LEARNING March 1, 2014

Love, Marriage and the Law

An Op-Ed by our Senior Advocacy Officer Inad Rendon

Bangkok, On 27 February 2014, The Faculty of Law of Thamassat University, Bangkok, Thailand, in partnership with the Anjaree Foundation and Canadian Embassy, hosted a legal seminar entitled Canadian Legal Experience on Same-Sex Marriage. The ultimate goal of the activity was for the Law Professor from Canada to share their experiences in passing their Civil Marriage Act to Thai advocates, lawyers and legislators as guide in the pursuit to marriage equality through Thailand’s Civil Union Bill.

If permitted, Thailand will be the first country in Asia to recognize same sex marriages or unions. I can see that it is not that difficult for Thailand as the country is not strictly Catholic.

In the global LGBT Movement, “love” is the bullet of the advocacy to push for equality. You can read in the social media “Everyone has the right to love”, “Do not punish the act of love,” and many others. The State, who bears the duty to recognize the right to love, has the obligation to vest its citizens with privileges of unions in accordance with law through Marriage. However, the root of the call for equality lies in the legal definition of marriage.

Marriage, as traditionally defined, is a special contract of permanent union between a man and a woman entered into in accordance with the law for the establishment of a conjugal and family life (emphasis supplied). The limiting nature of the definition given by law renders any union between same sex invalid and void from the very beginning. Thus, privileges given to a married couple (man and woman) cannot be granted to a same sex couple for same reason.

Personally, I wonder how that definition was penned. Even the Universal Declaration of Human Rights (UDHR), which took effect in 1945, recognizes the inherent and equal right of all humans to marry. Article 16(1) thereof states:

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family. They are entitled to equal rights as to marriage, during marriage and at its abolition.”

The letter of the provision did not define marriage as between a man and a woman. It granted the equal right to marry to both men and women. In simplest terms, the UDHR tells us that a we can marry whoever we want because it is our right.

Every letter, word, and even punctuation marks in a particular legal provision play a role in statutory construction. It follows that a single sentence can make a difference. Canada’s Civil Marriage Act defines marriage as the lawful union of two persons to the exclusion of all others (emphasis supplied). This new definition encompasses every person – male, female, gay, lesbian and transgender.

To point out, the Civil Union Bill of Thailand is broad in face value. The provisions did not go into the details of consent, property regime, qualifications and disqualifications of people who wanted to get married. Broad definitions and scope may lead to inconsistencies and conflict in the long run. In addition, the definition of Marriage under the bill limits the solemnization to same sex couples, effectively excluding therefrom the transgender people.

I have observed that attention must also be given to the significant effect of passing into law the same sex marriage to the entire legal system of the country. This is especially true if most of statutes have marriage (in its legal sense) as its basis for enforceability. Examples are Family Law particularly on the Legitimacy of Children, Adoption Laws, Property Laws, Taxation Laws, Succession Laws – the list is long. Canada has amended seventy (70) of its laws.

The call for marriage equality is but a herculean challenge to the lobbying skills of the LGBT advocates in the country. I trust that the experienced advocates have the needed advocacy skills to achieve this wanted goal of marriage equality. This also serves as challenge to legal practitioners to contest the traditional definition of marriage that has been the basis of jurisprudence for a long time. It is high time that equality must also be within the letters and implementation of the law.

A question raised by a colleague from UNDP during the session had sparked my critical thinking: “Will we change social perception on marriage first before we enact the law? Or we enact the law to change the social perception on marriage?” But I leave that same question to you now. What do you think?