Is Same Sex Marriage a “Human Right”?

The question posed by the title of this post is simply this: is it a denial of a fundamental human right, for a legal system not to extend the category of marriage to include marriage between parties of the same sex?

The question was posed in a stark way by recent reported comments of the President of the Australian Human Rights Commission, Prof Gillian Triggs. Prof Triggs, for whom I have great respect as a scholar and academic, was delivering the annual Sir Anthony Mason Lecture at Melbourne Law School on 4 August, 2016. She strongly criticised a lack of commitment to human rights in recent decisions of the High Court of Australia, and the Commonwealth Government. In a short paragraph near the end of her address, she also said the following:

A recent example of the failure of Parliament to protect fundamental rights is the decision to hold a plebiscite on marriage equality.  Why do we hold an expensive, potentially divisive compulsory but non–binding national vote on the right to equality before the law.. a long recognized common law principle? The US Supreme court decision last year on marriage equality in Obergefel is yet another reminder of the limited role of the Australian High Court that has no power to interpret and apply a Bill of Rights.

The implication of this statement is that “marriage equality” (by which is meant “recognition of same sex marriage”) is simply an “equality” right which should be uncontroversial. Indeed, there is a suggestion that recognition of same sex marriage is really a right that flows obviously from Australia’s international human rights obligations, such as our accession to the International Covenant on Civil and Political Rights (ICCPR). Prof Triggs has been previously reported as telling a Parliamentary inquiry that there is a “right to marriage equality”.

In a later defence of this position in an opinion piece, “Genuine marriage equality is more than overdue in Australia” (Sydney Morning Herald, 28 Jan, 2016) Prof Triggs said:

Under article 26 of the  International Covenant on Civil and Political Rights  all people “are equal before the law and entitled without any discrimination to the equal protection of the law”. The Australian Human Rights Commission considers that this principle of equality means that civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity.

Yet the same piece frankly points out that international human rights bodies do not all agree with this assessment:

It remains true that international human rights law does not mandate recognition of marriage between same sex partners. Rather, the principle of equality under the ICCPR is considered by the UN Human Rights Committee to neither prevent recognition of same sex marriage nor to impose a positive obligation on states to do so.

In this post I want to briefly note the UN Human Rights Committee decision referred to here, and some decisions of another important tribunal, the European Court of Human Rights, which make it clear that at the moment it is not true to say that same sex marriage (whether under the guide of “marriage equality” or more accurate terminology) is a recognised “human right”. I will comment briefly on the terminology of “equality” before noting the relevant decisions.

Equality and Same Sex Marriage

As catchy and heart-warming as the phrase “marriage equality” is, it has to be said that it is fundamentally misleading in its description of the change of marriage laws needed to extend the institution of marriage to same sex couples.

I have commented on this matter previously: “Opposing same-sex marriage is not discrimination” (2011). But let me sum up briefly here. While a call for “equality” is right where people are being denied access to goods or rights on the basis of irrelevant characteristics, it is simply misleading when the matters to which access is demanded are defined in ways which require persons to be differentiated from each other. To use an example given in my previous paper, if I claim to be entitled to the status of “employee of Microsoft”, and hence the right to receive a salary from the company, then I need to fulfil the prerequisites of such a status. Unless I have a contract of employment with the company, and carry out the work I have been contracted to do, I have no right to complain of a lack of “employment equality” when I don’t receive a salary from Bill Gates.

So the question that must always be addressed when a claim for “equality” is made, is – “equality” in what respects? for what purposes? In the area of marriage, the question is, is denying two people of the same sex the right to enter the legal relationship, irrational because it discriminates on an irrelevant ground? What is marriage for? And the answer that communities have offered for millennia, is that “marriage” is an institution with certain core meanings. At its core, it is a social institution designed to facilitate the care of children who are born of a sexual relationship between a man and a woman, and to encourage both to be committed to the children and to each other.

Of course there are differing conceptions of marriage in modern Western societies. Marriage has always had the additional blessing of providing a place of care and support and fulfilment for the parties. In recent decades the role of marriage as providing mainly for the emotional and sexual needs of the parties to the marriage has come to the fore. But as many have pointed out, if marriage is centrally and primarily concerned with the preferences of two consenting adults, why does the legal system now need to be involved at all? The law has always regulated and recognised marriage primarily in the interests of children and families.

The UN & the ICCPR

This role of marriage can be seen in the provisions of the main UN document on the topic of “human rights”, the ICCPR, in article 23, which provides that:

(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2) The right of men and women of marriageable age to marry and to found a family shall be recognised. (emphases added)

Notice that art 23(2), which deals with the “right to marry”, does so in context of an article which is about the “family”, and the right to marry is inextricably linked with the right to “found a family”. And the fact that the bearers of that right are identified as “men and women” leads naturally to the assumption that this article concerns the usual form that marriage has taken throughout human history, the union of a man and a woman who will raise the children of their sexual union together.

