Undermining freedom in the name of freedom
Every person regardless of sexual orientation is equal in dignity and every person enjoys legal protection.
Marriage equality is not the subject of this article, just as the notion of equality does not form the subject matter of the new Bill. In fact, the name of the law is not Marriage Equality but Marriage Act and other Laws (Amendment) Act, 2017.
Only in nine out of its ninetyseven articles does the Bill deal with the Marriage Act and the Civil Unions Act. The rest of the amendments deal with the Criminal Code, the Code of Organisation and Civil Procedure, the Civil Code, the Interpretation Act and various pieces of subsidiary legislation.
Terminating terms
The first exercise which this Bill embarks upon is the purging of the words “wife”, “husband”, “mother” and “father” from the most widely-used laws of Malta. The Bill proposes to substitute these words with the words “spouses” and “parents”, respectively. Prima facie, this could well appear to be a simple exercise in harmonisation of terminology. However, it is not that simple. Scotland’s National Health Service had demanded that the words ‘mum’ and ‘dad’ be banned from kindergarten, because they allegedly discriminate against samesex parents.
The absurdity of the Bill is that after it eliminates the terms ‘father’ and ‘mother’ from the law, it then seeks to amend the meaning of ‘father’ so as to include ‘mother’ and vice versa in the Interpretation Act. What is the use of giving interpretation to terms which have been wiped out and no longer exist under the law?
The extensive exercise in substituting terminology does a disservice to the same persons the Bill aims to serve as the language used by this law is very similar to language which regulates other legal and juridical relationships which are far less onerous and meaningful than marriage.
In a democratic society which truly values equality, options need to be inserted to the effect that parents would be able to choose the terminology they prefer. Couples who wish to use the new terminology would be free to do so and couples who wish to retain the current terminology should be equally free to do so. If we are speaking of an equal and democratic society, then as happened in United States, forms and other documents need to have the option of “Mother or parent 1” and “Father or parent 2”.
Contrary to democratic principles, the Maltese Bill is an exercise in imposition, cleansing language to seek political correctness that no one can find his way out of – or less offensively his/her or maybe their, way out of.
This has arrived to an extent in the Maltese parliament, that when MPs speak out for the freedom of choice for couples to choose between father and mother or parents, they are tagged as discriminative whilst the freedom to offend other couples by taking away what is dear to them has become a juridical exercise. The political rape of language is a demarcation of dominion and not respect.
Children’s rights
In Loving v. Virginia and Murphy v. Ramsey, US courts held that “Society has a deep and abiding interest in encouraging responsible procreation and child-rearing. Simply put, government has an interest in marriage because it has an interest in children”.
One of the ways children are harmed by the Bill is when this leaves them exposed to the danger of repudiation on the mere presentation of a genetic test. Undoubtedly, in the case of same-sex couples, genetic testing will never show that the child is the child of both parents, thus exposing the child to repudiation releasing the parents from any obligation of maintenance.
Historically, our Civil Code as well as our courts have always been adamant that the mere presentation of scientific testing cannot on its own result in repudiation of children. In 2005 the Court of Appeal has reiterated that if it was the will of the legislator to make genetic tests sufficient to exclude paternity, this would have been written expressly.
The current Civil Code ensures that children know and are raised by both their mother and their father. This is what children deserve as well as what they have a right to under the Convention on the Rights of the Child. There is no law that gives couples, whether heterosexual or otherwise, the right to have children.
Presupposition of surrogacy and gamete donation
It has been already declared that the Bill is intended to prepare the path for the gutting of the Embryo Protection Act. This cannot mean anything other than the introduction of embryo freezing, surrogacy and gamete donation. In fact, the Bill refers to the “children conceived and born to the couple”.
Biology teaches that homosexual couples cannot give life to children without third-party contribution. This remains true even if the samesex couple are loving and caring parents.
Social matters are inextricably linked and try as one might, none of these matters can be completely isolated from each other. MPs should be aware that voting in favour of this Bill will have massive repercussions on other laws which currently protect the unborn child.
