Homosexuality and modern
family law
Group names: Janina, Xiaohan,
Yan, Sandra, Barbara
Overview
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Introduction
Controversies over homosexuality
Geographical Situation concerning the samesex marriage
Conclusion about whether marriage is a right
in itself and whether a state should be gender
blind
Introduction
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Definition of what a marriage is, differs a lot
depending on whether you consider how
marriages are defined by the different
religions or by different states, most have in
common, that they see the marriage as a
bond between two persons that is culturally
and legally recognized as such.
Marriage of today has developed from:
having an amount of different partners, over
polygamy to monogamy
Introduction
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Marriage in the pre-christian era was hardly monogam, but
because of the expansion of monotheistic religions and the
spread of European norms and values in the 15th century,
monogamy became common
Marriage in the Roman Empire was holy and the ideal was also
to just marry once
In the middle-ages only those could marry who could effort a
family -> a huge amount of people was excluded from marriage
In the modern era, until the 20th century, Christian religion still
had a huge influence on partnerships - reason to marry was to
build a family and to beget children
Introduction
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Today, monogamy still prevails the few states and religions that allow
polygamy.
In former times: marriage had to be formed by a man and a woman and
homosexual partnerships were not recognized at all, but since the
beginning of the 21st century many countries find ways to allow and
build legal institutions to tie the knot for same-sex partnerships.
Common ones are the registered partnerships (since 1998) and the
same-sex marriages (since 2001- Netherlands was the first country
introducing it)
Difference between these: a registered partnership is an own legal
institution which has been built for same-sex couples while the samesex marriage applies exactly the same law for homosexual couples as
for heterosexual couples -> sometimes having special codes for
discussed topics (as for example adoption).
Number of states, who introduce the same-sex marriage is increasing
Introduction
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First same-sex marriage took place on the 16th of April 1061 in
Spain, where a pastor wedded two men, Pedro Díaz and Muño
Vandilaz, in a small chapel. The document about this marriage
has been found in the abbey of San Miguel de Celanova.
Today the same-sex marriage is still a huge debate in many
states, especially in those where religion is strong and has
political influence.
There are hardly religious institutions that allow same-sex
marriages. But in a few Jewish and Christian Churches same-sex
marriage is possible. These are the United Church of Christ, the
Metropolitan Community Church, the United Church of Canada,
the Swedish Church, the Danish Church and in parts of the
reform Judaism.
Controversies over homosexuality
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The arguments about ‘homosexuality’ of
opponents
The arguments about ‘homosexuality’ of
proponents
The reason why homosexual union or
marriage is objected
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1. Authorities of Bible or Nature
2. A dissolution of Marriage
3. Juridico-technical
4. International Relationship
The arguments of proponents
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The principle of equality.
The opportunity for greater emotional and financial security in
relationships, as well as for increased seriousness and
responsibility in feelings and actions.
Formal equality and official approval would strengthen long-term
monogamous relationships among homosexuals.
The United State, European Union and New Zealand are
against sexual orientation discrimination.
Article 14 of the European Convention.
A Canadian case: Halpern et al v Attorney General of Canada et
al: In its final ruling, the Court of Appeal reformulated the
definition of marriage in Ontario to be "the voluntary union for
life of two persons to the exclusion of all others “.
Geographical Situation concerning the
same-sex marriage
Countries are divided in three groups
I.
II.
III.
Those which allow the homosexual
marriage.
Those which regulate it as another type of
partnership.
Those which do not recognize same sex
unions.
There are different levels within
each group depending on the
rights given to these couples.
1.Those which allow the homosexual
marriage.
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Netherlands was the first country to legalize homosexual marriage in
April 2001. Since then, homosexual marriage is legal in Belgium,
Spain, Canada, South
Africa, Norway, Sweden, Portugal, Iceland, Argentina,
and Denmark. Besides, Mexico City, Quintana Roo, the District of
Columbia in the U.S., and several U.S. states: Massachusetts,
Connecticut, Vermont, Iowa, New Hampshire, New York, California,
Washington, Maryland (2013) and Maine (2013).
Some of them also include the right to adopt.
2. Those which regulate it as another
type of partnership.
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In these countries there is legal recognition
of same-sex couples, (as civil unions) giving
them similar rights and obligations. Countries
as Germany, United Kingdom, France,
Switzerland, Austria, Australia, or Slovenia
have this system.
However, things are changing in most of
them.
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In U.S., Barack Obama has declared that he is in favor of samesex marriage.
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In U.K, Cameron (from the Conservative party) declared a plan to
legalize gay marriage before 2015.
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In France, François Hollande will regulate the right to marriage
by homosexual couples and the right to adopt.
3. Countries which do not recognize
same sex unions.
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There are 78 countries where homosexuality is punished.
There are several countries where the homosexuality has
imposed the death penalty ( such as Iran, Sudan, Saudi Arabia,
Mauritania, Yemen and Uganda).
Is entering in marriage a right in itself?
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The right to marry is a right in itself.
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Article 16 of the Human Right Declaration: “Men and
women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a
family. They are entitled to equal rights as to marriage, during
marriage and at its dissolution”.
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But is it a right for same-sex couple? HRL doesn’t give a definition of
family.
Article 12 of the European Convention on Human
Rights: «Men and women of marriageable age have the
right to marry and to found a family, according to the
national laws governing the exercise of this right ».
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But is it a right for same-sex couple? Schalk et Kopf v. Austria
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The Article 14 section 1 of the US Constitution:“…nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws”
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Loving vs. Virginia
Does it apply to same-sex couple? Supreme court has never ruled, but
judicial court of Massachusetts (2003) ruled in favor of same-sex right to
enter marriage.
Conclusion
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Same sex marriage is still a very disputed matter, as it opposes
moralistic views and equal treatment defenders. Countries
around the world are divided but history seems slowly moving
toward the general acceptance of strictly same sex marriage.
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Should then the state be gender blind in the same way as it is
color blind? Cory booker, the mayor of Newark remarkably said:
“Like racial minorities and women, homosexuals as a
group have historically faced societal and government
discrimination based on a personal characteristic they
cannot control. Thus, as with race and gender, the
federal courts must be the guardians of justice and
ensure that they are treated equally” .