Documentos de Académico
Documentos de Profesional
Documentos de Cultura
Equality, Dignity,
and Same-Sex Marriage
A Rights Disagreement in
Democratic Societies
By
LEIDEN BOSTON
2010
To my grandmother
CONTENTS
Acknowledgments ......................................................................................xi
List of Cases...............................................................................................xiii
Introduction ................................................................................................. 1
Rights and disagreements ..................................................................... 1
Equality, human dignity and rights ..................................................... 3
Equality, human dignity and the disagreement on
same-sex marriage ............................................................................. 4
The incremental development and the changing
rights claims........................................................................................ 8
An overview ..........................................................................................10
1. Same-Sex Marriage: History, Law, and Disagreements ...................16
Same-sex marriage: a world survey ...................................................16
The European pioneer: Denmark ..................................................16
From Denmark to Nordic nations .................................................17
The first same-sex marriage: the Netherlands .............................18
Belgium joins the Netherlands.......................................................20
Spain follows ....................................................................................21
Canada: same-sex marriage arrives in North America ..............22
United States: a fragmented picture and an
uncertain future ...........................................................................25
United Kingdom: an inclusive model of Civil
Partnership ...................................................................................32
South Africa: same-sex marriage arrives in Africa .....................34
Asia-Pacific and beyond: developments continue.......................36
A sprawling phenomenon ..............................................................38
The incremental development and the evolving
rights claim .......................................................................................40
Same-sex marriage and civil union: the same but different? ..........43
Pragmatic liberalism and full equality ..............................................46
Same-sex marriage under international law .....................................46
The United Nations Human Rights Committee ..........................47
The European Court of Human Rights .........................................48
Why can same-sex marriage be morally controversial?..................51
viii
contents
contents
ix
contents
Deliberation as the discipline of rights .......................................232
Deliberation and equality .............................................................234
Deliberation and same-sex marriage ..........................................237
Public deliberation in practice .....................................................240
A democratic culture, equality, and dignity ...................................243
Bibliography .............................................................................................249
Index .........................................................................................................259
ACKNOWLEDGMENTS
This book is largely based on my doctoral thesis with the University of
Hong Kong. The University is where my ideas brewed and developed,
with constant support and assistance from the Faculty of Law, its
members and librarians at the Lui Che Woo Law Library. In particular,
I am deeply grateful for the guidance of my supervisor, Professor
Benny Tai, whose insightful comments encouraged me to go on
during those moments of intellectual stagnation. I also thank my
internal examiners, Professor Albert Chen and Dr. Anne Cheung of
the Faculty of Law, and external examiner, Dr. Nicholas Smith of
Massey University, New Zealand. I benefited immensely from their
comments and suggestions.
Academic pursuits could be lonely if not for the presence of dear
friends from whom I received considerable support, spiritually as well
as intellectually. I thank Rebecca Lee, Karen Kong and Firew Kebede
Tiba of the Faculty of Law whose friendships I cherish. During my
four-year doctoral study, I had the honor of working with a number of
brilliant fellow students my comrades who reminded me constantly
that I was not alone in the midst of a sea of academic literature. I thank
them all.
Special thanks are due to Professor Ben Richardson, Mr. Don
McIntosh, Mr. James Henri, Dr. Kwan Kai Man and Dr. Hung Tsz Wan
Andrew who have given me valuable comments and encouragement at
different stages of this academic endeavor.
I thank my editor, Dr. Robert Morris. I am very grateful for his
meticulousness, responsiveness and personal insights on the issues.
I could not have asked for a better editor.
I also thank Hong Kong Shue Yan University, where I am currently
teaching, for supporting the publication of this book.
As the saying goes to save the best for last, I thank my family,
especially my parents and two younger brothers. Without their support
and understanding I could not have gone that far.
It is with deep regret that our beloved grandmother could not see
the day when this book is published. But she remains part of our lives.
I dedicate this book to her.
LIST OF CASES
Canada
Andrews v Law Society of British Columbia [1989] 1 SCR 143.
Barbeau v British Columbia [2003] BCCA 251.
Eldridge v British Columbia [1997] 3 SCR 624.
Gosselin v Quebec [2002] 4 SCR 429.
Halpern v Canada [2003] 65 OR (3d) 161 (CA).
Halpern v Canada [2002] 60 OR (3d) 321 (Div. Ct.).
Hendricks v Quebec [2002] JQ 3816.
Lavoie v Canada [2002] 1 SCR 769.
Law v Canada [1999] 1 SCR 497.
M v H [1999] 2 SCR 3.
Miron v Trudel [1995] 2 SCR 418.
Nova Scotia v Walsh [2002] 4 SCR 325.
R. v M.(C.) [1995] 98 CCC (3d) 481.
Reference re Same-Sex Marriage [2004] 3 SCR 698.
Vriend v Alberta [1998] 1 SCR 493.
European Commission of Human Rights
Sutherland v U. K. [1997] ECHR 25186/94 (ECommHR).
European Court of Human Rights
Burke v U.K. (ECtHR, Fourth Section, Application no 19807/06)
(Declared inadmissible on 11 July 2006).
Dudgeon v U. K. [1981] 4 EHRR 149.
Frette v France [2002] ECHR 36515/97, ECtHR.
Goodwin v U. K. [2002] 2 FCR 577, ECtHR.
Karner v Austria [2003] ECHR 40016/98, ECtHR.
Laskey, Jaggard & Brown v U. K. (decided on 19 February 1997) 24
EHRR 39.
Modinos v Cyprus [1993] 16 EHRR 485.
Norris v Ireland [1988] 13 EHRR 186.
xiv
list of cases
list of cases
xv
Minister of Home Affairs & Another v Fourie & Another [2006] (3)
BCLR 355 (CC).
National Coalition for Gay and Lesbian Equality & Others v Minister of
Home Affairs & Others [2000] (1) BCLR 39 (CC).
National Coalition for Gay and Lesbian Equality & Another v Minister
of Justice & Others [1998] (12) BCLR 1517 (CC).
President of the Republic of South Africa & Another v Hugo [1997] (6)
BCLR 708 (CC).
Prinsloo v Van der Linde & Another [1997] (6) BCLR 759 (CC).
S v Makwanyane & Another [1995](6) BCLR 665 (CC).
Satchwell v President of the Republic of South Africa & Another [2002]
(9) BCLR 986 (CC).
United Kingdom
A v Secretary of State for the Home Department [2005] 2 AC 68.
Arthur JS Hall & Co v Simons [2002] 1 AC 615.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1948] 1 KB 223.
Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27.
Ghaidan v Godin-Mendoza [2004] 2 AC 557.
Matadeen v Pointu [1999] 1 AC 98.
R v Brown [1994] 1 AC 212 (HL).
R (on the application of Burke) v General Medical Council [2006] QB
273 (CA (Civ Div)).
R (on the application of Burke) v General Medical Council [2005]
QB 424.
R (on the application of Carson) v Secretary of State for Work and
Pensions [2005] 2 WLR 1369.
R (on the application of Carson) v Secretary of State for Work and
Pensions [2003] All ER 577.
Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 (CA).
Wandsworth London BC v Michalak [2003] WLR 617.
United Nations Human Rights Committee
Joslin v New Zealand (Comm No 902/1999, UN Doc CCPR/C/75/
D/902/1999, 30 July 2002).
xvi
list of cases
list of cases
Reed v Reed (1971) 404 US 71.
Roe v Wade (1973) 410 US 113.
Romer v Evans (1996) 517 US 620.
Strauss v Horton (2009) 46 Cal. 4th 364.
Trop v Dulles (1958) 356 US 86.
U.S. v Carolene Products Co. (1938) 304 US 144.
U.S. v Virginia (1996) 518 US 515.
Varnum v Brien (Iowa 2009) 763 NW 2d 862.
Watson v City of Memphis (1963) 373 US 526.
Yick Wo v Hopkins (1886) 118 US 356.
xvii
INTRODUCTION
The fact that human rights and human dignity precepts have been
implemented and interrelated by Supreme Court decisionmakers, however, does not exhaust inquiry into jurisprudentially
based approaches to implementation. This is especially true when
theories of implementation normally remain unarticulated in the
opinions of the justices who utilize human right standards.
Jordan J. Paust1
We do disagree about rights, and it is understandable that we do.
We should neither fear nor be ashamed of such disagreement, nor
hush and hustle it away from the forums in which important
decisions of principle are made in our society. We should welcome
it. Such disagreement is a sign the best possible sign in
modern circumstances that people take rights seriously.
Jeremy Waldron2
1
Jordan J. Paust, Human Dignity as a Constitutional Right: A Jurisprudentially
Based Inquiry into Criteria and Content, (1984) 27 Howard Law Journal 145, p 212.
2
Jeremy Waldron, Law and Disagreement (Oxford: Clarendon Press, 1999), p 311
[Waldron I].
3
Universal Declaration of Human Rights (UDHR), GA Res 217(III), UN GAOR, 3d
Sess, Supp No 13, UN Doc A/810 (1948) [UDHR].
4
Alan Gewirth, Self-Fulfillment (Princeton: Princeton University Press, 1998),
pp 162164.
5
See Waldron I (n 2 above), p 11.
6
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, (1890) 4 Harvard
Law Review 193.
introduction
introduction
According to him, focusing on the process and rationale of the justifications of rights, rather than wrangling over slogans like dignity and their
correct interpretations, is the way forward. Although I believe that society needs to find the right place and the right way to resolve our disagreements on rights, I do not go as far as Waldron in suggesting that
equality and dignity are just slogans. There is profound collective wisdom in affirming them as universal pillars of human rights. But one
should distinguish between political consensus and legal principle, particularly when the two ideas are being relied on to argue for some of the
most contentious human rights same-sex marriage being one of them
as I will elaborate in the rest of this book. Therefore, I believe that knowing what these two concepts are held out to mean is essential so that we
can identify the bone of contention and what exactly are being disagreed upon. Waldrons visionary exercise will be the next step after one
has thoroughly explored and critically assessed the extent of meanings and applications of equality and dignity, in light of the dynamics
they created in rights jurisprudence. This book aims to take on this
precursory task using the legalization of same-sex marriage as a contemporary example, with a hope to shed light on the next step of setting
the conditions in which reasonable people, who care about equality and
dignity, can justify with each other on the contentious issues of rights.
Equality, human dignity and rights
Human rights are not mere slogans as we live in a world full of their
concerns. One need not finish reading the domestic or international
section of a newspaper to realize the plethora of human rights abuses
and defenses on a daily basis. The right to food and shelter is the most
basic of entitlements any human beings could ask for. For many, it
remains a distant luxury. The rights to freedom of speech and freedom
of religion are two hallmarks of a liberal society. Yet in the most liberal of the sort, people are still fighting for the rights to speak their
13
Jeremy Waldron, Introduction in Jeremy Waldron (ed), Theories of Rights
(Oxford: Oxford University Press, 1984) 120, p 20 [Waldron II].
introduction
introduction
achieved by the campaigns of equal rights for gays and lesbians over the
past decades. From abolishing criminal punishment for sodomy, legislating against discrimination on grounds of sexual orientation, and
recognizing the right to same-sex marriage, the tenet of equality has
been transformed according to the incremental advances made, each
proving to be a step ahead of another. That equality can be used to justify not only decriminalizing sodomy,16 but also legal recognition of
same-sex relationships,17 shows the changing nature of the argument
and its implications. As will be shown in the coming chapters, courts
seldom care to distinguish the nuances between claims of equality in
criminal prosecutions and that concerning legal recognition of samesex marriages. It is as if equality were political trumps held by individuals, as rights to Ronald Dworkin, against which majority decisions
must be subordinate.18 At the same time, theorists continue to argue
whether equality is a mere tautology,19 or a substantive idea which leads
to the liberation of all.20 Amid the obscurities, it is uncertain which
concept of equality is being endorsed when judges use a general tone of
equality to uphold the right to same-sex marriage.
The trump status of equality is further entrenched when a closely
related jurisprudential heavyweight human dignity comes into the
picture. This is a concept being put side by side with equality, not only
in the UDHR, but also in all major international human rights covenants.21 As will be shown in the coming chapters, the idea of equal dignity is a distinguished feature in a number of domestic constitutions. It
is placed so high on the constitutional pedestal that fundamental rights
are being interpreted in light of the underlying value of dignity.
16
In National Coalition for Gay and Lesbian Equality & Another v Minister of Justice
& Others, [1998] (12) BCLR 1517 (CC), para 22, the Constitutional Court of South
Africa considered the common law offence of sodomy in respect to equality. It focused
on the status of gays and lesbians as a subordinate minority group which had long been
deprived of the equal protection and benefit of the law. At paras 108109, Sachs J said
that it is the sexual orientation of male homosexuals that is being punished by antisodomy laws.
17
Minister of Home Affairs & Another v Fourie & Another [2006] (3) BCLR 355
(CC), paras 7583 [Fourie].
18
Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), p xi.
19
Peter Westen, The Empty Idea of Equality, (1982) 95 Harvard Law Review 537
[Westen].
20
Sandra Fredman, Discrimination Law (Oxford: Oxford University Press, 2002).
21
The International Covenant on Civil and Political Rights (ICCPR) (19 December
1966, 999 UNTS 171) and the International Covenant on Economic, Social, and
Cultural Rights (ICESCR) (adopted by General Assembly resolution 2200A (XXI) of
16 December 1966).
introduction
22
Halpern v Canada [2003] 65 OR (3d) 161 (CA), para 3 [Halpern]; Fourie (n 17
above), para 50.
23
Ibid., Halpern, paras 9394.
24
Ibid., para 94.
25
Goodridge v Department of Public Health (2003) 798 NE 2d 941 [Goodridge].
26
President of the Republic of South Africa & Another v Hugo [1997] (6) BCLR
708 (CC).
introduction
introduction
31
Kees Waaldijk, Civil Developments: Patterns of Reform in the Legal Position of
Same-Sex Partners in Europe, (2000) 17 Canadian Journal of Family Law 62
[Waaldijk].
32
William N. Eskridge Jr. & Darren R. Spedale, Gay Marriage: For Better or for
Worse? What Weve Learned from the Evidence (Oxford: Oxford University Press,
2006).
33
See Waaldijk (n 31 above), p 66.
introduction
10
introduction
introduction
11
shed light on some of the possible moral tensions that people experience in society. In particular, it is worth pondering that disagreements
arising from the legalization of same-sex marriage may not be driven
by animus alone. Hence, the alleged discrimination against gays and
lesbians can be understood in terms of a distinction between a preferable and a less preferable moral choice. It is followed by a discussion of
major moral arguments from proponents and opponents of same-sex
marriage. In a nutshell, the proponents case revolves around the
notions of equality, dignity, privacy, autonomy and self-fulfillment,
while downplaying the relationship between marriage and procreation.
On the contrary, the opponents emphasize the un-severable link
between marriage and procreation, not only for the interests of children but also for the future of family and society. While the former see
re-defining marriage as a natural extension of equal rights in a triumphant anti-discrimination era, those holding a conservative opinion
ponder whether it is asking too much of the abstract notions of equality
and dignity.
The following chapters attempt to deconstruct the concepts of equality and dignity in the context of same-sex marriage jurisprudence.
Chapter 2 follows the idea of equality to its Aristotelian root. The formal principle like should be treated alike sets the judicial tone of
equality. One after the other, courts have denounced discrimination
against same-sex couples stigmatized as being incapable to marry,
when their relationships are deemed to be comparably similar to that
of their heterosexual counterparts. I argue that arguments based on
this comparative conception of equality require precision and normative contents when presented in their strongest manner in justifying
the claim for same-sex marriage, as opposed to other forms of equality
measures such as sodomy decriminalization and anti-discrimination
laws.
In fact, the concept of formal equality is not immune from criticisms.
Some legal theorists see it as a mere tautology or a political slogan.41
For radical feminist or liberationist critics, same-sex marriage does
nothing to advance equality for the sexual minorities but only perpetuates an unequal social structure.42 To truly liberalize all from
41
12
introduction
43
introduction
13
self-explanatory. Its profound content includes much more than a psychological perception of self-respect and self-worth. It is a concept with
various philosophical, anthropological, religious, and cultural roots
dating back to the Classical Age. Dignity can be understood in
ways descriptive or normative, objective or subjective. It has implications not only to an individual, but also to the group one identifies with,
as well as the human species to which every human being belongs.
A concept so rich requires judicial interpretations in an articulate
and coherent manner when fundamental rights are decided in its light.
As Chapter 4 argues, the courts in two leading bills of rights jurisdictions are not up to the task. Case law shows a judicial trend which
merges dignity with equality as the pointer of identifying unequal
treatment. Instead of focusing on personal characteristics and disadvantages,45 both the Canadian Supreme Court and Constitutional
Court of South Africa ask: did the victim of alleged inequalities suffer
a violation of dignity?46 While judges are ill-fitted to second-guess peoples state of mind, they have nevertheless ventured to decide whether
the dignity of an equality claimant is hurt, thus yielding inconsistent
judicial results. The ensuing conceptual confusion is twofold: we end
up having little substantive grasp of both equality and dignity. As a
result, the courts sometimes need to resort to other values to justify the
finding of discrimination.
This tendency can be seen in case law upholding the right to samesex marriage in both Canada and South Africa, where the idea of liberty was considered together with dignity in finding discrimination
against gays and lesbians. In Halpern v Canada, the court found that
the lack of a fundamental choice to marry constitutes a discriminatory aspect of the common law definition of marriage because the
liberty interest for gays and lesbians is compromised.47 Similarly, the
court in Minister of Home Affairs & Another v Fourie & Another held
that to deny same-sex couples a choice to join the institution of
marriage, given its legal and social significance, negates their right to
45
In Andrews v Law Society of British Columbia [1989] 1 SCR 143, p 168, McIntyre J
pointed to personal characteristics and disadvantages as strong indicators of
discrimination.
46
See Law v Canada [1999] 1 SCR 497, which has been followed by all subsequent
equality decisions in the Supreme Court of Canada. Its counterpart in the Constitutional
Court of South Africa is President of the Republic of South Africa & Another v Hugo
[1997] (6) BCLR 708 (CC).
47
See Halpern (n 22 above), para 87.
14
introduction
self-definition in a most profound way.48 While liberty is a fundamental value that can be relevant to the right to marriage, using it as part of
the justification under the courts dignity-centered equality jurisprudence seems only to dilute the concept of dignity. The question remains
that whether dignity is indeed so lack of core content that it requires
other values to serve as support.
Nevertheless, I maintain that equality and dignity are more than
simply empty slogans. There is profound collective wisdom in affirming them as universal pillars of human rights. But one should distinguish between political consensus and legal principle, particularly
when the two ideas are being relied on to argue for some of the most
contentious human rights. The difficulty lies in the fact that they can be
interpreted differently by different people whether they are legally or
philosophically trained. Therefore, unraveling the mysteries around
equality and dignity does not resolve the disagreements on rights. This
study probably raises more questions than it attempts to answer. But if
justice is truly everyones business and not just for judges; if justice
demands equality not only in word but also in deed; if justice allows
people to argue for, or against, what they genuinely believe is good,
society should move beyond arguing over meanings only and start
contemplating the process in which disagreeing parties can openly
deliberate with one another.49 It is the way that Waldron believes a
democratic polity should go to resolve citizens genuine disagreements
on rights.
The final chapter does two things. First, it looks back on our journey
in tracing the development of same-sex marriage and the accompanying theories and disagreements. Second, it attempts to find out whether
and how the ideal of deliberative democracy can be applied in
approaching the dispute over the matter. I see deliberative democracy
as a way to realize Waldrons so-called activity of justification, although
he does not share the idealistic assumption that he believes is being
held by theorists of deliberative democracy: once we get a genuine
deliberative democracy, the sordid business of counting votes will be
largely unnecessary, at least on serious matters of principle.50 He takes
the view that despite deliberation, people will continue to disagree in
good faith about the issues of rights that will eventually need to be
48
49
50
introduction
15
settled by the legislature. Still, deliberative democracy is worth exploring for a society in disagreement. As Dworkin says in support of the
idea, [i]t would nevertheless be a great improvement if they came to
see their continuing disagreements as controversies about the best
interpretation of fundamental values they all share rather than simply
as confrontations between two divergent worldviews neither of which
is comprehensible to the other.51
51
Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate
(Princeton: Princeton University Press, 2006), p 22.
CHAPTER ONE
17
residency.3 Some of the restrictions were relaxed in 1999.4 The introduction of a parliamentary bill in March 2009 may see same-sex
couples jointly adopt in future.5
From Denmark to Nordic nations
Denmarks move was followed by governments in various parts of
Northwestern Europe. In subsequent years, the rest of the Nordic
neighbors Norway in 1993, Sweden in 1995, Iceland in 1996 and
Finland in 2001 all established registered partnership regimes granting quasi-marriage status exclusively to same-sex couples.6 To a large
extent, their legislations mirrored the Danish prototype with similar
relaxation in the law over the years. Stepchild (second-parent) adoption has been available in Norway and Iceland while Sweden opened
all forms of adoption. Finland remained restrictive on adoption perhaps because of its shorter history in legalizing same-sex partnerships.7
Like Denmark, all of the four Nordic countries have a state church
which is not obligated to solemnize same-sex unions under the states
registered partnership law. Therefore, unless individual congregations
exercise discretion to give their blessing, same-sex couples can only
exchange vows in a civil ceremony.8 Nevertheless, since the first law
was made in 1989, the Nordic bloc nations have gradually harmonized
their registered partnership regimes. In 1999, the Danish Government
took the lead again by amending its law to give registered partners
3
Marianne Delpo Kulow, Same Sex Marriage: A Scandinavian Perspective, (2002)
24 Loyola of Los Angeles International and Comparative Law Review 419, pp 421425
[Kulow].
4
Ibid., pp 424425, except the ban on stranger adoption (adoption of unrelated
children jointly). See p 430.
5
See Parliamentary Majority for Same-sex Adoption, The Copenhagen Post Online
(18 March 2009). Available at http://www.cphpost.dk/news/politics/90-politics/45091parliamentary-majority-for-same-sex-adoption.html (visited 23 Dec 09).
6
Kees Waaldijk, Civil Developments: Patterns of Reform in the Legal Position of
Same-Sex Partners in Europe, (2000) 17 Canadian Journal of Family Law 62, p 80
[Waaldijk I].
7
Kees Waaldijk, Others May Follow: The Introduction of Marriage, QuasiMarriage, and Semi-Marriage for Same-Sex Couples in European Countries, (2004) 38
New England Law Review 569, p 587 [Waaldijk II].
8
See Kulow (n 3 above), p 425. Sweden saw a progressive development on 27
October 2005, when the Church Assembly, the highest body of authority in the Swedish
Church, voted to allow same-sex partners to be blessed in a special ceremony in the
Swedish Church. Later, the Ministry of Justice announced that starting April 2006,
civil registrars no longer have discretion to refuse to solemnize same-sex unions
and will run the risk of losing authority in performing wedding ceremonies if they
18
chapter one
who were citizens of Norway, Sweden or Iceland the same rights as its
nationals.9
The first same-sex marriage: the Netherlands
Changes continued to sweep across Europe as new institutions recognizing same-sex relationships came into being.10 Starting November
1999, France began registering both same-sex and heterosexual couples under the Civil Solidarity Pact. Owing to the lack of political support, the status did not offer rights and benefits comparable to a
marriage. Germany has had the regime of life partnerships in place
since 1 August 2001. Same-sex couples, upon registration, are entitled
to a limited range of rights and obligations. The real breakthrough
came from the Netherlands. Although the Netherlands only started to
recognize registered partnerships in 1998 nine years after its debut, it
did not take too long before it caught up and outstripped Denmark.11
In fact, as far as the legal protection given to homosexual citizens is
concerned, the Dutch have never been much behind.12 In the late
1980s, two test cases were brought to court where the homosexual couples claimed that the state ban on same-sex marriage violated their
human rights.13 These legal challenges arose because the marriage statute in the Netherlands contained gender-neutral language, which made
it possible to argue that marriage could be between people of the same
gender. While the cases made no legal breakthrough at a time when the
refuse to do the same for same-sex partners. See EURO-LETTER, No 125 (Nov 2005),
pp 67. Available at http://www.ilga-europe.org/europe/publications/euro_letter/2005/
in_english/euroletter_125_november_2005 (visited 7 Jun 09).
9
Steffen Jensen, Adoption Rights to Danish Gay or Lesbian Couples-Partnership
Law Changed, EURO-LETTER, No 70 (May 1999), p 1. Available at http://www
.ilga-europe.org/europe/publications/euro_letter/1999/euroletter_70_may_1999 (visited 7 Jun 09).
10
See Waaldijk II (n 7 above), pp 587588.
11
The Netherlands was the first country in the world to legalize same-sex marriage
in 2001, giving full legal rights to married same-sex couples including the right to apply
for stranger adoption for domestic children. See Kulow (n 3 above), p 433.
12
The Netherlands was among the very first countries in Europe to decriminalize
homosexual activity in 1811, after France in 1791, Belgium and Luxembourg in 1794.
See Waaldijk I (n 6 above), p 68.
13
The two cases both went before the Amsterdam District Court at the first instance.
One of them subsequently reached the Supreme Court. In resolving the issue, the court
nevertheless expressed sympathy and referred to the legislature as a place for settling
the dust. See Kees Waaldijk & Andrew Clapham (eds), Homosexuality: A European
Community Issue: Essays on Lesbian and Gay Rights in European Law and Policy
(Dordrecht: Martinus Nijhoff Publishers, 1993), p 92. For a detailed discussion,
19
20
chapter one
19
See Waaldijk II (n 7 above), p 583. Belgiums anti-discrimination law came late as
compared with neighboring European countries. Norway was the first to explicitly legislate against homosexual discrimination in 1981, followed by Denmark in 1987,
Sweden in 1987, Ireland in 1989, the Netherlands in 1992, Finland in 1995, Spain in
1995 and Luxembourg in 1997. See Waaldijk I (n 6 above), p 75.
20
The federal government adopted the cohabitation law on 23 November 1998,
while no date was set for its entering into force. See Anke Hintijens, The Present
Situation of Partnership Regulations in Belgium, EURO-LETTER, No 66 (Dec 1998),
pp 35. Available at http://www.ilga-europe.org/europe/publications/euro_letter/
1998/euroletter_66_december_1998 (visited 7 Jun 09).
21
Remko van Kol, Belgiums New Government Coalition Promises Legal
Breakthrough, EURO-LETTER, No 73 (Sep. 1999), p 3. Available at http://www
.ilga-europe.org/europe/publications/euro_letter/1999/euroletter_73_september_
1999 (visited 7 Jun 09).
22
See Waaldijk II (n 7 above), p 581.
21
From then on, the development has sped up. In 2005, the world witnessed same-sex marriages being affirmed in two more countries
Spain and Canada.
Spain follows
The development in Spain struck a chord similar to its two European
predecessors in terms of legislative history. The Spanish Government
decriminalized homosexuality as early as 1822. Nevertheless, lingering
provisions continued to prohibit homosexual acts with minors until
the late 1980s.23 During the dictatorship rule of Franco, homosexuals
were treated as degraded people along with drug addicts and vagabonds. The years between 1971 and 1979 also saw the segregation of
many homosexuals in society under the Law of Dangerousness and
Social Rehabilitation.24 It was not until Francos death in 1975 that the
plight of gays and lesbians improved. By the 1980s, apartheid-style
laws against them had been abolished. As civil activism grew, the quest
for equality entered the political arena as the Spanish Workers Socialist
Party came into power in 1982. By the time the party left office, a law
had already been in place allowing a partner in a de facto relationship
to subrogate a leasing contract regardless of sexual orientation. As the
conservative Popular Party took over in 1996, further proposals were
halted, but the issue of same-sex marriage later emerged in the run-up
to the elections in May 2003.25
Following the footsteps of the Dutch and Belgians, Spain allowed
regional governments to set up their own partnership registration
regimes. By 1998, virtually all major cities had had their own registration offices. Symbolic as the procedure was, it signified the recognition by a state institution and boosted the lobbying of the national
government for recognizing same-sex relationships.26 At the time,
legal protections were in place in some regional governments. Among
23
Despite the equalization of the age of consent for both heterosexuals and homosexuals in 1822, a separate provision against serious scandal and indecency continued to be in force prohibiting some homosexual acts between adults and homosexual
acts with minors. See Waaldijk I (n 6 above), p 68.
24
Jos Ignacio Pichardo Galn, Same-sex couples in Spain. Historical, contextual
and symbolic factors, in Digoix Marie & Festy, Patrick (eds), Same-sex couples, samesex partnerships, and homosexual marriages: A focus on cross-national differentials.
Documents de travail n 124, Ined, 2004, 159173, p 159 [Pichardo Galn].
25
Ibid., pp 159161.
26
See ILGA-Europe Report June 1998 (n 2 above), p 79.
22
chapter one
those, the law passed in 2003 by the Basque Country was the most
progressive, providing same-sex partners with inheritance, fostering
and adoption rights.27
Same-sex marriage as a political issue emerged as the incumbent
Socialist Prime Minister Zapatero took office with his liberal social
agenda in April 2004. As part of his plan to create a secular state in the
traditionally Catholic nation, Zapatero proposed the same-sex marriage bill shortly after the election.28 The bill stated that matrimony
shall have the same requisites and effects regardless of whether the
persons involved are of the same or different sex.29 Despite strong
opposition from the Roman Catholic Church and conservative parliamentarians,30 Congress passed the bill on 30 June 2005, making Spain
the third country to give same-sex couples the rights to marry and
adopt children. Before the vote, Zapatero addressed Congress saying,
We are not the first, but I am sure we will not be the last. After us will
come many other countries, driven, ladies and gentlemen, by two
unstoppable forces: freedom and equality.31 A month later, the same
bill was passed by the Canadian Parliament following a series of court
cases in favor of same-sex marriage.
