Sunday, 2 June 2013

Independent: No to Same Sex Marriage: Yes to same civil rights
Wednesday, 29 May 2013, 09:21 , by Martin Scicluna

Many in the gay community have castigated me for failing to recommend the immediate introduction of same-sex marriage in Malta in my report, “Same Sex: Same Civil Entitlements”. As the Lead Author of the report, two considerations were at the forefront of my mind when I wrote it. The first was the need to bring about long over-due social justice for homosexuals in our society. And the second was to make proposals which would stand a chance of achieving a large measure of national and political consensus.

The arguments on grounds of social justice are clear-cut. Same-sex couples in Malta currently have no way of gaining legally recognised status for their relationships. The lack of legal recognition means that they are denied access to most of the rights or responsibilitites that are given to married couples to reflect the commitment they have made to each other. For a same-sex couple, there are many difficulties that arise from the law’s failure fully to recognise committed same-sex relationships.

There are two solutions to remedy this state of affairs: either the introduction of same-sex marriage, or a civil partnership scheme.

The argument adduced by those who favour marriage equality for all – both heterosexual and homosexual – is founded on the understanding that the right to marry should be recognised for everyone (so called marriage equality) without discrimination on grounds of sexual orientation. It is viewed by some, but not all, as a fundamental human right in and of itself.

The inclusion of same-sex marriage in national legislation, it is averred, would not have any long-term negative impact on the institution of marriage, but would simply extend its benefits throughout society. Marriage equality for all would provide legal recognition to same-sex couples, ensuring the enjoyment of all rights and obligations enjoyed by married men and women.

On the other hand, those who oppose such a solution argue that this approach flies in the face of one of the most important purposes of marriage, which is for the procreation of children and the creation of a family, made up of a man and a woman. However, this argument overlooks the fact that there are many people who get married who are infertile, too old or too ill to procreate, but are still allowed to be married. It would clearly be wrong to argue that they should be excluded from marriage. Yet, that is what is asserted in the case of same-sex couples.

There are many heterosexual couples, such as widows and widowers of a certain age, who grow sufficiently fond of each other to live together in a new marriage and find that the arrangement orders their entire relationship, including their financial, domestic, fiscal and inheritance affairs. Others marry to express their loving commitment to each other while knowing that one has a medical condition that makes procreation unlikely or impossible. Those in favour of same-sex marriage question whether it is acceptable to say that love has no meaning except in a reproductive context. Having children has never been a condition for marriage.

The major argument in favour of same-sex marriage is that if marriage is considered intrinsically to be such a good thing for heterosexual couples then, in logic, committed same-sex couples should not be excluded from this institution. Homosexuality is not a threatening social reality, but one to be accepted and accommodated. Gay people have the same need and capacity for love and partnership as heterosexuals.

While the arguments on grounds of social justice are clear, as Lead Author of this report I had to bear in mind also the national policy realities. It is a truism, albeit a cliche, that politics is the art of the possible. As Lead Author, therefore, I also had to weigh this factor in the scales in making recommendations on the most viable way ahead.

The issue turned essentially on how ready Maltese society would be to accept the logic of the argument that marriage, which has hitherto always been staunchly regarded as a relationship between a man and a woman, could in future be between two men or two women.

It is clear that the concept of marriage has not remained unchanged. For example, if Christian marriage were still as it was two thousand years ago it would be possible for a man to marry a twelve year-old girl he had never met, to own a wife as property and dispose of her at will, or to imprison a person who married someone of a different race. But such practices are no longer acceptable in Europe. The legal definition of marriage has evolved constantly over time.

Nevertheless, despite the changing nature of marriage and the cold logic adduced in favour of marriage equality, the clinching argument to my mind was that same-sex marriage per se was one step too far for Malta at this time. Ending unfair discriminatory treatment of same-sex couples is one thing, which most fair-minded people are prepared to recognise. But given the symbolic meaning of marriage in Maltese society, allowing homosexual couples to marry would be quite another. This is a fair argument that probably reflects majority opinion in Malta. It should be respected.

The alternative solution, therefore, was the introduction of a civil union scheme which would aim to give homosexual couples the same civil rights as everybody else. The overriding practical consideration in the formulation of such a scheme would be the need for civil unions to deliver the significant majority of the rights and obligations that heterosexual marriage confers.

I concluded that the introduction of civil unions would make a major difference to the currently vulnerable legal position of same-sex partners by giving them the opportunity to gain legal recognition for their relationship and by achieving concomitant rights and responsibilities. Their civil rights in respect of all the key legal elements that underpin married heterosexual couples would be largely protected.

The legal limbo into which they have been thrust would be removed and the risk of offending the sensibilities of a large majority in present-day Maltese society would be avoided.

A civil union relationship with an intrinsic package of rights and responsibilities would provide legal recognition for same-sex couples who choose to make such a commitment. Couples who register as civil partners would thereby gain most of the civil rights and responsibilities currently denied them.

Although there are strong arguments for introducing the concept of same-sex marriages, I therefore concluded that it would be both premature and impolitic in the Maltese context to seek to introduce them at this time. Note that the word I have just used is “premature,” not “immature”. It is utterly misleading to accuse me of saying that Maltese society is immature.

I am personally convinced that in due course, once the benefits of civil unions have demonstrably been seen as not threatening to Maltese society, marriage equality for homosexuals and heterosexuals will come about. This has been the story in the United States and elsewhere in Europe, where in the last few years many states have introduced same-sex marriage laws, mostly following a period when civil partnership was the only option.

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