Shirley Richards, Contributor
Chris Fishman-Spiegelman (left) and Michael Spiegelman-Fishman (second left) fill out paperwork along with Deborah Smith (centre) and Laura DeNandis (second right) with the assistance of Town Clerk Donna Loglisci (right) on the first day of civil union ceremonies for same-sex couples in Stamford, Connecticut in the United States, on October 1. Connecticut has legalised gay civil unions, the latest U.S. state to grant legal rights to gay couples, but experts say legal and political battles loom elsewhere as other states confront the intensely divisive issue and consider similar laws. - Reuters
IN 1866, a husband brought a petition for divorce on the ground of adultery in the Divorce Courts in England.
The claim by the petitioner was that his wife a Mormon having 'remarried' had committed adultery. (At that time polygamy was a part of the Mormon doctrine and was common in Utah where the wife resided).
One of the questions which arose in the case was the validity of the marriage between the petitioner and the respondent, said marriage having been contracted in Utah in accordance with the laws of the Mormons.
Counsel for the petitioner, Dr. Spinks, proposed to the court that "A marriage between two persons competent to contract marriage and valid by the law of the place where it was contracted, is valid in every country in the world."
This statement seemed to have angered the judge who responded by saying " It is necessary to define what is meant by marriage".
"In Christendom, it means the union of two people who promise to go through life alone with one another. It does not mean the same thing in Utah, as the man is at liberty to marry as many women as he pleases."
DEFINING MARRIAGE
In his judgement, Lord Penzance held as follows:
" Marriage has been well said to be more than a contract, either religious or civil to be an institution. It creates mutual rights and obligations, as all contracts do, but beyond that, it creates a status. The position or status of "husband" and "wife" is a recognised one throughout Christendom ... What then is the nature of this institution as understood in Christendom? Its incidents vary in different countries, but what are its essential elements and invariable features? If it be of common acceptance and existence, it must needs (however varied in different countries in its minor incidents) have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."
Thus ruled Lord Penzance in the 1866 case of Hyde v. Hyde.
This definition held sway in many countries as being the definition of marriage, so much so that in the subsequent drafting of marriage acts, not much thought was given to including a definition of marriage. Lord Penzance had said it all. There was no need to add anything else or so it was thought.
NEW CHALLENGE
On December 1, 2005, the Constitutional Court of South Africa delivered judgement in the case of Minister of Home Affairs, Director-General of Home Affairs v. Marie Fourie, Cecelia Bonthuysx with Doctors for Life International, John Jackson Smith, The Marriage Alliance of South Africa.
The issues related to that country's definition of marriage.
The majority judgement was given by Sachs J. The panel consisted of nine judges and the only dissenter, O' Regan J., dissented not on the basis of the substance of the final outcome, but on the basis of remedy.
The two main issues as enunciated by Sachs J. were "whether or not the failure by the Common Law and the Marriage Act to provide the means whereby same-sex couples can marry, constitutes unfair discrimination against them".
The second issue was the appropriate remedy in the event that unfair discrimination was found.
The issues had to be determined in the context of the 1994 South African Constitution.
The relevant sections are as follows:
9 (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
9 (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability , religion, conscience, belief, culture, language and birth.
In his reasoning, which is worthy of a more detailed study than is possible to do in this article, Sachs J. referred to a number of recent previous decisions and judgements.
One such judgement was
that given by Mahomed J. in the
case of S. v. Makwanyane
and Another, part of which judgement is as follows:
"In some countries, the Constitution only formalises, in
a legal instrument, a historical consensus of values
and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from and a ringing rejection of, that part of the past
which is disgracefully racist, authoritarian, insular and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic."
Thus, Sachs J. went on to
hold that a "democratic, universalistic, caring and aspirationally egalitarian society" embraces everyone and accepts people for who they are.
He alluded to a right to be different: "To penalise people for who and what they are is profoundly disrespectful of the human personality and violatory of equality ... At issue, is a need to affirm the very character of our society as one based on tolerance and mutual respect. The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but
how one accommodates the expression of what is discomfiting."
RELIGION AND LAW
On the matter of the role of religion in the matter of the interpretation of the law Sachs, J. said "It is one thing for the court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution. It would be out of order to employ the religious sentiments of some as a guide to the constitutional rights of others."
Thus, Sachs J. concluded that "If heterosexual couples have the option of deciding whether to marry or not, so should same-sex couples have the choice as to whether to seek to achieve a status and a set of entitlements and responsibilities on a par with those enjoyed by heterosexual couples."
He, therefore, held that the failure of the Common Law and the Marriage Act to provide
the means whereby same-
sex couples can enjoy the
same status, entitlements and responsibilities accorded to heterosexual couples through marriage, constitutes an unjustifiable violation of their right to equal protection of the law under section 9 (1), and not to be discriminated against unfairly in terms of section 9 (3) of the Constitution.
As part of his order, Sachs J. gave Parliament one year in which to correct the 'defects' which would then have
the effect of making same-
sex marriages as acceptable legally as heterosexual marriages in South Africa. (The full judgement may be found at http://www.constitutional court.org.za/uhtbin/hyperion image/J CCT60 04) .
RADICAL DEPARTURE
This decision marks a radical departure not only in outcome, but also in the principles employed by Lord Penzance in the Hyde v. Hyde decision.
Then, in 1866, the rule of reference was what prevailed in Christendom.
Now, the rule has to do with tolerance, the right to be different and the right to have such difference accommodated legally without any reference to a concept of what may be right and what may be wrong.
The decision of the South African Court is indicative of a growing trend on the part of many countries to sever law from religion.
In England in 1932, Lord Atkins was quite comfortable to base his landmark ruling regarding the principles of negligence on the Biblical story of the Good Samaritan. (See the case of Donoghue v. Stephenson).
However, by the 1950s, it became apparent in England that there was a growing trend of severing law from morality and religion causing Lord Denning to remark in his 1953 essay on 'The Changing Law' that this severance had "gone much too far". (One wonders what he would say now!)
Where are we in Jamaica on these issues? Importantly, where do our incumbent legislators stand?
And what about the prime ministerial aspirants of both parties? Burying our heads in the sand will only result in us being overtaken by the flood of time!
Shirley Richards, attorney-at-law is president of the Lawyers' Christian Fellowship.
