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Glenis Lorman: Sound ruling on gay marriage

Published:Saturday | July 11, 2015 | 12:00 AMGlenis Lorman

The US Supreme Court case of Loving v the State of Virginia was cited as precedent in the case of Obergefell v Hodges because they are both about marriage equality. The similarities are many and the contrasts are few.

The fundamental difference between the two cases is that one involved race and the other involved sexual identity. Another difference is that the decision in Loving v Virginia was unanimous, while Obergefell v Hodges was a majority decision.

Guest columnist Shirley Richards ('Gay marriage another kettle of fish', Gleaner, July 11, 2015) has highlighted another difference with this statement: "There is, however, a fundamental difference between a ban on interracial marriage and a ban on same-sex marriage. The banning of marriage between races was a human imposition of an unnecessary prerequisite for marriage, that of race, on the already commonsensical male-female prerequisite, which reflects design in the universe.

"In my opinion, this is not a fundamental difference. According to the Oxford Dictionary, marriage is the legally or formally recognised union of a man and a woman (or, in some jurisdictions, two people of the same sex) as partners in a relationship."

The male-female prerequisite is not a universally or unanimously accepted criterion. At least 17 countries have marriage equality as their law. Therefore, there is precedent supporting the same-sex criterion. Where was this male-female criterion established?

The banning of interracial and same-sex marriage was, in both cases, a human imposition. It is a stretch to assert that marriage, in any of its formats, reflects the design of the universe. In some societies, polygamy is acceptable. In others, arranged marriages are acceptable.

In some societies, child marriage is prevalent. In addition, some people also choose to cohabit without formal marriage. I don't see the universal design that Shirley alludes to.

I agree with Shirley that race is immutable and homosexuality is mutable. The definition of marriage is also mutable, as is evident throughout history. Therefore, the immutability of race and the mutability of homosexuality are not germane unless the definition of marriage was immutable as well.

Reversed decisions

The US Supreme Court has established a pattern of making bad decisions and then overturning them with better ones. Both cases fit this pattern. They successfully reversed previous US Supreme Court decisions. The former reversed the ruling in the case of Pace v Alabama. The latter reversed the decision rendered in Baker v Nelson. Both decisions were guided by the Fourteenth Amendment clauses of equal protection and due process.

In both cases, the definition that was upheld was already legal in some states of the US. They were both framed in the context of civil rights. Same-sex marriage was already legal in many states before the Obergefell v Hodges decision, the same way interracial marriages were accepted in many states before the ruling in Loving v Virginia. I have not encountered a reversal of a reversal.

I agree with the assertion of Maurice Tomlinson, a gay man and gay-rights activist, that "on June 26, the US Supreme Court stated categorically that in the land of the free, everyone is entitled to a private family life, which harms no one else". The USA is still the land of the free and this decision expanded the concept of freedom.

Shirley opined: "How does one explain the fact that this "life(style) which harms no one else" is reordering society in its image?" I agree that society is being reordered, but not into a gay image. I would not say that Loving v Virginia reordered society into interracial image. These decisions do not compel people to marry interracially or on the basis of same sex.

There are a lot of developments that have reordered society over the vast stretch of human history. As time changes and long-held beliefs and practices change, laws will have to be reordered to keep in step.

Shirley Richards further opined, "Shouldn't the society be concerned about undeniable medical statistics on the consequences of high-risk sexual behaviour for the participants?" This is a great point, but high-risk sexual behaviour is not exclusively a homosexual problem.

High-risk sexual behaviour in our society is related to having unprotected sex with multiple partners, whether gay or straight. Sexually transmitted infections can be transmitted in straight sex as well as gay sex.

Marriage is suppose to encourage people to settle down, commit to each other, build a life together and give up high-risk behaviours. I am aware that this does not always happen in straight marriages and, conversely, in gay marriages, as well, but the ideal remains true in many cases.

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