Canada: same-sex marriage arrives in North America
Compared to Europe, decriminalization of homosexuality is a recent
phenomenon in Canada. When canvassing support for his proposed
amendment to the Criminal Code, the then Justice Minister Pierre
Trudeau said in 1967, there is no place for the state in the bedrooms of
the nation except when it involves the public or minors.32 In 1969,
27
23
Canada decriminalized private homosexual activities between consenting male adults.33 The removal of the legal stigma unleashed the
yearning for equal treatment on the part of homosexual rights activists
nationwide. In 1996, the federal government, adopting the Canadian
Human Rights Commissions recommendation made in 1979, inserted
sexual orientation into the Human Rights Act 1985, marking another
leap of equality for the countrys gay and lesbian citizens.34
This preliminary scene follows the European incremental pattern of
achieving one breakthrough after another. What sets the Canadian
experience apart is that the momentum for legalizing same-sex marriage originated from the court instead of the parliament. In 1995, the
Canadian Supreme Court unanimously read sexual orientation into
the Canadian Charter of Rights and Freedoms (the Canadian Charter)
as an analogous ground of discrimination.35 The landmark judgment
immediately negated any law which discriminated between heterosexual and homosexual relationships. What followed was a plethora of
homosexual litigants fighting for equal rights across the country which
culminated in the 1999 decision of M v H.36 This case arose from
Ontarios Family Law Act which restricted spousal benefits to heterosexual couples.37 The majority of the Supreme Court held that excluding homosexual partners from the meaning of spouse violated the
equality guarantee under the Canadian Charter. It perpetuated the disadvantages suffered by homosexual couples by degrading their relationships as less worthy of recognition and protection,38 and was not
demonstrably justified in a free and democratic society.39
The ruling was greeted with executive deference. While Ontario was
given six months to amend the impugned provision, other provincial
33
The Criminal Law Amendment Act, 196869 (S.C. 196869, c.38), passed as Bill
C-150 in May 1969, amended the Criminal Code to decriminalize consensual homosexual acts between male adults. See Donald W. McLeod, Lesbian and Gay Liberation
in Canada: A Selected Annotated Chronology, 19641975 (Toronto: ECW Press/
Homewood Books, 1996), pp 4243.
34
1996 Annual Report, Canadian Human Rights Commission. Available at http://
www.chrc-ccdp.ca/publications/1996_ar/default-en.asp (visited 21 Dec 05).
35
Egan v Canada [1995] 2 SCR 513.
36
M v H [1999] 2 SCR 3.
37
Section 29 of the Family Law Act, R.S.O. 1990, c. F.3 defines a spouse as a person
who is actually married or either of a man and woman who are not married to each
other and have cohabited . . .
38
See M v H (n 36 above), p 57, per Cory and Iacobucci JJ.
39
Ibid., p 89.
24
chapter one
governments also considered reviewing their own laws.40 Having perceived that it was only a matter of time before the Supreme Court would
extend the meaning of spouse to include same-sex couples for all federal legislation, the federal government subsequently passed the
Modernization of Benefits and Obligations Act in February 2000, giving
same-sex couples the same rights and benefits as heterosexual cohabitating couples while affirming the status of heterosexual marriage.41
However substantial the quasi-marriage benefits appeared, the aspiration to marry proved too strong to be tamed. Although M v H stopped
short of endorsing same-sex marriage, the majority held that excluding
same-sex partners from the benefits available to their heterosexual
counterparts promoted the stigma that they are less worthy of recognition and protection. This comment revealed that the marriage law
which barred homosexual couples from marriage actually stood on
shaky ground. A trilogy of appellant cases in the following years was a
sign that the long-fought battle for same-sex marriage had finally come
of age in Canada.
Halpern v Canada upheld same-sex marriage for the first time in
Canada.42 In July 2002, the Ontario Superior Court ruled that the common law definition of marriage violated the Canadian Charter and
should be changed to the voluntary union for life of two persons to the
exclusion of all others.43 Just as the federal government immediately
appealed, two months later, the Superior Court in Quebec reached a
similar decision in Hendricks v Quebec.44 Not long after the Ontario
Court of Appeal upheld the Superior Courts ruling in June 2003,45 the
40
After the decision, the Ontario Premier said he would abide by the courts ruling
and start reviewing the laws, as did the Premiers of Saskatchewan and Manitoba. Even
before the ruling, British Columbia had already passed some laws recognizing the status of same-sex relationships. See Most Premiers Ready to Make Changes after SameSex Ruling, CBS News Online (last updated 26 May 00). Available at http://cbc.ca/
cgi-bin/templates/view.cgi?/news/1999/05/21/gay990521 (visited 21 Dec 05).
41
Bill C-23 was introduced in 1999 on the heels of M v H to create the Modernization
of Benefits and Obligations Act, which would amend 68 federal statutes to extend benefits and obligations to same-sex couples. See Kathleen Lahey, Becoming Persons in
Canadian Law: Genuine Equality or Separate But Equal? in Robert Wintemute and
Mads Andens (eds), Legal Recognition of Same-Sex Partnerships: A Study of National,
European and International Law (Oxford: Hart Publishing, 2001) 237275, pp 262263
[Wintemute & Andens].
42
Halpern v Canada [2002] 60 OR (3d) 321 (Div. Ct.).
43
Ibid., para 309.
44
Hendricks v Quebec [2002] JQ 3816.
45
Halpern v Canada [2003] 65 OR (3d) 161 (CA) [Halpern].
25
26
chapter one
49
27
the legislature in February 2004 took Vermonts approach and proposed a Civil Unions Bill, only to be advised by the court that creating
a second-class citizen status for same-sex couples by withholding the
marriage right remained unconstitutional.56 As a result, the original
ruling took effect on 17 May 2004 and same-sex marriage became legal
in Massachusetts.
The feat in Massachusetts gave many gays and lesbians the first taste
of success after decades of struggles for the right to marry. As early as
the early 1970s, U.S. courts began to entertain cases of the kind. In
1971, a gay couple launched a legal challenge against a Minnesota official who had refused to grant them marriage license.57 The Supreme
Court of Minnesota dismissed the claim. Citing the Scripture, the court
said, [t]he institution of marriage as a union of man and woman,
uniquely involving the procreation and rearing of children, is as old as
the book of Genesis.58 The case subsequently reached the U.S. Supreme
Court which dismissed the appeal for want of jurisdiction, sealing the
original decision as the state authority.59
Two decades on, the fight for same-sex marriage under the Equal
Protection and Due Process Clauses of the U.S. Constitution has triumphed in some state courts only to be overturned by subsequent state
constitutional amendments. In 1993, the Hawaii Supreme Court held
that restricting marriage to heterosexual couples was a sex-based
classification and would violate the Equal Protection Clause under the
Hawaiian Constitution in absence of a compelling state interest.60 In
1998, the Superior Court of Alaska went a little further in holding that
the marriage ban against same-sex couples not only attracted an equal
56
Opinions of the Justices to the Senate (2004) 802 NE 2d 565 [Opinions of the
Justices].
57
Baker v Nelson (1971)191 NW 2d 185.
58
Ibid., p 186.
59
Baker v Nelson (1972) 409 US 810. The U.S. Supreme Court on 10 October 1972
dismissed an appeal from a decision of the Supreme Court of Minnesota for want
of a substantial federal question. See the original decision in the Supreme Court
of Minnesota, Baker v Nelson (n 57 above). The Court held that denying marriage
license to a same-sex couple did not violate the Equal Protection Clause of the U.S.
Constitution. While affirming that marriage is one of the basic civil rights of man, the
court distinguished Loving v Virginia (1967) 388 US 1, which ruled down an antimiscegenation law prohibiting interracial marriages, on the grounds that in commonsense and in a constitutional sense, there is a clear distinction between a marital
restriction based merely upon race and one based upon the fundamental difference in
sex [Loving].
60
Baehr v Lewin (Haw. 1993) 852 P. 2d 44 [Baehr].
28
chapter one
protection claim under the state constitution, but also implicated the
constitutional right to privacy.61 Both judgments, however, were rendered moot by subsequent state constitutional amendments.62 During
the intermittent period where the state was required to justify the continued restriction of same-sex marriage following a judgment of unconstitutionality, legislatures in both Hawaii and Alaska sought voters
support to amend the state constitution which would grant them power
to entrench marriage as a heterosexual union within the state.63 These
state constitutional amendments show that in the U.S., judicial activism remains susceptible to any countermeasures by state legislatures
over the issue of same-sex marriage.
Despite setbacks in Hawaii and Alaska, Vermont made the first state
in the U.S. to recognize the relationships of same-sex couples in 1999.
In Baker v State, the Vermont Supreme Court ruled that the Common
Benefits Clause of the Vermont Constitution requires the state to
extend to same-sex couples the common benefits and protections that
flow from marriage under Vermont law.64 Short of ordering the state to
issue marriage licenses to same-sex couples, the court required the
state to find alternative means to extend the constitutionally required
common benefits and protections of marriage to same-sex couples.
Unlike its Hawaiian and Alaskan counterparts, the legislature heeded
the call and voted to allow civil unions between same-sex couples. The
Civil Union Act became law in 2000.65 For the first time in the U.S.,
same-sex couples were recognized and accorded the same state-created
rights and responsibilities as legal spouses under a parallel system.66
61
Brause v Bureau of Vital Statistics (1998) WL 88743 (Alaska Super. Ct. Feb. 27,
1998).
62
Mark E. Wojcik, The wedding bells heard around the world: years from now, will
we wonder why we worried about same-sex marriage?, (2004) 24 Northern Illinois
University Law Review 589, pp 616619 [Wojcik].
63
In Hawaii, voters approved a proposed constitutional amendment on 3 November
1998, with a new section to the Hawaii State Constitution that reads, The legislature
shall have the power to reserve marriage to opposite-sex couples. The same happened
to Alaska, resulting in the amendment of Art 1. 25 of the state constitution which
reads, a marriage may exist only between one man and one woman. See Wojcik,
Ibid.
64
Baker v State (Vt. 1999) 744 A. 2d 864 [Baker].
65
An Act Relating to Civil Unions, 2000 Vt. Acts & Resolves 91 (codified at Vt. Stat.
Ann. Tit. 15, 12011207 (Supp. 2001) ).
66
Vermont made history again in April 2009 as the first U.S. State to legalize samesex marriage by legislation rather than court ruling. The Bill, S. 115, referred to as An
Act to Protect Religious Freedom and Recognize Equality in Civil Marriage, had been
29
The difference between civil union and marriage, however, lies not only
in the fact that the former is recognized only in the state where it was
created, but also in the name.67
Because of the lacking of consensus on the issue, the decisions in
Goodridge and Baker did not spearhead a change of federal law regarding the legal position of same-sex couples as in the case of Canada. To
a large extent, it was due to the complications that stemmed from the
Defense of Marriage Act (DOMA),68 a federal law passed in 1996 which
has eventually been adopted in the majority of states to resist same-sex
marriages. DOMA was a federal response to the successful lawsuits
won by gay rights activists in Hawaii, Alaska and Vermont. Created to
contain the effect of legal recognition within individual states, DOMA
was so worded that no state shall be required to give effect to any marriage in relation to two persons of the same sex under the laws of
another state.69 At the same time, the meanings of marriage and
spouse were federally codified to involve only partners of the opposite sex.70 Despite the criticism that DOMA is unconstitutional under
the Full Faith and Credit Clause of the U.S. Constitution,71 a majority of
states have either passed their own versions of DOMA or amended
passed by both houses of the legislature on 7 April 2009 and took effect on 1 September
2009. For more detail about its legislative history, see the official website of the Vermont
Human Rights Commission. Available at http://hrc.vermont.gov/Same-sex+Marriage
(visited 7 Jun 09).
67
Mary L Bonauto, The Freedom to Marry for Same-Sex Couples in the United
States of America in Wintemute & Andens (n 41 above) 177207, pp 200202;
William N. Eskridge Jr., Equality Practice: Civil Unions and the Future of Gay Rights
(New York: Routledge, 2002), p 123 [Eskridge I].
68
Defense of Marriage Act (Pub. L. No. 104199, 100 Stat. 2419 (Sept. 21, 1996)
codified at 28 U.S.C. 1738C (1997) ) [DOMA].
69
Ibid., s 2, DOMA.
70
Ibid., s 3, DOMA defines marriage to mean only a legal union between one man
and one woman as husband and wife.
71
Section 1 of Art IV of the U.S. Constitution provides that Full faith and credit
shall be given in each state to the public acts, records, and judicial proceedings of
every other state. And the Congress may by general laws prescribe the manner in
which such acts, records, and proceedings shall be proved, and the effect thereof.
While the original author of DOMA, then senior member of the Judiciary Committee,
Bob Barr, remains adamant that DOMA is a reasonable solution that leaves the choice
to the states, legal commentators like Harvard law professor Laurence Tribe described
such discretion given to states to ignore the official acts of sister states as having dubious validity. See Bob Barr, The Federal Marriage Amendment: Why Conservatives
and Liberals Alike Should Be Very Glad It Failed (16 Jul 2004), available at http://
writ.findlaw.com/commentary/20040716_barr.html (visited 28 Dec 05); Laurence
H. Tribe, American Constitutional Law, 3rd Edn (Mineola: Foundation Press, 2000),
p 1247 (fn 49).
30
chapter one
72
31
things took another sharp turn. On the same day as the U.S. Presidential
Election on 4 November 2008, Californian voters approved a state constitutional amendment entrenching the status of heterosexual marriage, which in effect reversed legalization of same-sex marriage in
force for only four months.78 Constitutional amendment Proposition 8,
known as the California Marriage Protection Act, entrenches marriage in the state as between a man and a woman.79 After its passage,
the status of the California Supreme Courts 2008 ruling and that for
those who had married pursuant to it was left hanging. The very court
that had started the saga finally capped the dispute, for now, when it
ruled on 26 May 2009, upholding the results of the constitutional
amendment while affirming the legality of same-sex marriages performed prior to its adoption.80
At the same time, other states seem in have been going in the opposite direction from California. In fact, in the space of six months since
November 2008, five more U.S. states have legalized same-sex marriage.81 A divided Connecticut Supreme Court ruled on 10 October
2008 that equal protection under the state constitution requires it be
legalized in Connecticut.82 This was followed by Iowa six months later,
this time, through a unanimous Iowa Supreme Court on 3 April 2009.83
With no party asking for a re-hearing, same-sex marriage became legal
in the state by the end of the month. Just 14 days after the Iowa decision, both houses of the Vermont Legislature passed An Act to Protect
Religious Freedom and Recognize Equality in Civil Marriage.84 Having
been the first U.S. State to recognize civil unions, Vermont set itself
78
The official text of Proposition 8 is available at Californias Government website. See http://voterguide.sos.ca.gov/past/2008/general/text-proposed-laws/text-ofproposed-laws.pdf#prop8 (visited 7 Jun 09).
79
Californias electoral measure resonated with voters in Florida and Arizona.
On the same day, Florida passed the Florida Marriage Protection Amendment 05-10
and Arizona passed Resolution 1042, which blocked recognition of same-sex marriage in their respective states. For Florida, see http://election.dos.state.fl.us/initiatives/
initdetail.asp?account=41550&seqnum=1; for Arizona, see http://www.azleg.gov/
FormatDocument.asp?inDoc=/legtext/48leg/2r/bills/scr1042h.htm (visited 7 Jun 09).
80
Strauss v Horton (2009) 46 Cal. 4th 364.
81
They are, in the order that same-sex marriage was legalized, Connecticut, Iowa,
Vermont, Maine and New Hampshire.
82
Kerrigan v Commissioner of Public Health (2008) 289 Conn. 135.
83
Varnum v Brien (Iowa 2009) 763 NW 2d 862.
84
The Bill, S.115, which was passed on 7 April 2009, took effect on 1 September
2009. Details are available at the Vermont Human Rights Commissions official website:
http://hrc.vermont.gov/Same-sex+Marriage.
32
chapter one
apart from its federal counterparts again by being the first U.S. State to
legalize same-sex marriages by legislative initiative instead of judicial
ruling. In the two consecutive months following, the Governor of
Maine and New Hampshire respectively signed into law bills approved
by state legislatures giving gays and lesbians the right to marry.85 The
string of judicial and legislative approvals after the rough-and-tumble
in California shows how volatile the issue is in a divided America.
The U.S. presents a fragmented picture of the legalization of samesex marriage. To date, it is available in six states. Around ten other
states have their own regimes that confer rights and benefits on samesex couples to different extents.86 But the majority remains opposed to
giving full legal recognition to same-sex couples. More than thirty
states either have state constitutional amendments restricting marriage
to a man and a woman or have state law that restricts marriage to heterosexual couples.87 The future remains uncertain with court decisions
and state constitutional amendments being taken as the alternate steps
each of them has the effect of invalidating the other. It is all the more so
with a federal government that morally disapproves DOMA, a federal
law entrenching heterosexual marriages, while being hesitant to act
upon its conviction.
United Kingdom: an inclusive model of Civil Partnership
Compared to the U.S., the Westminster government in the U.K. shows
more determination in achieving a compromised model in a less divided
society. It followed a smoother path by focusing on domestic reforms
and compliance with international law. In the same year that Massachusetts legalized same-sex marriage, the U.K. Parliament passed the
85
Maines Governor signed the Bill, LD 1020 (SP 384), titled An Act to End
Discrimination in Civil Marriage and Affirm Religious Freedom into law on 6 May
2009. See http://www.maine.gov/tools/whatsnew/index.php?topic=Gov+News&id=
72146&v=Article-2006. On 3 June 2009, New Hampshires Governor signed into law
the House Bill, 436-FN-LOCAL, known as An Act relative to civil marriage and civil
unions. See http://www.gencourt.state.nh.us/legislation/2009/HB0436.html.
86
See map of Marriage Equality & Other Relationship Recognition Laws (updated
20 Jul 2009). Available at http://www.hrc.org/documents/Relationship_Recognition_
Laws_Map.pdf (visited 18 Aug 09). In July 2009, Hawaiis attempt to pass a civil union bill
failed after its Senate prevented the bill from being voted upon. See Derrick DePledge,
Democrats miffed over opposition from Gabbard (26 July 2009). Available at http://
www.honoluluadvertiser.com/article/20090726/NEWS01/907260365/Democrats+
miffed+over+opposition+by+Gabbard (visited 25 Aug 09).
87
See Marriage Prohibitions (n 72 above).
33
34
chapter one
97
In Ghaidan v Godin-Mendoza [2004] 2 AC 557, the House of Lords held that
under s 3(1) of the Human Rights Act 1998, it is possible to interpret the spouse
category in the Rent Act 1977 as covering a surviving same-sex partner for succession
purpose, to avoid sexual orientation discrimination violating Articles 14 and 8, which
echoed the 2003 judgment made by the ECtHR in a virtually identical case in Karner v
Austria [2003] ECHR 40016/98, ECtHR.
98
See s 1, the Civil Partnership Act 2004.
99
According to a distinguished U.K. family lawyer, Stephen Cretney, the Civil
Partnership Act does not explicitly require civil partners to be homosexual or have a
sexual relationship of any kind. So, arguably the law is available to any unrelated couple
of the same sex aged 16 or older, provided neither of them is already married. Quoted
in Joshua Rozenberg, All-embracing partnership act, The Daily Telegraph, 6 Oct
2005. Available at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/10/
06/nlaw06.xml (visited 12 Jan 06).
100
See Chapters 1 & 2, Civil Partnership Act. Like a marriage, a civil partnership
cannot be dissolved by the parties alone. The Act provides for the making of dissolution, nullity, separation and presumption of death orders. As under the law of divorce,
the court has wide discretion to make financial orders if one of the partners has failed
to provide reasonable maintenance for the other, or for a child in the family.
101
Although the law clearly stipulates that the place of registration must not be in
religious premises, thus ruling out formal registration ceremony in any religious
manner.
35
2005 eventually drew South Africa into the growing league of nations
that recognizes same-sex marriage.102
The Constitutional Court of South Africa has been the spur for eradicating discrimination against homosexuals in perhaps one of the
worlds most liberal jurisdictions. South Africa is the first country
whose constitution explicitly protects gays and lesbians from discrimination.103 In 1998, the Court ruled that the common law offence of sodomy and its inclusion in criminal provisions was unconstitutional.104
The first hurdle facing homosexual men disappeared as consensual
sexual conduct between males was decriminalized. Over the years,
South Africa has removed past restrictions against gays and lesbians in
a piecemeal fashion. One by one, the Constitutional Court has struck
down legislation which restricted the legal entitlements of people in
same-sex relationships, including immigration privileges, spousal benefits, adoption and parental rights.105
Having laid the foundation of a progressive jurisprudence on sexual
orientation discrimination, the Constitutional Court assented when
the claimants came asking for the right to same-sex marriage in 2005.
102
Minister of Home Affairs & Another v Fourie & Another [2006] (3) BCLR 355
(CC)[Fourie].
103
Section 9(3) of the Constitution of the Republic of South Africa 1996 provides
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.
104
In the 1998 case of National Coalition for Gay and Lesbian Equality & Another v
Minister of Justice & Others, [1998] (12) BCLR 1517 (CC) [the NCGLE case], the
Constitutional Court held that the common law offence of sodomy, its criminalization
under s 20A of the Sexual Offences Act 1957, the inclusion of sodomy in Schedule 1 of
the Criminal Procedure Act 1977 and in Schedule 1 of the Security Officers Act 1987,
are inconsistent with the constitutional guarantee of non-discrimination under s 9 of
the Constitution. For an analysis of the judgment, see Pierre De Vos, Sexual Orientation
and the Right to Equality in the South African Constitution: National Coalition for Gay
and Lesbian Equality & Another v Minister of Justice & Others, (2000) 117 South African
Law Journal 17.
105
In National Coalition for Gay and Lesbian Equality & Others v Minister of Home
Affairs & Others [2000] (1) BCLR 39 (CC), the existing immigration law was held
discriminatory for excluding same-sex partners. In Satchwell v President of the
Republic of South Africa & Another [2002] (9) BCLR 986 (CC), the provision giving
pension rights to surviving heterosexual spouses only was ruled unconstitutional. In
Du Toit & Another v Minister of Welfare and Population Development & Others
(Lesbian and Gay Equality Project as amicus curiae) [2002] (10) BCLR 1006 (CC),
the adoption right was extended to same-sex couples. In J & Another v Director
General, Department of Home Affairs & Others [2003] (5) BCLR 463 (CC), the court
affirmed the parental rights of lesbian partners where one of the partners was artificially inseminated.
36
chapter one
In Minister of Home Affairs & Another v Fourie & Another,106 the Court
held that the common law definition of marriage, so far as it excludes
same-sex couples from enjoying the same status as heterosexual
spouses, was discriminatory and unconstitutional, and directed the
parliament to include same-sex couples as legal spouses. All judges but
one decided to suspend the judgment for twelve months to allow parliament time to amend the law, while the dissenting judge held that the
court should take the chance to develop the common law by reading
the word spouse in the Marriage Act so as to permit same-sex couples
to get married without any delay.107 Indeed there was no delay. The
Civil Union Act entered into force on 1 December 2006, a day before
the judicial deadline.108 Inclusive as the law was intended, same-sex
couples could choose the institution they wish to enter. Its long title
reads, To provide for the solemnisation of civil unions, by way of
either a marriage or civil partnership; the legal consequences of civil
unions; and to provide for matters incidental thereto.109 To date, South
Africa is the first African nation to legalize same-sex marriage.
Asia-Pacific and beyond: developments continue
So far, same-sex marriage and its alternative models including registered partnership and civil union are recognized in countries spanning
three continents. One may observe that the movement is largely confined to North-western Europe and limited parts of the Englishspeaking world. But if we look at the bigger picture where legal changes
have occurred in other places that gradually enhance protection for
same-sex couples, the idea of providing legal recognition to them has
started to take root in Asia-Pacific and beyond. As we will see below, a
number of non-European countries have made varying degrees of
progress in providing greater legal recognition to gays and lesbians. In
addition, two more European countries legalized same-sex marriage
in 2009.
106
37
110
The Civil Union Act (2004 No. 102) was passed on 9 December 2004.
See the Preamble to the Homosexual Law Reform Act 1986, No 33: An Act to
amend the Crimes Act 1961 by removing criminal sanctions against consensual homosexual conduct between males, and by consequentially amending the law relating to
consensual anal intercourse.
112
Section 21 (m), New Zealand Human Rights Act 1993.
113
In Quilter v Attorney General (1996) NZFLR 481, the High Court in Auckland
dismissed the application, holding that it was lawful for the Register-General of
Births, Deaths and Marriages to refuse issuing marriage licenses to the lesbian
couples.
114
Quilter v Attorney General (1998) 1 NZLR 523. New Zealands Marriage Act 1955
contains no provision defining a marriage. Although Thomas J, in dissenting, found
the exclusion from marriage discriminatory to same-sex couples under human rights
analysis, he agreed with the majority opinion that it was up to the parliament to change
the law of marriage.
115
See Civil Unions Bill passed, The New Zealand Herald, 9 December 2004.
111
38
chapter one
116
See EURO-LETTER, No. 154 (Jun 2008). Available at http://www.ilga-europe
.org/europe/publications/euro_letter/2008/in_english/euroletter_154_june_2008; see
also EURO-LETTER, No. 164 (Apr 2009). Available at http://www.ilga-europe.org/
europe/publications/euro_letter/2009/in_english/euroletter_164_april_2009 (visited
7 Jun 09).
117
The Act of Civil Union (2002) came into effect in the city of Buenos Aires in
2003. See the Official Tourism Site of the city of Buenos Aires. Available at http://www
.bue.gov.ar/actividades/index.php?menu_id=112&lang=en (visited 30 Sep 08).
118
Mexican state near Texas passes gay union law (11 Jan 2007). Available at http://
www.washingtonpost.com/wp-dyn/content/article/2007/01/11/AR2007011102502
.html (visited 15 Jan 07).
119
Hilda Hoy, New era for gay rights movement: Advocates call for changes in recently passed partnership law, The Prague Post (10 Jan 2007). Available at http://www
.praguepost.com/articles/2007/01/10/new-era-for-gay-rights-movement.php (visited
13 Jan 07).
39
120
Yossi Ben-Ari v Commissioner of Population Registry, Ministry of the Interior,
HCJ 3045/05 (21.11.2006), tak-supreme 2006(4), 1725.
121
Naz Foundation v Government of NCT of Delhi and Others [WP(C)7455/2001]
(decided 2 July 2009) Available at http://www.law.nyu.edu/ecm_dlv2/groups/public/
@nyu_law_website__news/documents/documents/ecm_pro_062331.pdf (visited 19
Aug 09)[Naz].
122
Section 377 of the Indian Penal Code, 1860 (IPC) is entitled Unnatural Offences
and reads, Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine.
123
See Naz (n 121 above), para 94.
124
Ibid., para 92.
125
Articles 14 and 15 guarantee the right to equality and against discrimination on
a number of grounds while Art 21 protects the right to personal liberty. See the
Constitution of India. Available at http://indiacode.nic.in/coiweb/welcome.html (visited 19 Aug 09).
126
See the press release by Amnesty International (3 Jul 2009). Available at http://
www.amnesty.org/en/news-and-updates/news/india-ruling-against-sodomy-lawsfirst-step-equality-20090703 (visited 19 Aug 09).
40
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The incremental development and the evolving rights claim
The fact that the Indian court decision is hailed as a first step perhaps
indicates that there are some more steps ahead before gays and lesbians
can achieve full equality. As the above international survey observes,
same-sex marriage did not happen overnight. In those European countries where it is legal, different legal measures protecting the rights of
gays and lesbians were already in place before governments made the
decision to legalize same-sex marriage. This, according to Kees
Waaldijk, reflects a step-by-step approach in achieving the goal of
legalization of same-sex marriage.127 William Eskridge and Darren
Spedale have a similar observation in the U.S. context.128 As Waaldijk
argues, the incremental trend noticeable in Western Europe has
invariably followed three prominent steps: decriminalization, antidiscrimination and partnership legislation.129 Legalization of same-sex
marriage, therefore, represents the final destination after a number of
steps taken each of which helped gays and lesbians move towards
greater equality. At the same time, each step forward represents a
slightly different claim which in turn implicates a wider audience.
The crux lies in the changing nature of the rights claimed by gays
and lesbians. Over the decades, the subject matter of anti-discrimination
on grounds of sexual orientation has evolved from an issue of individual privacy to a reality for the entire society. Our preceding discussion
on the developments in different countries serves as an illustration.
Abolishing sodomy laws first removed the criminal tag attached to
homosexual men. By decriminalization, the state declares it no longer
has jurisdiction in what consenting adults do in their private life. It
signifies the paramount status of the right to be left alone, the privacy
right Brandeis J has famously coined in the U.S. Supreme Court as most
valued by civilized men.130 Once the state has withdrawn from probing
into its citizens bedroom, it leaves little reason to maintain a different
127
41
age of consent for heterosexuals and homosexuals. Hence the equalization of the consenting age which in effect lowers the age of engaging in
legal buggery. At this point, it remains for the individuals to decide and
take responsibility for their personal behaviors.
The nature of the rights claim takes a new course as the government enacts anti-discrimination law on the grounds of sexual orientation. Asking people to refrain from giving differential treatment to
gays and lesbians lest they should face legal sanctions means that a
private matter is also a public issue. Merely leaving people alone is no
longer enough. In this case, the subject matter changes from state
non-interference of private acts to state circumscription of public
behaviors. The bystander is no longer just looking on.
