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Same-sex marriage: emblematic of gay rights and rule of law issues

PAUL CRICK

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In recent years, same-sex marriage has become emblematic of gay rights, and great progress has been made in a number of countries in the recognition of same-sex unions and same-sex marriage.

The Hon Michael Kirby, Vice-Chair of the IBA’s Human Rights Institute, notes that 'just as it took centuries and decades to diminish the old racial animosities and gender inequalities – tasks that are as yet incomplete – much progress has been made on LGBTI issues,’ but, he adds, ‘there is still much work to be done.’

Same-sex marriage was first legalised in the Netherlands in 2001. Canada followed, and since then countries in both Europe and the Americas have followed suit, as well as South Africa, to date the only African country to have done so.

In 2016, a number of countries around the world have adopted civil partnerships or civil unions and are considering legalising same-sex marriage.

Mechanisms of change

Michael Kirby

Change has been brought about by a number of means: legislation; via constitutional change overturning discrimination; or simply by referendum reflecting the will of the people.

Indeed, popular opinion has often been ahead of the legislature in accepting the concept of same-sex marriage.

Legislation has been the usual way of affecting change. Sometimes that legislation has been pushed through despite strong parliamentary opposition at odds with popular opinion.

In Italy, a 2014 Demos poll showed 55 per cent in favour of same-sex marriage, up from 40 per cent in 2009, but the Italian Senate only finally approved a civil union bill in February 2016.

This came seven months after the European Court of Human Rights had found that Italy had violated the European Convention on Human Rights by not affording same-sex couples adequate legal protection and recognition.

‘‘Hostility and violence towards LGBTI people… is as offensive to human rights principles as was racial hatred and apartheid

The Hon Michael Kirby, Vice-Chair, International Bar Association's Human Rights Institute

Sometimes legislation is inconsistent or incomplete. Within the UK, for example, despite a common perception that same-sex marriage is legal in all four countries – England, Northern Ireland, Scotland and Wales – it remains illegal in Northern Ireland.

Although the Northern Ireland Assembly narrowly voted in favour of same-sex marriage last year, the motion was vetoed despite a 2015 Ipsos MORI survey finding that 68 per cent of adults in Northern Ireland believe same-sex couples should be allowed to marry.

Other parts of the UK, such as the Channel Islands and Isle of Man, have also introduced civil partnerships but have yet to legalise same-sex marriage.

Constitutional change can be effective in bringing in same-sex marriage. When rewriting its constitution in 1996, post-apartheid South Africa was revolutionary in safeguarding sexual orientation as a human right.

In 2005, in Minister of Home Affairs v Fourie, the constitutional court held that failure to recognise same-sex marriage was unconstitutional and the Civil Union Act followed in 2006.

Ten years later, the US Supreme Court handed down its ruling in Obergefell v Hodges that state-level bans on same-sex marriage were unconstitutional, clarifying what had been a confused picture across the various states and cities.

Famously, Ireland became the first country to introduce same-sex marriage by referendum, when the proposal to make such marriages legal in 2015 attracted 62 per cent of the votes cast and made headlines around the world.

In Australia, federal law bans recognition of same-sex marriages, although registered partnerships are available in some states. When Malcolm Turnbull became Prime Minister in 2015 he stated that a referendum on the issue would be retained after the next election, due by January 2017. It is expected that public opinion will be in favour of same-sex marriages.

Glimmer of hope?

Change still seems very distant in Africa and Asia.

David Ryken, Chair, IBA LGBTI Committee

‘Many countries in Asia and the Middle East do not yet recognise the rights of individuals in many areas,’ says David Ryken, Co-Chair of the IBA's LGBTI Law Committee, ‘so the rights of LGBTI persons with regard to marriage are very much down on the list of priorities.’

Apart from South Africa, no African country is making any moves towards equality. Many retain colonial anti-homosexual laws and are pursuing intense crackdowns on the LGBTI community, even where such actions affect the whole country and not just the LGBTI community.

Ryken offers a glimmer of hope though. ‘India is an interesting exception’, he says. ‘Possibly the LGBTI marriage equality issue can leap-frog over other human rights issues.’

The question of sanctions is regularly raised in the Universal Periodic Review to which all countries are subjected in the UN Human Rights Council.

However, Michael Kirby believes imposition of sanctions by decisions of the United Nations remains some way off: ‘That may come one day when it is fully realised that hostility and violence towards LGBTI people for a variation of nature is as offensive to human rights principles as was racial hatred and apartheid, against which sanctions were imposed after the 1970s.’

Kirby notes however, that ‘homophobia is bad for the balance sheet’ and believes it is multinational corporations that will influence such countries, as the commercial and employment policies they use at head office are exercised in foreign countries and will influence local business practice. He believes that ‘legal firms have to be in the vanguard of setting a good LGBTI example'.

There appears to be a clear split between countries that, recognising changing social and moral values, have moved towards equality in marriage, and large parts of the world which have resisted such change.

David Ryken sees the problem in terms of rule of law: ‘Where human rights and the rule of law is already thin on the ground, I do not see there being much movement until there is a fuller recognition that citizens have a right of non-conformity and that states do not have the right to violate individuals and their rights.

'The fight is really about the rule of law, not the rule by law.’