Thursday, 27 February 2014

Rant about Gays, Kids and Consumer Boycotts

The bill attempting to amend the Marriage Act to make the institution gender neutral is meandering its way through the Finnish Parliament.  To kick off the debate, Green MP Oras Tynkkynen stated that “[t]he law on equal marriage diminishes nobody’s rights.  It costs nothing.  There are only winners.”
This did not convince the diehard opponents, who have continued to repeat their arguments which can at times only be described as cringe-worthy.  It is hard for a casual liberal to be anything but baffled by these.  Why is it that two people who love each other getting hitched is somehow seen as a threat to somebody else?  How can gay marriage threaten hetero marriage?
Mr Tynkkynens argument, which we liberals find so compelling, comes from a strongly individualistic viewpoint.  My marriage is my business, what I do in the bedroom is my business, as is what I cook in the kitchen or wear to decorate and warm my body.  But this is not the only view or even the best view in all respects.  Many individual life choices can have an impact on the environment, on our friends, on our neighbours.  In the case of gay marriage the argument against says that the collateral damage is suffered by kids. 
The fact that research shows this argument to be rubbish and gays being no worse parents than straight people is not, however, decisive for us liberals.  Would I change my view on gay marriage if the argument was accurate?  If straight folk really were the better parents?  I would not.
So maybe this is about something else.  Maybe it is about means – about the role of laws and regulation.  Maybe us liberals, while taking a moral stance about issues ourselves, are inherently uncomfortable with the state legislating about them, about behaviour not being directed by the better argument and market forces but by simply prohibiting it?  I do not want to intervene in other people’s choices by way of actual bans, but I do engage in discussion with people around me.  This is mostly to exchange ideas, but I cannot deny an underlying motive at times to make them change their attitudes or behaviour.  I also wish the markets would take a more social or environmental role in directing conduct (see my rant about airplanes on 24 April 2013).  Combining the two, I believe in consumer boycotts, which is why I was at home and not in Sochi earlier this month. 
However… I do not think this is it either, as it does not fit with the political breakdown of who is for and who is against:  The prime example is found in the United States where the Republicans, who are traditionally all about individual freedoms and small government, are against the legalisation of gay marriage.
Having turned this thing round in my head a million times and tried to understand the arguments that to me look so obviously nonsensical, but which are still made by smart people not only with a straight face but with fervour, I had to concede that the argument is not going to be won by being rational. 
This brought back memories of a talk I had the privilege of attending back in 2009 when my legal hero Albie Sachs* was touring to promote his book The Strange Alchemy of Life and Law.  When sitting as a judge on the South African Constitutional Court, Justice Sachs penned the court’s landmark decision in the 2005 Fourie case** ruling that defining marriage as a union between a man and a woman is unconstitutional.  What was interesting was not just that the Court found the law to be unconstitutional, but that instead of judicially changing it, the Court ordered the Parliament to fix it within a year and thus forced the nation to have the difficult debate on the subject.  During his 2009 talk Mr Sachs explained why this was important: the Court was the court of all South Africans, not just the liberals.  While it was clear that fundamental rights could not be denied to one part of the population, this had to be done in a way that respected also the views of conservative South Africans, who were often vehemently against the idea.
How can we do the same thing?  How can we ensure that the discussion on gay marriage remains civil?  That we respect those irrational feelings and the people holding them without permitting them to stall the granting of equal rights to all?  Justice Sachs, I know your humane wisdom is needed in many parts of Africa (like in Uganda, Gambia or Nigeria) right now, but Finland could also use it.  Please help.
*This is not a joke, there are such things as legal heroes.  If you are not familiar with the biography of the admirable Mr Sachs, check it out and be convinced.
**Minister of Home Affairs and another v Fourie and another; Lesbian and Gay Equality Project and others v Minister of Home Affairs and others, [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005).

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