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Editorial: A matter of fundamental rights

Published:Sunday | June 28, 2015 | 6:00 AM

Jamaica usually stands on the right side of history on socially progressive issues, sometimes as a leader of them. In the 1970s, we championed, and enforced, such initiatives as equal pay for women and paid maternity leave. It is 40 years, too, since the repeal of the Bastardy Act, removing the stigma of law that tarred children born out of wedlock.

But a courageous ruling by the US Supreme Court last week provided another reminder that there is still much work to be done to lift official discrimination from large swathes of Jamaica's citizens and to provide them with equality under the law. The court, by a 5-4 majority, held that same-sex marriages are constitutional, thus making them legal across all 50 states, rather than the handful that already deemed them to be so.

That decision followed last month's landslide referendum vote in Ireland in favour of gay marriage, continuing a trend in progressive societies. Britain, France, Spain, South Africa, Brazil, Canada, Argentina, Sweden and Portugal are among the other countries where the practice is already legal.

This is not some fad, or an attempt to advance some group's so-called agenda or alleged lifestyle, as Jamaica's anti-gay lobby, led largely by fundamentalist Christians, like to frame the debate. As uncomfortable as this may be for some of us, this issue, at its core, is the matter of fundamental human rights, including the right to human dignity and for individuals to exercise their right to choice, especially when that right does not impinge on the rights of others.

 

An expression of love and commitment

 

There are two critical elements to marriage. The first level is that it is a contractual arrangement between individuals who agree to share their lives and pool their resources with an institution sanctioned by the State.

But marriage's deeper element is the solemnising of this arrangement beyond mere contract into an expression of love and commitment by which couples choose to live. There is no rational basis in a liberal, democratic, secular society why this institution should be the prerogative only of heterosexual couples.

Indeed, as Justice Anthony Kennedy held for the majority, to exclude same-sex couples impacts not only their right of choice, but to ban them from an arrangement whose function the society has held to be critical for the safeguard of families and the protection of children.

The American legal and constitutional factors applied by Justice Kennedy in his ruling are not totally at one with Jamaica's. Indeed, marriage, as defined in Section 18(2) of Jamaica's Charter of Fundamental Rights and Freedoms, is a "union between one man and one woman". But they are not incongruent with the larger principles upon which fundamental human rights must rest, if the individual is to enjoy his/her innate right to dignity.

In that respect, on this issue, Jamaica remains stuck on first base. It retains the anachronistic buggery law, which maintains the State as voyeur and is the basis for the illegality of ultimate sexual expression among gay men. Indeed, some heterosexual couples engage in anal sex, too. It is also antipathetic to same-sex marriage - an institution that presupposes the consummation of its fact.

With her revolutionary stance that contradicted the anti-gay, "not-in-my-Cabinet" rhetoric, Portia Simpson Miller hinted at the courage to advance these rights. She must act.