It should not be surprising, then, that when the UN Human Rights Committee was asked to offer an opinion as to whether there was a “right to marry” which extended to same sex couples, in Joslin v New Zealand (Human Rights Committee, Views: Communication No 902/1999, 75th sess, UN Doc CCPR/C/75/D/902/1999; 17 July 2002) the Committee said there was not. After considering the arguments of the parties in detail, the Committee ruled that there was no issue of “discrimination” under art 26 of the Convention. They said:

8.2 The authors’ essential claim is that the Covenant obligates States parties to confer upon homosexual couples the capacity to marry and that by denying the authors this capacity the State party violates their rights under articles 16, 17, 23, paragraphs 1 and 2, and 26 of the Covenant. The Committee notes that article 23, paragraph 2, of the Covenant expressly addresses the issue of the right to marry.

Given the existence of a specific provision in the Covenant on the right to marriage,
any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term “men and women”, rather than “every human being”, “everyone” and “all persons”. Use of the term “men and women”, rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other. (emphasis added)

The UNHRC is by no means a “conservative” body. It has made a number of controversial decisions, extending discrimination rights on the basis of “sex” to the grounds of “sexual orientation”, for example. But on this issue it was quite clear- the ICCPR did not of itself make a failure to recognise same sex marriage a breach of human rights.

Of course the decision in Joslyn has its critics. In a detailed academic piece, “Marriage: A Human Right for All?” (2015) 36 Sydney Law Review 643 the authors Gerber, Tay & Sifris argue that the decision was wrong, and that in any event that the ICCPR is a “living instrument that should be interpreted and applied in light of present circumstances”, so that it would be decided differently today. Prof Triggs in her 2016 opinion piece, noted above, argues that “the law is evolving to accept marriage equality”. Different views can be offered on this point, of course. But one thing seems clear- it is not currently right to say that same sex marriage is a “human right” recognised by the international community.

The European Court of Human Rights

The situation is even clearer when decisions of the European Court of Human Rights are taken into account. The European Convention on Human Rights replicates many provisions of the ICCPR, one of which is art 12:

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

In Schalk and Kopf v Austria (ECHR, App 30141/04; 24 June 2010) the Court ruled that the Convention did not require States party to introduce a system of same sex marriage. The Court also referred to the use of the phrase “men and women” as supporting the traditional view of marriage, and also said that (at the time of its decision) there was no “consensus” among European nations as to whether same sex marriage should be recognised. It concluded:

63. In conclusion, the Court finds that Article 12 of the Convention does not impose an obligation on the respondent Government to grant a same-sex couple such as the applicants access to marriage.

Since then three other decisions of the Court have reaffirmed its earlier decision that the European Convention does not contain a “right to same sex marriage”: Hämäläinen v. Finland (application no. 37359/09; 16 July 2014); Oliari and Others v. Italy (application no. 18766/11 and 36030/11); and Chapin and Charpentier v. France (application no. 40183/07; 9 June 2016).

Conclusion

The debate about whether or not Australia should extend the institution of marriage to include same sex couples will of course continue. But the point being made here is simple: it is misleading to speak as if this change were simply a matter of implementing an internationally recognised “human right”. There is no such human right. The matter must be resolved by a careful consideration of the nature of the institution of marriage and the implications of change. It cannot be resolved simply by an appeal to “equality” or “human rights”.

Religious Freedom victory in Nova Scotia

Contrary to my normal practice on this blog, I would like to provide two short comments on breaking developments, rather than one long comment. This first one concerns an encouraging development in the story of the long fight of a Christian University in Canada to offer law degrees. The second, which will be in a separate post, notes an important recent decision on “religious vilification” in the Australian State of Victoria.

First: in Canada, Trinity Western University is a confessional Christian University in British Columbia, which has for some time been in a debate with Law Societies in Canada over whether its new Law program will be recognised for the purposes of admission to practice in the various Canadian Provinces.

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More Law & Religion events and a paper

A number of interesting events are coming up in the Law and Religion area in Australia, and I also wanted to mention a new paper exploring some important issues.

Australasian Christian Legal Convention 2016

The ACLC will be held on Brisbane from 29 September to 1 October. It is specifically a gathering for those interested in the intersections between Christianity and the law.

From the website:

The theme of the Convention will be “Redeeming the law for the kingdom of God in Australia.“ The conference is open to lawyers, law students, persons involved in the administration of justice and those with a concern for justice in our community.

The international key note speaker for the Convention is Mike Schutt from the USA, the director of the Christian Legal Society (CLS) Law School Ministries and of the Institute for Christian Legal Studies, a cooperative ministry of the CLS and Trinity Law School, where he is a Visiting Professor.

