Rights and civil unions
Any legislation that intends to implement the values enshrined in the European Charter of Fundamental Rights and the Lisbon Treaty is to be welcomed. Europe is not merely a geographical entity but also a community of values.
These values are to be interpreted not as a catalogue of entitlements but, rather, as a necessary precondition of a ‘culture of dignity’ in which every citizen lives in an inclusive culture of recognition between human beings.
All persons and minority groups are to be recognized as belonging to the same moral and civic community as the majority.
The advocates of the Bill on same-sex unions claim that it is an expression of these values shaping Europe since it “equates civil unions with marriage, in terms of procedure and substance, in the manner that guarantees equal rights to the parties in a civil union as are granted to spouses in a marriage”. But it is definitely not.
The language of human rights has become problematic in recent times. Human rights are to be understood not against the background of individual claims but on what is involved in mutual recognition between human beings and in what it means for people to belong together in a society.
The language of rights gets difficult when divorced from that awareness of belonging and reciprocity. In a cultural setting where individualist assumptions prevail, personal interests disregard the public good. The ‘inappropriateness’ of human rights language within the context of the Bill on civil unions is reflected in the equation of civil unions with marriage.
The claim that civil unions are equivalent to marriages in terms of human rights is a ‘category mistake’. Forms of human relationships, no matter how much love, commitment and respect are involved, may be given social recognition but marriage is not an umbrella institution that may be extended to any form of relationship. Such an assimilation robs marriage of its essentially distinguishing features. Social institutions are established, among other things, precisely to distinguish one thing from another. The principle of equality requires respect for differences and not their elimination.
No discrimination, injustice or inequality is involved when keeping civil unions clearly distinct from marriage. The dignity and rights of the LGBT community are protected when they are fully recognised as fellow humans and fellow citizens, people who belong to the same political community. Where they are inadequately protected, the law has to rectify that situation. In a law-governed society, stigmatization, unjust discrimination and marginalization are to be eradicated in order to promote a ‘culture of dignity’. To achieve this aim, many democratic societies introduced civil unions to formalize and protect the rights and duties of same sex-couples, particularly in situations of vulnerability.
There is no such right to gay marriage. In fact, recent case law has confirmed that there is no legal right to same-sex-marriage under the European Court of Human Rights and that the State is free to make different arrangements for marriage and alternative legal provisions for same-sex unions. Moreover, the European Union does not have the legal competence to legislate on the definition of marriage and on its formalities as this is the exclusive competence of member states in accordance with the principle of subsidiarity.
From the European Commission’s perspective, legal recognition of same-sex relationships is not so much a question of the fundamental right to marry but more a necessary tool to ensure freedom of movement without discrimination.
The message and meaning conveyed by the title of the Bill are misleading and deceptive. The Civil Union Act should be called Gay Marriage Act because a civil union will be identical to marriage in terms of procedure and substance.
The Objects and Reasons explicity states that “this Act equates civil unions with marriage”.
If the Bill is approved we shall have two identical sets of legal marriage provisions, one applying to heterosexual and another to homosexual couples. Civil unions are not being restricted to same-sex couples. In fact, a man and a woman may opt for a civil union rather than for marriage. But if the two institutions will be the same in terms of procedure and substance, in what sense can one speak of an ‘option’ ?
What is at stake in this Bill is the legal redefinition of the intrinsic meaning of marriage. Should the institution of marriage be made to mean something radically different to what it has traditionally meant ? Will this flattening of meaning in relation to a basic institution enrich the nature and quality of social life? Is not the institution of marriage and the family an important public good which requires the legal protection of the State?
The definition of marriage is much more than a matter of public opinion. Marriage and the family presuppose a biological datum which we need to recognise as part of our respect for our humanity.
A law which distinguishes civil unions from marriage, rather than assimilating them with each other, does not violate the principles of respect for human dignity and non-discrimination. Differentiating one form of relationship from the other does not imply that some people are treated as less equal than others. It is a matter of acknowledging, accepting and respecting diversity and pluralism without compromising citizens’ right of belonging to the same moral and civic community. To restrict the institution of marriage to a voluntary union of one man and one woman does not violate any right because equality of access to public goods is conditioned by the specific characteristics of these goods.
The Bill grants the right to ‘married persons’ of the same sex to adopt children. Empirical data contrasting children reared in a marriage among heterosexual couples with those brought up in a gay relationship is still conflicting and inclusive. In view of these knowledge gaps on the probable and uncertain risks on children, should not society adopt the precautionary principle in this domain?
The fundamental question is whether to assimilate civil union with marriage or to keep one separate from the other. The argument that equality requires assimilation rather than respect for difference is not correct. Equality does not eliminate but affirms unity in diversity. Society has nothing to gain but much to lose in flattening out the meaning of marriage.
Fr Emmanuel Agius is Dean of the Faculty of Theology at the University of Malta.