Under anti-discrimination law, the role of the third party changes
from being an outsider of someone elses privacy to a participant in
influencing how this someone else fares in public life. It is what people
do not what they omit to do that matters. Correspondingly, the
scope of protection expands from the minoritys private life to the
spheres of education, employment, trades and services, involving people who previously have had nothing to do with the groups personal
affairs. At this stage, merely leaving people alone falls short of the
threshold of equality. The rationale of anti-discrimination law is to
enlist the support and compliance of every citizen in achieving equality
for gays and lesbians. Now, it is the behaviors of the third party that are
being regulated. According to overseas experience, when the spirit of
non-discrimination is translated into state policies, over time, people
are thought to be more receptive to and accommodating of the sexual
minorities.131
Once society is supposed to treat gays and lesbians as everyone else,
the legal oblivion of their relationships looks all the more visible. At
this point, registered partnership or civil union legislations plug the
gap, taking the rights movement to new grounds. Legal recognition
becomes the next signpost of the changing nature of campaign for gays
and lesbians. By conferring on same-sex couples the same rights and
obligations as legal spouses, the state calls upon the third party to give
not only equivalent treatment but also recognition of a marriage-like
status. If the law does help shaping public attitude,132 it is at this stage
131
William N. Eskridge Jr., Equality Practice: Liberal Reflections on the Jurisprudence on Civil Unions, (2001) 64 Albany Law Review 853, p 877 [Eskridge II].
132
Ibid.
42
chapter one
that people are told to start adjusting their beliefs on human relationships after having adjusted their behaviors.
However, civil partnership or civil union or whatever it is called, still
falls short of the magic word. To the critics, these alternatives are reminiscent of the separate but equal doctrine used in racial segregation
which has long been laid to rest in the U.S. as perpetuating stigmatization and discrimination of the minority.133 This same-but-not-the-same
institution starts to pale when it comes before a maturing discourse of
recognition. This is the time when the moral quality of social relations can no longer be measured solely in terms of identical treatment;
rather, the notion of justice is linked to how, and as what, subjects
mutually recognize each other.134 According to Charles Taylor, when
equalization of rights and entitlements becomes the content of the politics of recognition, what is to be avoided at all costs is the existence of
first-class and second-class citizens.135 By making one institution for
heterosexual couples and another for same-sex couples, it has been
argued and the court in Goodridge concurred that the latter are
being relegated to a second-class status.136 The only solution, if not to
abolish marriage altogether, would be to assimilate same-sex couples to
the good of civil marriage.
If the advent of civil partnerships is the time for people to adjust
their belief on human relationships, it is urging them to think anew
when same-sex marriage arrives. Looking back, legalizing same-sex
marriage is a far cry from decriminalizing sodomy in the early years of
the long and incremental journey. While the latter proceeded on the
premise that homosexual citizens should be left alone like everyone
else, the former arguably denotes a stamp of social approval of homosexual relationships.137 Step by step, the notion of equal treatment has
undergone subtle changes. Each stage of the development requires a
higher level of behavioral fine-tuning while reveals an increasingly
133
Andrew Koppelman, The Miscegenation Analogy: Sodomy Laws as Sex
Discrimination, (1988) 98 Yale Law Journal 145 [Koppelman]. But according to
Eskridge, it was an inapt analogy. See Eskridge II (n 131 above), pp 854, 864865.
134
Axel Honneth, Recognition and Moral Obligation, (1997) 64 Social Research,
16-35, p 17.
135
Charles Taylor, The Politics of Recognition in Amy Gutmann (ed),
Multiculturalism and The Politics of Recognition (Princeton: Princeton University
Press, 1992) 25-74, p 37 [Taylor].
136
See Goodridge (n 54 above), p 948.
137
Richard A. Posner, Sex and Reason (Cambridge: Harvard University Press, 1992),
pp 311312.
43
assertive voice of gays and lesbians. What was once private is now public. What was once about material benefits now demands legal recognition. What was once about regulating peoples outward behaviors now
aims at influencing what comes to their mind. The focus of protection
also changes from equal opportunity to equal recognition. It is this
changing nature of legal and conceptual ramifications that makes one
ask whether equality and dignity are sufficient to assume the role of
a one-size-fits-all justification of rights.138 When the tide of human
rights has reached the point of re-defining the meaning of civil marriage, otherwise tolerant people may begin to ask whether it is equality
stretched too far.139 When arguing for an equality practice approach
to achieve the goals of gays and lesbians in a pragmatic manner,
Eskridge writes, a polity which is a democracy and whose citizens
have heterogeneous views about important matters is one where immediate full equality is not always possible, not practical, not even desirable.140 Not only are there diverse views about what equality means,
people have disputes over the ensuing implications especially when
their long-held family values are being challenged as in the case of
legalizing same-sex marriage. Therefore, he argues that when society is
not yet ready for granting full marriage rights to gays and lesbians, a
strategic compromise of allowing civil unions is probably the best
approach to achieve equality in a gradual and incremental manner.141
Same-sex marriage and civil union: the same but different?
Liberals may criticize civil unions as sacrificing the fundamental principle of liberalism under which the state is obliged to realize the values
of liberty and equality and treat every citizen as free and equal.142
Although liberalism does not require the state to regulate marriages
nor to attach legal rights and benefits to such relationships, once it has
decided to recognize and encourage marriages by conferring privileges
138
Jeremy Waldron, Introduction in Jeremy Waldron (ed), Theories of Rights
(Oxford: Oxford University Press, 1984) 1-20, p 20 [Waldron I].
139
Linda J. Lacey & D. Marianne Blair, The Legislative Backlash to Advances in
Rights for Same-sex Couples, (2004) 40 Tulsa Law Review 371, p 374.
140
See Eskridge II (n 131 above), p 871.
141
Ibid.
142
John Rawls, Political Liberalism (New York: Columbia University Press, 1996),
pp 37.
44
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on those who marry, liberalism does not allow the state to arbitrarily
withhold this recognition from some people.143 In the same way as the
U.S. Supreme Court once upheld the separate but equal policy to segregate blacks from whites,144 assigning same-sex couples to another
institution other than marriage is argued as proceeding on the same
discriminatory premise.145 Eskridge thinks that such an analogy is inapt
as he points to the bridging effects of civil unions in alleviating the
inequalities between same-sex couples and heterosexual couples.
Even if it is a sacrifice of liberal principles as Eskridge concedes,146 it
is arguably a pragmatic one. To take Vermonts pioneering civil union
law as an example, it was clear that at the time of legislation, the state
did not intend to bestow the status of civil marriage on same-sex
couples.147 Instead, it aimed at providing them the opportunity to
obtain the same benefits and protections afforded by Vermont law to
married opposite-sex couples. From the outset, the focus has been
about material support rather than status recognition. To this end,
Eskridge argues that the various rights and benefits available to samesex couples under the civil union law in fact narrow or even eliminate
the gap between same-sex and heterosexual couples as far as benefits
entitlements are concerned.148 Therefore, by focusing on providing the
same material benefits to same-sex couples as married couples, civil
unions serve an important facilitating function to allow the former to
shape their own lives as their heterosexual counterparts do. To the
extent that it helped enhance material equality for gays and lesbians,
Eskridge believes that Baker,149 the judgment that resulted in the legalization of civil union in Vermont, is analogous to Brown v Board of
Education,150 the landmark U.S. Supreme Court decision that overturned racial segregation in public schools, than to Plessy.
Nevertheless, in the U.S., a Vermont couple entering into a civil
union is not treated equally as far as federal law and inter-state recognition are concerned. As discussed earlier, the effect of DOMA is
143
See Eskridge II (n 131 above), p 855. It was to this effect that the U.S. Supreme
Court upheld the freedom to marry for the inter-racial couple in Loving (n 59 above).
144
Plessy v Ferguson (1896) 163 US 537 [Plessy].
145
See Koppelman (n 133 above).
146
See Eskridge II (n 131 above), p 855.
147
See An Act Relating to Civil Unions, 2000 Vt. Acts & Resolves 91 (codified at
Vt. Stat. Ann. Tit. 15, 12011207 (Supp. 2001) ) 1(10).
148
Ibid., 1204. See also Eskridge II (n 131 above), p 867.
149
See Baker (n 64 above).
150
Brown v Board of Education (1954) 347 US 483.
45
46
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47
The case of E.B. v France [2008] ECHR 43546/02 [the E.B. case].
Toonen v Australia (Comm No 488/1992, UN Doc CCPR/C/50/D/488/1992,
4 April 1994)[Toonen].
165
International Covenant on Civil and Political Rights (ICCPR) (19 December
1966, 999 UNTS 171).
166
Dudgeon v U. K. [1981] 4 EHRR 149.
167
Norris v Ireland [1988] 13 EHRR 186.
168
Modinos v Cyprus [1993] 16 EHRR 485.
169
Young v Australia (Comm No 941/2000, UN Doc CCPR/C/78/D/941/2000,
6 Aug 2003).
164
48
chapter one
sexual orientation, the HRC ruled that the pension restriction was a
case of discrimination as the claimant was denied entitlement of the
benefit because of his homosexuality. This judgment started a new
chapter in the HRC jurisprudence as it started to acknowledge the positive rights of gays and lesbians.
If the incremental pattern seen in the European jurisdictions is anything to go by, the next judicial milestone would probably be the recognition of same-sex unions. Yet, the HRC has declined to rule in favor
of such a right under the ICCPR. In Joslin v New Zealand,170 two lesbian couples took the New Zealand Government to the international
court for its refusal to grant them marriage licenses under the countrys marriage law. While the complaint raised a number of violations
under the ICCPR, the HRC confined its analysis to the context of Art 23
of the ICCPR, the only substantive provision which defines the right to
marriage. It directed itself to the use of language under Art 23, where
marriages are expressed in gender-specific terms as between men and
women, with all other rights expressed in gender-neutral terms.171 The
HRC found that member states are only obliged to recognize marriage
to be the union between a man and a woman. Hence, New Zealand
committed no breach by refusing to recognize same-sex marriages.
Despite its unanimous decision, two members of the HRC raised the
possibility of discrimination due to the governments denying samesex couples certain rights and benefits available to married couples
without reasonable and objective justifications, where the former had
no choice to enter into marriage.172
The European Court of Human Rights
Similarly, the present jurisprudence of the ECtHR does not offer much
guidance on the issue of same-sex unions, the closest it gets being a
marriage involving transsexualism. Though in a different context, the
decision of Goodwin v U.K.173 might have signaled the move towards a
more liberal interpretation of the right to marriage. This case concerned
170
Joslin v New Zealand (Comm No 902/1999, UN Doc CCPR/C/75/D/902/1999,
30 July 2002)[Joslin].
171
Article 23(2) of the ICCPR states, The right of men and women of marriageable
age to marry and to found a family shall be recognized.
172
See Joslin (n 170 above). See the Individual opinion of Committee members
Mr. R Lallah and Mr. M Scheinin at the Appendix.
173
Goodwin v U.K. [2002] 2 FCR 577, ECt HR [Goodwin].
49
the legal rights and status of a post-surgery transsexual woman in particular the rights to privacy (Art 8), marriage (Art 12) and nondiscrimination (Art 14) under the ECHR. The ECtHR upheld the first
two claims. It ruled that the right to marry under Art 12 of the ECHR
allows the claimant to enter into marriage in her new gender.174 In so
holding, the ECtHR reversed the traditional view of marriage as
between persons of opposite biological sex, on the grounds that the
inability of a couple to conceive a child per se does not remove their
right to marriage recognized under Art 12. Although this decision does
not give rise to the right to same-sex marriage, its rationale suggests a
more inclusive approach as a result of the adoption of the Charter of
Fundamental Rights of the European Union (the Charter) in 2000.175
Article 9 of the Charter removes the gender-specific references of men
and women and paves the way for a new interpretation of marriage
should the right case come to the court.176
Still, the time has not come for the ECtHR. Frette v France177 underlined the dilemma of the court when acknowledging the presence of
both sexual orientation discrimination and its reasonable justifications.
In that case, Mr. Frette, a single homosexual man, sued France for failing to accept his application to adopt as did other heterosexual single
adults. The majority of the ECtHR opined that despite the fact that the
applicants sexual orientation was a decisive factor for the states refusal,
the interest of children was the paramount consideration in adoption
cases. As such the state measure had met the test of proportionality
and reasonableness and there was no unjustified discrimination under
Art 14 of the ECHR.178 In particular, the court noted that it was dealing
with the delicate issues regarding child rearing and societal interests
amid a lack of common ground among the member states of the
Council of Europe.179
174
50
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180
181
182
183
184
185
51
186
Romer v Evans (1996) 517 US 620, per Scalia J. In a strong dissent against invalidating Colorados constitutional amendment repealing discrimination laws in favor of
homosexuals, Scalia J writes, I think it no business of the courts (as opposed to the
political branch) to take sides in this culture war.
187
Kennedy J, writing for the majority, described the constitutional amendment as
motivated by animosity with a desire to harm a politically unpopular group. On the
other hand, to Scalia J, it was rather a modest attempt by seemingly tolerant Coloradans
to preserve traditional sexual mores against the efforts of a politically powerful
minority
188
J. M. Balkin, The Constitution of Status, (1997) 106 Yale Law Journal 2313,
p 2318 [Balkin].
52
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53
equal rights to gays and lesbians are easily seen as transgressing the
superiority of both heterosexuality and masculinity, and giving them
special rights and a green light on homosexuality.196 The ensuing
competition of social status and the associated benefits between homosexuals and heterosexuals is one of the cultural struggles in society.197
But this cultural struggle is not necessarily the by-product of an animus against homosexuals. It is a battle of moral visions. As Balkin
observes, people in opposing homosexuality may merely mean to
express their moral disapproval of homosexual conducts. Their desire
to preserve the status of heterosexual marriage, therefore, may be no
less sincere than that of same-sex couples fighting for the right to
marry.198 While a status-based approach sees the conflict between gay
rights advocates and their opponents as a competition of status, it does
not change its nature as an authentic moral debate about which form of
life should be honored and supported. Hence, the meaning of discrimination in this case can be more accurately described as a distinction
between what is morally more worthy and what is morally less worthy.199 But the issue is no less controversial where discrimination is a
matter of distinction rather than a matter of oppression.
If we structure the whole debate in this way, the next question
Balkin asks is whether this status hierarchy is unjust and thus warrants constitutional intervention.200 Since moral arguments are used,
particularly by the conservatives, to justify the existing status hierarchies and the unshakable position of traditional marriage, to answer
Balkins question one must be morally critical about claims of morality.201 It is not to say that one should disregard any moral values that
he dislikes. A status-based approach invites us to look at the dominant social structures and modes of social stratification, and critique
if there is a connection between the moral justifications the majorities offer and the preservation of their superior status.202 This is a
flexible and open-ended exercise. Judicial interpretation of specific
who wish to belong to the circle. Applying this, the lifestyles of gays and lesbians do
not match that of heterosexuals hence their relatively lower social status. Ibid., p 932.
196
Ibid., Balkin, p 2336.
197
Ibid., p 2321.
198
Ibid., p 2332.
199
Ibid., p 2336.
200
Ibid., p 2358.
201
Ibid., p 2364.
202
Ibid., p 2374.
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203
Ibid., pp 23442345.
Robert P. George, Public Reason and Political Conflict: Abortion and
Homosexuality, (1997) 106 Yale Law Journal 2475, p 2497 [George I]. In his debate
with Stephen Macedo, George notes that despite Macedos support of same-sex marriage as a commitment for two loving individuals, he is no sexual liberationist and in
fact rejects many forms of even consensual sexual acts.
204
55
56
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or allowing adoption by gays and lesbians, all on the basis that otherwise they will be treated unequally on grounds of their sexual orientation.210 Yet the interpretations of equality are as diverse as its usages and
different understandings of it can give rise to differently structured
justifications for laws and law reform.211 For example, the classical case
of equality formal equality renders equal treatment only to those who
are equals, in a way justifies inequality in some circumstances.212 On
the other hand, the concept of equal opportunity aims at disregarding difference and creating a level-playing field for everyone.213
Implementing equality according to the different conceptions thus
engenders completely different policy results. The rub is: The choice
between different conceptions of equality is not one of logic but of values or policy.214
Therefore, in the context of same-sex marriage, the question what is
equality? must be sorted out first before one uses it to justify the right
to same-sex marriage. In any case, one should not rely on equality
alone. In light of its inherent inconsistencies, equality-based arguments
are not sustainable analytically as a justification for law reform.215 There
is a need for a thorough study of the meanings and rationales of equality in order to reveal its strengths and limitations in human rights discourses. This will be dealt with in greater detail in Chapter 2.
In response to this critique, one may argue that equality does not
stand alone in the discourse of same-sex marriage, because the idea of
human dignity sits side by side to bolster its strength and appeal. The
reference of equal human dignity in the UDHR seems to suggest that
equality and dignity are two sides of the same coin. In Halpern, the
court opined that the finding of discrimination concerns substantive
equality and the emphasis is on human dignity, which is the self-respect
and self-worth a person or a group feels.216 According to the court,
210
Nicholas Bamforth, Sexuality, Morals and Justice: A Theory of Lesbian and Gay
Rights Law (London: Cassell, 1997), pp 235236 [Bamforth I].
211
Ibid., p 236. Similarly, Sandra Fredman writes, equality can be formulated in
different ways, depending on which underlying conception is chosen. Hence, equal
treatment can lead to inequality in some cases while unequal treatment might be necessary in others in order to achieve equality. See Sandra Fredman, Discrimination Law
(Oxford: Oxford University Press, 2002), p 2 [Fredman].
212
Ibid., Fredman, pp 711.
213
Ibid., pp 1415.
214
Ibid., p 2.
215
See Bamforth I (n 210 above), pp 236237.
216
See Halpern (n 45 above), para 3.
57
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this contentious area of human rights. Indeed, there is more to say about
human dignity other than the clich of universality and humanity. Its
enormous content and the jurisprudential puzzles it created will be discussed in Chapters 3 and 4 in the context of rights litigation.
Besides equality and dignity, a popular argument in favor of samesex couples is the right to privacy. It takes the view that the state
should leave people alone on matters pertaining to individuals private
lives.225 In the landmark case of Griswold v Connecticut,226 the U.S.
Supreme Court held that the state has no concern with what goes on in
peoples bedrooms and struck down a law banning married couples
from using contraception. On the topic of homosexuality, over the past
decades, the concept of privacy has been largely successful in catalyzing law reforms that have decriminalized private sexual conduct
between consenting adults.227 A prominent example is the majority
judgment in Lawrence v Texas, in which the U.S. Supreme Court overruled its prior decision in Bowers v Hardwick and upheld the constitutional right to privacy in striking down Texass sodomy law.228 Avoiding
a reference to equality, the majority rested its judgment firmly on privacy particularly the private nature of the conduct involved.
While the Lawrence court deliberately declined to address legal recognition of same-sex relationships in its privacy language,229 privacy
has been argued as a ground strong enough to support same-sex marriage. To appreciate this point, one needs to have a transvaluation of
values,230 which means that personal conduct perceived as morally
wrong can be however regarded as an affirmative good and should no
225
The concept of privacy was encapsulated in a 1957 report in which the
Committee on Homosexual Offences and Prostitution in the U.K. stated: there must
remain a realm of private morality and immorality which is, in brief and crude terms,
not the laws business. See Report of the Committee on Homosexual Offences and
Prostitution (Chairman: Sir John Wolfenden) (1957) Cmnd. 247, para 61. This report
is subsequently cited as The Wolfenden Report, its extracts are reproduced in Cretney
(n 89 above), Appendix 2.
226
Griswold v Connecticut (1965) 381 US 479.
227
See Bamforth I (n 210 above), p 33.
228
See Lawrence (n 52 above), in which the majority in the U.S. Supreme Court held
that the plaintiffs right to liberty under the Due Process Clause gave them the full right
to engage in their sexual conduct without the intervention of the government.
229
Kennedy J, writing for the majority, said the case [d]oes not involve whether the
government must give formal recognition to any relationship that homosexual persons
seek to enter. See Lawrence (n 52 above), p 578.
230
David A. J. Richards, Sex, Drugs, Death and the Law: An Essay on Human Rights
and Overcriminalization (New Jersey: Rowman & Littlefield, 1982), p 35 [Richards I].
59
longer be subject to public scrutiny if the pursuit of it does not implicate serious moral questions. Applying this concept to same-sex marriage, it is presumptively unconstitutional to ban gays and lesbians
from marrying as it amounts to an infringement of the basic human
right to intimate life, the right to marriage being an important institutional expression.231 The right to intimate life is essentially a right to
bring to bear on intimate matters of love and care. Whether the relationship is heterosexual or homosexual is thus out of the question. Any
abridgment of this right is unjustly dehumanizing and prima facie
unconstitutional unless there are compelling grounds of public reason
consistent with the argument for tolerance.232
Thus the right to privacy can become a normative argument to justify the moral case of same-sex marriage. One author calls it the doctrine of moral liberalism.233 Looking beyond the narrow scope of
privacy, this argument states that society has a moral obligation not
only to leave individuals alone in their private life, but also create the
social conditions that facilitate their leading a full human life. Contrary
to a privacy discourse which tends to sidestep morality, the idea of
moral liberalism espouses the morality of gay rights. It recognizes that
human beings share basic needs and capabilities, and are tied to one
another by relationships and attachments in the course of fulfilling
these human needs.234 In particular, human beings can be seen as members of small groups who owe each other special loyalty and devotion.
As a member of a particular group, one achieves personal fulfillments
through his communal or associative identification with family,
friends, colleagues, his own country, or other restricted groups.235
As one of the ways by which people are joined together, marriage in
itself does not have much moral significance. Rather, its significance
lies in its being a means through which individuals seek physical and
emotional intimacy as well as reciprocity in long-term commitments.236
According to Alan Gewirths theory of self-fulfillment based on humans
231
David A. J. Richards, Women, Gays, and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law (Chicago: University of Chicago Press, 1998),
p 440 [Richards II].
232
Ibid., pp 441444.
233
Carlos A. Ball, The Morality of Gay Rights: An Exploration in Political Philosophy
(New York: Routledge, 2003) [Ball].
234
Ibid., p 75.
235
Alan Gewirth, Self-Fulfillment (Princeton: Princeton University Press, 1998),
p 142 [Gewirth].
236
Ibid., p 143.
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Ibid.
See Ball (n 233 above), p 111.
239
Vincent J. Samar, Throwing down the International Gauntlet: Same-sex Marriage
as a Human Right, (2007) 6 Cardozo Public Law, Policy & Ethics Journal 1, p 22
[Samar].
240
See Halpern (n 45 above), para 94.
238
61
241
See M v H (n 36 above).
See Goodridge (n 54 above), pp 963964. See also Mark Strasser, The Alleged
Harms of Recognizing Same-Sex Marriage in Lynn D. Wardle (ed), Whats the Harm?
Does Legalizing Same-Sex Marriage Really Harm Individuals, Families or Society?
(Lanham: University Press of America, 2008) 27-46, pp 3133 [Wardle I].
243
Andrew Sullivan, Virtually normal: an argument about homosexuality (New York:
Vintage Books, 1996), pp 112, 182186 [Sullivan]; David A. J. Richards also argues,
Same-sex marriage is not a threat to marriage, but a recognition of marriages deeper
moral values and the principled elaboration of those values to all persons. See Richards
II (n 231 above), p 451.
244
See Goodridge (n 54 above), p 965.
245
This phrase first appeared in the majority judgment of Bowers v Hardwick as it
denounced a fundamental right to homosexual sodomy, See Bowers (n 51 above),
p 2846. Scalia J in his disserting judgment in Lawrence called this conclusion utterly
unassailable. See Lawrence (n 52 above), p 538.
246
See Baehr (n 60 above).
242
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1967 case of Loving v Virginia247 where the U.S. Supreme Court struck
down Virginias anti-miscegenation law. This is the analogy: denying a
same-sex couple the marriage license that is available to any oppositesex couple is discrimination based on sex, in the same way denying a
black-white couple a marriage license that is available to a purely
black or white couple is discrimination on the basis of race.248 As society progresses and interracial marriage is now widely accepted in the
U.S. as elsewhere, the argument that marriage is rooted in a nations
history or cultural traditions is not only obsolete but also discriminatory. Accordingly, in the same way as archaic sodomy laws having been
erased from the books, past prejudices against same-sex couples will
soon vanish.
In a nutshell, arguments for same-sex marriage place the individual
at the center of a marital relationship. Marriage, as a voluntary commitment for two morally equal human persons, is a means to affirm
human dignity.249 The self-fulfillment from each partners being able to
develop his human potentials is no different whether the couple is heterosexual or homosexual.250 In fact, traditional marriage is argued to
have been embedded in a social structure characterized by patriarchy
and gender bias. According to this view, promoting same-sex marriage helps cultivate a democratic social culture because of its less rolemodeling nature and more equal decision-making.251 As same-sex
marriage is said to be beneficial to both the institution of monogamous
marriage and the children already under the care of many same-sex
couples, denying gays and lesbians the liberty to marry reflects only
poor moral wisdom, not to mention a violation of their dignity.252
The opponents case against same-sex marriage
The moral case against same-sex marriage begins upon a totally different premise, where the individual is preceded by societal concerns.
Contrast to a liberal view that marriage has no moral significance in
itself, this conservative view affirms the intrinsic values of marriage.
First of all, marriage stands out as a unique human relationship distinct
247
248
249
250
251
252
63
from other types of human bonds like friendships or family attachments.253 It is the union through reproductive-type acts between a
man and a woman who are equal in dignity as human persons but
complementary in their respective masculinity and femininity, for the
procreation and education of children, the good of the spouses, and the
common good of society.254 These attributes of marriage follow a natural law tradition which rejects all kinds of extra-marital sex.255
Under natural law, the union of the reproductive organs of husband
and wife unites them biologically as well as spiritually where the spouses
become one reality.256 Their sexual union actualizes and allows them
to experience their common goods being their marriage, parenthood
and friendship. These common goods can only subsist in marriages
between opposite sex partners. Sexual acts between those who can
never have their biological children, such as same-sex couples, merely
provide each other with an individual gratification.257 Therefore, samesex marriage is opposable not only because it is sterile and cannot actualize the mutual devotion some homosexual partners wish to experience
and bring harm to their bodily integrity, but also because it treats
human sexual capacities in a way which is deeply hostile to the selfunderstanding of those members of the community who are willing to
commit themselves to real marriage and believe that sexual joys are
not merely instrumental.258
If heterosexual couples marry for the purpose of sustaining the
future of humankind, one may instinctively ask why the law allows
infertile or elderly couples to marry at all.259 To this the natural lawyers
respond: there is a fundamental difference between the infertility of
some heterosexual couples and the impossibility of all same-sex couples to procreate.260 Whether the moment of conception ever occurs
does not change the very nature of the two-in-one-flesh union a heterosexual couple experiences. It is because marriage is a one-flesh
253
Jane Adolphe, The Case Against Same-Sex Marriage in Canada: Law and Policy
Considerations, (2004) 18 Brigham Young University Journal of Public Law 479,
p 526 [Adolphe].
254
Ibid.
255
John Finnis, Law, Morality, and Sexual Orientation , (1994) 69 Notre Dame
Law Review 1049.
256
Ibid., p 1066.
257
Ibid.
258
Ibid., p 1069.
259
See Sullivan (n 243 above), p 45.
260
See Adolphe (n 253 above), p 530.
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261
Robert P. George, In Defense of Natural Law (Oxford: Clarendon Press, 1999),
p. 215.
262
Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage
Law, (2002) 62 Louisiana Law Review 773, p 788 [Gallagher].
263
To Balkin (n 188 above), this very social structure reinforces the current genderbased social stratifications and represents a countervailing force against gays and
lesbians claims for equality. On this point, proponents and opponents of same-sex
marriage seem to look at the role of social structures in totally different lights.
264
See Sullivan (n 243 above), p 109.
265
Lynn D. Wardle, The Curious Case of the Missing Legal Analysis, (2004) 18
Brigham Young University Journal of Public Law 309, p 339 [Wardle II].
65
66
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67
279
Certain verses in Genesis, Leviticus, 1 Corinthians, 1 Timothy and Romans are
said to reflect this Biblical view on homosexuality. See Richard B. Hays Awaiting the
Redemption of Our Bodies: The Witness of Scripture Concerning Homosexuality in
Jeffrey S. Siker (ed), Homosexuality in the Church (Louisville: Westminster John Knox
Press, 1994) 317, pp 59 [Siker]. Of course, it is not without debates. See Victor Paul
Furnish, The Bible and Homosexuality: Reading the Texts in Context in Siker, 1835.
280
See Baker v Nelson (n 57 above), p 186.
281
See Schuman (n 189 above), pp 21082109.
282
Ibid., pp 2103, 21082109, 2123.
283
William C. Duncan, Redefinition of Marriage and the Rule of Law in Wardle I
(n 242 above) 375388 [Duncan II].
284
See Halpern (n 45 above), para 66.
285
See Duncan I (n 269 above), pp 174175.
286
Richard A. Posner, Sex and Reason (Cambridge: Harvard University Press, 1992),
pp 311312.
