Tuesday, 2 July 2013

Opinion: Some universal concepts from the SCOTUS sexuality opinions

Clarity of opinions
I have always felt that on matters of social justice when cases are brought to challenge a perceived infringement of rights, justices do take their time to give their opinions which might become case law if those opinions go unchallenged afterwards.
When it comes to the issue of the separation of religion and state, the justices in the United Kingdom have been lucid and comprehensive in the views they have expressed that one cannot but agree with them.
Just last week, the Supreme Court of the United States (SCOTUS) that many will say have a rather conservative leaning on many issues ruled on the matter of same-sex relationships and the recognition of such relationships, again, I see a universal application of their thinking joining case law when such issues arise elsewhere in the world – the arguments are well made.
Liberty for all
There are many SCOTUS opinions, opinions being the majority verdicts searchable at the Cornell University Law School Portal, many of which I cannot cover but going by the opinions of Justice Anthony Kennedy who apparently has been at the centre of gay rights for the past decade, there are gems to take away.
It is clear that in the 21st Century, we are faced with issues that must compel us to promote liberty, ensure dignity, remove inequality and excoriate humiliation, these are the core elements of that govern every civil rights causes and it must stand paramount in quest for civilising our humanity daily.
I have a liberal to libertarian slant on these matters and I have liberally quoted from my sources at NPR and Cornell University Law School to support the views and understanding I have of the opinions.
We are not in a police state
The SCOTUS in a 6-3 decision in 2003 struck down the Texas “Homosexual Conduct” law that criminalised some sexual acts in Lawrence v. Texas, this was a case where two gay men engaged in consensual sex in a private home were arrested, charged and jailed – more background here – liberty and freedom formed the basis of the opinions.
“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the state is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the state should not be a dominant presence.”
Clear as this is, it suggests that the state should be limited in its access to dwelling places and private places except where it is warranted, it however should not be a dominant presence in our lives that it begins to operate like a police state – if a person is not a resident of a police state, then the state must constrain its surveillance into private affairs.
Autonomy or regulation
“Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
This again builds on the foregoing except if the state intends to regulate thought, belief, expression, and certain intimate conduct – then the question arises as to how far the state will be allowed to regulate such for certain people until it arrogates the responsibility to regulate it for all.
This becomes pertinent when moralist laws are promulgated predicated on religion, culture, traditions and much else, the state must not extent its function to civil society to then encroach on the individual liberties of the people.
Mandating moral codes
Before, this view is extrapolated to support licentiousness, the SCOTUS goes on to develop this thinking.
“It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives.”
Here, the court acknowledges in 1986 that centuries old laws had deemed homosexual conduct as immoral and agreed that the concerns of opponents of homosexuality were not trivial.
However, in the following excerpt, the SCOTUS returned to the role of guaranteeing liberty.
“The issue is whether the majority may use the power of the state to enforce these views on the whole society through operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code.”
Here, the court curtails the power of the state by saying it should not take what the majority views as immoral and legislate on that view to create criminal law. As with the court, the state should rise to the responsibility of guaranteeing liberty for all and not be manipulated to mandate moral codes.
I see this view as quite pervasive and universal in the separation of religion and the state except where the state is governed by a theocracy and all the citizens of that state follow the same beliefs, tenets and doctrines. Where the citizens are not of similar and equal beliefs, it behoves the state to err on the side of secularity guaranteeing freedoms and liberties rather than codifying moral views into laws.
Protection and dignity
In United States v. Windsor, which was brought to challenge the Defence of Marriage Act of 1996 where the surviving spouse of a legally married sex-same couple in another country, then recognised at the state level in the country of their residence was not given federal estate tax exemption at by the Inland Revenue Service.
There are broader issues particular to the United States but there are universal concepts to take away from the opinion offered by the SCOTUS.
“In authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community's considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.”
The key words where are protection, dignity, lawful conduct, legal acknowledgement, intimate relationship and equality.
Whilst communities around the world differ, they are evolving and whatever historical roots and systems those communities might have, the institutions they hold dear are coming under more persuasion towards more equality and this has applied throughout history on matters of privilege, citizenship, gender, beliefs, disability, sexuality and much else.
Laws injuring protection
Society strives towards egalitarianism where the equality of opportunity is not defined by status but through ability, character, merit and basic rights.
“DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.”
Here, the SCOTUS opines that there should not be an overarching statute that seeks to injure a class that already receives protection from such injury.
It goes without saying that the quest to protect a minority should of essence eventually have the support of a higher power to ensure that minority receives protection within the domain of that higher power – a process of time but where that protection is refused there is just cause to challenge that view as a matter of fairness, rights and justice.
“This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”
Here, the SCOTUS questioned an overarching law promulgated to disapprove, discriminate and impose a disadvantage on a class, thereby stigmatising those who belong to a class already given protection.
Eliminating inequality
“When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code.”
The SCOTUS is clear in this by saying a federal law is writing inequality into the constitution, having same before that, “Our obligation is to define the liberty of all, not to mandate our own moral code.”
“The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
In general, the law does not just affect the principals, it affects the innocent offspring of that intimate relationship which is by no means illegitimate, but legal, valid and recognised as the community has evolved in its understanding of such relationships.
Unnecessary burdens
“Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.”
Not only do they have their lives burdened but unnecessarily burdened by reason of government decree – this burden is what the SCOTUS sought to remove by declaring DOMA unconstitutional.
Whilst we might generally agree that marriage constitutes the union of a man and a woman, the broader and wider definition of marriage today as society has evolved now is the union of partners regardless of the pairing of genders – it is the recognition of an intimate relationship of people who have committed to have that relationship recognised and with it will come all the accoutrements and benefits of having had that loving, intimate and committed relationship in life and in death.
In Africa and beyond
In Africa where the advent of anti-homosexual fervour and the promulgation of homophobic laws is gaining traction, the communities have yet to reach that level of guaranteeing liberties in such a way that their lawmakers do not preoccupy themselves with mandating moral codes and criminalising views the majority consider immoral conduct, but the opinions stated above will almost eventually lay the basis of arguing the human rights issues of minorities beyond just the matter of sexuality.
I am of the view that when the core purpose of protecting the liberty of all is the guiding principle of the courts above all else, in the hands of good human rights lawyers, no law will remain in our statute books that seeks to discriminate, denigrate, disapprove or stigmatise an African because they believe differently, act differently, or espouse views and lifestyles that are different and thereby all Africans will have equal access to justice, fairness and be protected from menace, sanction or injury to live in peace regardless of who they are.

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