Some ex­press un­cer­tain­ties about US rul­ing on same-sex mar­riage

The China Post - - COMMENTARY -


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.

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