68
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alone and refrain from propagating homosexuality as good.287 The distinction between non-interference and encouragement can be illustrated by a post-Roe v Wade U.S. Supreme Court decision that state
permission of abortion does not necessarily come with a subsidy for
the procedure.288
The conservative view also refutes an analogy that in banning samesex marriage the law discriminates against gay couples because of sex
in the same way it did to black-white couples because of race. Citing
history, it argues that the comparison between same-sex marriage and
interracial marriage is suspect.289 In the U.S., social perceptions of
black people have dramatically changed over the past decades and
interracial marriages have long been off the social radar. To the contrary, public views on homosexuality remain divided. Most importantly, the respective laws serve completely different purposes. First,
anti-miscegenation laws did not deal with the legal definition of marriage.290 Their focus was on race with the sole purpose of perpetuating racial segregation and oppression of the minority. On the other
hand, marriage laws were not formed for excluding homosexual relationships. They were made primarily for the well-being of the spouses
and their children through encouraging procreation by conferring
spousal and parental benefits. In this sense, marriage laws serve specific functions and the negative impacts on homosexual couples appear
inadvertent.291 In fact, the exclusive nature of marriage means many
other sexual relationships such as polygamy, consanguinity and underaged marriage are prohibited as well. When one thinks of how many
other human sexual relationships are currently excluded by marriage
law, opening marriage to a once excluded category may be taken as an
argument for other prohibited ones to be legalized. In his dissenting
judgment in Lawrence, Scalia J called into question all state laws against
bigamy, same-sex marriage, adult incest, prostitution, masturbation,
adultery, fornication, bestiality, and obscenity once the sodomy law
287
Ibid.
Maher v Roe (1977) 432 US 464, p 474. According to the majority, recognizing a
constitutional right to abortion implies no limitation on the authority of a State to
make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.
289
James Q. Wilson, Against Homosexual Marriage, (1996) 101 (3) Commentary
34, p 37.
290
See Duncan I (n 269 above), p 177.
291
See Adolphe (n 253 above), pp 531532.
288
69
292
70
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necessary outcome for preserving the time-tested institution of marriage. Both are influential views in society and each represents its own
school. As long as the culture remains at war, the contest between them
continues.
Conclusion
Amid disagreements over what marriage is and who should or should
not marry, some fundamental questions remain unanswered. What is
equality? How do we distinguish between an equal and an unequal
treatment, particularly in the context of sexual orientation equality?
What about dignity? To what extent should public policies reflect and
implement such a value? When one says that same-sex marriage is
about dignity and rights while the other says it is a question of social
harms, and both sides seem to have something to offer, how should
society respond? These moral questions must be addressed before society can look beyond their differences and move forward. As argued
earlier in the chapter, the dispute over same-sex marriage does not necessarily operate upon animus or prejudice. It is fundamentally about
whose moral visions should prevail. Regardless of what the courts
decide as far as the law is concerned, peoples moral disagreements
should be resolved one way or the other.
In the following chapters, I attempt to explore the deeper meanings
and implications of equality and dignity as they are used to justify
the right to same-sex marriage. As we will see, although the concepts
are universally recognized as the fundamental grounds of human
rights, each of them has its own critics. Equality is said to be a mere
tautology297 or a simpliciter298 which can be easily replaced by substantive moral arguments. On the other hand, dignity is said to be
an elusive idea because of its multi-faceted nature. 299 Its duality of
being both subjective and objective tends to pull arguments in contrasting directions.300 Still, courts in upholding same-sex marriage
297
Peter Westen, The Empty Idea of Equality, (1982) 95 Harvard Law Review 537,
p 547.
298
John Stanton-Ife, Should Equality be a Constitutional Principle?, (2000) 11 The
Kings College Law Journal 133, p 138.
299
David Feldman, Human Dignity as a Legal ValuePart II, (2000) Public Law 61,
p 68.
300
Ibid., p 76.
71
72
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principle, as Dworkin says of the court,304 may not be the most appropriate place to settle a dispute where moral values and visions weigh as
much as the rights and legal entitlements. The next question is: Which
forum is better? If the question of marriage is ultimately about how we
live our lives together, all sides should learn to talk to each other, fairly
and openly, in a society that we all must live. The idea of deliberative
democracy in creating a democratic culture will be canvassed at the
end of this book to provide readers with some food for thought.
Before we get to that point, it is important to first appreciate the subtleties of the disputed human rights concepts so that we can locate
where the disagreements are. As I mentioned earlier, although society
should focus on finding the right processes to resolve the disagreements on rights as Waldron suggests, we should not dismiss the ideas
of equality and dignity as mere slogans. There is profound collective
wisdom in affirming them as universal pillars of human rights. But one
should distinguish between political consensus and legal principle,
particularly when the two ideas are being relied on to argue for some of
the most contentious human rights same-sex marriage being one of
them. In the next chapter, I will look at the idea of equality and the different visions that it creates. As we will see, equality is not restricted to
the classic meaning of treating similar people similarly. For example,
the Constitutional Court of South Africa believes people should be
treated equally despite their difference. For feminists and liberationists,
equality means restructuring the entire society and relationship pattern. Which vision of equality do we share? In the context of same-sex
marriage, different equality-based arguments can lead us to implement
different legal reforms that can even see the abolition of marriage
itself.
304
Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press,
1985), pp 6971.
CHAPTER TWO
74
chapter two
The need to reaffirm the equal rights of men could not be more
urgent after the ruins left by the Second World War, when nations
scrambled to come to terms with the horrendous deprivations of
human lives. The Charter of the United Nations reaffirmation of faith
in equality between men and women as among nations thus struck a
chord with member states big and small.5 It was in this historic moment
that the world community embraced equality as a shared vision of
humankind, as Art 1 of the UDHR declares, All human beings are
born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of
brotherhood. Since then, equality has become a common language as
members of various regional blocs declared their own charters of rights.
When the African states converged in May 1963 searching for common
values, they were of one voice in the belief that freedom, equality, justice, and dignity are essential objectives for the legitimate aspirations of
the African peoples.6 The Cairo Declaration on Human Rights in Islam,
signed by the Organization of the Islamic Conference on 5 August
1990, also declares in Art 1 that all men are equal in terms of basic
human dignity and basic obligations and responsibilities and should
not be subject to any discrimination because of personal and social
attributes.7
As an internationally recognized human rights value, equality
appears in many constitutions, particularly those drafted after the
Second World War. The bitter legacies of post-war Germany and postapartheid South Africa saw equality feature prominently in each of
their new constitutions.8 Since the Fourteenth Amendment, the equality
5
The UDHR was ratified through a proclamation by the United Nations General
Assembly on December 10, 1948 with a count of 48 votes to none with 8 abstentions.
The ratifying states included big nations like the U.S., China and Canada, and smaller
ones including Paraguay, Peru and the Philippines. See http://www.unac.org/rights/
question.html.
6
Preamble to the Charter of the Organization of African Unity (1963) (adopted by
the Conference of the Heads of African and Malagasy States and Governments in
Addis Ababa, Ethiopia on 25 May 1963). Available at http://www.uiowa.edu/ifdebook/
issues/africa/docs/doc15.shtml.
7
The Cairo Declaration on Human Rights in Islam (signed by the member states of
the Organization of the Islamic Conference during the Nineteenth Islamic Conference
of Foreign Ministers (Session of Peace, Interdependence and Development), Cairo,
Egypt, 31 Jul 5 Aug 1990). Available at http://www.oicun.org/articles/54/1/CairoDeclaration-on-Human-Rights-in-Islam/1.html.
8
Article 3 of the Basic Law for the Federal Republic of Germany (1949) (promulgated by the Parliamentary Council on 23 May 1949) (Federal Law Gazette at 1) (BGB1
III 100-1) is titled Equality before the law, where paragraph 1 declares All persons
75
guarantee under the U.S. Constitution has been the backbone of numerous Supreme Court litigations where the oppressed sought to take refuge in equal protection of the law.9 With a colonial history similar to
that of its southern neighbor, the Commonwealth of Canada in its
Charter of Rights and Freedom guarantees equality rights to all
Canadians against discrimination pursuant to a list of enumerated
grounds.10
As a constitutional value upheld by courts, the right to equality has
become the best and last resort when historically disadvantaged minorities sought to air their grievances. Under the spirit of the Fourteenth
Amendment, the U.S. Supreme Court delivered the landmark decision
of Brown v Board of Education in 1954.11 It denounced the separate but
equal doctrine, established by its predecessor in 1896,12 and declared
that racial segregation in public schools deprived minority students
of the equal protection of the law. When a 1992 Colorado state constitutional amendment was challenged as discriminating against people
on the basis of sexual orientation by preventing anti-discrimination
laws protecting gays and lesbians from being passed, the majority of
the Supreme Court said, Guaranty of equal protection of the laws is a
pledge of the protection of equal laws.13 Therefore, a constitutional
amendment which aimed at depriving a certain class of citizens of legal
protection available to others had no place under the Equal Protection
Clause. OConnor J shared this rationale in her concurring opinion in
shall be equal before the law and paragraph 2 Men and women shall have equal
rights. The value of equality is entrenched in the post-apartheid Constitution of the
Republic of South Africa (1996) (no. 108 of 1996, date of promulgation: 18 Dec 1996,
date of commencement: 4 Feb 1997). Art 1 states that equality is one of the founding values of the nation. Besides, it is itself a constitutional right. Art 9(1) says,
Everyone is equal before the law and has the right to equal protection and benefit of
the law.
9
Landmark cases denouncing racial discrimination include Yick Wo v Hopkins
(1886) 118 US 356 and Brown v Board of Education (1954) 347 US 483 [Brown].
10
See Art 15 of the Canadian Charter of Rights and Freedom (Part I of the
Constitution Act 1982).
11
See Brown (n 9 above). See also Loving v Virginia (1967) 388 US 1, where the
Supreme Court, citing Kiyoshi Hirabayashi v U.S. (1943) 320 US 81 which held that
distinguishing citizens solely on their ancestry was odious to a free people whose
institutions are founded upon the doctrine of equality, ruled that Virginias antimiscegenation law banning interracial marriage violated the equality guarantee under the Fourteenth Amendment [Loving].
12
In Plessy v Ferguson (1896) 163 US 537, the U.S. Supreme Court found that equal
treatment was accorded when people of the two races were provided with separate but
equal facilities [Plessy].
13
Romer v Evans (1996) 517 US 620.
76
chapter two
Lawrence v Texas.14 While distancing herself from the majority judgment affirming a privacy right to engage in homosexual sodomy, she
held that moral disapproval of this behavior was an insufficient state
interest to satisfy the rational basis review under the Equal Protection
Clause.15 She believed that the constitutional right to equality points to
essentially a direction that all persons similarly situated should be
treated alike.16 Therefore, the Texas sodomy law failed the courts scrutiny as it treated the same conduct differently based on the sexual orientation of the participants.
Equality and same-sex marriage
The principle of equality eventually found its way to supporting the
right to marriage for gays and lesbians. Under the state constitutions
equal protection clause, the Hawaii Supreme Court decided in Baehr v
Lewin that the state marriage law triggered a strict scrutiny analysis
which required compelling state interests.17 It is because prohibiting
same-sex couples from marrying each other constitutes a denial of
equal protection based on their sex.18
But there is skepticism as to how far the courts would want to go to
get to the bottom of inequality. David Beatty argues that a courts equality analysis does not always lead it to make a rigorous and principled
decision.19 For example, while the United Nations Human Rights
Committee (HRC) agreed in Toonen v Australia20 that the impugned
Tasmanian sodomy law infringed the right against discrimination
under the ground of sexual orientation as it is analogous to the ground
of sex under the ICCPR, it chose to ground its decision solely on
privacy, thus leaving the issue of discrimination open. In other cases,
14
77
even when the court is willing to justify its decision on equality grounds,
it often confines itself to reaching a conclusion that the inequalities
between heterosexual married couples and long-term homosexual
couples can be tackled by giving the latter the rights and privileges that
the former currently enjoy. As a result, the underlying inequality of
excluding same-sex couples from marriage remains unaddressed.21
In the U.S. context, such a judicial sentiment can be observed in the
following case where the court took a narrow approach in interpreting
statutory and constitutional principles regarding the right to same-sex
marriage. In Baker v State, the Vermont Supreme Court stated that the
case does not turn on the religious or moral debate over intimate samesex relationships.22 It therefore focused on the literal meaning of the
Common Benefits Clause of the Vermont Constitution and concluded
that the state was only constitutionally obliged to extend to same-sex
couples the common benefits and protections that flow from marriage
under Vermont law.23 According to the court, the clear language of the
clause reflected the framers intent not only that everyone enjoy equality before the law or have an equal voice in government but also that
everyone have an equal share in the fruits of the common enterprise.24
Having set the parameter of equality, the court found that extending
tangible benefits to same-sex couples was sufficient for the state to remedy the prejudicial exclusion of benefits and protections.25 This allowed
the government to come up with a parallel institution, namely civil
union, to satisfy the requirements of equality for same-sex couples.
Hence Vermont became the first U.S. State to legalize civil unions.
That prudent approach was dwarfed by the more progressive reasoning in the Supreme Court of Massachusetts facing the same question:
Whether, consistent with the constitution, the state may deny the
21
78
chapter two
79
33
Ibid.
Ibid., para 148.
35
Aristotle, Ethica Nicomachea, trans. W. D. Ross (London: Oxford University Press,
1925), V.3 II3Ia - II3Ib [Aristotle].
36
Peter Westen, The Empty Idea of Equality, (1982) 95 Harvard Law Review 537,
p 540 (fn 8): On one hand, there are as many substantive versions of equality as there
are substantive notions of right and entitlement by which persons can be said to be
alike or unalike; on the other hand, there is only one formal idea of equality that
likes should be treated alike. [Westen].
37
National Coalition for Gay and Lesbian Equality & Another v Minister of Justice &
Others [1998] (12) BCLR 1517 (CC) [the NCGLE case].
38
Ibid., para 22.
34
80
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81
44
82
chapter two
50
83
54
Nicholas Bamforth, Sexuality, Morals and Justice: A Theory of Lesbian and Gay
Rights Law (London: Cassell, 1997), p 236 [Bamforth I].
55
Louis Pojman P., Are Human Rights Based on Equal Human Worth?, (1992)
52 Philosophy and Phenomenological Research 605, p 607.
56
See Aristotle (n 35 above).
57
J. R. Lucas, Against Equality Again, (1977) 52 Philosophy 255, p 261 [Lucas I].
58
Nicholas Bamforth, Same-Sex Partnership and Arguments of Justice [Bamforth
II] in Robert Wintemute & Mads Andens (eds), Legal Recognition of Same-sex
Partnerships: A Study of National, European and International Law (Oxford: Hart
Publishing, 2001) 3154, p 40 [Wintemute & Andens].
59
Ibid.; see also Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press,
1986). In Ch 9, Raz tries to identify some sort of principles of equality having criticized its emptiness [Raz].
84
chapter two
The problem of equality rhetoric
60
61
62
63
64
85
ought.65 In this respect, equality is not only circular, it is also superfluous because the real standard that is relevant in determining why people should be treated the same is the moral standard that determines
who is alike and who is not. Therefore, [w]ithout moral standards,
equality remains meaningless, a formula that can have nothing to say
about how we should act. With moral standards, equality becomes
superfluous because it only repeats what everyone already knows.66
That is why Westen says that equality is an empty vessel with no
substantive moral content of its own.67 It remains a universal moral
truth only because it operates on some external rules which have nothing to do with equality. To say that two persons are alike in a certain
respect is to presuppose a rule that both qualify.68 There is no standard of comparison before such a rule is found. But once it is found,
equality between the two persons is a logical consequence of that
rule. They are equal in respect of the rule because that is what equal
means. The word equally in this sense means according to one and
the same rule.69 The two persons are then accorded equal treatment
under the rule because that is what compliance to the rule logically
entails. Therefore, to conform to a rule is to apply it in all cases which it
applies. To say that two persons are equal and deserve to be treated
equally is to say that they both fully satisfy the criteria of a governing
rule of treatment. Equality says nothing about the content of the rule
and can be discarded altogether in deciding how people should be
treated. Westen gives an example. In determining whether severely
deformed newborns, human embryos or comatose patients were
human beings having the right to be respected, the question need not
be resolved by resorting to equality principles, but by identifying the
traits that entitle anyone to be treated with respect.70
Westens strong critique of equality highlights the philosophical pitfalls associated with the concept when it is used to justify why people
should be treated in the same way. He thinks that what really matters
is the moral rule behind treating people equally and not the fact of
equality itself. However, aside the fact that it lacks moral content,
65
66
67
68
69
70
Ibid., p 545.
Ibid., p 547.
Ibid.
Ibid., p 548.
Ibid.
Ibid., p 549.
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chapter two
71
Arthur JS Hall & Co v Simons [2002] 1 AC 615, p 688 per Lord Hoffmann.
A. V. Dicey, Introduction to the Study of the Law of the Constitution, 10th Edn
(London: MacMillan Press, 1959), p 193.
73
de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th Edn
(London: Sweet & Maxwell, 1995), p 579 [de Smith et al].
74
Ibid., pp 579580.
75
Ibid., p 579.
76
Ibid., p 563.
77
Christopher McCrudden, Equality and Non-Discrimination in David Feldman
(ed), English Public Law (Oxford: Oxford University Press, 2004) 581-668, pp 610611
[McCrudden].
72
87
78
223.
79
Ibid., p 234.
Jeffrey Jowell, Is Equality a Constitutional Principle?, (1994) 47 Current Legal
Problems 1, pp 1014 [Jowell].
81
Ibid., p 18.
82
John Stanton-Ife, Should Equality be a Constitutional Principle?, (2000) 11 The
Kings College Law Journal 133, pp138140 [Stanton-Ife].
83
de Smith et al (n 73 above), p 551.
84
Matadeen v Pointu [1999] 1 AC 98, p 109 per Lord Hoffmann.
80
88
chapter two
Ibid.
Sandra Fredman, From Deference to Democracy: The Role of Equality Under
the Human Rights Act 1998, (2006) 122 Law Quarterly Review 53, p 64 [Fredman I].
87
See Plessy (n 12 above).
88
Sandra Fredman, Women and the Law (Oxford: Clarendon Press, 1997), p 13
[Fredman II].
89
See Loving (n 11 above).
90
U.S. v Carolene Products Co. (1938) 304 US 144, p154, fn 4 [Carolene Products].
86
89
are immediately suspect, and the courts must subject them to the
most rigid scrutiny.91 This highest judicial scrutiny has since ushered
in the demise of statutes which classified people along racial lines.
In comparison, a sex-based classification fell short of yielding the
same level of concern with a line of authorities fixing the test between
the less stringent rational basis and the strictest scrutiny.92 Thus a sexbased distinction stands to survive as long as it is shown to serve important government objectives with exceedingly persuasive justifications.93
While the three-tier test has been pivotal to the courts efforts in safeguarding Americans constitutional rights, the justification of its very
own hierarchal classification seems obscure especially when we compare their European counterparts which have long made sex the top
of the list, as opposed to race.94 Invidious a differentiation as it may
sound, this seemingly artificial distinction between grounds of discrimination speaks volumes for the presence of a value judgment about
equality, which influences even the court in assessing which characteristics are more relevant than the others. The priority given to a prohibited ground reveals a commensurate priority that a society holds to
combat odious of distinctions among its people. Thus the enduring
paradox surrounding equality that it can be formulated in different
ways according to different conceptions. To make the impartial judges
task even harder, the choice between different conceptions of equality
91
Korematsu v U.S. (1944) 323 US 214, per Black J. In this case, an American citizen
of Japanese descent appealed against his conviction for entering a military area that
was off-limits to all persons of Japanese ancestry. While the U.S. Supreme Court set
down this standard of constitutional scrutiny, it nevertheless dismissed the appeal on
the grounds of pressing public necessity. This decision was later overturned by a
California federal court under a writ of coram nobis, a doctrine for correcting a previous wrong. See Korematsu v U.S. (N.D. Cal. 1984) 584 F. Supp. 1406.
92
Sandra Fredman, Discrimination Law (Oxford: Oxford University Press, 2002),
p 118 [Fredman III]. See Craig v Boren (1976) 429 US190 (striking down a statute that
permitted women but not men between the ages of 18 and 20 to purchase 3.2 beer),
Califano v Goldfarb (1977) 430 US 199 (invaliding conditions set for widowers to claim
survivors benefits otherwise unconditionally provided to widows), Califano v Webster
(1977) 430 US 313 (upholding formal sex discrimination in the benefit formula under
social security law).
93
U. S. v Virginia (1996) 518 US 515; see also Fredman III (n 92 above), p 80.
94
See Fredman III (n 92 above), pp 89,118. The priority given to eradicate sex discrimination can be traced to the European Communitys early effort to abolish pay
discrepancy between men and women albeit the motivation was more about economics than equality for facilitating a common labor market to put all member states
on equal footing. See International Labour Office, Social Aspects of European
Economic Co-operation, (1956) 74 International Labour Review 99, p 107.
90
chapter two
is not one of logic but of values or policy.95 Apart from being dismissed
as tautological or simpliciter by critics like Westen and Stanton-Ife, formal equality in the form of giving identical treatment to similarly situated people gives rise to difficult questions when the only ascertainable
yardstick is value judgment. Like the question of why race should
take precedence over sex, that of when and how two individuals are
similar in a relevant manner can be equally perplexing. To begin with,
the choice of comparator presents the first hurdle when determining
whether different treatments are justified.96
If politics is the mirror of a societys values, the post-2001 global
fight against terrorism probably has made the value judgment more
challenging. Such was the dilemma facing the House of Lords as the
British Government had allegedly backpedaled from its human rights
commitments to detain without trial non-U.K. nationals suspected of
terrorism.97 Locking non-national suspects in jail while allowing U.K.
nationals in the same circumstances to post bail apparently subjected
two analogous groups to very different treatments on grounds of
nationality. Although the Court of Appeal had endorsed the governments plausible distinction based on the detainees right of abode, the
majority of their Lordships disagreed on grounds that for the aim of
the anti-terrorist legislation, it was the same status of being terrorist
suspects not immigration status that put the two groups in an
analogous situation.98 Still, Lord Walker in dissenting questioned overreliance on the meaning of analogous: Further analysis of the issue,
and the competing interests at stake, has to be undertaken in order to
answer the question whether the suggested comparators are in a relevantly analogous situation.99
Because the term analogous is ambiguous, even rational and fairminded people might disagree as to its meanings. Laws LJ in the Court
of Appeal in R (on the application of Carson) v Secretary of State for
95
Ibid., Fredman III, p 2. At p 79, Fredman also questions the exclusion of other
possible grounds: why does a history of past disadvantages not apply to poverty or
social class?
96
See McCrudden (n 77 above), p 623. In Stubbings & Others v U.K. [1997] 23 EHRR
213, the applicant, allegedly sexually abused in her early childhood, claimed under Art
14 of the ECHR. To succeed in the claim of discrimination in that particular case, the
court said that the applicant must be in an analogous situation to the victims of unintentionally inflicted injury.
97
A v Secretary of State for the Home Department [2005] 2 AC 68.
98
Ibid., paras 54, 171.
99
Ibid., para 211.
91
Work and Pensions100 refined Brooke LJs famous four-pronged test for
locating a comparator in Wandsworth London BC v Michalak.101 The
test comprises four questions:
(i) Do the facts fall within the ambit of one or more of the substantive
Convention provisions? (ii) If so, was there different treatment as
respects that right between the complainant on the one hand and other
persons put forward for comparison (the chosen comparators) on the
other? (iii) Were the chosen comparators in an analogous situation to the
complainants situation? (iv) If so, did the difference in treatment have an
objective and reasonable justification: in other words, did it pursue a
legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?
92
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107
93
113
94
chapter two
constitutional necessity but also a keystone of integration.118 The pursuit of social equality was perhaps more on the sidelines than being the
main focus as the EC was busy creating a level-playing field in the common market.119
In the U.K., the European initiatives coupled with the U.K. Governments resolve have seen the enactment of the Human Rights Act 1998
incorporating the ECHR. The result was a non-exhaustive list of prohibited grounds of discrimination including sex, race, colour, language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth, or other status as
far as convention rights are concerned.120 But this beaming array of
protected grounds cannot conceal the glaring discrepancies when it
comes to enforcing equal rights. While the EUs Directive on race
stipulates a comprehensive coverage including employment, social
protection, education and housing, its Directive on religion, disability,
age and sexual orientation only concerns employment-related matters.121 Besides, both Directives categorically exclude the ground of
nationality regarding treatment for non-member state nationals.122 The
incoherent approaches concerning different vulnerable groups all
are supposed to deserve protection which was the reason why the
Directives were issued in the first place not only mirror the different
sex/race hierarchies that exist in Europe and the U.S., but also resonate
with the Orwellian sarcasm that some are more equal than others.
The paradox of formal equality: leveling up or down?
There is one aspect of the equality as consistency principle that lives
up to its consistency rationale. But when it does, treatments may in
118
Takis Tridimas, The General Principles of EU Law, 2nd Edn (Oxford: Oxford
University Press, 2006), p 76.
119
See Fredman III (n 92 above), p103.
120
See the Preamble, Art 1 & Sch 1, Human Rights Act 1998; see also Fredman III
(n 92 above), p 69.
121
See Council Directives (n 116 above). Article 3(1) of Council Directive 2000/43/
EC, implementing the principle of equal treatment between persons irrespective of
racial or ethnic origin covers a wide range of activities; while Art 3(1) of Council
Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation concerns employment matters only.
122
Ibid. See Art 3(2) of Council Directive 2000/43/EC & Art 3(2) of Council
Directive 2000/78/EC.
95
some cases turn out to be equally bad for everyone. It is what Derek
Parfit describes as the leveling down objection of formal equality.123
In his hypothetical example of a divided world in which each half of the
worlds population was unaware of the others existence, Parfit believes
that those who hold a strong view of egalitarianism would oppose any
move that makes life for half of the population worse than the other,
while those who believe that other moral reasons may justify inequality
sometimes do not see unequal treatment as necessarily bad.124 For the
former type of egalitarians, removing inequality is always a change for
the better no matter what. It follows that equality is achieved if, for
example, a natural disaster struck and everyone, rich or poor, is made
penniless.125 Even though there is no good to speak of having everyone
live in destitution, because of equality and equality alone it is a better
outcome. For those who think other moral considerations may sometimes override equality, inequality may not be as abhorrent if it can
benefit those who are worse off.126
Both positions are said to be untenable as the basis for equality,
because even if one chooses to give up the strong view to avoid leveling
down, he will then need to resort to other justifications to sustain a
belief in equality.127 If there are other reasons to justify why and how
people should be treated apart from achieving conformity, then it is
doubtful whether equality per se is a relevant argument to enhance
peoples quality of life especially in the case of resources distribution.
Hence, Parfit suggests shifting to a priority view: from worrying about
how people fare compared with the similarly situated others to focusing on improving peoples well-being in general especially for those
who are currently disadvantaged.128 If one holds this view, there is no
need to subscribe to equality at all. As another equality critic would
say, the principles of nonegalitarian justice are what is needed.129
123
Derek Parfit, Equality and Priority in Andrew Mason (ed), Ideals of Equality
(Oxford: Blackwell Publishers Ltd, 1998) 120, p 10.
124
Ibid., p 5.
125
Ibid., pp 910.
126
Ibid., p 10.
127
Ibid.
128
Ibid., pp 1215.
129
Christopher J. Peters, Equality Revisited, (1997) 110 Harvard Law Review 1210,
pp 12281229. Peters defined nonegalitarian justice as the treatment of a person in
accordance with the net effect of all the relevant criteria and only the relevant criteria,
provided that considerations of nontautological equality cannot be relevant criteria.
[Peters].
96
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97
Anne Phillips seems to have a similar reflection in her treatise on economic poverty. To her, the scene of abject poverty in the midst of glaring wealth speaks volumes for the various underlying societal evils, for
example, abuse of power, in which inequality may only be one of the
diagnoses. Perhaps it is better to start with the question: Whether everyone in society has enough?137
The leveling down effect of strict equality can in some cases bring
more detriments to the disadvantaged group apart from bringing the
dominant group down. A notorious example is Palmer v Thompson,138
a 1971 decision of the U.S. Supreme Court which epitomized the weaknesses of the consistency principle at its extreme. Having been found
by the district court that the segregation policy of operating white-only
public swimming pools violated equal protection, the city of Jackson in
Mississippi responded by closing such pools altogether. This radical
measure had filled the rage of the black litigants all the more, who sued
all the way to the Supreme Court arguing that this facially equal measure denied their rights to access to public pools and failed to address
the constitutional wrong. Judging under a streak of formal equality, the
majority disagreed, distinguishing this case from previous policies
of blatant segregation where blacks had been kept out from public
135
Ibid., p 1248.
See Raz (n 59 above), p 229. Not everyone agrees. See Avishai Margalit, Decent
Equality and Freedom: A Postscipt, (1997) 64 Social Research 147, p 149.
137
Anne Phillips, Which Equalities Matter? (Cambridge: Polity Press, 1999), p 63;
See also Harry Frankfurt, Equality as a Moral Ideal, (1987) 98 Ethics 21.
138
Palmer v Thompson (1971) 403 US 217.
136
98
chapter two
99
100
chapter two
101
156
J. R. Lucas, The Principles of Politics (Oxford: Clarendon Press, 1967), p 244
[Lucas II].
157
See Bamforth I (n 54 above), p 238.
158
See Dudgeon v U.K. [1981] ECHR 7525/76, ECt HR [Dudgeon]; Norris v Ireland
[1988] ECHR 10581/83, ECt HR; Toonen (n 20 above); Sutherland v U. K. [1997] ECHR
25186/94 (ECommHR); Lawrence (n 14 above) (but note OConnor Js concurring
judgment); Leung TC William Roy v Secretary for Justice [2005] (HCAL 160/2004)
[Leung (HC)].
