Some express uncertainties about US ruling on same-sex marriage
LETTER TO THE EDITOR
On June 26, the United States Supreme Court held in its Obergefell versus Hodges decision that the 14th Amendment guarantees same-sex couples the right to marry. By a vote of 5-4, the ruling swept away state bans on gay unions and extended marriage equality nationwide. Perhaps in a time when a majority in America and many around the world are still celebrating this landmark decision, it may be unpopular or foolish for one to even consider expressing any voice of dissent. But the author makes the choice to face his heart in articulating his uncertainties and welcomes your comments.
Surely, people should be entitled a basic right to love whomever and in whatever fashion they choose. In most parts of the world, including Asia, however, there remains ethical opposition to the institutionalization of same-sex marriage and families, which should be differentiated from disapproval of homosexuality itself. In other words, while homosexuality may not be fully accepted as part of the social norm, it is, in most cases, not outright disparaged.
So if we separate the broad concept of homosexuality into three categories — same-sex behavior, same-sex relationships, and samesex marriage, most people could probably accept or understand the first two, but a large number would be fundamentally opposed to the third. The existing social reservation with regard to institutionalizing the third category — same-sex marriage — still a significant 37 percent in America according to a Gallup poll, should not be vilified simply because these individuals remain unconvinced or unwilling to assent to the new orthodoxy.
Most movements in Asia center on whether gay couples should be entitled to marriage and family rights. In contrast to the circumstances in America, there are more people skeptical about the consequent decline of traditional or nuclear family structures. In an expanded definition of marriage or family, let’s say, which spouse would be the husband, and which the wife? Further, if a gay couple adopts a child, which partner should be called “mom” and which “dad”?
In Taiwan, for example, 40 percent of the public is in favor of same-sex marriage, but a higher 45 percent is against, according to a poll conducted by TVBS last year. This perhaps coincides with a prevalent view that such disruption of traditional family structures would exacerbate the continued shrinking and aging of populations, a problem in many developed countries. No country in Asia has yet to legalize samesex marriage.
Moreover, “legislating from the bench” or activism on the part of the Supreme Court is not good judicial practice. As Chief Justice John Roberts writes in his dissent, “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”
The desire to remake society according to popular insight should be a responsibility delegated to the legislative branch. More legitimately, the Congress, which more properly represents public opinion, should enact, as 36 states along with the District of Columbia have, same-sex marriage as a matter of social policy. It should not be of concern to the judiciary as to whether same-sex marriage is a good idea or what laws should be.
The comparison of conventional marriage laws or customs to laws that denied equal treatment for African-Americans and women seems misguided. In contemporary times, individuals of homosexual orientation have consistently enjoyed such citizenship rights as suffrage, freedom of expression, and protection from unjust discrimination. It is rather the socially recognized and approved attitudes toward marriage and family that have altered dramatically, whether behaviorally, normatively, or culturally, through changing times.
Upsetting established legal order as constitutional and “meant to be” without real or concrete juridical basis is a course that has no end in itself. As Justice Anthony Kennedy writes in the majority opinion: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family ... They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
In the future, might the high court rule to incorporate and stand for the constitutionality of juvenile, polygamous, and incestuous associations as well? Alfred Tsai currently attends Columbia University, where he is studying economics and political science.