Before jumping to any conclusions, the purpose of this blog post is to argue only one small point: That the use of human rights language used in the promotion of same-sex marriage is ultimately mistaken. There are some things I would like to say before beginning.
First a caveat: I am a Christian but I don’t intend to write from any religious justification as to why same-sex marriage is not a human right. This blog post may offend people - however I hope no offense is not caused by any impression that I because I hold this view, I am somehow homophobic. Jesus died on the cross to save all people from all sins - from gossip to murder, from self-righteousness to sexual immorality. Know that the Apostle Paul does say that former homosexuals were part of the early Church (1 Cor 6:9-11). Some Christians today ought to learn from that example of grace and love that Paul showed to homosexuals and the kindness Jesus showed to prostitutes. This blog post is only addressing the topic of same-sex relationships in a human rights context.
I’m writing this post mainly because of one pet peeve I have about the current discussion surrounding same-sex marriage.
“Heterosexual marriage is a human right, therefore same-sex marriage should be a human right, because that would make things equal and human rights is all about making things equal.”
Unfortunately, this premise is mistaken and is an unsound understanding of human rights law.
What is human rights law?
I state this because we can’t assume things. Human rights law exists to preserve legal rights which every person has on the basis of being human. The purpose of this being, to protect the bare essentials of human privileges so that humanity may continue.
Why is Heterosexual Marriage a Human Right?
Article 16 of the Universal Declaration of Human Rights (UDHR) states:
- (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. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
- (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
- (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
“Doesn’t this mean same-sex marriage is a human right?” one of you may ask. Look closely! It is true that both men and women are equally entitled the right to marry, but what else is linked closely to marriage? “…the right to marry and found a family.“ The wording of the text (and several others including Art. 23 of the ICCPR and Art. 10 of the ICESCR) shows that marriage and family are inseparable in interpreting these rights.
Why Same-Sex Marriage isn’t a Human Right
The first mistaken presupposition we have in our society (in both heterosexual and homosexual marriage rights discussions) is to assume that love is a basis for marriage. According to the Article 16(3), the purpose of marriage is not an end in itself but rather has the view towards establishing a family! The principle aim of this article is not to protect our choice to love, but rather it is to ensure that humanity will continue through procreation. It is a lot less romantic than people would like it to be.
Objection: Can’t same-sex couples raise children through adoption or alternative means? Also, with divorce rates, the fact not all marriages have children and that many children born out of wedlock - isn’t this a quaint way of viewing marriage?
Of course children are raised outside of the traditional heterosexual family structure. This actually shows the failure of marriage as an institution in society. As our societies have started seeing marriage as vehicle for expressing love, legal union and choice - we have moved further and further away from the original purpose of marriage under human rights law (i.e. to protect a means to continue the human race under a stable home environment).
Furthermore, the ability to rear children under a same-sex couple is inherently ‘unnatural’ by the plain reason that, without medical intervention, it is not possible for two people of the same sex to naturally reproduce. Human rights law here is primarily concerned with protecting this bare necessity for naturally continuing the human race.
It is little wonder then, that the European Court of Human Rights held in Gas and Dubois v. France (no. 25951/07), affirming its decision in Schalk and Kopf v Austria (no. 30141/04), that same-sex marriage is not a human right.
To be clear, it is NOT a breach of human rights law for a country to legalise same-sex marriage. However, what this does mean is that there is no basis in human rights law to establish same-sex marriage. In other words, there is no human right which is being denied if same-sex marriage is not legalised.
Like I’ve said before, this blog post only aims to show that the use of human rights language in promoting same-sex marriage is unfounded. It is a categorical error. We need to be careful in how we throw the language of human rights around - because not everything is a human rights issue, even if it is an issue that is very important to us. Although LGBT rights do not extend as far as same-sex marriage, I’m quite sure of their need for other important political, economic and civic rights, which should be fought for and asserted.
Edit: Someone has brought to my attention a weakness in this post which I will address here: The deciding principle here is not a definition of marriage, but rather the definition of ‘family life’. Current authoritative case-law has reached the conclusion that ”the emotional and sexual relationship of a same-sex couple [only] constitutes ‘private life’ but has not found that it constitutes ‘family life’, even where a longterm relationship of cohabiting partners was at stake.” However, obiter from Schalk and Kopf v Austria has indicated that currently legal understandings of what ‘family life’ entails may start to change and therefore the right to ‘found a family’ may have a much larger scope than the traditional interpretation has held. A future test case in international law will be needed to clarify this.