159
Ibid., particularly the majorities in Lawrence, Dudgeon, and Toonen.
160
See Lawrence (n 14 above), p 527, per OConnor J.
102
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punishes homosexual conduct, she believed the law set its eyes ultimately on the class of people by criminalizing the very conduct that
defines it. It was therefore doomed to fail as the Equal Protection Clause
does not allow legal classifications be drawn for the purpose of disadvantaging the group burdened by the law.161 As a result, a law that targets for prosecution homosexual sodomy and the group who practice
it without legitimate government interests must fail on equality
grounds.
Although OConnor J sought to base her judgment on the formal
principle that persons situated similarly should be treated alike, she
did not take her equality analysis to its conclusion by identifying the
aspects in which the two conducts, i.e. homosexual sodomy and heterosexual intercourse, or the two classes who engage in these conducts, were alike. It appears that her equality analysis was simply based
on an uncritical assumption that the two conducts or the two classes
are the same and therefore should be treated equally. By not making
any substantive comparisons or explaining the reasons why the conducts or the parties are to be regarded the same, her reasoning did not
go very far in advancing the arguments for why people should be treated
equally. If that is the case, what should our equality analysis focus on?
What is being compared?
Conduct-based equality
In his robust critique on equality, J. R. Lucas regarded equality as such
an emotionally-charged concept as to obstruct clear thinking.162 This
seems to be the situation in the recent cases. OConnor Js futile attempt
to put forward a concrete equality analysis in Lawrence reveals the two
dimensions where comparisons could have been possibly made. While
it is plausible to argue that similar sexual conducts should receive the
same treatment under the law, so far the courts have yet to come up
with a substantive comparison beyond a sweeping generalization which
treats all forms of penetrative sexual intercourse as the same. In
upholding the High Courts ruling in Leung TC William Roy v Secretary
for Justice, the Hong Kong Court of Appeal endorsed the view that
161
162
Ibid., pp 528529.
See Lucas I (n 57 above).
103
163
Leung TC William Roy v Secretary for Justice [2006] (CACV 317/2005), para 47
[Leung (CA)].
164
Ibid.
165
See Leung (HC) (n 158 above), para 135.
166
R. v M.(C.) [1995] 98 CCC (3d) 481.
167
Ibid.
104
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168
169
170
105
associated sexual conduct. But the state can escape such an allegation
by claiming that it aims at protecting people from discrimination on
the basis of their status rather than their behavior. Under the socalled Dont Ask, Dont Tell personnel policy of the U.S. Armed
Forces,171 behavior and status are distinguished as two different
issues when it comes to discharging soldiers. It gives an impression that
homosexual military officers as a special class are protected from discrimination provided they do not manifest their sexual orientation.
This policy, which the government boasts treats people not for who
they are but only for what they do, has been criticized as being deceptive and more anti-gay than the previous policy.172 In terms of the
equality analysis, the artificial distinction between behavior and status
makes it difficult to make comparisons between homosexuals and heterosexuals in justifying equal treatments.
Unlike sex and race, sexual orientation is not as conspicuous for the
purpose of comparison. The position is complicated by some courts
classifying sexual orientation under sex as a prohibited ground of discrimination,173 as well as the comparison between interracial couples
and same-sex couples in the analogy drawn between anti-miscegenation
law and the ban on same-sex marriage.174 As Steven Epstein observed,
during the U.S. gay rights movement in the 1970s, gays and lesbians
tended to conceptualize themselves as a social minority akin to an
171
This policy was derived from a U.S. Captain, Captain S.H. Crittendens report in
1957, recommending that homosexuals could serve in the army as long as they did not
invade third-party rights and were exceedingly discreet dont ask, dont tell. See
William N. Eskridge Jr., Gaylaw: Challenging the Apartheid of the Closet (Massachusetts:
Harvard University Press, 1999), p 86.
172
Janet E. Halley, Dont: A Readers Guide to the Militarys Anti-Gay Policy (Durham:
Duke University Press, 1999), pp 2, 5765 [Halley]. See also Paisley Currah, Searching
for Immutability: Homosexuality, Race and Rights Discourse [Currah] in Angelia
R. Wilson (ed), A Simple Matter of Justice? Theorizing Lesbian and Gay Politics (London:
Cassell, 1995) 6368.
173
In Toonen (n 20 above), the U.N. Human Rights Committee observed that
sexual orientation is included in the definition of sex under Art 2(1) & Art 26 of
the ICCPR; In Baehr (n 17 above), it was held that discrimination against gays and
lesbians was sex discrimination. Andrew Koppelman endorses this view. See Andrew
Koppelman, The Miscegenation Analogy: Sodomy Laws as Sex Discrimination,
(1988) 98 Yale Law journal 145. But see Edward Stein, Law, Sexual Orientation,
And Gender in Jules Coleman & Scott Shapiro (eds), The Oxford Handbook of
Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002) 990-1040,
pp 10221029.
174
See the majority judgment in Halpern (n 31 above) and Goodridge (n 26 above),
and Thomas Js dissenting judgment in Quilter v Attorney General (1996) NZFLR 481.
106
chapter two
ethnic minority.175 This self-identification provided powerful justifications for arguing that they deserved the same level of protection against
discrimination as did other vulnerable groups in society.176 To argue
that the law should treat people of a particular status equally as every
other, one must first ascertain who and what make up the status. In this
connection, without the conspicuity of outward characteristics like
skin color, ones status arising from sexual orientation can only be
expressed in terms of the so-called gay identity.
While an essentialist view generally describes gay identity as an
ascertainable and inherent self-consciousness of having erotic inclination towards people of ones own sex, for many constructionists,
sexual identity is socially, culturally and historically constructed.177 As
Bamforth observes, a homosexual identity is better seen as a recent
social phenomenon in so far as this concept was alien to ancient
Greeks who were said to have commonly engaged in same-sex sexual
acts. Moreover, homosexuals as an organized community only
began to attract social and political concerns in the U.K. around the
time the Wolfenden Report was released in the late 1950s.178 According
to this observation, peoples sexual attraction to members of the samesex alone does not necessarily entail their perceiving themselves as
gay. In short, the perception of a gay identity is fluid, hence the difficulty in making any comparison with that of a heterosexual in this
regard.
175
Steven Epstein, Gay Politics, Ethnic Identity: The Limits of Social Constructionism in Edward Stein (ed) Forms of Desires: sexual orientation and the social constructionist controversy (New York: Routledge, 1992) 239-294, pp 243258 [Epstein];
Steven Seidman, Identity and Politics in a Postmodern Gay Culture: Some Historical
and Conceptual Notes in Michael Warner (ed), Fear of a Queer Planet: Queer Politics
and Social Theory (Minneapolis: University of Minnesota Press, 1993) 105-142,
pp 110117 [Seidman].
176
Ibid., Epstein, p 243.
177
See Bamforth I (n 54 above), p 79; In his controversial findings from a study of
the early history of homosexuality and Christianity, John Boswell appeared to hold an
essentialist view of a gay identity. See John Boswell, Christianity, Social Tolerance, and
Homosexuality: Gay People in Western Europe from the Beginning of the Christian Era to
the Fourteenth Century (Chicago: University of Chicago Press, 1980), p 44; John
Boswell, The Marriage of Likeness: Same-sex Unions in Pre-modern Europe (London:
Harper Collins Publishers, 1994).
178
For the Wolfenden Report, see Chapter 1 (fn 225). It has been argued that the
terms heterosexual and homosexual only came into being in the nineteenth century. See Michel Foucault, The History of Sexuality, Volume 1: An Introduction, Trans.
Robert Hurley (New York: Vintage Books, 1980), p 101.
107
108
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185
Jeffrey Weeks, Coming Out: Homosexual Politics in Britain from the Nineteenth
Century to the Present (London: Quartet Book, 1990), p 233.
186
Ibid., p 237.
187
Jeffrey Weeks, Against Nature: Essays on History, Sexuality and Identity (London:
Rivers Oram Press, 1991), p 79.
188
Jeffrey Weeks, Sexuality and Its Discontents: Meanings, Myths & Modern
Sexualities (London: Routledge, 1985), p 209.
189
See Bamforth I (n 54 above), pp 247248.
109
Ibid., p 247.
Ibid.
192
Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the
Argument from Immutability, (1994) 46 Stanford Law Review 503, p 563.
193
See Raz (n 59 above), p 234.
191
110
chapter two
194
Ibid., pp 234235. The pitfall of the notion of formal equality was best illustrated in the case of Palmer v Thompson (n 138 above).
195
Ibid., p 235.
196
Ibid.
197
As discussed earlier, Carlos Ball used the term moral liberalism to inject a sense
of morality into homosexual relationships. See Chapter 1 (fn 233).
198
This strategy was also used by the liberal feminists fighting for sexual equality
since the days of Mary Wollstonecraft (17591797) to the later feminist campaign in
the U.S., where women were valorized as equally rational as men and thus should be
given equal opportunities. See Mary Wollstonecraft (1759-1797), A Vindication of the
Rights of Woman (New York: Alfred A. Knopf, 1992); see also Patricia A. Cain,
Feminism and the Limits of Equality, (1990) 24 Georgia Law Review 803, p 829
[Cain].
199
See Ettelbrick (n 149 above), p 721.
111
200
Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and
Lesbian Marriage Will Not Dismantle The Legal Structure Of Gender In Every
Marriage, (1993) 79 Virginia Law Review 1535, pp 1535, 15401541.
201
Ibid., pp 15411542.
202
See Westen (n 36 above), p 549.
203
Ibid., p 548 (fn 36).
204
See Raz (n 59 above), pp 219220.
112
chapter two
113
Ibid., p 102.
Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press,
1985), p 190 [Dworkin I].
213
Ibid.
214
Ibid.
215
Ibid., p 191.
216
Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), p 273
[Dworkin II].
212
114
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115
223
Ibid., p 228.
Ibid., p 218.
225
Ibid., p 220.
226
Stephen Guest, Ronald Dworkin (Edinburgh: Edinburgh University Press, 1997),
p 223.
224
116
chapter two
227
117
118
chapter two
119
240
Ibid., p 190.
Lewis v Harris (N.J. 2006) 908 A. 2d 196 [Harris]. The Court gave the legislature
180 days to either amend the marriage statutes or enact an appropriate statutory structure to conform to the ruling. At the end, the legislature took the route to enact a civil
union law.
242
Ibid., p 217.
243
See Baker (n 22 above).
241
120
chapter two
deserve the right to marry. But the comparisons, if they were indeed,
are too loose to explain how the two groups are similar according to
Bamforths analysis. In Halpern, the court took a long, lasting, loving
and intimate relationship as the model of heterosexual marriage that
many same-sex couples find themselves in and are capable of forming.244 Also, same-sex couples could be just as capable as their heterosexual counterparts to be parents by making use of adoption or
reproductive technologies. In Goodridge, the court proclaimed, central to personal freedom and security is the assurance that the laws will
apply equally to persons in similar situations.245 No specific comparison was made. In fact, the court spent more time in espousing the good
of liberty. Citing Loving v Virginia, it said, the right to marry means
little if it does not include the right to marry the person of ones choice,
subject to appropriate government restrictions in the interests of public
health, safety, and welfare.246 Even when it did mention equality as
one of the constitutional safeguards, the focus was on liberty. It said,
the individual liberty and equality safeguards of the Massachusetts
Constitution protect both freedom from unwarranted government
intrusion into protected spheres of life and freedom to partake in benefits created by the State for the common good.247
The above reasoning has several implications. It shows that the court
either felt it unnecessary to engage in a careful comparison between
same-sex and opposite-sex couples as formal equality would have
required, or simply glossed over it due to the lack of precise information for making it possible. Either way, it failed to live up to its egalitarian
spirit in the otherwise robust judgment. As Bamforth has argued,
equality-based arguments are question-begging unless there are comparisons made in a coherent manner. To do this, one must address the
what and why questions. In terms of the first element, the age of
consent cases cited earlier show that the courts in fact are more interested in defending the liberty of all to engage in consensual sex than
explaining the similarity of sexual acts between heterosexuals and
homosexuals. Alternatively, turning to the status does not make a
comparison any easier. It is because not everyone who engages in
homosexual conduct assumes the same sexual orientation. And there
244
245
246
247
121
is too much diversity within the gay and lesbian community to make a
unified identity for the purpose of making comparisons with their heterosexual counterparts.
Of course, same-sex marriage has a different emphasis than that of
decriminalization of sodomy. Therefore, even Bamforth concedes that
the case of partnership right is more amenable to answering the what
question, in that the relevant comparison in this context is plainly
between same-sex and opposite-sex couples.248 But taking this line will
inevitably magnify the weakness of equality arguments in a holistic
sense. It is because the same argument will not be equally available to
justify legal protections for individual gays and lesbians outside the
partnership context. At the end, one cannot have it both ways. Using
one set of justification for partnership rights and another for individual
protection, though plausible, risks producing discontinuity between
two related contexts, and consequent intellectual incoherence.249 It
comes full circle to the question-begging problem that Bamforth has
argued all along. One may ask whether the underlying difficulty is the
lack of coherent arguments to follow through the justifications of equality for gays and lesbians in all aspects of life.
And there is the more intractable why question. Feinberg has
observed that in deciding which criteria are relevant, the mere assertion of equality makes no sense unless one enters the moral arena where
normative arguments can be found.250 It is the area in which justifications for same-sex marriage are found to be weak. This may be the
reason why some courts have chosen to eschew it and take the less
onerous task of extending equal benefits only for same-sex partners.
For the courts that did resolve to uphold same-sex marriage, rather
than using equality-based justifications at full strength, they often
emphasized the good of liberty to make up for any potential weakness
of the former.
Bamforth, however, gives a note of caution, both to those wellintentioned judges and the enthusiastic supporters of equality: If
same-sex marriage advocates want to make a sound case, they must
get their arguments right.251 It is not to disparage the equality-based
248
122
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123
256
Chai R. Feldblum, The Limitations of Liberal Neutrality Arguments in Favour of
Same-Sex Marriage in Wintemute & Andens (n 58 above) 5574, p 72 [Feldblum].
257
Michael J. Sandel, Moral Argument and Liberal Toleration: Abortion and
Homosexuality, (1989) 77 California Law Review 521, p 537 [Sandel]. Linda McClain
warns of the consequence of overemphasizing moral. According to her, Sandels call to
justify the rights of gays and lesbians based on the moral worth of their relationships
rather than the value of choice may lead to unresolvable moral conflict rather than a
more secure foundation for, say, same-sex marriage. And in the face of social resistance to extending toleration to gays and lesbians, suggesting that their rights be rested
upon societys acceptance of the morality of their relationships even risks leaving them
without such rights. See Linda C. McClain, Toleration, Autonomy, and Governmental
Promotion of Good Lives: Beyond Empty Toleration to Toleration as Respect, (1998)
59 Ohio State Law Journal 19, pp 119, 123.
258
See Feldblum (n 256 above), p 73.
259
See Sandel (n 257 above).
260
See Harris (n 241 above), p 223.
261
Trop v Dulles (1958) 356 US 86.
124
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125
interests, hence perceptions, meanings and definitions of principle.266 Therefore, feminism challenges whether equality as gender
neutrality is adequate to change the non-neutral social reality that
women face.267 As long as the existing power structures keep reproducing inequalities in the name of difference and reinforcing the
accompanying legal structures which operate under the same assumptions, many fundamental questions remain unasked, for example,
Why should you have to be the same as a man to get what a man gets
simply because he is one?268
No wonder the feminists are among the most fervent skeptics of the
liberal idea of equality.269 Under a socio-legal regime with an embedded male-oriented culture, they believe the abstract equality of liberalism permits most women little more than does the substantive
inequality of conservatism.270 Therefore, a structural change at all levels is the only way to reform an unjust society.271 Only then can excessive individualism be replaced by a re-emphasis of interpersonalrelationships, rationality re-inspired by the feeling of emotionality and
responsibility for others, and procedural neutrality modified by a
dynamic set of power redistributions.272
An anti-assimilationist objection to same-sex marriage takes a similar line of argument against equality, under which their first question
might be: Why should gay and lesbian couples have to be like heterosexual ones to get equal treatment? To the liberationists dissatisfaction, the inherent values in same-sex relationships are being thrust aside
when gay and lesbian couples scramble to jump on the heterosexualstyle marriage bandwagon. Just as liberal feminists have been criticized
by radical feminists for having adopted an assimilationist approach in
their fight for sexual equality which elevates the status of women to
the extent they act like men to help entrench male dominance,273 liberationist and feminist critics of same-sex marriage warn that same-sex
266
Ibid., p 224.
Ibid.
268
Ibid., pp 220221.
269
Alison M. Jaggar, Sexual Difference and Sexual Equality in Rhode (n 263
above) 239254; MacKinnon (n 263 above); see also Fredman II (n 88 above).
270
Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law
(Cambridge: Harvard University Press, 1987), p 16.
271
See Fredman II (n 88 above), pp 3637.
272
Ibid.
273
Ibid.; see also Cain (n 198 above), p 830.
267
126
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marriage has the propensity to strip gays and lesbians of the luster of
their very relationships.274
To these critics, genuine equality lies in transforming the current
society under a reconstructed concept of sexual and gender equality.
The doctrine of equality as acceptance claims to go beyond merely
accommodating differences.275 It provides that the identity, nature and
uniqueness of gay and lesbian relationships should be presented in
normative debates. Central to this argument is a belief that only when
society stops measuring the homosexual community with a heterosexual scale, and when being homosexuals no longer exerts additional
cost on themselves and society will equality arguments genuinely succeed.276 In this case, the dominating social structures including marriage (and the associated power relations) and traditional family norms
should be eliminated. Only then can individuals be genuinely liberalized and free to decide for themselves what to make for their intimate
life, single or coupled.
This argument, however, sits uncomfortably with the persistent
efforts of the same-sex marriage advocates to bring homosexual and
heterosexual couples onto the same footing for the same conjugal
rights. If this anti-assimilationist perspective has its way, it will entail
massive changes in the configuration of social power at every level.277
This will be an intricate project for any radical reformer. First, it requires
an understanding of the complex social networks of power, of which
law is merely one expression, before any attempt to abolish the legal
means used to sustain existing inequalities.278 Second, it is uncertain in
which direction society would head even if we successfully fixed all
unjust elements of the legal system. In terms of power domination, the
demise of one might spell the dawn of another. As Davina Cooper provocatively asks:
Does spousal recognition keep lesbians and gay men in their place or
allow them to enter the place of the dominant other? Does it create new
forms of exclusion and impropriety? And what impacts does it have on
the balance between public and private norms? Do same-sex marriages
274
127
279
Davina Cooper, Like Counting Stars? Re-Structuring Equality and the SocioLegal Space of Same-Sex Marriage in Wintemute & Andens (n 58 above) 75-96,
p 87.
280
Ibid., p 86.
281
Ibid., p 96.
282
See Lacey (n 277), p 218.
283
Ibid., p 219.
128
chapter two
284
Thomas Jeffersons First Inaugural Address (4 March 1801). Available at http://
www.yale.edu/lawweb/avalon/presiden/inaug/jefinau1.htm (visited 19 Mar 08).
285
See Brown (n 9 above), where the U.S. Supreme Court reversed its decision in
Plessy (n 12 above).
286
Reed v Reed (1971) 404 US 71. The U.S. Supreme Court struck down a law
prohibiting women from administering their deceased childrens estates.
287
Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 132, per Baroness Hale of
Richmond.
288
The Rt Hon. Baroness Hale of Richmond, The Quest for Equal Treatment,
(2005) Public Law 571, p 578.
289
Ibid.
129
290
130
chapter two
296
Ibid.
Ibid., p 2.
298
J. M. Balkin, The Constitution of Status, (1997) 106 Yale Law Journal 2313,
p 2314. See Chapter 1 (fn 188).
297
131
299
Although Dworkins treatment as equals theory has been criticized as being
liberty-driven and humanistic and not really egalitarian, this idea illuminates the basic
tenet of equality that each is anothers equal and deserves equal consideration.
300
Miron v Trudel [1995] 2 SCR 418, pp 486487, per McLachlin J.
CHAPTER THREE
133
134
chapter three
does not mention human dignity, yet the notion was later employed in
the Charter of Fundamental Rights of the European Union in 2000, in
the Preamble as well as Arts 1, 25 and 31.9
The special attention given to dignity was more than a spur-of-themoment decision for a fatigued post-war international community. It
was seen as a guiding vision for nations in search of a brotherhood and
subsequently found its place in the constitutional thinking of modern
times. Dignity has become a distinguishing feature in many domestic
constitutions, in particular for nations that have experienced systemic
human rights violations in the past. The concept of dignity is enshrined
in many recently adopted or revised constitutions of the current members of the European Union (EU). The German Constitution, written
after the Second World War, regards dignity as sacrosanct with ramifications throughout the whole of its constitutional structure. Art 1(1) of
the Basic Law for the Federal Republic of Germany (1949) provides:
The dignity of man shall be inviolable. To respect and protect it shall
be the duty of all state authority.10 The inviolability of dignity has since
become a beacon for German judges interpreting fundamental rights
in light of the constitution. The Hungarian Constitution, drawn up at
around the same time, contains this: In the Republic of Hungary everyone has the inherent right to life and to human dignity. No one shall
be arbitrarily denied of these rights.11 A similar emphasis is also present
in Israel. Amid an array of its piecemeal-style constitutional documents, the amended Israel Basic Law: Human Dignity and Liberty
(Basic Law), passed in 1994, was explicitly aimed at protecting human
dignity and promoting both negative and positive rights for this end.12
Across the globe, after state oppression under South Africas policy of
apartheid formally ended in the early 1990s, dignity became one of the
9
The Preamble refers to human dignity along with freedom, equality and
liberty as one of the indivisible and universal values upon which the European Union
was founded. Art 1 declares that human dignity is inviolable; Art 25 refers to the
dignity of the elderly; Art 31 protects peoples dignity at work. See Charter of
Fundamental Rights of the European Union (2000/C 364/01), Official Journal of the
European Communities. Available online at http://ec.europa.eu/external_relations/
human_rights/doc/charter_364_01en.pdf.
10
The Basic Law for the Federal Republic of Germany (promulgated by the
Parliamentary Council on 23 May 1949) (Federal Law Gazette at 1) (BGB1 III 100-1).
11
Section 54(1), Constitution of the Republic of Hungary (Act XX of 1949).
Available at http://net.jogtar.hu/jr/gen/getdoc.cgi?docid=94900020.tv&dbnum=62.
12
Israels Basic Law: Human Dignity and Liberty, passed by the Knesset on 17 March
1992 and amended on 9 March 1994, has protecting human dignity as its main purpose. Art 1a, translated from the Hebrew, states: The purpose of this Basic Law is to
135
founding values upon which the democratic state of South Africa was
established.13
The meaning of human dignity
As recognized by peoples of diverse backgrounds, human dignity
appears to have been taken as a self-explanatory justification for human
rights protection. While the Preambles to the UDHR, the ICCPR and
the ICESCR explicitly mention that the rights of all humankind derive
from the inherent dignity of the human person,14 nothing is said about
the definition or origin of the term human dignity. No wonder Mary
Glendon once asked, Is the universal rights idea merely based on a
kind of existential leap of faith?15 While defending dignity for all
sounds a laudable goal in political debates,16 there are open questions
as to what the right to equal dignity means, and it is not clear how far
dignity could be counted on as an anchor for rights amid competing
visions of dignity in the pursuit of a good life.17
The historical and philosophical roots of human dignity
One must start somewhere to search for meanings behind dignity,
when international law continues to treat it as a notion the source of
protect human dignity and liberty, in order to establish in a Basic Law the values of the
State of Israel as a Jewish and democratic state. Arts 2 and 4 denounce violation of the
life, body or dignity and guarantee a positive right to be so protected. Available at
http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm.
13
In Art 1(a) of the Constitution of the Republic of South Africa Act 1996, (no. 108
of 1996, date of promulgation: 18 Dec 1996, date of commencement: 4 Feb 1997),
human dignity is proclaimed as one of the founding values underlying the state of
South Africa.
14
See ICCPR, ICESCR, Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (adopted by General Assembly resolution 39/46
of 10 December 1984).
15
Mary Ann Glendon, Foundations of Human Rights: The Unfinished Business,
(1999) 44 American Journal of Jurisprudence 1, p 3.
16
Professor Errol P. Mendes suggests that wherever affronts to equal human dignity
are found, the Canadian government should employ public policies to eradicate existing systemic injustices. See Errol P. Mendes, Taking Equality into the 21st Century:
Establishing the Concept of Equal Human Dignity, (2000) 12 National Journal of
Constitutional Law 3, pp 1012.
17
See the response to Professor Mendes arguments from Dr. Roger Gibbins, How
in the World Can You Contest Equal Human Dignity?: A Response to Professor Errol
Mendes Taking Equality into the 21st Century: Establishing the Concept of Equal
Human Dignity , (2000) 12 National Journal of Constitutional Law 25, p 29.
136
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137
between men and animals thus providing the basis of the special role
(persona) of human species in ruling over the rest of the creatures.28
The term dignity of man, as coined by Stoic philosopher Marcus
Tullius Cicero, was originally a philosophical expression based on
mans reason, his capacity for free moral decisions and his rule over all
other creatures.29 According to Izak Englard, Cicero was the first to go
beyond the traditional link between dignity and social status and
use dignity to describe mens unique rational capacity.30 Dignitys root
in metaphysics emerged as St. Thomas Aquinas natural law theory
drew on the divine order as the force behind the eternal law of nature.31
Hence natural law became the expression of the dignity and power of
man under Divine Providence.
Aquinas theory which links reason with faith and philosophy
with Christianity can be regarded as an early formula of Christian
humanism. At the heart of Judeo-Christian creationist theology is the
idea that man is created in the image and likeness of God.32 Therefore,
the dignity of man and the rights associated with this status derive from
and attest to the fact that human beings bear the image of God (imago
Dei).33 Natural law is considered unintelligible unless its close link with
the Divine order upon which the whole creation ultimately rests is
realized. As a Catholic theologian wrote, Philosophy does not have the
final word on natural rights.34 Reason alone is considered inadequate.
It is the divine revelation that bridges the gulf between reason and
truth. As the late Pope John Paul II once pointed out, human dignity
finds its full confirmation in the very fact of revelation, for this signifies the establishment of contact between God and the human being.35
Therefore, in the Biblical tradition, the dignity of men does not derive
from their rationality and moral freedom but is imparted by God as
part of Creation.36
28
Ibid., p 21.
Ibid., pp 2627.
30
Izak Englard, Human Dignity: from Antiquity to Modern Israels Constitutional
Framework, (2000) 21 Cardozo Law Review 1903, p 1904.
31
See dEntrves (n 26 above), pp 3941.
32
Dietrich Ritschl, Can Ethical Maxims be Derived from Theological Concepts of
Human Dignity? [Ritschl] in Kretzmer & Klein (n 2 above) 8798, pp 9596.
33
Ibid.
34
See William (n 24 above), p 204.
35
Ibid., p 215.
36
See Ritschl (n 32 above), p 95.
29
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37
Ibid., p 96.
Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University
Press, 1991), p 63.
39
John Locke, Two Treaties of Government, ed. Peter Laslett (Cambridge: Cambridge
University Press, 1994), pp 330333.
40
Immanuel Kant, Foundations of the Metaphysics of Morals with Critical Essays,
trans. Lewis White Beck, ed. Robert Paul Wolff (Indianapolis: Bobbs-Merrill Educational Publishing, 1969), p 59 [Kant].
41
Ibid., p 54; For more discussion on Kants moral and legal philosophy on human
dignity, see G. P. Fletcher, Human Dignity as a Constitutional Value, (1984) 22
University of Western Ontario Law Review 171, pp 174175.
42
See Cancik (n 2 above), pp 3336.
38
139
43
James Rachels, Created From Animals: The Moral Implications of Darwinism
(Oxford: Oxford University Press, 1990), pp 79, 8691.
44
Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political
Theory, 2nd Edn (Hampshire: Palgrave MacMillan, 2006), pp 130131 [Parekh].
45
Ibid.
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qualified for having dignity. Still, society does not regard them as lacking dignity and undeserving of fundamental rights.46 At the end, it
comes down to a question as to whether dignity is a descriptive or normative concept.
Dignity: descriptive or normative?
From a descriptive point of view, dignity and the superiority of human
beings over other living species derive from their shared uniquely
human features and capacities. Dignity is therefore an intrinsic quality
that permanently resides in every human being and that is not contingent upon any special abilities or external factors. Alan Gewirth called
it the inherent concept of dignity, akin to the Kantian notion that a
mans dignity has no price.47 This understanding resonates with the
prevailing international human rights discourse as affirmed by the
UDHR that all human beings are born free and equal in dignity and
rights.48 This basic premise is the source of other derivative rights
including civil and political rights as well as economic, social and cultural rights. All these rights are believed to be derived from the dignity
of human beings. For examples, under the UDHR, the right to social
security, and the economic, social and cultural rights are indispensable for a persons dignity (Art 22). The right to work and the right to a
just and favorable remuneration are taken to be the means to ensure
an existence worthy of human dignity (Art 23). Such description of
rights and dignity can be understood in two ways. First, it can be said
that human beings have rights because of their having inherent dignity.
Second, their rights are the necessary elements to maintain their intrinsic dignity. Either way, it is the characteristics of humans as the subjects of rights that justify the claims of human rights.49
46
Daniel Statman, Humiliation, Dignity and Self-respect [Statman] in Kretzmer &
Klein (n 2 above), 209229, p 211. Parekh believes that even though some human
beings, such as the mentally handicapped, lack some of the distinctively human capacities, they are not devoid of them altogether. Because they are handicapped in a way
that only humans are, there is no way to deny them human worth and dignity. Ibid.,
p 131.
