Opening up Marriage to Same-sex Couples : why separate but equal is intrinsically disordered

Abstract

The closing decades of the 20th century have brought the question of equal rights for homosexuals and same-sex couples to the forefront of societal debate in many parts of the western world; the exclusion of homosexuals1 and same-sex couples2 from legal protections, privileges and institutions has formulated itself as an issue which cannot be ignored. The amplitude of the reform undertaken since the 1990s to recognise same-sex couples was unimaginable a decade or so earlier. This development is natural in the sense that homosexuals have, particularly since the 1970s, continually highlighted the injustices and prejudices they have suffered not with standing ever-prominent guarantees by states regarding respect for principles such as equality and non-discrimination on unjustified grounds. The homosexual was the ‘other’ only because society was built and maintained in a manner that naturally ensured exclusion and which confirmed constructive difference. Such exclusion and gradual reform thereof have been extensively, if not exhaustively, covered in legal writings in recent years. Where, however, relatively less work has been produced is in an area which should, arguably, constitute the logical extension of the recognition of homosexual rights, that is, the right of same-sex couples to marry. While it has become increasingly difficult to deny the application of principles such as equality and non-discrimination to homosexuals since, by definition, such rights ought to apply to every person, the institution of marriage is deemed far more specific, incapable of embracing same-sex couples no matter how meritorious their claims for equality and non-discrimination of same-sex couples consisted in the late 1980s and 1990s of according them rights and benefits analogous to, but nonetheless distinct from, those accorded under marriage, the ultimate state benediction of coupledom. This principal justification put forward for this distinction is that socially and historically, marriage is intrinsically limited to the union of one man and one woman. This thesis aims, inter alia, to tackle this assumption and to demonstrate how the recognition of same-sex unions is gaining political and societal currency and why this should, and must, be so.