Friday, 26 June 2015

Same sex marriage is not a human right - UPDATED

According to the BBC News reporting:
The US Supreme Court has ruled that same-sex marriage is a legal right across the United States.
But it is interesting to note that the European Court has ruled that the European Convention on Human Rights does not impose on countries adhering to the Convention an obligation to legalise same sex marriage - see here, paragraphs 60-64. And by a strong implication, since the European Convention is in some respect derivative from it, this suggests that the UN Universal Declaration of Human Rights likewise does not articulate any right of same sex couples to marry as being a human right.

Article 16 (1) of the UN Declaration, therefore, should be seen as articulating only a right of a man and a woman to marry:
Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
As with all the human rights expressed in the UN Declaration this is a right that is universal (it applies equally to all men and women), and it is inalienable (that is, in the context of this post, it is neither conveyed by the positive law of a country and nor can it be taken away by that law).

According to the preamble to the  UN Declaration:
.... human rights should be protected by the rule of law ....
In other words, it is not the proper task of the law to convey human rights that do not in fact exist. It is rather the task of the law to protect and allow the exercise of rights that arise from the very nature of the human person, that is, rights that are universal and inalienable. A system of law that attempts to create a human right has overstepped its competence.

So, as we read the news of the US Supreme Court decision, I think we should be careful to recognise, first of all, what the decision has and has not done. And then we should also resist the suggestion that the decision is one that makes the United States a more equal or fairer place - in so far as the decision does not protect a recognised human right it can only be seen as being neutral in this regard.

UPDATE 1: Neil Addison analyses the dissenting judgements of the US Supreme Court here - and, interestingly, the dissenting judges appear to be raising a question about the Court's action from the point of view of the nature of law, but in a rather different way than I suggest above. There is a further post by Neil Addison here.

UPDATE 2: The President of the Conference of Catholic Bishops in the United States has issued a statement, the full text of which can be found here. The opening paragraph of the statement reads:
Regardless of what a narrow majority of the Supreme Court may declare at this moment in history, the nature of the human person and marriage remains unchanged and unchangeable. Just as Roe v. Wade did not settle the question of abortion over forty years ago, Obergefell v. Hodges does not settle the question of marriage today. Neither decision is rooted in the truth, and as a result, both will eventually fail. Today the Court is wrong again. It is profoundly immoral and unjust for the government to declare that two people of the same sex can constitute a marriage

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