July 31, 2006

Cross-Commonwealth Couple and Canadian Copywrong

by PG

Two queer pieces of news from our northern neighbors:

1) The president of the high court family division in the United Kingdom, which recognizes civil partnerships for same-sex couples (but not hetero ones, which may explain why they feel the need for this silly law), refused to deem a Canadian marriage between two women to be a valid British marriage. Much of the language in his decision is similar to that which we have seen in the recent New York and Washington State decisions: marriage is necessary to stabilize heterosexual relations that can result in unplanned children; restricting marriage to opposite-sex couples is not based on "exclusivity, marginalisation, disapproval or discrimination against homosexuals"; tradition.

There were a couple of remarks that wouldn't apply in the U.S. cases.

a) "[T]o accord a same-sex relationship the title and status of marriage would be to fly in the face of the [European Convention on Human Rights] as well as to fail to recognise physical reality." I cannot discern how Sir Mark Potter came up with this. The only mention of marriage in the Convention is Article 12, "Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right." I suppose that the trans/ intersex folks might be annoyed by using "men and women" rather "people," and one could stretch that usage to say that Article 12 must limit the "right to marry and to found a family" to people from the set Men marrying people from the set Women.

Nonetheless, there is nothing in the plain text of the Convention that would cause according a same-sex relationship the title and status of marriage to "fly in the face" of it. Belgium and the Netherlands are signatories to the Convention, yet the European Court of Human Rights has not declared their recognition of same-sex marriage to be a violation of the Convention. Article 12 appears to be a nullity in the argument; the Court does not apply it to same-sex marriage either to force a nation to legitimate such marriages or to force a nation not to do so. As is often true of European law, discretion is the better part of valor; these agreements could not long bear the weight of disparity between social norms in the Netherlands versus those in Italy.

Sir Potter should stick to British law, which is far more clearly set against same-sex marriage than the muddle of European law is. An Article 12 claim is better dealt with by stating that because the European Court has not interpreted it to require legalizing same-sex marriage, no national court need interpret it that way -- sort of like a state court's attitude toward federal claims that SCOTUS hasn't validated.

b) From the Guardian article:

He said lasting single-sex relationships were "in no way inferior" and English law does not suggest they are, recognising them under the name of civil partnership.
"Parliament has not called partnerships between persons of the same sex marriage, not because they are considered inferior to the institution of marriage, but because, as a matter of objective fact and common understanding, as well as under the present definition of marriage in English law ... they are indeed different."
The majority of challenges in the U.S. seem to be brought in states that have no functional equivalent to marriage for same-sex relationships (which makes sense, as 43 states don't). Civil partnerships in the UK really are marriage in all but name, so calling this a test case is pretty fair, though it is one for which the plaintiffs will pay 25,000 court costs in addition to whatever they paid their own lawyers and experts. However, Sir Potter's pronouncement that "they are indeed different" raises the question of what it is about partnerships between persons of the same sex that is relevant to whether such partnerships should be called marriage.

The bizarre consensus that seems to be forming among courts on both sides of the Atlantic is that because two women or two women who get it on can't thereby produce a child, any children they do raise don't need the protections of marriage, whereas we dumb breeders need to be shackled and incentivized by being the only ones who can get married. I realize that single-parent child rearing is most prevalent among our most vulnerable -- low income, less educated, disfavored minority -- households, and that there's some cause-and-effect. A person who is the sole support of a family has much more trouble pursuing education, and having only one worker who also must be the domestic caretaker almost ensures that a family that began in poverty will stay there. But I find it irrational to believe that the widespread failure to form two-parent households is in any way ameliorated by refusing to put within the bounds of marriage those households that are headed by two people of the same gender.

2) Much less big news, but interesting as hopefully-not-internecine squabbling within this supposedly monolithic special interests* lobby: the Vancouver Pride Society holds itself out as licensing the term "Pride" from Fierte Canada Pride and thereby feels able to require those who wish to use the word in the Vancouver area to register with the Society. The first claimed rationale is dubious: "to protect the trademark against for-profit individuals or companies exploiting it in the queer market. If we don't do that, there's a long line of people who are quite eager to get their hands on that trademark and licence it for thousands and thousands of dollars back to us." If this is a sincere concern, why not ask the office of trademark to declare the word open to all users and non-trademarkable? The second stated reason, that Pride committees want to ensure that anyone who uses the word pays fees to support them, is much more plausible.

I'm with the trannies on this one.

* Per Dave Chappelle, read "special interests" to mean "gay."

July 31, 2006 07:08 PM | TrackBack
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