Introduction and background
According to Foucault there was no specific date as to when homosexuality was discovered, instead modernity gave a name to something that had not yet been categorised and it was this discourse that invited discrimination and prejudice. Homophobia publicly emerged, and this diversity of sexual preference was not accommodated for within society. In the 1950s as part of the council of Europe, the European convention of human rights (ECHR) was established, its official order was both the protection and guarantee of all human rights.
This court has advanced rights in Europe relating to sexual orientation with legislation such Article 8, the right to respect for private life and family life and Article 14 which states freedom from discrimination. Legislation like this has allowed Marriage over the years to evolve e.g. Catholics can marry outside the Anglian church and married women are recognised as equal to their husbands but there is still disharmonious opinion when it comes to the subject of same-sex marriage even though same sex partners do not change the fundamental principles that underpin the institution of marriage. The same sex couples Act that enabled couples to marry in civil ceremonies was passed in 2013 in England and Wales. Although this act was a huge step forward for same-sex couples, regarding Article 9 of the European Convention on human rights which guarantees religious protection and freedom, religious organisations who do not want to marry same sex couples cannot be legally challenged. It is therefore not unlawful discrimination to refuse. The religious belief that marriage should only be between a man and a woman is not unlawful and is protected by freedom of expression (government equalities office April 2011).
Traditionally international human rights laws pertaining to marriage have been interpreted to cover heterosexual couples, provisions including the right to marry, to privacy and to family have not been inclusive of same sex partnerships but As of March 2013, 47 countries opened marriage or a form of registered partnership to same sex couples however, there is a significant difference between the legal content of the two and not all these couples receive the same rights as heterosexual couples. Civil unions cannot legally adopt and benefits such as tax and social security cannot be enjoyed in the same way as heterosexual marriage. Limited recognition of same-sex unions makes rights such as inheritance or survivor benefits offered by pension schemes from a partner a legally complicated endeavour (government equalities office April 2011) and more conservative states will deny recognition of a same-sex partner e.g. the Coman case in April 2017 where a Romanian married his American partner in Belgium, Romania refused to recognise this and the American husband was refused residency (lonardo 2018).
This essay will discuss the arguments that are expressed on the topic of recognition on same-sex marriage rights and why there seems to be no clear, harmonisation of laws across the EU and the rest of the world.
In 28 countries mostly in north and west Europe, same sex partnerships are fully recognised when moving eastern or southern, however, the legal right is not recognised. It is legal throughout Canada and the United States and parts of Mexico. Brazil and Argentina recognise same sex marriage, as do Australia and New Zealand, a large part of the western world recognises to some degree same sex partnerships. However, in Asia and Africa (excluding South Africa and Taiwan) the institution of same sex union has made no progress. There remain 72 countries, most in middle east Africa and Asia, where same sex activity is illegal. Iran, Saudi Arabia, Sudan, Yemen, Somalia and Nigeria all impose the death penalty under sharia law and in Iraq and Syria under the Islamic state. Sharia regulates public and private behaviour as well as private beliefs which contrasts with international human rights law especially article 8 and 14 and these countries evoke homophobic attack and permit torture as punishments for breaking sharia law (Dearden 2017).
Johnson (2013) claims that the wording in the legislation of the ECHR implies a heteronormative interpretation and excludes same sex partnerships. He particularly discusses Article 12 of the convention ‘men and women of marriageable age have the right to marry and to find a family according to the national laws governing the exercise to this right’ (Johnson 2013 pp 146) it is the existence and wording of ‘men and women’ rather than ‘everyone’ or ‘no-one’ that opens this up to argument. The court claims that as all other substantial articles which give rights and freedoms in the convention state ‘everyone’ or ‘no-one’ article 12’s wording must be intentional and interpreted in the ‘traditional’ sense of the unity of marriage between opposite sex partnerships, article 12 reflects the legal struggle of the equality in marriage for same sex partnership. Applications to the court have begun to appeal against article 12 and confront heteronormative marriage laws as only seven of the 47 contracting states allow same sex marriage. He claims the committee of ministers suggests that member states that recognise same sex partnerships should ensure the same legal rights and obligations to these couples as to heterosexual partnerships. They also invited states that do not offer same sex partnership legal registration or the same help legally that is offered to heterosexual couples. Although this is a step in the right direction towards marriage equality regardless of gender it does not address legal exclusion of same sex marriage. Article 9 of the charter of fundamental rights of the European union has not included reference to gender which suggests marriage as an inclusive human right, it maintains however that because of national law nation states are not required to allow same sex marriage. Article 12 heteronormative conception upholds traditional marriage between people of biological opposite sex and same-sex marriage opponents perceive the legal constructions not as discriminating non-heterosexuals legal and human rights but as a consideration of marriage as a ‘traditional’ institution. Johnson claims that the courts legal stance on marriage is entrenched in heteronormative social constructions. Other courts e.g. united states district courts compared not allowing same sex partners to marry as being akin to the prohibition of partners, historically, in respect of race.
