EYE ON ETHICS
Same-sex union can't be labelled 'marriage'
Marriage for same-sex couples? Gay rights activists in the United States argue that such partnerships - already recognised as civil unions - should be given the same status as marriage. But there are ethical and legal reasons why they can be called anything but 'marriage'.
By Andy Ho
MANILA-BASED world boxing champion Manny Pacquiao just got into hot water with advertisers and fans when he said 'I'm not in favour of same-sex marriage'. That's unlike United States President Barack Obama who, after years of fence-sitting, declared his support for it.
The first eight-division world boxing champion was promptly accused of homophobia in some quarters and responded: 'I'm not against gay people...What I said is I'm not in favour of same-sex marriage.'
Arguably the most famous Pinoy right now - he has already been elected to public office in the Philippines - Pacquiao thus waded into what is developing into an angry debate in the run for the US White House. Though this seems to make it a domestic political issue for Americans, interest in it is global, as Pacquiao's inopportune comment attests to only too well.
And though it may sound far-fetched in Singapore where homosexual acts remain criminalised, it is of some relevance here too, given growing gay rights activism. In 2007, a public debate erupted over whether to repeal Section 377A of the Penal Code which criminalises sex between mutually consenting adult males.
At the time, the authorities said that public feedback had been 'emotional, divided and strongly expressed', with most calling for the law's retention. Many pro-repeal appeals were launched online and offline while conservatives like 'Family & Freedom' began an awareness campaign to run until 2015 to 'educate' fence-sitters on the potential impact of legalising homosexual acts on the institution of the family.
If activists here began again to push for gay rights - which may one day include the right to marry - then the US debate could be a precursor that bears some watching.
The debate pivots around whether such a right is grounded in the more basic rights of equality of and non-discrimination against all individuals, and the impact on children being brought up in such homes. There is also the slippery- slope concern that if same-sex couplings are legalised, proponents of other unconventional couplings - say polygamists - may argue for legal recognition of their relationships using the same arguments of equality and non-discrimination.
Pros and cons as well as empirical evidence for both sides of the same-sex marriage debate abound. And the debate remains heated.
In fact, debate over same-sex unions has raged for centuries.
According to Bret Hinsch - Passions Of The Cut Sleeve: The Male Homosexual Tradition In China (1992) - some Fujian men married teenage boys, paying a bride price to the latter's parents.
This arrangement usually ended when the boy matured. But sometimes the couple did remain together, adopting children they would raise together.
The same practice was seen among the Zande tribe of southwestern Sudan, north-eastern Congo, and the Central African Republic, according to Boy-Wives And Female Husbands (2001) by Stephen Murray and Will Roscoe. There were also women-marriages practised in Benin, Nigeria and South Africa.
In Changing Ones (1998), Will Roscoe recounts a history of same-sex unions among native American tribes. For instance, among the Kwakiutl Indians of the Pacific Northwest, a man who 'married' the tribe chief's heir was conferred certain privileges by his 'father-in-law'.
But note the scare quotes by the writer above - the convention of remarking on this issue of same-sex relations with the apposite use of quotation marks.
Many who are not against gay rights per se do feel that there are ethical grounds to deny the status of 'marriage' to same-sex couplings, even when legalised.
For some advocates, designating the relationship as a civil union with similar legal rights as a heterosexual marriage is a compromise solution.
But others demand full marriage equality with heterosexual couples.
Marriage does come with a bundle of rights and benefits. It entitles you to important legal rights such as the presumed joint ownership of property, the right to make next-of-kin decisions if a partner is indisposed, and so on. (Rights are different from entitlements such as baby bonuses which are a function of public policy.)
Advocates argue that not extending these marital rights to same-sex unions would be discriminatory. Are they right?
Some governments do provide the whole panoply of legal rights that married people have to same-sex unions. In Strauss v Horton (2008), the California Supreme Court ruled that the state government could give such marital rights to a same-sex couple in a civil union, without ever calling it a marriage.
If same-sex couples are given similar rights, privileges and benefits as heterosexual couples, then any fight that remains is really just over symbolic capital: Same-sex couples want their union to be called 'marriage' to enjoy the same approbation that heterosexual marital couplings have.
But this is precisely what opponents want to deny them. They say that a symbol has value to the degree people feel it stands for something desirable. If it is attached to something dissimilar, however, its value is eroded.
For instance, the Golden Arches symbol stands for the uniform quality of the McDonald's meal anywhere in the world. If you slapped the Golden Arches on your random burger stand, you infringe that trademark and McDonald's lawyers will haul you off to court.
But if you stuck the logo to a non-fast food item - say, the faux-Italian line of furniture sold at a neighbourhood shop - you do not infringe a trademark. But you erode this universal symbol of burgerhood. It is still actionable.
After all, McDonald's is not just a business but an institution as well. But what is an institution? Would Yale University still be Yale should the whole campus be nuked and the individual schools reconstituted afterwards at a different location in the US?
This was a question my former Yale Professor Alex Wendt, now the Ralph D. Mershon professor of international security at Ohio State University, likes to ask his graduate students.
He concluded that Yale was not merely another organisation but was really a set of rules which all Yalies carried around in their heads.
These rules had to do with their expectations that they would continue to strive for the highest achievements in their fields and do so with diligence and collegiality, values their predecessors had lived up to and handed down.
These rules play a part in creating a collective identity while also changing the individual Yalie's beliefs about his own identity, abilities and commitments. In other words, an institution has significance by virtue of the ideas that people carry around in their heads about them.
So McDonald's is an institution that stands for dependable quality fast food. Its workers internalise and act on rules of behaviour that allow it to produce such consistent quality.
Consumers carry around in their heads expectations about such worker behaviour and the product.
Of course, McDonald's is not likely to fear your furniture line as a competitor. But it will be unhappy that you have diluted its institutional value, fearing an adulteration of the goodwill that people attach to the Golden Arches. But if institutions are rules in people's heads, alternative institutions are always possible.
So instead of stealing McDonald's name and logo, you can come up with an Italian name, say, Archi Dorati, and a different logo for your furniture line instead.
Likewise, EPL is a trademark and an institution, so women's football can have its own league but it should certainly not call itself 'Women's EPL'.
Similarly, traditional marriage advocates need not fear the same-sex union as a competitor. Its valid concern is only that the institutional standing of 'marriage' might be eroded.
The marital union of a man and woman in all human societies encourages men and women to be responsible for one another, procreate children and nurture them. Upon this cherished institution, human societies are built.
But use of its name by something different would tarnish its symbolic value. If so, same-sex unions should not try to live off its symbolic value. Instead, they should simply come up with a good term. 'Civil union' sounds just about right.
- The Straits Times article, "Same-sex union can't be labelled 'marriage'", by Andy Ho, 19 May 2012.