47
Alan Gewirth, Self-Fulfillment (Princeton: Princeton University Press, 1998),
pp 162163 [Gewirth I].
48
See the Preamble to and Art 1 of the UDHR (n 5 above).
49
Alan Gewirth, Human Rights: Essays on Justifications and Applications (Chicago:
University of Chicago Press, 1982), p 27 [Gewirth II].
141
142
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57
143
Ibid., p 164.
Ibid.
65
See Gewirth I (n 47 above), pp 164165; Melden (n 56 above), p 45. For the constitutional justifications for respecting human dignity of minors, see Charles Robert
Tremper, Respect for the Human Dignity of Minors: What the Constitution Requires,
(1988) 39 Syracuse Law Review 1293.
66
See Melden (n 56 above), p 45.
64
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67
Ibid.
Ibid.
69
See Kant (n 40 above), pp 5861.
70
William A. Parent, Constitutional Values and Human Dignity [Parent] in
Meyer & Parent (n 56 above) 4772, p 53.
71
See Kant (n 40 above), p 59.
72
Furman v Georgia (1972) 408 US 238, p 270.
68
145
and only adds to the pool of convoluted expressions such as our common humanity and humanity as an end in itself .73 In any event,
renaming is not explaining.74 To solve the conundrum, Feinberg suggested avoiding all metaphysical vocabularies and treating human
worth as an attitude, not something in form:
Human worth itself is best understood to name no property in the way
that strength names strength and redness redness. In attributing
human worth to everyone we may be ascribing no property or set of
qualities, but rather expressing an attitude the attitude of respect
toward the humanity in each mans person. That attitude follows naturally from regarding everyone from the human point of view, but it is
not grounded on anything more ultimate than itself, and it is not demonstrably justifiable.75
Such a general definition makes the term human worth look even
vaguer. First, this explanation lacks the normativeness to be a credible
ground of human rights. The human point of view, a term borrowed
from Bernard Williams,76 was originally about what it is for a person to
live a life and act according to his personal character.77 Idealistically,
taking a human point of view means people are motivated to step into
one anothers shoes and treat each other from that perspective so that
everyones worth is respected. In real life, attitudes vary among individuals and groups and so is the level of respect one pays to another.
Relying on peoples attitudes risks throwing into disarray the universality of human rights based on inherent human dignity. Besides, Feinbergs
approach has yet to tackle the question as to what justify equal human
worth, apart from simply claiming a self-evident attitude of respect
which requires no justifications.
Dignity and respect
Despite its inadequacies, Feinbergs argument at least points to the subtle connection between dignity and respect. In The Decent Society,
73
146
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78
147
Ibid., pp 7779.
See Gewirth I (n 47 above), pp 166167; see also Stephen L. Darwall, Two Kinds
of Respect in Dillon (n 18 above) 181197, pp 183184.
87
See Feinberg (n 74 above), p 252.
88
See Massey (n 80 above), p 256.
89
See Feinberg (n 74 above).
90
See Gewirth I (n 47 above), p 167.
86
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149
considered. Subjectively, dignity reflects a persons sense of selfworth, usually associated with the forms of behavior through which an
individual relates with others. The starting point is either an individuals or a groups own perception as opposed to that of an outsider.
On the contrary, dignity in the objective sense invites assessment on
a macro scale. It includes looking at how the state and society respond
to individuals or groups under the prevalent social norms or moral
expectations.95
The subjective/objective dichotomy in defining dignity reveals the
difficulty of making it a coherent justification of fundamental rights.
The decision to administer life-supporting treatment to a terminally
ill patient provides a classic example of the dilemmas involved.
Controversies arise as to what ensuing legal obligations human dignity
requires of the attending doctors in light of the expressed wish of a
competent patient to live or not to live. The objective view of dignity
may justify continued treatment of the patient for the sake of preserving the sanctity of life and dignity of the human species. At the same
time, it can be forcefully argued that dignity, viewed subjectively, may
support withholding artificial treatment so as to end the agony of a
dying patient under conditions of dignity.
These potential conflicts were behind the separate tiers of judgments
of a landmark English case in 2006. In deciding whether life-sustaining
treatment should be rendered to a patient,96 the different approaches
adopted by three courts reveal just how diverse judicial opinions can be
concerning the best interest of patient. In the first instance, the High
Court had to decide upon an application by a patient, suffering from a
degenerative disease, who wanted to continue to receive artificial nutrition and hydration until his last days. As perhaps the first English court
to use dignity as a central legal argument,97 the High Court stressed the
importance of dignity and self-determination in deciding where the
best interest of a patient lies. According to Munby J, apart from
the sanctity of life, there are other important ethical principles the court
95
Ibid., pp 685686.
Burke v U. K. (ECtHR, Fourth Section, Application no 19807/06) (Declared inadmissible on 11 July 2006) [Burke]; R. (on the application of Burke) v General Medical
Council [2006] QB 273 (CA (Civ Div)) [General Medical Council (CA)]; [2005] QB 424
[General Medical Council].
97
Catherine Dupre, Human Dignity and the Withdrawal of Medical Treatment:
A Missed Opportunity, (2006) 6 European Human Rights Law Review 678, p 678
[Dupre].
96
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151
brings the conscious patient huge suffering.105 Or, when such treatment
helps delay death but results in the patient being hospitalized in his last
days rather than being placed in the love and care of his family.106
Judging from a subjective or objective angle inevitably leads one to take
contrasting views on how dignity is served between living and dying.
At the end, the direction in which dignity is pulled and how far it leads
depends, to a large extent, on how one sees the nature of a good life and
its underlying values. When such value-laden questions are asked, it is
uncertain whether dignity can be relied on to resolve socially and morally controversial problems.107
Given the ambiguities involved in assessing dignity, even a benevolent interpretation runs the risk of exposing the court to the criticism
of judicial paternalism.108 Having assumed the duty to safeguard dignity, the court then becomes the umpire of what people can or cannot
do according to the rules of the game. In the name of dignity, the sanctity of life can be an unimpeachable reason to override a conscious
patients refusal to be subjected to invasive medical treatment on religious grounds.109 In the same way, the collective sense of dignity may
require the court to outlaw all demeaning practices however voluntarily engaged in by individuals. In the latter case, for example, both
French and German courts have outlawed dwarf-throwing contests to
protect the dignity of dwarfs as a distinctive group as well as members
of the human species.110
105
Like the situation in Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam
33 (CA) where the court decided that it would be better to relieve the incompetent
patient from the suffering caused by aggressive treatment in the event the medical
condition reached a crisis.
106
See General Medical Council (CA) (n 96 above), p 302.
107
See Feldman I (n 93 above), p 688.
108
Ibid., p 697.
109
Cases of different scenarios have arisen from the patients refusal to have a blood
transfusion in critical condition. In 1998, a French court held that medically appropriate treatment for preserving life did not violate the Jehovahs Witness patients freedom
under the ECHR. See Feldman I (n 93 above), pp 700701. In Cruzan v Director,
Missouri Department of Health (1990) 497 US 261, the majority of the U.S. Supreme
Court denied the request made by the parents of a vegetative patient to withdraw
life-sustaining treatment without clear and convincing evidence. Even though the majority decided on due process, dignity was briefly mentioned in Rehnquist CJs judgment. Brennan J, in his dissenting judgment joined by Marshall and Blackmun JJ, wrote
that the patient, whose life was being sustained by artificial nutrition and hydration,
was entitled to choose to die with dignity.
110
A French court in 1995 endorsed the ban on dwarf-throwing competitions in the
cities of Versailles and Marseilles despite the dwarfs keenness to take part for financial
gain and the safety measures taken by their employers, because human dignity
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153
make such a prediction.114 Such should be the job of a rational legislature, which with evidence could at least pay heed to other rational
concerns about the possible unintended consequences of a dramatic
redefinition of the law. A proper balance of relationship between an
independent judiciary and a popularly elected legislature in issues like
this remains a concern.115
Amidst conflicting views over what dignity means and who should
decide, one may ask whether it is possible to achieve a civic order amenable to embracing pluralism with a standard of respect for diversity.116
While dignity is deemed to be inviolable and irreconcilable by the
German judiciary, the Israeli court has shown a readiness to accommodate other values and interests within the shrine of human dignity
under the limitation clause in the Basic Law.117 According to Justice
Barak, former president of the Israeli Supreme Court, human dignity
like the abstractions of liberty and privacy is not absolute, and may be
limited in order to protect the social framework. Therefore, in some
circumstances, violating dignity (in the subjective sense) is seen as necessary in order to maintain the social framework that protects dignity
(in the objective sense).118 This comment again reflects the tension
between the subjective and objective aspects of the notion. Some commentators have suggested that the ideas of proportionality and balancing can in extraordinary situations provide justifications for group
114
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155
122
Rhoda E. Howard & Jack Donnelly, Human Dignity, Human Rights, and Political
Regimes, (1986) 80 American Political Science Review 801, p 802 [Howard &
Donnelly].
123
Michael Barr criticized Howard and Donnellys claim as exceptionally cavalier
in their blunt assumption that human rights are synonymous with liberal values of
equality and autonomy. See Michael D. Barr, Cultural Politics and Asian Values: The
Tepid War (London: Routledge, 2002), p 88 [Barr].
124
See Kretzmer (n 118 above), p 167 (per Justice Shamgar).
125
See Howard & Donnelly (n 122 above).
126
S v Makwanyane & Another [1995] 6 BCLR 778 (CC), para 329.
127
Minister of Home Affairs & Another v Fourie & Another [2006] (3) BCLR 355
(CC), para 60 [Fourie].
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128
157
ideals of dignity. Therefore, one should not discount the wider contexts
and cultural nuances when evaluating any vision of dignity.
Some reflections on dignity
What can we make of dignity? Although its rise to becoming a universal human rights value is relatively recent, the notion of human dignity is not new. It is a concept that has appeared in the writings of Stoic
philosophers and natural law theorists since Classical times. Its historical, anthropological and religious roots date back many centuries.
Beneath a general conviction that dignity is a uniquely human feature
are different underlying beliefs ranging from religious creeds, cultural
practices, and secular worldviews. Its apparent universality becomes
obscure upon a closer study. Despite its prominent status in international law and domestic constitutions, dignity does not have a concrete
meaning or a consistent definition. The attempt to supplement its
meaning with notions like intrinsic human worth or respect does
not go very far, unless some background questions are resolved, including what constitutes a life worthy of human beings to live.
Edward Eberles opening words for his meticulous work on dignity
and liberty in German and American constitutional laws have this apt
observation: Difficult to define and difficult to realize, personally or
socially, dignity nevertheless remains a defining trait of human character, and a preeminent ideal of any civilized society.132 Human dignity is
a concept of considerable value. Its universal nature unites a diverse
world community to strive for a common goal. This notion helps not
only judges in interpreting the visions of a constitution but also common people in thinking about how we should respect one another
despite all the differences. However, the multi-faceted nature of dignity
and its internal tensions require the law to recognize both its strengths
and limits, and the court to apply it with caution.
In the developing jurisprudence on human rights, it is therefore
advisable to treat dignity as one of the values or guiding principles.133
Of course, one should be mindful of not relegating dignity to a common denominator or an excuse to limit the scope of rights. But we
132
Edward J. Eberle, Dignity and Liberty: Constitutional Visions in Germany and the
United States (Connecticut: Praeger, 2002), p 1.
133
See Feldman II (n 115 above), p 76.
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should at least acknowledge that what constitutes dignity and how far
it should go in justifying human rights especially those rights that are
not explicitly provided under the constitution remains open to
debates. It is also important to consider how the balance between legislation by democratic process and judicial interpretation of the law can
be properly maintained, especially on many rights issues where a consensus is lacking. As Feldman concluded his essay, Giving weight to
dignity adds a new value to the legal system which changes the way in
which questions are asked and answered, allowing a wider range of
interests to be taken into account, but not thereby making intractable
moral and legal issues any easier.134
Having dissected the concept and explored its role in constitutional adjudications, Feldman cautioned against uncritically applying dignity to justify decision making on human rights. And its
strength in human rights law should be evaluated in light of the lack of
clarity of its core content. People disagree on what a good life is about
and who should decide, as much as argue over whose dignity should
take precedence when different ideas of dignity seem to compete.
Sometimes, individual or group dignity deserves respect for the sake of
culture and identity; at other times, the dignity of the human species
seems to yield a higher moral ground when bioethical issues are
involved. Similarly, as it has been argued, dignity derived from respect
for peoples sexual choices and orientations may not always be sufficient to override what is regarded as the inherent dignity (in terms of
the human race as a whole or of individuals within it) of some sexual
practices.135
Feldmans comment can be viewed in light of the preponderance of
dignity in equality jurisprudence in both the Canadian Supreme Court
and the Constitutional Court of South Africa, where the concept played
a decisive role in the courts upholding the right to same-sex marriage.
This followed a judicial trend defining inequality in terms of dignity
violation. While this development will be critically examined in the
next chapter, the following account highlights this judicial orientation
leading to the two seminal cases where the right to same-sex marriage
was upheld on the basis of equality and dignity.
134
135
Ibid.
Ibid., p 75; see also n 112 above.
159
136
137
138
139
140
141
160
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142
143
144
161
145
146
147
148
149
Ibid., pp 533534.
Halpern v Canada [2002] 60 OR (3d) 321 (Div.Ct.).
Halpern v Canada [2003] 65 OR (3d) 161 (CA), para 2.
See Law (n 143 above), para 78.
Ibid., para 99.
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150
163
Conclusion
For all the intricacies that come with the concept of human dignity, the
Canadian Supreme Court followed by the Constitutional Court of
South Africa continue to place it at the center of their respective equality jurisprudence. The extent that dignity is relied on in finding discrimination and inequality is widely argued as eroding the essence of
equality, as well as inviting judicial intrusion of public policy making.
The above cases were decided under this judicial trend which saw some
people dignity violated, some not. As it will be shown in the next chapter, even seasoned judges do not necessarily agree on one version of
dignity and its status in equality discourse.
Such a divergence of views is no surprise if one goes back to
Iacobucci Js extensive definition of dignity. Although Iacobucci J tried
to emphasize the objectivity of the dignity violation test using the
standard of a rational and reasonable person, the meaning of dignity
under his formula remains largely subjective. As the preceding discussion has shown, dignity is both personal and social. It concerns how
someone or a group perceives himself or itself, as much as how every
member of society conceives about humanity. It is both subjective and
objective. A terminally-ill patient can be just as adamant about having
the right to die with dignity as the medical profession or the wider
community about the sanctity and dignity of every human life. Even a
community of reasonable people can be in sincere disagreement about
how best dignity is served in some situations. And there is no exception
for judges as they face an even more complicated challenge of finding
discrimination in indignity.
The courts in the above same-sex marriage decisions did not elaborate on dignity albeit placing it at the center of their equality judgments.
Perhaps they have found Iacobucci Js definition in Law comprehensive enough. Perhaps sexuality and marriage are something so intimately personal as to render unnecessary any objective or social
considerations. Probably; but Feldmans comment about the possible
tension between the personal dignity of making ones own sexual
choices and the inherent dignity of human beings on a macro scale
still deserves some thought. A sign of this possible tension may be seen
in the Massachusetts courts decision whose judges did not rely so
much on dignity. In Goodridge, the majority of the Massachusetts
Supreme Court struck a conservative chord as a marriage defender. It
believed that same-sex couples were ready to embrace heterosexual
164
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157
158
159
160
161
165
166
chapter three
chapter raise questions about its content and clarity. Unraveling the
mysteries around dignity does not resolve the disagreements on rights.
But appreciating the elastic nature of dignity may get us thinking
whether it is possible for a liberal and democratic society to achieve
consensus over some of the most contentious issues of human rights, in
particular, same-sex marriage.
CHAPTER FOUR
In the last chapter, we saw that the concept of dignity carries profound
content. The idea itself is both historical and philosophical whose interpretation is closely related to ones worldview. To what extent dignity is
possessed by all human beings and whether it can be lost or diminished
depends on whether it is a descriptive or normative concept. Because
dignity is associated with an individual, a group or the human species
as a whole, it can be viewed subjectively or objectively. Applying dignity potentially pulls a decision-making in different directions depending on from which perspective it is evaluated, hence its universal appeal
should be evaluated in light of its fluid nature. Terms like intrinsic
worth and self-respect cannot satisfactorily help clarify its meaning
but only illuminate the fact that the beauty of dignity lies in its beholder.
Therefore, as much as it inspires and affirms our commitment to human
rights, Feldman suggests that dignity should be treated as one of the
guiding principles rather than an unquestionable ground of fundamental rights.2
Case law on same-sex marriage, as discussed in the last chapter,
however, shows that the jurisprudential trend is moving in the opposite direction. Following a line of decisions in which the Canadian
Supreme Court used dignity impairment as proof of inequality, the
Ontario Court of Appeal held that excluding same-sex couples from
1
Jordan J. Paust, Human Dignity as a Constitutional Right: A Jurisprudentially
Based Inquiry into Criteria and Content, (1984) 27 Howard Law Journal 145, p 212.
2
David Feldman, Human Dignity as a Legal Value Part II, (2000) Public Law,
p 76 [Feldman I].
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human dignity
169
The focus on the laws impact on those affected signified the first
signpost to a substantive path of equality, albeit invoking the next
inquiry as to what distinguishes justifiable impacts from unjustifiable
ones.7 McIntyre J would think the requirement of personal characteristics already pointed to a certain kind of impact, and he tried to
be more specific by proffering the notions of stereotyping, historical disadvantage and prejudice.8 According to this analysis, the
enumerated grounds of unconstitutional discrimination are not
exhaustive.9 Yet a complainant of unequal treatment must show that
the legislative impact is discriminatory.10 This in turn begged the
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11
12
13
14
15
16
human dignity
171
17
Ibid., pp 497498. Peter Hogg does not agree with this analysis. See Peter W. Hogg,
What is Equality? The Winding Course of Judicial Interpretation, (2005) 29 Supreme
Court Law Review 39, p 48 [Hogg I].
18
See Raume (n 7 above), p 662.
19
See Miron (n 13 above), pp 498499.
20
See Raume (n 7 above), p 622.
21
See Miron (n 13 above), p 499.
22
Egan v Canada [1995] 2 SCR 513 [Egan].
23
Ibid., p 543.
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Ibid., p 544.
Ibid., p 545.
26
Ibid., p 566.
27
D. M. Davis, Equality: The Majesty of Legoland Jurisprudence, (1999) 116 South
African Law Journal 398, p 404 [Davis].
28
Ibid., p 400. According to s 1 of the South African Constitution, the Republic of
South Africa is founded on a number of values which include human dignity, the
achievement of equality and the advancement of human rights and freedoms.
29
Ibid., p 404.
30
Ibid., p 399.
25
human dignity
173
31
174
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integrity are not the sort of things that judges are accustomed to in
constitutional adjudication nor are they amenable to the judicial process.36 On the other hand, alongside dignity, the concept of fairness
adopted in Andrews that had been neglected in the preceding authorities seemed to have revived.37 As Iacobucci J asked, Does the law treat
him or her unfairly, taking into account all of the circumstances
regarding the individuals affected and excluded by the law?38 While
recalling the concept of fairness seemed to have steered the analysis
back on the equality track,39 all eyes were on the all-important dignity. Throughout the judgment, dignity remained the overriding concern of the discrimination analysis. The role of equality was oblivion,
so to speak. With Law, the doctrine where discrimination is believed
to be caused by distinctions on enumerated or analogous grounds
under s 15(1) of the Canadian Charter which demean dignity is firmly
in place. It has since been followed by every equality decision in the
Canadian Supreme Court, unfortunate as it might be.40 The Constitutional Court of South Africa in developing its equality jurisprudence
under the new constitution has largely followed suit. To its critics
though, this approach causes as many problems as it solves.41
The problems might not have surfaced in Law due to its particular
facts. It is because the court simply did not sympathize with Mrs. Laws
situation in relation to the national pension regime. The plan provided
survivors benefits to people aged forty-five or above as well as those
who were disabled or had dependent children. It also provided a
reduced benefit to those able-bodied surviving spouses without
dependent children who were aged between thirty-five and forty-five.
In effect, those who were below thirty-five had no entitlement at all.42
According to the court, the age restrictions reflected that the scheme
was not designed to remedy the immediate financial needs experienced
by all citizens who have recently lost their spouses, but rather to enable
36
Ibid.
Grant Huscroft, Freedom from Discrimination in Rishworth, Huscroft &
Optican, The New Zealand Bill of Rights (South Melbourne: Oxford University Press,
2003) 366397, p 385 [Huscroft II].
38
See Law (n 31 above), p 530.
39
To Hogg, it is a much better approach. See Hogg I (n 17 above).
40
Peter W. Hogg, Constitutional Law of Canada, Fifth Edn Supplemented, Vol 2
(Ontario: Carswell, 2007), p 5528 [Hogg II].
41
See Huscroft I (n 35 above), p 704.
42
See Law (n 31 above), p 510.
37
human dignity
175
older widows and widowers to meet their basic needs during the longer
term.43 It was assumed that young persons face fewer barriers in the
labor market and are generally in a better position than older persons
to take the place of their deceased spouses over the long run as working
members of society. Therefore, a childless, able-bodied thirty-year-old
Mrs. Law would not have evoked much sympathy otherwise accorded
to a destitute elderly widow. In deciding whether determining benefits
eligibility according to age infringed equal protection, the court asked,
whether the provisions, in purpose or effect, violate essential human
dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice?44 With a legislation which targeted the long-term financial needs of older surviving spouses and did
not stigmatize on account of age or any stereotype, the court was unable to find any prejudicial stigmatization or historical or social disadvantages that affect the dignity of a young and capable citizen.
Mrs. Laws undeserving situations made the conclusion fairly reasonable while the analysis itself can be disturbing. As Huscroft argued,
a dignity-centered approach may limit equality protection in other scenarios. For example, it will be difficult for the so-called dominant
groups in society like males or a racial majority to establish an impairment of human dignity.45 If all potential claimants must go through the
screening test of social, historical and political disadvantages, discrimination protection may end up extending only to those whom the court
thinks are in need and leaving out other deserving parties. In Law,
Iacobucci J seemed to be aware of that risk and tried to assure that
[a] member of any of the more advantaged groups in society is clearly
entitled to bring a s.15(1) claim which, in appropriate cases, will be
successful.46 But Huscroft was not that optimistic, as he noted what
Iacobucci J continued to say: I do not wish to imply the existence of a
strict dichotomy of advantaged and disadvantaged groups, within
which each claimant must be classified. I mean to identify simply the
social reality that a member of a group which historically has been
more disadvantaged in Canadian society is less likely to have difficulty
in demonstrating discrimination.47 Therefore, Huscroft warned that
43
44
45
46
47
Ibid., p 559.
Ibid., p 557.
See Huscroft I (n 35 above), pp 705706.
See Law (n 31 above), p 536.
See Huscroft I (n 33 above), p 706 (fn 37); Ibid., Law, p 537.
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the dignity-centered approach might substantially reduce the protection that the right to equality might otherwise afford.48
Dignity and its critics
Huscroft is not alone in his critique. The virtually unanimous criticisms
among commentators contrast the Canadian Supreme Courts fondness of the dignity-based analysis.49 Seeing the lead of Law as unfortunate, Canadian constitutional law expert Peter Hogg describes the
dignity requirement as vague, confusing and burdensome to equality
claimants.50 Considering the centrality of dignity in determining
whether there is discrimination, Hoggs allegations are serious and
deserve some attention.
Why is human dignity vague? In view of its multi-level meanings
and the implications of associating it with notions like intrinsic worth
or self respect as discussed in the preceding chapter, one should be
more specific when using it to justify a claim. Yet it is no easy task, for
even judges have difficulties agreeing among themselves.51 To Nicholas
Smith, Iacobucci Js linking the purpose of the Canadian Charters
equality guarantee with violation of human dignity in Law is problematic. It is also misleading, if it makes one believe that a perceived
attack on an individuals sense of his own importance is a necessary or
sufficient condition for a claim of discrimination.52 As Smith argued, if
dignity is here to stay in the equality formula, its role should be no
more than explaining the commitment to equality in its objective
sense, a view that echoes Feldmans.53
To recall Feldmans categorization, dignity has two aspects. Subjectively, it has to do with ones sense of self-worth in relation to others;
objectively, it is about the state and societys attitude to its people, all of
48
human dignity
177
178
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human dignity
179
66
67
68
69
180
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70
71
72
73
74
75
human dignity
181
the position of the claimant, having taken into account all of the contextual factors relevant to the claim, would not find their human dignity violated by a provision which appropriately takes into account
their actual needs, capacity, and circumstances as compared to those of
opposite-sex couples subject to the legislation.76
While judges are generally expected to dissent on points of legal
arguments, the disagreement on whether a dignity violation occurred
may not simply be a matter of different judicial approaches or a result
of conservatism versus liberalism. In M v H, it is not sure which sense
of human dignity each of the majority and minority had in mind. One
may argue that each was contemplating its own version of dignity for
two disadvantaged groups: same-sex couples and women in heterosexual relationships. That was probably why when the majority
found that the Family Law Act showed no ameliorative purpose to
ease same-sex couples plight, Gonthier J on the other hand believed it
served ameliorative effects for the dignity of women in heterosexual
relationships a group he deemed more disadvantaged than the former.
With dignity being a malleable idea and open to interpretations based
on an individuals sense of self-worth, it seems hard to say for sure
whether it is the majority or the dissent that got it wrong in M v H. It is
because each side had its own explanation of dignity to justify its conclusion and both versions seem to be plausible. If we pay attention to
the adverse impacts inflicting the lesbian claimant due to the nonrecognition of her spousal status, we may think that her dignity is at
stake. On the other hand, if we focus on how the law was aimed at
addressing the inequalities prevalent within many heterosexual marriages which are generally absent in homosexual relationships, we may
conclude that her dignity is not compromised. The abstract nature of
dignity allows for the above different articulations. As Donna Greschner
argued, asking whether a law violates dignity offers little guidance to
lawyers and judges; and conclusions about dignity become masks for
the exercise of judicial discretion.77 So, at the end, perhaps it is discretion rather than reasonableness or an objective test that decides
whether someone is being discriminated against. In any event, how can
we argue against someones personal feelings?78
76
Ibid., p 155.
Donna Greschner, Does Law Advance the Cause of Equality?, (2001) 27 Queens
Law Journal 299, p 313 [Greschner].
78
Ibid.
77
182
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79
80
81
82
83
human dignity
183
84
85
86
87
88
Ibid., pp 816818.
Ibid., p 834, per Arbour J.
Ibid.
Ibid., p 844.
Ibid., p 852.
184
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89
90
91
92
human dignity
185
Ibid., p 481.
Ibid., p 484.
Ibid.
Ibid., p 556, per Bastarache J.
Ibid., p 558.
Ibid., p 564.
Ibid., p 568.
186
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100
Ibid., p 570.
Ibid., p 571.
102
See Andrews (n 5 above), per McIntyre J.
103
See McAllister (n 49 above), p 91.
104
This is acknowledged even among its proponents. In defending human dignitys
place in South Africas equality jurisprudence, Susie Cowen is aware of the problem
that a dignity analysis can support conflicting outcomes. See Susie Cowen, Can
Dignity Guide South Africas Equality Jurisprudence?, (2001) 17 South African
Journal on Human Rights 34, p 55 (fn 100)[Cowen].
105
See Andrews (n 5 above).
101
human dignity
187
so, yet the restriction was justified when they reviewed the particular
context of immigration law in which the policy was meant to strengthen
the sense of citizenship among immigrants.106 But if the court turned to
another aspect of the case, it might instead conclude that the law did
not offend dignity at all. It was Arbour Js view, as she looked at the
wider context of the case and found that not only the claimants were
better-off having citizenship benefits granted by other countries, but
also that citizenship was a valid criterion for distributing public
resources.107 However inconsistent these conceptions of dignity may
seem, Andrews and Lavoie are not the exceptions.
Nova Scotia v Walsh: the capriciousness of dignity impairment
The vagueness in assessing a dignity violation makes it difficult to follow through the precedents for developing a coherent doctrine.
Sometimes, the court departs from its previous decisions and starts
anew with a judgment difficult to reconcile in a similar situation. When
we look back on the established authorities and see what happened in
Nova Scotia v Walsh,108 we may feel the capriciousness that has gradually eroded the consistency of judicial reasoning. Following Miron and
M v H in which the majority respectively upheld the rights of unmarried couples to benefit entitlements exclusively for legally married
spouses, the decision in Walsh can be perplexing. In many ways this
case looked pretty much familiar, where the status of a long-time
unmarried couple was at the center of the claim to a right. This time, it
was their entitlement to a property distribution regime available to
legal spouses. What made the discrepancy loom large was the claimants success all the way up to the appellant court, which resulted in a
provincial legislation amendment, only to have it overturned by a
majority of eight in the Supreme Court.