This is no far-fetched or fantastical notion. Through Legal Notice 156 of 2017 (the Leave for Medically Assisted Procreation National Standard Order), the definition of “prospective parents” for IVF purposes has already changed to “two persons who are united in marriage, civil union, cohabitation, or who have attained the age of majority and are in a stable relationship with each other.”
This is contrary to the definition in the Embryo Protection Act which defines prospective parents as two persons of the opposite sex who are united in marriage or who have attained the age of majority and are in a stable relationship with each other.
Surrogacy, embryo freezing and gamete donation should be another matter of in-depth discussion independent of this Bill. It is wrong to stealthily force these illegalities on the Maltese people in order to avoid having a serious national discussion, as should be the norm in a modern and democratic society.
Freedom of Conscience
This constitutes an essential foundation of a democratic society and is a basic condition for its progress and for each individual’s self-fulfilment as well as a right protected by the European Convention on Fundamental Rights and the EU’s Charter of Fundamental Rights.
The Bill is laudable for its article on religious protection, as it does not oblige “an official of a religious body to solemnise a particular form of marriage which is not recognised by the religious body of which that official is a member.” This article is reminiscent of foreign counterpart laws which seek such protection. However, unlike those foreign laws, the Maltese Bill only protects religious ministers to the exclusion of laity.
New York law clearly holds that “it seeks to grant equal access to the government-created legal institution of civil marriage, while leaving the religious institution of marriage to its own separate and fully autonomous sphere.” This is not stated under the Maltese Bill and thus leaves unclear the demarcation between the government and the religious institution of marriage.
There is still a crucial issue that in Malta, laypeople are left unprotected and there is the danger that any vestige of dissent will be stamped out. The repercussions of this are incredibly serious.
Amy Lawson is a 25 year old freelance photographer and blogger. Due to her artistic, religious and political beliefs about marriage, she was sued for refusing to photograph a same-sex wedding.
Though she accepts and declines projects based on the message that project sends and not the situation or status of her clients, she can be punished with a fine of up to $1,000 per day for first-time violators as well as with revocation of her business licence. This has silenced Amy, who cannot speak for fear of violating the law. Her freedom of speech is violated daily and she cannot obtain relief from a court of law. This story can be verified.
Blaine Adamson and his printing business came under attack when they declined to print T-shirts for a pride festival, as they displayed a message which he disagrees with.
Were it the reverse situation, it would surely be wrong to force a business run by homosexual individuals to transmit messages they disagree with. How can the state force citizens to promote messages they do not believe in? Mr Adamson was found guilty of illegal discrimination and was ordered to print T-shirts with messages that conflict with his religious beliefs.
However, in the end, the Kentucky Court of Appeal ruled that Mr Adamson was free to decline orders. This is yet another verifiable and harrowing story.
The Maltese Bill should guarantee that everyone is free to follow his conscience. True tolerance is exemplified by the statement attributed to Voltaire: I may not agree with what you have to say, but I will defend to the death your right to say it.
True equality does not punish disagreement and trample on people’s consciences when these disagree with the majority opinion.
Conclusion
There are obvious reasons to know that this law is not only about a change in name. Germany is also in the process of introducing a Marriage Equality Act which will be changing the wording of the current Marriage Act removing ‘man’ and ‘women’ to be replaced by ‘persons’. The Maltese 1975 Marriage Act already refers to ‘persons’ without making reference to ‘man’ and ‘woman’. In this light, one would logically surmise that there is no need for a new bill.
The Bill is not about equal marriage or about enabling same-sex individuals to give legal weight to their love. It goes far beyond that and affects the realms of human life, children’s rights and conscientious objection as well.
The Bill does away with normal and natural terminology in favour of round-about terminology, with the result that it neither achieves equality nor fairness. In the Bill, one finds that children’s rights, of which the Commissioner for Children is the guardian in Malta, are grossly violated and trampled upon. The Bill should be amended in order to provide the option for couples to retain the current terminology as well as to provide far greater protection for children’s rights.
Finally, conscientious objection must be reaffirmed and given robust and effective protection in the interest of all Maltese citizens, in order that no one be forced to say or do anything they fundamentally disagree with as a matter of conscience.