Fact Sheet: The Re-Definition of Marriage

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Issue(s):


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(A) Countries approving “same sex marriage”

 

To date, 17 countries in the world have approved same-sex marriage on a national level:

 

Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, France, Brazil, Uruguay, New Zealand, Britain, and Luxembourg. In addition, two more countries recognize same-sex marriage on a regional level or through court directed provisions (The United States of America and Mexico). Furthermore, Ecuador, Finland, Germany, Greenland, Hungary, Ireland, and Scotland offer many rights to same sex couples, although such couples are not permitted to “marry” in these countries.[1]

 

(B) Consequences of changing the definition of marriage

 

Countries that adopt “same sex marriage” have, among other things,[2] severed the connection between “marriage” and the “best interests of the child,”[3] the governing standard in international law with respect to children.[4] The “best interests of the child” is for children to remain with their biological mother and father barring exceptional cases of abuse or neglect.[5] When this is not the case, adoption is an attempt to recreate the mother, father, child relationship which characterizes the natural family. “Same sex marriage” eliminates the legal/policy basis for limiting the adoption of children to different sex couples. If a person’s sex is considered as no longer a necessary element of marriage, why should it be a necessary element of adoption? Changing the definition of marriage to include “same sex marriage” makes children an accessory to the whole legal concept of marriage, rather than an integral part of the institution and the very reason for its special status in law and society. Thus, children are harmed by changing the definition of that institution, marriage, which was intended to protect them.

 

Furthermore, it is becoming increasingly apparent that changing the definition of marriage usually accompanies a reduction in the religious freedom and conscience rights of those who do not wish, for reasons of conscience, to support or participate in “same sex marriage” in any capacity. This only makes sense since declaring a “right” to marry a person of the same sex ipso facto makes that “right” enforceable against others. Then the right to religious freedom and conscience rights are balanced against the “right” to marry a person of the same sex. Since marriage pertains to the intimate sphere of family life, it can easily be considered a fundamental right, which often means that conscience and religious freedom rights will give way to the “right to marry” a person of the same sex. Thus, to use just two of the many examples, a civil servant who objects to overseeing same-sex marriages is fired in the Netherlands,[6] and a baker must sell wedding cakes to same sex couples seeking marriage in Colorado.[7]

 

 

(C) A Proposal for Classifying Marriage Laws

 

Since there are countries that offer many “rights” to same sex couples typically associated with marriage without adopting “same sex marriage,” it is sometimes misleading to only classify countries as having “same sex marriage” or not having “same sex marriage.” Perhaps a better means of classification is to group countries on the extent to which their marriage laws promote the welfare of children. Under this system, countries that have adopted “same sex marriage” would be Tier III countries that have prioritized “adult rights” over the welfare of children. The Netherlands would be such a country. Tier II countries would be countries that still legally link marriage to the welfare of children by maintaining the authentic meaning of marriage as the union of a man and a woman, thus helping to ensure that children are raised by a mother and father, but have other laws and policies which diminish the uniqueness of marriage by providing substantively similar rights to other non-married unions, including same-sex unions. Finland would be an example of a Tier II country. Tier I countries legally link marriage to the welfare of children by maintaining the authentic meaning of marriage as the union of a man and a woman, thus helping to ensure that children are raised by a mother and father, and also protect the uniqueness of marriage by not granting substantially similar rights to other non-marital unions. An example of a Tier 1 country is Italy.[8] Perhaps the countries could be color coded based on which tier they fit within.

 

Last Revised: September 30th, 2014

Michael Vacca, Managing Director of ICOLF                                                            

Marie Smith, Parliamentary Network for Critical Issues

[1] http://www.freedomtomarry.org/landscape/entry/c/international.

[2] For additional non-religious reasons for opposing “same-sex marriage” see also Jennifer Roback Morse, 77 non-religious reasons to support man/woman marriage available at http://www.ruthinstitute.org/77Reasons; see also youtube.com: Ryan T. Anderson, What is Marriage? at https://www.youtube.com/watch?v=YWIhZ5xJJaQ, posted 8 July 2014 ; Ryan T. Anderson, On True Equality: Man and Woman, at Andersonhttps://www.youtube.com/watch?v=FE_Td4lCvmE, posted 22 February 2014.

[3] https://www.spuc.org.uk/campaigns/ssmsub20130301.

[4] Convention on the Rights of the Child Article 3(1).

[5] Convention on the Rights of the Child Article 7(1) provides: “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.” With regard to the intention of the contracting states at the time the Convention on the Rights of the Child was drafted, the United Kingdom, the Czech Republic, Luxembourg, and Poland all made reservations to the effect that anonymous births could continue to be recognized by these states despite their ratification of the Convention. If the term “parents” in Article 7(1) does not refer to biological parents, these reservations would be unnecessary. It is, therefore, clear that Article 7(1) was drafted to provide children with the right to know and be cared for by their biological parents. This interpretation of Article 7(1) is also confirmed by the Committee on the Rights of the Child. The Committee’s 2002 Concluding Observations to the report submitted by Great Britain and Northern Ireland submits, “[T]he Committee is concerned that children born out of wedlock, adopted children, or children born in the context of a medically assisted fertilization do not have the right to know the identity of their biological parents. In light of [A]rticles 3 and 7 of the Convention, the Committee recommends that the State party take all necessary measures to allow all children, irrespective of the circumstances of their birth, and adopted children to obtain information on the identity of their parents, to the extent possible.” (Pars. 31-32). Here, the Committee is expressly linking the best interests of the child embodied in Convention on the Child Article 3 with the right of children to know about their biological parents pursuant to Convention on the Rights of the Child Article 7(1). Even further, since the term “parents” in Article 7 refers to biological parents, children not only have the right to know about their biological parents, but according to the express terms of Article 7(1), children have the right to “be cared for” by their biological parents.

[6] http://www.religionnewsblog.com/26313/dutch-christian-civil-servant-fired-for-opposing-gay-marriage.

[7] http://www.denverpost.com/editorials/ci_24687970/no-right-refuse-gay-couples-wedding-cake.

[8] This may change soon as the Italian Senate is set to debate same sex civil unions in September 2014; http://www.pinknews.co.uk/2014/06/18/italy-senate-to-debate-same-sex-civil-unions-in-september/.

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