Bastarache J, who had erred on the subjective aspect of dignity in
Lavoie and on the side of the downtrodden Miss Gosselin for her
demeaning treatment, wrote for the majority upholding a law which
excluded common law couples from protection under the matrimonial
property regime. He took the parties intention to commit to a conjugal
relationship as an important marker to distinguish them from those
106
107
108
188
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who have chosen not to marry and thus are spared all the legal rights
and responsibilities that might have otherwise entailed.109 While
unmarried couples might have endured some pre-existing disadvantages, it was the result of their choosing to avoid marriage and its legal
obligations.110 The individuals freedom to make for their own family
arrangements should be respected. By recognizing the mutual consensus people have, in that case exempting unmarried partners from the
regime, the law enhanced rather than diminished respect for their
autonomy.111 Bastarache J distinguished Miron with an intriguing reason: the rights of an unmarried couple as a unit against a third party
insurer were of a different nature than the relationships between themselves.112 In conclusion, he held that the law took into account the actual
needs of unmarried couples, did not operate on any stereotype, and
therefore did not demean their dignity.113
LHeureux-Dub J came to a very different conclusion. She started
with a fundamental question: whether a distinction made on an analogous ground reflects a stereotype and perpetuates the view that the
claimant is less capable or less worthy of recognition.114 According to
the first substantive inquiry in Law, unmarried couples as a group
being excluded by matrimonial law protection endure pre-existing
disadvantages and suffer dignity impairment. Such legislative oversight
neglects the needs of a couple when their long-time relationship ends
and that the law provides no ameliorative effects by excluding a class so
historically disadvantaged.115 As in M v H, the interest of having the
rights to spousal support is fundamental to ones basic financial security when a once-intimate relationship breaks down.116 Taking into
account the above factors, the laws refusal to recognize the partners
contributions to their relationship conveys a message that it is less worthy of respect, recognition and value because they were not married.117 According to LHeureux-Dub J, a dignity violation to such an
extent could not be justified under s 1.
109
110
111
112
113
114
115
116
117
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189
118
119
190
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dignity made them look like a group of fools moaning about their unjustified self-pity. Hogg thought it would have been more compassionate
and dignified for the court to explain that a disadvantage imposed on
the alleged ground was indeed discrimination, but it must uphold the
law because it served a rational purpose with proportionate means. In
this way, at least, the defeated claimants would not have walked away,
having been told that their feeling of indignity was just not right.120
It also becomes clearer as to why dignity is burdensome to equality
claimants. As Hogg argued, making dignity impairment the prerequisite of discrimination under s 15 of the Canadian Charter substantially shifts the burden of proof to the complainants detriment.121 In
Andrews, where the Canadian Supreme Court set down the equality
test for the first time, it was prima facie discrimination as soon as a
distinction based on an enumerated or analogous ground under s 15(1)
could be established. The onus was then on the state to prove the challenged law to be demonstrably justified in a free and democratic society under s 1. The Law approach altered this clear-cut judicial process.
Now, the onus is on the claimant to prove a dignity violation in order
to establish an infringement of equality rights. To play down the significance of this new burden, the court in Law assured that claimants
are not always required to adduce evidence of dignity violation because
it would be evident on the basis of judicial notice and logical reasoning that the distinction is discriminatory within the meaning of the
provision.122 After all that we have seen in those post-Law decisions,
however, it is doubtful whether judicial notice and logical reasoning alone are helpful at all, where judges do come to completely different results based on their varying understandings of dignity. All in all,
dignity is very much in the eye of the beholder; as the Canadian equality jurisprudence now stands, so, is discrimination.123
Jurisprudential transplant: dignity and equality in South Africa
That perhaps is the jurisprudential Legoland which Davis was referring to, as he criticized transplanting the Canadian doctrine unreservedly onto the South African soil. To him, applying the amorphous idea
120
121
122
123
human dignity
191
124
192
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The fact that dignity is such an important idea does not mean everyone grasps what it means, however.131 Even its defenders agree that
the Constitutional Court of South Africa has shied away from articulating a definition of dignity.132 ORegan Js statements in the early case
of S v Makwanyane & Another,133 in which the court pondered the
constitutionality of capital punishment, could be seen as a starting
point:
The importance of dignity as a founding value of the new Constitution
cannot be overemphasised. Recognising a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern.134
In Prinsloo v Van der Linde & Another, the court invoked dignity to
give content to unfair discrimination. But it barely scratched the surface when it described discrimination as treating persons differently
in a way which impairs their fundamental dignity as human beings,
who are inherently equal in dignity.135 Later in National Coalition for
Gay and Lesbian Equality & Another v Minister of Justice & Others (the
NCGLE case),136 a case about criminalization of sodomy between consenting adults, Ackermann J acknowledged the difficulty to capture
dignity in precise terms.137 Apart from adopting ORegan Js general
definition of the value and worth of all individuals, Ackermann J
stated that the impugned law affected a gay mans ability to achieve
self-identification and self-fulfillment.138 This seemed to have given
some substance to the concept of dignity but the focus on self only
reinforced its inherently individualistic character.139
131
Iain Currie & Johan de Waal, The Bill of Rights Handbook, 5th Edn (South Africa:
Juta & Co Ltd, 2006), p 273.
132
See Cowen (n 104 above), p 42.
133
S v Makwanyane & Another [1995] (6) BCLR 665 (CC).
134
Ibid., p 777.
135
See Prinsloo (n 125 above), p 773.
136
National Coalition for Gay and Lesbian Equality & Another v Minister of Justice &
Others [1998] (12) BCLR 1517 (CC) [the NCGLE case].
137
Ibid., p 1536, per Ackermann J.
138
Ibid., p 1539.
139
See Davis (n 27 above), p 412; Albertyn & Goldblatt (n 127 above), p 272; Emily
Grabham, Law v Canada: New Directions for Equality under the Canadian Charter?,
(2002) 22 Oxford Journal of Legal Studies 641, p 654 [Grabham]; Sheilah Martin,
Balancing Individual Rights to Equality and Social Goals, (2001) 80 Canadian Bar
Review 299, pp 329230 [Martin].
human dignity
193
140
194
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The prohibition on unfair discrimination in the interim Constitution
seeks not only to avoid discrimination against people who are members
of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of
our new constitutional and democratic order is the establishment of a
society in which all human beings will be accorded equal dignity and
respect regardless of their membership of particular groups.146
This watering down of the significance of group disadvantage arguably turned the clock back to an individualized conception of rights
which critical theorists had taken great pain to avoid. In particular,
critical feminist scholars challenge the ideas of individualism and neutrality that underlie liberalism.147 They argue that these abstract liberal
notions mask an existing social structure that perpetuates inequalities
among groups like women and racial minorities. Therefore, only when
attention is turned back on peoples difference and disadvantage can
the interdependence between individuals and groups as well as the
intersectional nature of inequalities be identified.148 What happened in
Hugo illustrates this concern. The President exercised his constitutional
discretion to pardon female prisoners of less serious offences who had
children under the age of twelve. A male inmate with a child below
twelve claimed the act was discriminatory against men.
By putting the spotlight on human dignity, the court seemed to have
lost sight of a group who was the most disadvantaged in question:
male prisoners with young dependent children. Instead, the majority
focused on the plight of another disadvantaged group in society:
women. The court looked at how women had been historically burdened by child-rearing responsibilities without adequate support from
their husbands.149 Although the court noted the different treatments to
female and male inmates, it did not believe that the latter were seriously disadvantaged. In any event, the policy merely deprived them of
an early release to which they had no legal entitlement.150 While male
prisoners were denied an opportunity available to women, the presidential act did not fundamentally impair their rights of dignity or
146
human dignity
195
sense of equal worth.151 However, the court did not explain what
amounted to dignity impairment when it used this idea to justify its
decision that no discrimination occurred. According to Albertyn and
Goldblatt, this reasoning was flawed because the court failed to locate
the complainant in his particular context and realize the overlapping
disadvantages he faced as a single-father and a prisoner.152
Harksen v Lane NO & Others: a jurisprudential Legoland?
While the court in Hugo had not explained what dignity means,
judges in Harksen v Lane NO & Others were divided over the meaning
of dignity for the parties involved.153 Here, an insolvency law subjected
the solvent spouse of an insolvent deceased to creditors interrogations
for the purpose of releasing the surviving spouses properties. The
complainants said the law discriminated against solvent spouses on
grounds of marital status. Dignity finally got a bit of elaboration as the
court disagreed over what constituted an unfair discrimination.
According to the majority, the relevant contexts, including the complainants social status, the nature of the provision, and the effect on
the solvent spouses were important factors in deciding whether dignity was impaired. Without really looking into each of them though, it
concluded that the law might have brought inconvenience but it was
incidental to all litigation proceedings and did not lead to an impairment of fundamental dignity or constitute an impairment of a comparably serious nature.154 This raised questions. Most importantly, the
inequality issue was completely thrown out of sight as the court
focused narrowly on how the burden imposed affected the claimants
dignity. The contextual approach so vigorously formulated was rendered redundant. Moreover, speaking of fundamental dignity as well
as something of a comparably serious nature begged the question as
to whether there is a distinction between fundamental and non-fundamental dignity and what amounts to being comparably serious.155
151
Ibid.
See Albertyn & Goldblatt (n 127 above), p 264.
153
See Harksen (n 125 above).
154
Ibid., p 1516.
155
See also Martin (n 139 above), p 329. Ackermann J, in retrospect, acknowledged
that the use of the qualifying term comparably serious might have been obfuscatory.
See Ackermann I (n 128 above), p 599.
152
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Perhaps ORegan J was closer to the discrimination issue by following through the majoritys contextual approach and giving a more reasoned judgment without resorting to dignity. As a starting point,
ORegan J found it compelling to point out the historical patterns of
discrimination in the context of marital status in South Africa.156 In
light of this, the effect of the insolvency law on spouses of the deceased
insolvents was substantial. Their interests were so adversely affected
that the impairment amounted to unfair discrimination.157
The third opinion, delivered by Sachs J, gave a sharp twist. Instead of
marital status, his historical perspective derived from the patriarchal
nature of marriage and the assumption of union in everything
between the spouses. The insolvency law, based on this assumption,
reinforces a stereotypical view of the marriage relationship that is
demeaning to both spouses.158 By singling out a group based on marital
relationship, the law inhibited the spouses capacity for self-realization
and affected the quality of their relationship with each other as independent persons. Hence Sachs J concluded, If this is not a direct invasion of fundamental dignity it is clearly of comparable impact and
seriousness.159 His view and that of the fellow judges over what constitutes an impairment of dignity, again, suggest how dignity is in the eye
of the beholder. As Davis argues, it requires some elasticity in the concept of dignity to sustain a conclusion that it is actually the dignity of
the solvent spouse that has been affected, rather than his or her own
pocket.160
Albertyn and Goldblatt have another interesting observation. Of the
nine judges, a minority comprising women judges and two of the three
black judges found there was dignity impairment.161 The previous commercial experiences of some judges might have also prompted concerns
over the difficulties facing the creditors instead of the solvent spouses.
Considering the multiple facets of the concept, it is not surprising to
see judges arriving at their own view of dignity according to their personal experience and sense of fairness.162 The above Canadian and
South African decisions already illustrated that it is judicial discretion
156
157
158
159
160
161
162
human dignity
197
198
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171
172
173
174
175
176
177
178
179
180
human dignity
199
Constitutional Court of South Africa has conflated dignity with equality and has used dignity to conceptualize and interpret equality. To
Ackermann, dignity is not being put in the wrong place. Instead, its
role in explaining equality is essential. It is because equality cannot
exist on its own. In this connection, Ackermann believes Susie Cowen
has got it (substantially) right181 in posing a famous question in this
context: To value equality without saying more does not explain what
outcome it is that we value. In Amartya Sens language, it does not
answer the question, equality of what? 182 It follows that substantive
equality as an approach to tackle systemic discriminations is insufficient
when it comes to explaining what is to be rescued or achieved. In the
NCGLE case, the Constitutional Court of South Africa announced that
the Constitution actually ponders remedial or restitutionary equality.183 It is the dignity of people that the court seeks to rescue.184
Therefore, the root of confusions among lawyers, according to
Ackermann, is the lack of appreciation of the nuances that come with
the word equality. To be meaningful, equality and its variants need to
be treated as attributive and not predicative.185 To understand what
equality means, one should refer to something so that the appropriateness of the attributive term (equal or equality) can be judged.186 To
Ackermann, that something is dignity. For example, talking of good
or bad per se is meaningless unless it refers to a specific object. In the
same way, something must be added to the term equality to make it
meaningful. Here, the attribute to make of the concept equality is
human dignity which means human worth. To say that people are
equal before the law and that they enjoy the equal protection of the
law means that the law must protect all people equally with respect
to their human dignity.187 In this regard equality and dignity are
inseparable. By understanding equality in this attributive sense, the
question with respect to what are humans equal should come close
to being with respect to their human worth.188 Hence, Ackermann
submits that the attribute in respect of which all humans are equal,
181
182
183
184
185
186
187
188
Ibid., p 608.
See Cowen (n 104 above), p 40.
See the NCGLE case (n 136 above), pp 15461547, per Ackermann J.
See Cowen (n 104 above).
See Ackermann I (n 128 above), p 608.
Ibid., pp 597598.
Ibid., p 609.
Ibid., p 610.
200
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189
Ibid., p 611.
Ibid., pp 611612.
191
See Cowen (n 104 above), pp 4849.
192
See the Preambles to the International Covenant on Civil and Political Rights
(ICCPR) (19 December 1966, 999 UNTS 171) and the International Covenant on
Economic, Social, and Cultural Rights (ICESCR) (adopted by General Assembly resolution 2200A (XXI) of 16 December 1966) that recognize that the equal and inalienable
rights of all human beings derive from the inherent dignity of the human person.
193
See the Second Optional Protocol to the International Covenant on Civil and
Political Rights on the Abolition of the Death Penalty (adopted by the UN General
Assembly resolution 44/128 of 15 December 1989); the Convention for the Suppression
of the Traffic in Persons and of the Exploitation of the Prostitution of Others (approved
by the UN General Assembly Resolution 317(IV) of 2 December 1949); the Declaration
on the Granting of Independence to the Colonial Countries and Peoples (adopted by
the UN General Assembly Resolution 1514 (XV) of 14 December 1960).
190
human dignity
201
202
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Ibid., pp 701702.
Ibid., p 682; see also Feldman I (n 52 above), p 76.
202
See Cowen (n 104 above), p 53.
203
See the NCGLE case (n 136 above), p 1569, per Sachs J.
204
Ibid., p 1572.
205
See Albertyn & Goldblatt (n 127 above), p 272.
206
See Cowen (n 104 above), p 43.
207
Dawood & Another v Minister of Home Affairs & Others; Shalabi & Another v
Minister of Home Affairs & Others; Thomas & Another v Minister of Home Affairs &
Others [2000] (8) BCLR 837 (CC), p 860.
201
human dignity
203
208
209
210
211
212
213
214
215
216
204
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specialized judicial mandate in overseeing the constitutional guarantees. Above all, it is the government that serves as the primary architect of the equality design.217 Where the court holds sway in its own
sphere of influence, it should justify its decisions with sufficient clarity
and reason so that reasonable people having different views about
equality in theory or practice can still put their faith in the constitutional gatekeeper.218
Nurturing a culture of reason in a deliberative society
This is what Davis called the culture of reason, which is crucial to
building up a viable human rights discourse. It requires not only a
conceptually understandable exposition by the Constitutional Court
of the fundamental values of dignity, equality and freedom,219 but also
the establishment of a culture of justification. Because people differ on
what dignity entails, therefore, the focus is not making all citizens
agree with a particular justification for a government policy or to the
weight to be given by the court to a constitutional right. Instead, a culture of reason concerns the inclusivity of debate about the meaning of
those foundational constitutional commitments that lie at the heart of
society.220 Hence, one conception of the constitution can override
another only by reasoned argument. In essence, this culture seeks to
challenge peoples self-enclosing tendency to assume their own moral
perfection and explore the plurality upon which humans capacity for
transformative self-renewal depends.221 In this respect, Davis culture
of reason requires society to set up the potential for democratic deliberation of a kind that demands justification rather than singularity of
content.222
This kind of political engagement signifies the jurisgenerative
politics that Frank Michelman suggests as the way forward for
American constitutionalism.223 The term jurisgenesis, coined by
217
human dignity
205
224
Robert M. Cover, The Supreme Court 1982 Term Foreword: Nomos and
Narrative, (1983) 97 Harvard Law Review 4, p 1.
225
Ibid.
226
See Michelman (n 221 above), p 1503.
227
Ibid., p 1526.
228
Ibid., p 1528.
229
Ibid., p 1527.
230
Ibid., p 1531.
231
Ibid.
206
chapter four
232
Richard Bellamy, Liberalism and Pluralism: Towards a Politics of Compromise
(London: Routledge, 1999), p 103.
233
Ian OFlynn, Deliberative Democracy and Divided Societies (Edinburgh:
Edinburgh University Press, 2006), p 51 [OFlynn].
234
Ibid.
235
See Dworkin I (n 170 above).
236
Amy Gutmann & Dennis Thompson, Democracy and Disagreement (Cambridge:
The Belknap Press of Harvard University Press, 1996), p 1.
human dignity
207
should have an equal say in its making.237 There is, of course, no guarantee that open deliberation can settle differences and bring happiness
to all. In fact, discussions are likely to reveal the fundamental differences. Yet, in the context of the legalization of same-sex marriage, it
may provide the very starting point for reasonable persons on either
side of the debate to think of each other less as rivals than as equal
participants in public deliberation.
It is never easy for those in deep disagreement to treat the opposing
view as equally worthy. However, according to the ideal of deliberative
democracy, it may be just what equality and equal dignity are about in
the simplest sense. How to turn this vision into practice in the samesex marriage debate demands more thoughts from the concerning
theorists; and ultimately, the determination of the people to whom the
legal reform means to affect and benefit. It will be a long and arduous
process. But if we think human rights are important enough; if we take
our fellow citizens seriously; if we genuinely believe in equality and
equal dignity, perhaps the reflection on how we resolve our differences
together with respect and reciprocity should start in no time. At this
juncture, Cowens concluding words are perceptive:
When we are dealing with a value such as dignity, and its place in the
equality jurisprudence, we should not reject its power because it raises
complex and contested questions or because it has multifaceted meanings that require judicial deconstruction. Rather, we must explore its
meaning and legal power and its ability to point to a way out of the past,
and into a future to which South Africans commonly aspire.238
237
238
208
chapter four
239
human dignity
209
210
chapter four
been discriminated against seems only to show that the opposite may
be the case. It is not to say that liberty is not an issue as far as the right
to marry is concerned. But using liberty to support the finding of dignity impairment seems to confirm the criticism that dignity has little
content of its own to justify a right, not to mention equality. It also begs
the question as to whether the court was indeed defending liberty
when it said it was protecting the dignity of same-sex couples by
approving same-sex marriage.
The Constitutional Court of South Africa demonstrated a similar
tendency in its decision to uphold the right to same-sex marriage.251
In Minister of Home Affairs & Another v Fourie & Another, dignity is
referred to throughout the whole judgment as one of the fundamental
values under the Constitution. In particular, the court highlighted the
significance for its equality jurisprudence of the concept and value of
dignity alongside equality and freedom.252 Having declared that equality in a pluralistic society means the right to be different, the court
said that [t]he strength of the nation envisaged by the Constitution
comes from its capacity to embrace all its members with dignity and
respect.253 It went on to discuss the social and legal significance of
marriage and the impacts of the existing marriage law upon same-sex
couples. The court observed that same-sex couples are deprived of a
wide range of socio-economic benefits exclusively reserved for married
couples. But the intangible damage to same-sex couples is as severe as
the material deprivation. Despite the fact that not all of them want to
marry, the court said that what is in issue is not the decision to be
taken, but the choice that is available. If heterosexual couples have the
option of deciding whether to marry or not, so should same-sex couples have the choice as whether to seek a status on a par with that of
heterosexual couples.254 Hence, the court concluded that denying samesex couples a choice to participate in the institution of marriage negates
their right to self-definition in a most profound way.255 Again, while
it is undisputable that liberty is a concern regarding the right to marry,
it is better to state it as it is rather than make it an element of dignity.
251
Minister of Home Affairs & Another v Fourie & Another [2006] (3) BCLR 355
(CC)[Fourie].
252
Ibid., para 48.
253
Ibid., para 61.
254
Ibid., para 72.
255
Ibid.
human dignity
211
Perhaps liberty does not sound as appealing as dignity to capture peoples emotion. But using it to justify an impairment of dignity would
only do a disservice in clarifying the fundamental value that is really at
stake.
Perhaps it is because the court was still grappling with the profound
idea of dignity despite its fundamental status in South African society.
It is shown by its extensive quote of National Coalition for Gay and
Lesbian Equality & Others v Minister of Home Affairs & Others [the
Immigration case].256 In that case, the issue was the discriminatory
impact of a provision of immigration law that gave privileges to the
foreign spouses of South African citizens while excluding same-sex life
partners in the same situation. The court in that case opined that past
and continuing discrimination against gays and lesbians sent a message
that they did not have inherent dignity and were not worthy of human
respect as accorded to other heterosexual couples.257 The references to
inherent dignity and respect remind us of the definitional problems raised in Chapter 3. First, if dignity is an inherent concept as seen
by Gewirth, it presides in every human being and cannot be taken
away;258 but if it is a normative concept as according to Feinberg, people need to claim it with moral grounds.259 The same happens to
respect where the concept can be viewed objectively or subjectively
and each view produces a different definition of respect.260 It is understandable that judges do not think of themselves as writing philosophical treatises particularly on concepts like dignity. But the kind of
circularity we see in the courts explanation of dignity only highlights
the lack of understanding among judges. Having stated that gays and
lesbians face past and continuing discrimination, the court in the
Immigration case said,
It denied to gays and lesbians that which was foundational to our
Constitution and the concepts of equality and dignity, which at that
point were closely intertwined, namely that all persons have the same
256
National Coalition for Gay and Lesbian Equality & Others v Minister of Home
Affairs & Others [2000] (1) BCLR 39 (CC) [the Immigration case].
257
Ibid., para 42.
258
Alan Gewirth, Self-Fulfillment (Princeton: Princeton University Press, 1998),
pp 162163.
259
Joel Feinberg, The Nature and Value of Rights, (1970) 4 Journal of Value Inquiry
243.
260
Stephen J. Massey, Is Self-Respect a Moral or a Psychological Concept?, (1983)
93 Ethics 246.
212
chapter four
inherent worth and dignity as human beings, whatever their other differences may be.261
Just as one has human rights because one has human dignity is a
circular statement,262 couching the concepts of equality and dignity in
the phrase that all people have the same inherent worth and dignity
does not go very far in explaining them. As Smith argues, [t]he law
will not be made any clearer by attempts to give content to the right
not to be discriminated against by explaining that upholding equality
means respecting our dignity .263 While it is possible to argue that
treating people with less than equal concern and respect ignores their
dignity, one still has to explain when the law does or does not treat a
person with equal consideration. It is not always easy because equality is a moral concept and moral arguments apply. Hence, the important task is to work out the best understanding of equal concern for
people. Rephrasing that as a duty (or an element of a duty) to respect
each persons inherent worth does not make equalitys meaning any
more concrete or give it the content it was lacking.264
The use of dignity in equality jurisprudence reveals that more thinking is needed before we can clarify exactly the value that discrimination
law is intended to uphold. The above case law on same-sex marriage
shows that liberty may be one of the values that the law is interested to
protect. If that is the case, the court should spell it out clearly and not
mix it with dignity. Smiths argument also highlights the importance of
making a moral case of equality. It is particularly relevant to the legalization of same-sex marriage where both the proponents and opponents
are making a moral case in support of their stance as we saw in Chapter
1. To treat each other with equal concerns and respect, perhaps they
should start justifying with each other in a way that all can accept.
Conclusion
For all the discord human dignity has brought to the courts, its place
in international equality jurisprudence tells us something about where
leading bills of rights jurisdictions are heading. It shows how far our
261
human dignity
213
world has come after turning its back on the prejudices of the past.
Nowadays, very few would argue against respecting human dignity.
Very few would say equality is obnoxious. Human rights are indeed
something to be celebrated. But not many people fully understand what
it means when they talk about dignity. Yet fewer grasp how it has come
to be aligned with the fundamental human rights that the court is
guarding. The conflicting opinions among judges in the highest courts
of Canada and South Africa reveal that confusions are not restricted to
legal practitioners alone.
As much as the judges are trying to keep an objective stance, dignity
is personal and elusive. The above case law reveals the difficulty of
explaining it in terms of other concepts. Equating inequality with dignity impairment sometimes makes the threshold too high for equality
claimants ignoring the fact that it is the unfair treatment that matters.
On the other hand, using liberty to explain the harm done to dignity
only dilutes its very meaning. At other times, the serious concept of
dignity descends into rhetoric when an assertion of a subjective sense
of self-worth makes a discrimination claim. While its collective nature
is firmly defended, there remains an unshakable air of individualism in
the concept that makes it a suspicious bedfellow of substantive equality.
Its strong affinity to the person arguably leads the court to lose sight
of the social context in which any analysis of discrimination should be
conducted.265 It begs the question as to whether the idea of dignity is
really empty to render it having no substantial significance on its own.
Above all, we are dealing with a concept of dual connotations. Dignity
is as objective as about the survival of humankind and as subjective as
the eye of a beholder.
A mere slogan however popular and soothing to the ears cannot
quell inquiring minds when it comes to explaining fundamental rights
such as equality. If there are really unplugged holes in the equality arguments, things will not add up simply by putting dignity as a placeholder.266 Dignity should not be just a slogan. If the dignity-focused
analysis is as good as the current equality jurisprudence gets, it is high
time those who cling to this idea to start being more articulate. We are
only at the beginning of what should be a continuing debate about the
meaning of dignity in respect of our understanding of human rights.
265
266
214
chapter four
A word of caution is that a government should think twice before stepping up its equality-oriented measures by legislation until there is a
clear justification for it.267
Of all the challenges the courts face in our age of rights, the right to
equality is probably the greatest. The law for the most part invites a host
of moral abstractions for individual judges to express their own sense
of fairness. It does not mean we can lay blames on judges. One must
not forget that equality is a moral concept and moral arguments and
intuitions apply.268 When the elusive idea of dignity is added to the
equation, objective considerations inevitably compete with the subjectivity of the individuals. It is multiplying the difficulties when hard
moral issues like the right to same-sex marriage are involved. The arguments from both sides of the debate as explored in Chapter 1 would
get us nowhere as long as the moral disagreements that people have on
the issue, especially about how far equality can go to justify a right,
remain unresolved.
The future is not entirely hopeless. Human beings are essentially
moral agents and are capable of making reflective judgment. Perhaps
one may say that making people with polarized views to come to an
agreement is unfathomable. But what society needs now is a common
will to come to terms with our disagreements and to see how we go
from there. Otherwise we will just keep arguing forever, with endless
court battles, referendums and constitutional amendments which, as
we see in the U.S., often come full circle. On an optimistic note, the
spirit of equal dignity may be at its best when people hold each other in
respect and are willing to try to reach some consensus. To conclude this
book, the next chapter will look back on what we have discussed and
look forward as to how we can move on.
267
268
216
3
Article 1(a) of the Constitution of the Republic of South Africa Act 1996, (no. 108
of 1996, date of promulgation: 18 Dec 1996, date of commencement: 4 Feb 1997).
4
See the discussion in Chapter 4.
5
Quoted in Philip Alston, A Framework for the Comparative Analysis of Bills of
Rights in Philip Alston (ed), Promoting Human Rights Through Bills of Rights:
Comparative Perspectives (Oxford: Oxford University Press, 1997) 114, p 1.
6
UDHR, ICCPR and ICESCR.
7
For example, the New Zealand Bill of Rights 1990 stipulated the grounds of colour, race, ethnic or national origin, sex, marital status and religious or ethical belief . It
was not until the 1993 amendment that new grounds such as age (for those aged
sixteen or above), disability and sexual orientation were added. Section 15 of the
Canadian Charter of Rights and Freedom (the Canadian Charter), on the other hand,
excludes sexual orientation as one of the prohibited grounds of discrimination.
Nevertheless, the Supreme Court read it into the Canadian Charter as a ground analogous to those enumerated under it in Egan v Canada [1995] 2 SCR 513.
8
Grant Huscroft, Discrimination, Dignity, and the Limits of Equality, (2000) 9
Otago Law Review 697, p 711.
217
218
10
11
12
13
14
M v H [1999] 2 SCR 3.
Halpern v Canada [2002] 60 OR (3d) 321 (Div. Ct.).
Civil Union Act 2004 (2004 No. 102, Date of assent 13 Dec 2004).
Civil Partnership Act 2004 (2004 Chapter 33).
Civil Union Act 2006 (Art No. 17.2006) (Assented to 29 November 2006).