Moscati (2013) examined same sex unions over three decades and of discusses their existence in many societies before Denmark legalised same sex unions in 1989. He refutes the traditional perspective by detailing empirical evidence that looks at marriage between women in several societies in Africa historically and outlines several examples of same sex marriage and describes an example of a contract signed in November 1482 between two men who had formed a relationship. He claims Legal framework and traditional law are entrenched in same sex unions historically. He considers that because marriage and family is fundamentally a social institution, discrimination between heterosexual and same sex marriage should not be present. He claims because there is not one fixed model of marriage, legal reforms for recognising same sex unions must be contemplated. He suggests that Internationally there are several types of recognition that exist on legalisation of same-sex marriage, a genderless approach in the legal framework, separate legislation for same sex union, utilising different forms of union, providing options to both same sex and heterosexual couples, locally authorised same sex unions and recognising same sex unions registered abroad. Moscati believes that the most controversial concern in same sex marriage is the consideration of parenthood. When it comes to adoption and artificial insemination problems arise because of the different levels of recognition displayed across different jurisdictions. Finnis (1994,1997) purported same-sex marriage as immoral and the nature of marriage should be to serve procreation. This view reflects the congregation of the doctrine of the faith which declares ‘…such unions are not able to contribute in a proper way to the procreation and survival of the human race’ (2003) (cited in Moscati 2013).
There are now a growing number of jurisdictions recognising same sex married couples’ rights to a family and allow couples of jointly foster or adopt children, lesbian women are allowed medical insemination as well as joint parental status although this is not always the case for registered partnerships (Johnson 2013). However, parenting rights are not always given to homosexual couples even if the country recognises same sex unions. The equality argument is that same sex partnerships or individuals are just as able to bring up children as heterosexual partnerships or individuals and children need families and homes regardless of their parents (biological or adoptive) sexual orientation. Some would put forth the argument that children who are in fact raised by same sex families are more likely to grow up being accepting of this and teach tolerance of people’s differences, minimising future discrimination. Alternatively, just as some countries determine whether same sex partnerships should be recognised, they also have the right to determine who should parent. In some countries equality of this nature goes against their religious beliefs and traditions that the aim of unity of marriage is for a man and woman to procreate. Traditionally marriage is a union between a man and a woman and by allowing same sex marriage the traditional institution is disrupted which in turn not only creates negative issue in children but also poses risks to society (Wardle 2003, 2006). Moreli 2013 also states that traditional perspective believes that same sex marriage is not only harmful to the traditional concept of marriage it has a detrimental effect on children. He goes on to explain that same sex marriage is seen by traditionalists as a violation of the 1989 united nations convention on the rights of the child. Gallagher 2003 suggests that children must grow up in a heterosexual family because same sex marriage will influence and lead to adolescent homosexual activity. Moscati argues however that some heterosexual couples cannot or chose not to procreate, same sex unions can be beneficial when a child is bought up by two loving parents regardless of gender and same sex unions can have a positive effect on society both economically and financially. In accordance to the European convention on human rights, Article 14 (prohibition of discrimination) and Article 8 rights to respect for private and family life same-sex couples should be afforded the same rights as opposite couples with a view to have a family but this is often not the case, for example, Frette v France (2002) where a homosexual man complained that the denial to adopt a child was based on prejudice about his sexual orientation. The court found no violation of article 14 and no violation of article 8 as they had based it on the interest of the child. Another example was Boeckel v Germany who relied on article 8 in conjunction with article 14. A female registered civil partnership were refused the right to register as a parent to their partners child as they were found not to be in a relevant situation to a heterosexual couple when it came to the entries on the birth certificate (European court of human rights 2017)
The levels of recognition same sex marriage have been given throughout the world is vastly different a blatant example would be that South Africa prohibits sexual orientation as grounds of discrimination whereas Uganda bans same sex marriage completely. Nevertheless, there is a clear trend towards the further recognition of same sex partnerships even though there remains to be limited recognition in some countries and remains highly controversial in other countries across the world, for example a Ugandan member of parliament introduced the Anti-Homosexuality Bill in 2009 and in Nigeria in 2007 the same sex marriage (prohibition) Bill was unsuccessfully challenged.
Under EU law some member states have marriage equality, and some allow civil or registered partnerships. These steps even though limited give hope that one day even the more conservative member states will recognise the rights of same sex couples and equal marriage laws will be EU wide regulated. It should be a legal obligation to recognise same sex couples and EU law, family laws especially, must adapt to allow same-sex couples to be able to move between member states equally. Same-sex partnerships should not have to negotiate EU laws to ensure the same rights as a heterosexual married couple such as inheritance, residency and the right to have a child. Recognition of same-sex marriage should reflect social change, for there not to be recognition is a violation of fundamental human rights, a right afforded to a heterosexual couple to ignore it is to uphold heterosexual privilege and power and enforce heteronormative conceptions and interpretations. Same-sex marriage should not be a controversial or sensitive subject and there needs to be a harmonisation of the laws across the EU. The principle of marriage is the promise of long-term commitment between a loving couple there are reasons why two people should not make this commitment but being a same sex couple should not be one of them. Modern society should be promoting respect for all ensuring an inclusive institution for every member of society regardless of sexuality. The court’s interpretation of article 12 must evolve to match article 14 jurisprudence which states it is unacceptable to treat people differently based on sexual orientation. Focus must shift from ‘traditional’ interpretation and be bought into line with contemporary conceptions of marriage so that in the not to distant future all countries will recognise the rights of same-sex couples.