EDITORIAL - US gay ruling compelling

The US Supreme Court's ruling striking down America's Defence of Marriage Act (DOMA) rightly reinforced the inviolability of principle of equality under the law, no matter the sexual orientation of the person seeking its protection.

That argument is compelling in any context. Hopefully, it will be of persuasive value to the Jamaican court when it comes, in October, to hear Javed Jaghai's challenge to the section of the Offences Against the Person Act that makes buggery illegal. Indeed, we believe that the Jamaican Government, like the Obama administration did with DOMA, ought not to defend the constitutionality of the law.

Our preference would be for the administration to use its parliamentary majority to repeal it. Such a principled stance is unlikely, for fear of political backlash. The administration, therefore, might consider adopting the posture of a neutral observer, allowing the court to rule without its intervention.

Of course, the specific issues challenged in DOMA and the matters being raised by Mr Jaghai are not exactly parallel. What is is the overarching principle.

The effect of DOMA, passed by the US Congress in 1996 - in reaction to the first wave of states to approve same-sex marriages - was to deny US federal government benefits to persons in such unions.

Which is what Edith Windsor challenged in seeking to get federal tax deductions, which are available to heterosexual spouses when a husband or wife dies, after the death of her same-sex marriage partner.

Up to now, marriage has been a state law issue in America. What Justice Anthony Kennedy insisted on in his opinion for the court's majority is that DOMA violated the Constitution's guarantee of equal protection under the law. Congress had no right to undermine "the recognition, dignity and protection" offered to same-sex couples by states that allow their marriages.

The specifics of DOMA don't now arise in Jamaica. Section 18 (1) of the Charter of Fundamental Rights and Freedoms especially defines marriage as between a man and woman. The charter, though, guarantees freedom from gender-based discrimination, as well as the "protection of private and family life and privacy of home". It also guarantees the "the right to equality before the law".

Big Brother-like voyeur

Fundamentally, the buggery law asks the State to be a Big Brother-like voyeur who peeps into people's bedrooms to determine the sexual behaviour of consenting adults. Potential victims of this intrusion are not merely gay men. Among them are heterosexual couples, including man and wife, who may engage in anal sex.

Arguments that the law against buggery is to protect public morals and children are, at best, specious. Heterosexual couples who engage in sex in public places could well be charged for indecent exposure, corrupting public morals or a myriad of other offences. The same can apply to gay men who do the same. But to make the act of itself illegal, no matter the place or circumstance, is ludicrous.

Gay men who prey on little boys, like heterosexuals who take advantage of underage children, are paedophiles. There are appropriate laws to deal with them. What is inappropriate is for a modern society to be held hostage by Old Testament fundamentalists, myths, peddlers and today's version of Horsemen of the Apocalypse.

As President Obama reminded America, when all of us are treated as "equal, no matter who they are and whom they love, we are all more free".

The opinions on this page, except for the above, do not necessarily reflect the views of The Gleaner. To respond to a Gleaner editorial, email us: editor@gleanerjm.com or fax: 922-6223. Responses should be no longer than 400 words. Not all responses will be published.