‘black’ means one thing, whereas ‘white’ means another.
Even with the inter-racial marriage question, once we accept that black people are equal to white people (in the same way as indicated in my two premises above that homosexuals are equal to heterosexuals) the argument still had to operate at the definitional level. If marriage means a loving relationship between two people irrespective of their race, inter-racial marriages must be allowed. And most people have now come to accept that, even if they didn’t at the time.
My point is ultimately this. We should all accept that separate but equal cannot be right. But the question as far as I’m concerned (with one caveat) is not one for the law, but rather for society as a whole. If society can be persuaded that marriage means ‘a legally-binding loving relationship between two people’ then of course withholding the institution from homosexuals would be contrary to the law, and essentially discriminatory.
I think lawyers too often forgot the linguistic and definitional issues involved in the use of language. What is cruel and inhuman, for example? Much turns on what we understand the definitional scope of that term to be. Marriage may be no different.
The one caveat I mentioned, which many may not accept is this. To the extent that law is a political and social tool, and can be used to guide society, there is a strong case for finding that there is a legal requirement that marriage should be extended to homosexuals. More often than not morality and politics guide the law, but there is nothing to stop the law guiding morality and politics.
In sum, in order to find a solution, more emphasis must be placed on the definitional problems; otherwise we will all end up talking past each other. Law must take a back seat (at least for the foreseeable future) in this attempt to define what marriage means. The battleground, for the moment at least, is not in the courts, but on the streets.
Thanks Qudsi for your brilliant response. I agree that we will start with the premise that homosexuals should be treated equally to heterosexuals and that sexual orientation should not be a ground for discrimination. This is the state of the law in the UK and under the ECHR.
I have to disagree with you on the definitional point though. Colour is a quintessentially definitional issue despite the political importance of what distinctions based on colour, race etc resulted in. This is because distinguishing between different colours is a process which in itself never reaches the legal or political sphere. Mentions or assertions of people’s colour certainly do, but not so with the actual definition of which colour is which, because that is ultimately an arbitrary process which began at some point by calling one thing red, another yellow and another black, much like tables were called tables and chairs called chairs. There is no debate to be made about what should be the colour black and what should be the colour red. Whether one should be branded black, white etc is another issue of identity.
Not so with marriage. Marriage is on the other hand a quintessentially social, political and legal issue. It is not something tangible or visible you can point to and say this is what we call marriage. In its civil form, it is an institution of government much like democracy is, and its current definition can therefore be subject to debate as to whether it is legally right or wrong. If it is the very definition of marriage in a certain country that applies the concept only to heterosexuals, then that very definition forms the discrimination and must be altered. This is in fact what was done in Canada originally by the courts (see eg Halpern v Canada) and now through legislation.
This is most certainly a legal issue, an equality and non-discrimination issue. Law must not take a back seat at all.