There will be a number of other speakers, including <cough> myself. Should be an interesting event.

Religious Liberty Conference ‘Varieties of Diversity’

Coming up more quickly, the University of Notre Dame, Sydney, Law School will be hosting 2 days of material on religious freedom on August 18-19. (See here for a flyer with all the details.) The event opens on the Thursday evening Aug 18:

The Conference will begin with the University’s Annual Religious Liberty Lecture on Thursday 18 August. This year’s lecture will be presented by Iain Benson, Professor of Law at Notre Dame. Iain has also been appointed as an Extraordinary Professor of Law at the University of the Orange Free State in South Africa in recognition of his status as an international constitutional and human rights lawyer, and as a religious liberty expert.

There will be a range of interesting speakers on other topics on the Friday:

Learn how you can protect religious liberty in Australia:

  • How anti-discrimination and same-sex marriage interfere with your freedom to practice your religion.
  • Is it appropriate to think of equality without considering religious equality?
  • How “safe” is the safe schools program?
  • Parental authority and consultation in relation to education.

The Democratic Deficit

Finally, I wanted to flag for those who haven’t seen it yet an excellent recent research paper by Peter Kurti, from the Centre for Independent Studies, entitled The Democratic Deficit: How Minority Fundamentalism Threatens Liberty in Australia. From the summary:

We are faced with a new kind of fundamentalism – call it ‘minority fundamentalism.’ It has all the features of religious fundamentalism, such as ideological fanaticism, intolerance of dissent, and a Manichaean certainty about truth and falsehood. The goal of the minority fundamentalists is to eradicate all forms of discrimination in the name of liberating those deemed to be oppressed. In this age of the new intolerance, punishment by intimidation and vilification is meted out to those who think differently. This leads to what is known as a ‘democratic deficit’ – a growing discrepancy between our expectations and our experience of democratic institutions. This widening of the democratic deficit is indicative of an increasing readiness on the part of self-appointed guardians of the moral and social order to privilege the sensitivities of the minority over those of the majority. Minority fundamentalism poses a threat to the normal political and social functions that we take for granted.

Some very sharp insights here into current debates in Australia and elsewhere.

Some upcoming Law & Religion events

A short post plugging some forthcoming Law & Religion events here in Australia which look to be excellent.

Last year I was honoured to help host the Freedom for Faith 2015 conference. This year there are two conferences sponsored by this excellent organisation, both of which look terrific. “Freedom for Faith”, to quote their website, is “a Christian legal think tank that exists to see religious freedom protected and promised in Australia.”

The first one-day conference, on Friday August 12 in Sydney, is aimed particularly at Christian leaders. Speakers include Dr Michael Ovey (Oak Hill College London), Professor Iain Benson (Notre Dame Law School), Rev Kanishka Raffel (Anglican Dean of Sydney), Dr Megan Best – ethicist, Dr Sam Chan – Evangelist City Bible Forum, Archbishop Julian Porteous – Catholic Archbishop of Hobart, Lyle Shelton – Australian Christian Lobby & more.

The second, on Friday September 23 in Melbourne, features a range of academics and other policy makers.  The theme for this one is ‘Religious freedom in an age of equality’. The keynote speaker is Father Frank Brennan. Other speakers include: Anne Robinson (Founding Partner ProLegis Sydney), Prof. Iain Benson (Notre Dame Law School Sydney), Mark Sneddon (Melbourne Bar), Prof. Patrick Parkinson (Sydney University Law School), Asssociate Prof. Patrick Quirk (Australian Catholic University Law School).

As I say, both look to be great events and would be good value for anyone interested in Law and Religion issues in Australia.

Establishing Religion and Islamic schools in NSW

The recent decision of the NSW Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (5 July 2016) is one of the most important court decisions on the scope of s 116 of the Commonwealth Constitution for some years. The Court held that the Federal Government does not breach the Constitution by “establishing” a religion when it provides funds through the State government to support the operation of a Muslim school. The Court also comments in passing on other important aspects of s 116 to do with “imposing a religious observance” and “prohibiting the free exercise of religion”. In this note I will aim to outline the broad features of the decision, though its full implications will have to be worked out in more detail as time goes on.

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Religious schools and discrimination in Victoria

Recently a Greens MP in Victoria, Sue Pennicuik, has introduced a Bill into the Victorian Parliament to reduce the ability of religious schools to deal with potential admissions, or their current student body, on the basis of the school’s religious beliefs. The Equal Opportunity Amendment (Equality for Students) Bill 2016 had its second reading in the Legislative Council on 22 June 2016.

The legislation is arguably an impairment of the religious freedom of parents and the schools, and ought not to be passed. 

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