219
and only non-western country to join the exclusive league of jurisdictions in legalizing same-sex marriages. In 2009, Norway and Sweden
joined the flow. Worldwide, however, the development remains modest. Despite breakthroughs made here and there, they are largely toneddown replicas scattered among individual states within nations. For
some, it may be a matter of when the right case comes to court; for
others, the idea of marriage between people of the same sex is simply a
non-starter. Unlike, for example, the right not to be subject to torture,
which receives virtually universal support from the international community, the right to same-sex marriage sparks controversies. Courts at
the international level remain non-committal. So far, the judicial consensus is largely that ones sexual orientation is ones privacy. Sexual
activities between consenting adults are off-limits to the state as far as
criminal prosecution is concerned. The focus on privacy has rendered
discrimination a moot point.15 Even when the right case did come,
judges were reluctant to touch the meaning of marriage under international treaties.16 Once the interest of children is implicated, the court
would be extra cautious even though the ECtHR has recently hinted at
a more inclusive and circumstantial approach.17
The arguments: liberal vs conservative
If there is a lack of consensus among the international community, it
is indeed disagreement on a grand scale when it comes to the debate
between proponents and opponents. While a liberal/conservative
dichotomy may represent an oversimplified view of things, it more or
less captures the essence of the dispute: liberalize or stay put. For the
liberal camp, same-sex marriage is a civil rights issue. As equality
continues to move societies forward, gay couples who were once targets of the now defunct sodomy laws will one day, if not yet, achieve
marriage rights. Just as the state has no business in peoples bedrooms, the decision to marry is a private matter. It is so intimate an
aspect of life that ones dignity and autonomy depend on it. Hence,
15
220
the Constitutional Court of South Africa said denying same-sex couples the right to marry is inhuman.18
Some took one step further saying it is immoral to disallow people
to get married just because of their sex. As it is the fulfillment of personal needs and capacities that matters, society has a moral obligation
to see to it that all loving couples can freely tie the knot. It was exactly
this reason that anti-miscegenation laws were morally wrong. If they
could be abolished in civilized societies, the discriminatory element of
marriage should go as well. Besides, the changing family patterns and
the advent of reproductive technologies make the link between marriage and procreation increasingly obsolete. Baby-making aside, marriage is said to be a vow of life-long togetherness. On a positive note,
embracing same-sex partners to this already shaking institution helps
sustain the sanctity of marriage by having more committed couples
stay together. From a liberal point of view, same-sex marriage has everything to do with equality and dignity. More than one and a half decades into the same-sex union excursion, straight Scandinavians are still
marrying. In the words of Eskridge and Spedale, having observed the
conjugal transitions in Massachusetts, The sky did not fall.19
Compared to the liberal view, the conservative opinion sounds more
apocalyptic. It starts with a premise that marriage has intrinsic values.
Any meddling means a distortion to the significant public functions
that it serves. First of all, this view argues that marriage and procreation are un-severable. Only heterosexual couples can reproduce. That
not all of them do so does not change the reality that it is the one-flesh
sexual union between a man and a woman which is capable of producing biological offspring. By encouraging married couples to support
each other and their children, marriage law stabilizes families and societies. The fact that same-sex couples can be parents through alternative
arrangements nowadays does not displace the assumption that the best
interest of children lies in being nurtured by their biological families.
Adoption is to find homes for those who are already deprived of this
optimal upbringing environment not for satisfying adults urge to be
parents.
18
Minister of Home Affairs & Another v Fourie & Another [2006] (3) BCLR 355
(CC), p 374, per Sachs J.
19
William N. Eskridge Jr. & Darren R. Spedale, Gay Marriage: For Better or for
Worse? What Weve Learned from the Evidence (Oxford: Oxford University Press, 2006),
p 241 [Eskridge & Spedale].
221
222
As observed in the previous chapters, the two ideas were used to support the right to same-sex marriage in courts. In some places marriage
has been redefined. However, each step of the legal reforms from
sodomy decriminalization, age-of-consent equalization, civil partnership legislation, to same-sex marriage represents an incremental and
subtle change of claims. Judicial opinions based on the two fundamental notions have yet to explain these nuances. The extent of how equality and dignity can and should be used to support a rights claim remains
a matter of contention.
This book embarked on a journey to find the holy grail of human
rights in the context of same-sex marriage. It started by deconstructing
the closely related yet distinctive notions of equality and human dignity as they have become the essence of arguments for legalizing samesex marriage. Equality is no stranger to the courts. The equal protection
of the law, entrenched in the U.S. Constitution since the Fourteenth
Amendment, has long allowed aggrieved minorities to make their case.
Hence, the Supreme Court condemned the separate but equal doctrine in 1954 ending racial segregation at schools.22 The time of vindication for gays and lesbians came when the Supreme Court in 1996
annulled a state constitutional amendment banning legal protection
for sexual minorities.23 In parallel, some state courts were making
inroads into the marriage frontier. The first taste of success came as the
Vermont Supreme Court granted same-sex couples equal access to the
rights and privileges available to married couples.24 In 2003,
Massachusetts capped the equality feat by following the footsteps of
Ontario in redefining marriage to include any two persons.25
Equality and same-sex marriage
In all these cases, the Aristotelian principle of formal equality like
should be treated alike is very much alive. Except for procreation,
same-sex couples are seen to be as capable as forming long, lasting,
loving and intimate relationships as heterosexual spouses. This common ground means the two groups are comparable in their needs,
22
23
24
25
223
26
Nicholas Bamforth, Sexuality, Morals and Justice: A Theory of Lesbian and Gay
Rights Law (London: Cassell, 1997), p 238.
224
225
admit that reasonable people do disagree and what makes two cases
different or similar is largely a matter of value judgment. Looking back,
the protection extended from race to sex plus many other grounds is a
sign of societies moving towards openness and diversity. It also indicates the shifting priorities facing each society and the changing opinions about who deserve more attention. All in all, the concept of formal
equality is useful in political discourse for its rhetorical power, provided people are aware of the limits.
To its staunchest critics, however, treating like people alike only
perpetuates an unfair social structure at the expense of the marginal
groups. In the context of same-sex marriage, letting gays and lesbians marry like heterosexuals reinforces heterosexual hegemony. To
eliminate all forms of oppression, the only way out is to transform
the current power configurations at all social levels and make difference costless for everyone. However, it is doubtful whether the law
is capable of dealing with a social reform so radical. It is also doubtful whether turning the existing interpersonal relations around will
not bring the society down to another kind of oppression. We do
not know whether overthrowing the infamous majoritarian rule
would spell the demise of other forms of political tyranny.27 In any
event, equality is not something that can be easily rammed down
peoples throat. To quote again the comment from the New Jersey
Supreme Court as it decided to endorse civil unions, Although
courts can ensure equal treatment, they cannot guarantee social
acceptance, which must come through the evolving ethos of a maturing society.28
A maturing society is where everyones view counts. It is where each
person is equally valued to express their concerns on public policies
amid pluralistic views. It does not mean everyone will get his way. It does
not lead to a value-free political process. There is no guarantee of a perfect solution. But in such a democratic state, there is a better promise of
mutual respect and understanding that hopefully brings us closer to the
essence of equality. Before our society is ripe for this, the pursuit of the
democratic ideal especially the way to get to it should continue.
27
Although it is acknowledged that democracy does not necessarily mean majority
rule. See J. M. Balkin, The Constitution of Status, (1997) 106 Yale Law Journal 2313,
p 2368 [Balkin].
28
Lewis v Harris (N.J. 2006) 908 A. 2d 196, p 223.
226
227
remains uncertain and is beyond the scope of this study. The poignant
claims of inequality and loss of dignity might have evaded the scrutiny
of any well-intentioned judiciary. But it is doubtful whether they can
stand the test of time, as the list of potential human rights claims goes
on with more aggrieved parties believing the court is the right place to
put up a fight. In light of the different interpretations that equality and
dignity are capable of giving, there is a need to acknowledge that even
reasonable people can disagree on how far they should be used to justify the right to same-sex marriage. It is to do justice both for the couples who want it earnestly as well as those who remain unconvinced by
the present human rights advocacy.
The gaps in the equality discourse might have led some judges to
explore another profound idea. Chapter 4 looked at how the Canadian
Supreme Court has eventually found dignity as a pillar for equality.
Widening the scope of equal protection beyond personal characteristics and disadvantages is something to be applauded. Yet equating
inequality with a dignity violation not only brings conceptual confusion but also judicial uncertainties that result in overlooking what the
law seeks to protect in the first place. If it was the racist treatment and
sexist humiliation suffered by black people and women in the past that
ignited the quest for equality, it is indeed the unequal and unjust treatment that matters and should be the focus of the judicial probe.
Turning to dignity to justify equality presents a shift towards personal
territory and away from the objectivity of the court.
While dignity possesses a certain level of universality, it is also an
individualistic concept. That is illustrated by the inclination of some
judges to look to the claimants feeling when finding a dignity violation. One would ask whether it is judicial imagination stretched too far.
The various ways that imagination has played out give rise to inconsistent judicial opinions as to whether dignity is hurt in the particular context of the particular claimant. Sometimes it is a wrong question being
asked. Sometimes, a person suffering from inequality may end up being
diagnosed of having a loss of dignity.
Be that as it may, the forcefulness of the concept cannot be overestimated. Despite criticisms from a circle of prominent legal scholars, the
dignity-centered equality jurisprudence eventually took root in South
Africans top court.29 Today, one of the most prominent members
29
President of the Republic of South Africa & Another v Hugo [1997] (6) BCLR 708
(CC).
228
30
Laurie W H Ackermann, Equality and Non-Discrimination: Some Analytical
Thoughts, (2006) 22 South African Journal on Human Rights 597, p 602 [Ackermann I].
31
Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate
(Princeton: Princeton University Press, 2006), p 8 [Dworkin].
32
Ibid., p 8.
33
Ibid., p 1.
229
Ibid., pp 56.
See Bush calls for ban on same-sex marriages, (25 Feb 2004). Available at http://
www.cnn.com/2004/ALLPOLITICS/02/24/elec04.prez.bush.marriage/ (visited 1 Sep 09).
36
Daniel A. Smith, Matthew DeSantis & Jason Kassel, Same-Sex Marriage Ballot
Measures and the 2004 Presidential Election, (2006) 38 (2) State and Local Government
Review 78. Available at http://www.clas.ufl.edu/users/dasmith/SLGR2006.pdf (visited
1 Sep 09).
37
Ibid., p 5.
38
Ibid., pp 67.
39
Ibid., pp 911.
35
230
Ibid., p 70.
Ibid., p 88.
Ibid., p 89.
Ibid., p 65.
Ibid.
Ibid., p 22.
Ibid., p 162.
231
contempt for the value of other peoples lives.47 They will continue to
disagree over whether same-sex marriage follows the principle that
people are personally responsible for their own lives. But Dworkin
believes that the situation would improve a great deal if people can start
to see their disagreements as debates about the best interpretation of
fundamental values they all share rather than simply as confrontations
between two divergent worldviews neither of which is comprehensible
to the other.48 They will then need to decide to what extent they would
commit themselves to agreeing that every human life has intrinsic
potential value and that each person has a responsibility to identify and
realize the potential value in his own life for a genuine argument to
begin.49
But a genuine debate needs an accommodating political regime.50 If
we all agree that democracy is an indispensable form of government,
the next question is: what is democracy? Like Balkin,51 Dworkin
believes that democracy is more than the will of the greatest number of
people because this majoritarian conception on its own fails to explain
what is good about democracy.52 A partnership view of democracy,
on the other hand, is substantive as it requires us to identify political
virtues other than majority rule to sustain our belief in democracy.53
Under this view, a majority decision is democratic only when certain
conditions are met that protect the status and interests of each citizen
as a full partner.54 It entails mutual attention and respect between people who disagree with each other. It takes us back to the two principles
of dignity that Dworkin espouses: affirming the intrinsic value of every
human life and respecting peoples personal responsibility for managing their own lives. Perhaps it remains an ideal as long as people
keep treating each other as enemies rather than partners under a common political enterprise. But a longer perspective is what society
needs, as Dworkin suggests, for people to stay hopeful for a better
democracy.55
47
48
49
50
51
52
53
54
55
Ibid., p 17.
Ibid., p 22.
Ibid., p 23.
Ibid., p 127.
See Balkin (n 27 above), p 2368.
See Dworkin (n 31 above), p 143.
Ibid., p 134.
Ibid., p 131.
Ibid., p 163.
232
The partnership ideal of democracy does not mean that people will
agree any time soon over same-sex marriage in the U.S. or elsewhere.
But at least it offers hope for finding common ground through shared
principles to allow an argument to begin. Or else society is divided
forever as proponents and opponents refuse to appreciate each others
deep convictions and continue their fight in courts and ballot boxes,
like what we see in the U.S.
Deliberative democracy and same-sex marriage
Deliberation as the discipline of rights
Dworkins two principles of dignity remain abstract and philosophical.
But his proposal of seeking common ground and partnership mirrors
that of theorists who believe deliberative democracy is what society
needs in addressing our moral controversies today.56 In the context of
same-sex marriage, the case for deliberation is particularly strong when
the dispute is over whether society should recognize same-sex relationships as equally valuable as heterosexual relationships. In a society that
emphasizes equal dignity for its citizens, a refusal to give equal recognition to some can be condemned as oppression or creation of secondclass citizens.57 But this sentiment is not necessarily shared by everyone
in the case of same-sex marriage, because the word marriage evokes
different responses from different people. For those who believe that all
forms of sexuality are equally valuable, denying same-sex couples the
right to marry is plain discrimination. For others who see marriages
special function in continuing the generations, recognizing only heterosexual couples for that purpose is simply a matter of definition.58
When public recognition hinges upon such diverse but equally influential views about marriage, the need for an open discourse cannot be
overestimated. Recognition is a mutual thing. Right is a two-way street.
The call for the right to be recognized can hardly reach the other side
56
Amy Gutmann & Dennis Thompson, Democracy and Disagreement (The Belknap
Press of Harvard University Press: Cambridge, 1996)[Gutmann & Thompson].
57
Charles Taylor, The Politics of Recognition in Amy Gutmann (ed), Multiculturalism and The Politics of Recognition (Princeton: Princeton University Press, 1992)
2574, p 37.
58
David Orgon Coolidge & William C. Duncan, Definition or Discrimination?
State Marriage Recognition Statutes in the Same-sex Marriage Debate, (1998) 32
Creighton Law Review 3, p 22 [Coolidge & Duncan].
233
234
67
235
Ibid., p 776.
Joshua Cohen, Deliberation and Democratic Legitimacy [Cohen] in James
Bohman & William Rehg (eds) Deliberative Democracy: Essays on Reason and Politics
(Cambridge: MIT Press, 1999) 6792, p 73 [Bohman & Rehg].
74
Cass Sunstein adopted the notion of deliberative democracy in a 1985 article to
describe how deliberation between law-makers and their electoral constituents over
public policies was more consistent with American representative politics than mere
interest group politics. See Cass R. Sunstein, Interest Groups in American Public Law,
(1985) 38 Stanford Law Review 29.
75
See Gutmann & Thompson (n 56 above), pp 78.
76
See Cohen (n 73 above), p 74.
77
Ibid., pp 7475.
78
See Habermas (n 70 above), p 776.
73
236
autonomy owes its existence and legitimacy to the forms of communication in which individuals can have impacts on their civic and political environment as political equals. When life experiences direct people
to pursue different policy goals, and inevitably values and expectations
clash, their competing views should be aired and responded to. This
process is vital in sustaining the kind of civic self-respect which underlies Rawls account of democratic politics in a just society. According to
Rawls, self-respect as a primary good requires a publicly affirmed distribution of fundamental rights and liberties.79 In a just society, everyone has a similar status as they join each other in participating in the
common affairs of public life. A mutual sense of respect among them
helps bind society in a good political balance and assures everyones
own worth despite their social and economic differences.80 This has
implications to a society in which people disagree over rights such as
the right to same-sex marriage. No matter whether one supports or
opposes the idea, under the ideal of deliberative democracy he is on the
same footing as every other whose view deserves respect and reasoned
response.
Can this kind of equal citizenship be sustained by the dedicated work
of a supreme court or an elected legislature? It may not. Judges only
listen to those who happen to stand before them. The institutional
framework in which judicial independence is defended does not allow
them to account for the controversies in political life.81 Not only may
the court not have the best or ultimate answers to solve moral puzzles,
it may sometimes be wrong.82 Do the peoples representatives fare any
better? Probably not: because the parliament does not represent everyone.83 To address this criticism, a representative democracy should give
the diverse population unhindered opportunities to discuss the values
to which they collectively aspire.84 As Habermas argues using the example of the feminist movement, it is probably the affected persons who
can best clarify the relevant aspects that define equality and inequality
79
John Rawls, A Theory of Justice: Revised Edition (Cambridge: The Belknap Press of
Harvard University Press, 1999), p 477 [Rawls I].
80
Ibid., pp 477478.
81
See Gutmann & Thompson (n 56 above), pp 4647.
82
Cass R. Sunstein, The Supreme Court 1995 Term Foreword: Leaving Things
Undecided, (1996) 110 Harvard Law Review 4, p 101.
83
Alberto Calsamiglia, Constitutionalism and Democracy in Harold Hongju Koh
& Ronald C. Slye (eds), Deliberative Democracy and Human Rights (New Haven: Yale
University Press, 1999) 136142, p 137.
84
Ibid., p 139.
237
85
238
90
239
event, the common ground that then Senator Obama envisaged where
same-sex couples should be treated with dignity and have their privacy respected and be able to visit each other in the hospital and share
health care benefits95 seems to fall short of the ideal of reciprocity
and the commitment to political values that Rawls espouses.
In view of the different common grounds, the fundamental question remains: what does it mean by treating someone with dignity?96
I have argued in previous chapters that the answer depends, because
dignity is such a profound idea that evokes different responses from
people of various backgrounds and convictions. Nevertheless, I maintain that dignity is more than an empty slogan. There is profound collective wisdom in affirming it as one of the universal pillars of human
rights. But one should distinguish between political consensus and
legal principle, particularly when dignity is being relied on to argue for
some of the most contentious rights like the right to same-sex marriage. The difficulties in getting people agree on a definition should not
deter us from continuing to identify some common principles that are
shared by both the proponents and opponents. It is to do justice not
only to gays and lesbians who sincerely believe that their claim matters,
but also to those who remain doubtful of uncritically using dignity to
settle the disputes on rights.
We have not yet had an elaborate theory of dignity. Dworkin has
tried to develop one by going back to the basics. He believes that the
gulf between liberals and conservatives in the U.S. is not as bottomless
as people think. There are indeed shared principles if people care to
understand them.97 His two principles of dignity that each human life
has intrinsic value and each person is responsible for his own life remain
abstract and philosophical. They are open to interpretations by people
of all political stripes. Dworkins endorsement of same-sex marriage on
the basis of his own interpretation98 does not mean that others would
come to the same conclusion. But it does not vitiate his modest ambition to persuade people that it is worthwhile to look at the controversies
at a more philosophical level and try to argue from there with mutual
respect.99 Above all, the possibility of debate is part of the discipline of
95
96
97
98
99
240
100
241
242
243
244
find it hard to deny others access to participate in political communications and articulate what they take to be equality, however disagreeable their views appear. The recognition of such a broad and deep right
of expression and conscience affirms equal dignity. According to
Brennan, it fulfills the constitutional vision of dignity that respects the
right of each individual to form and express political judgments.122 It
does not matter whether one is in the majority, at the periphery, the
powerful, the less powerful, a conservative, or a reformist. It is also the
message professors Harold Lasswell and Myres McDougal sought to
spread, as they told of their aspirations in legal education in the midst
of the Second World War,
The supreme value of democracy is the dignity and worth of the individual; hence a democratic society is a commonwealth of mutual deference a commonwealth where there is full opportunity to mature talent
into socially creative skill, free from discrimination on grounds of religion, culture, or class.123
Although written more than half a century ago, their message remains
pertinent as ever. Their vision in education was grounded, like the
deliberative theorists, on human beings deliberative capability:
The student may be allowed to reject the morals of democracy and
embrace those of despotism; but his education should be such that, if he
does so, he does it by deliberate choice, with awareness of the consequences for himself and others, and not by sluggish self-deception.124
245
as ours, no matter how morally wrong we believe the others words and
deeds are.
In his analysis of social group competition, Balkin asks democracy
to live up to its own ideal, where majority rule is not.128 Because democracy is more than a matter of letting majorities or the governing elites
have their way. It is not only about the procedure, but also about the
proper organization of society and the proper mode of social relations.129 Its goal is to cultivate a democratic culture, a vision of democracy that forsakes all unjust social hierarchies and promotes equal
standing for everyone. This egalitarian demand does not hinge on legal
means alone, for law is part of the status quo.130 It demands society to
stop paying lip-service to familiar terms like discrimination, and confront societal structures that perpetuate unjust hierarchies and the
lower status for some groups. According to Balkin, the current status
hierarchy on the basis of sexuality is unjust as it organizes social structure, distributes dignitary and material benefits, and shapes and justifies peoples life chances through systematic privileging of things
associated with masculinity over femininity. Under this system, gays
and lesbians are thought to have transgressed the set gender roles
between men and women and deserve a lower status.131 In this regard,
a democratic process which prides itself as expressing the wish of people in legislating against same-sex marriage on grounds of morality
and traditions seems to let democracy down.132
Balkin believes that Stone Js famous footnote in Carolene Products
contains a message that the democratic process is not always just to
minorities. The third paragraph of the footnote suggests that prejudice
against discrete and insular minorities may be a special condition that
undermines political processes originally meant to protect them;133 and
it is at this point the court must heighten its judicial scrutiny. Balkin
suspects that in formulating this condition, Stone J might be aware of
the potential conflict between democracy and prejudicial treatment of
certain kinds of social groups.134 Therefore, Balkin observes that in a
society embedded with unjust status hierarchies, the formal feature of
128
129
130
131
132
133
134
246
democracy is insufficient to cure the injustices that a democratic culture aims to eliminate.135
If we think that Balkins arguments are worth a thought, sooner or
later we will need to confront the perceived injustices created by legislative or electoral initiatives which legitimize the ban on same-sex marriage. However reluctant we may be, as society we must make a decision.
If no consensus is possible, we may vote to remove the issue from the
legal domain altogether, or vote for or against to settle it once and for
all.136 But, suppose the majority has its way, they may not be entirely
happy if it is always associated with the word tyranny. Then what are
the alternatives?
The alternative of deliberative democracy is not a panacea for societys moral disagreements. As much as he believes in deliberative politics, Waldron does not share the idealistic assumption that he thinks is
being held by theorists of deliberative democracy that, once we get a
genuine deliberative democracy, the sordid business of counting votes
will be largely unnecessary, at least on serious matters of principle.137 It
is because even after deliberation, people will continue to disagree in
good faith about the common good, and about the issues of policy,
principle, justice, and right which are better left to the deliberative
process of the legislature.138
Perhaps democracy is indeed an unfinished project. It is an ideal we
always strive for but that we never fully grasp. If we want to have a society where people are equal civilly, socially and politically, we may want
to ask whether our democracy is moving in this direction. If we
acknowledge that our current systems contain unjust status hierarchies,
we may need to cultivate a democratic culture and deliberate our way
to bring groups closer together. In the process, we will need to listen,
deliberate and reconsider, at the same time accommodate aspirations
we used to think incompatible with ours.139 Sometimes we may need to
135
Dworkin expresses a similar criticism against the majoritarian conception of democracy that a decision is democratic even if it is very unjust. See Dworkin (n 31
above), p 134. On the other hand, Waldron argues that the idea of the tyranny of the
majority is not always right. See Waldron III (n 106 above), pp 13951401.
136
See Coolidge & Duncan (n 58 above), p 26.
137
See Waldron I (n 66 above), p 92.
138
Ibid., p 93.
139
Michael Walzer writes, In democratic politics, all destinations are temporary.
No citizen can ever claim to have persuaded his fellows once and for all. See Michael
Walzer, Spheres of Justice: A Defence of Pluralism and Equality (Oxford: Martin
Robertson, 1983), p 310.
247
change our views. And we cannot expect to always have our own way.
To live up to democracy and to find our way out of a disagreement like
same-sex marriage, perhaps it is what is required. In a world that moral
controversies and conflicts of rights abound, we can no longer truly say
we are taking rights seriously unless we are willing to go that far. On
this note, Waldrons closing words are most inspiring as I believe, for
advocates on all sides of the same-sex marriage dispute:
To take rights seriously, then, is to respond respectfully to this aspect of
otherness and then to be willing to participate vigorously but as an
equal in the determination of how we are to live together in the circumstances and the society that we share.140
Perhaps that is the essence of equality and equal dignity. When each
member of society: men and women, rich and poor, spiritual and secular, is able to step into the shoes of others and have an equal access to
make their voice heard no more, no less than an equal rights-bearer
deserves, we will have come to the doorstep of fairness at long last. It
strikes us as a utopia. But an aspiration to always make a step closer to
a utopian society is the constant drive for those who still believe there
is a reason to ask and dream for justice.
140
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INDEX
Abortion, 12, 52, 54, 68, 111, 154, 241
Ackerman, Bruce, 240
Ackermann, Laurie (Lourens) W H, 192,
197200, 228
Adolphe, Jane, 63
Adoption, 16, 17, 18, 19, 22, 3334, 35,
47, 4950, 60, 65, 66, 69, 120, 220, 223
African Charter on Human and Peoples
Rights (1981), 133
Age of consent, 8, 33, 37, 41, 103, 116,
222
Alaska, 2728, 29
Albertyn, Cathi, 191193, 195196
Alston, Philip, 216
Anthropology, 13, 136, 139, 157
Apartheid, 21, 74, 79, 134, 155, 177, 191,
193, 203
Aquinas, St. Thomas, 137
Argentina, 38
Aristotle, 6, 11, 79, 83, 116, 206, 222
Arizona, 31
Arranged marriage, 156
Asia-Pacific, 3637
Assimilation (of gays and lesbians), 42,
99, 110, 111, 124126, 224, 237
Aung San, Suu Kyi, 143
Australia, 47
Autonomy (Self-determination), 3,
69, 123, 144, 149150, 155, 184185,
189, 200, 201202, 206, 217, 219,
234236, 243
Baines, Beverley, 176
Balkin, J. M., 10, 5253, 130, 231, 245
Ball, Carlos A., 59
Bamforth, Nicholas, 83, 100101, 104,
106, 120121
Barak, Aharon, 153
Baroness Hale of Richmond, 91, 128
Barr, Michael D., 155
Beatty, David M., 76
Beck, Randy, 69
Belgium, 20, 21, 39, 217
Bellamy, Richard, 206
Best interest of the child, 4950, 61,
65, 220
Bestiality, 68
Bioethics, 158
Blair, D. Marianne, 43
260
index
index
Foucault, Michel, 106
Fourteenth Amendment, U.S.
Constitution, 2, 27, 7475, 222
France, 18, 73, 151, 217
Fredman, Sandra, 20, 56, 8890
Furnish, Victor Paul, 67
Gallagher, Maggie, 64
Genesis, 27, 66, 67 (see Christianity)
George, Robert P., 64, 237
Georgia, 26
Germany, 18, 74, 131, 134, 138, 151, 153,
154, 156, 215, 217
Gewirth, Alan, 59, 140142, 147, 211
Gibbins, Roger, 135
Glendon, Mary Ann, 135
Goldblatt, Beth, 191193, 195196
Grabham, Emily, 192
Greeks, 106, 136
Greenawalt, Kent, 100
Greschner, Donna, 181, 189
Guest, Stephen, 115
Gutmann, Amy, 206, 232, 240, 242
Habermas, Jrgen, 234236
Halley, Janet E., 105, 109
Hate crime, 223
Hawaii, 2728, 29, 61, 76, 118, 218
Hays, Richard B., 67
Henkin, Louis, 197
Heterosexuality, 51, 5253, 99, 126,
225, 230
Hill Jr., Thomas E., 146
Hitler, Adolf, 100, 143
Hobbes, Thomas, 138
Hogg, Peter W., 171, 176, 190
Homosexuality, 47, 48, 5153, 58, 67, 68,
105109, 245
Hong Kong, 102103, 208
Honneth, Axel, 42, 233
Howard, Rhoda E., 154155, 201
Humanism, 115, 137
Humanity, 57, 58, 115, 131, 162, 163,
203, 224
Hungary, 134, 217
Huscroft, Grant, 173176
Iceland, 17
Illinois, 26
Imago Dei, 137
Immutability, 107, 170171, 185
India, 39, 40, 139
Individualism, 125, 139, 191, 194,
201202, 213
261
262
index
index
Registered partnership, 9, 16, 34, 38,
4142, 117, 217
Religion, 3, 13, 17, 22, 25, 35, 52, 6667,
88, 94, 118, 137, 138, 139, 148, 151,
171, 221, 226, 229, 230, 237, 238, 242,
243 (see Theology)
Reproductive technologies, 60, 64, 66,
69, 120, 220
Reynolds, F. M. B., 92
Richards, David A., 58
Right to be different, 7981, 83, 108,
155, 210, 223
Right to be left alone, 1, 8, 40, 58, 6768,
71, 111, 156, 219, 235
Ritschl, Dietrich, 137
Roman Catholic Church, 22, 137, 230
Ross, Alf, 112
Sado-masochism, 152
Samar, Vincent J., 60
Same-sex marriage, 3, 7, 9, 11, 19,
24, 30, 39, 42, 51, 5470, 98, 122,
207, 212, 217, 226, 229, 230,
232, 247
San Francisco, 30
Sandel, Michael J., 123
Saskatchewan, 24
Scalia, Gregory Antonin, 51, 68
Scandinavia, 10, 16, 217, 220
Schaar, John H., 73
Schachter, Oscar, 201
Schuman, Ben, 52
Second-class citizenship, 9, 27, 42, 45,
55, 71, 78, 118, 232
Second World War, 74, 134, 215, 244
Seidman, Steven, 106
Sen, Amartya, 199, 233, 240
Separate but equal, 42, 44, 75, 78, 81,
88, 128, 222
Sex, 27, 35, 49, 62, 66, 76, 89, 103, 105,
106, 129, 159, 216, 227
Sexual intercourse, 6364, 100104, 108
Sexual orientation, 5, 16, 21, 23, 35,
37, 41, 4748, 4950, 56, 57, 69, 75,
76, 92, 93, 94, 100, 101, 105, 106,
118, 159, 162, 209, 216, 219
Shamgar, Meir, 155
Slippery slope, 69, 221
Smith, Daniel A., 229
Smith, Nicholas, 176179, 212
Social contract, 138
Sodomy, 5, 2526, 33, 35, 40, 42, 55, 58,
67, 68, 76, 100, 101, 121, 122, 162, 192,
202, 208, 219
263
264
index