The One You've Been Waiting for: Rant against Marriage (aka "How to Piss Off Most of Your Friends")

Many of you, my dear friends, are married. 

I am not. 

People in Namibia were hardly subtle about their view on this state of affairs.  A common comment from colleagues at the LAC, for example: “You’re not married”, looking at my hand and the glaring absence of the tell-tale ring.  “You must get married.  Soon.”

Now you’re thinking “sure, but Namibia is a banana republic, this is not how we civilized people think”. WRONG.  Here is, just as a taster,* the Supreme Court of Canada:

 

“[The] ultimate raison d’être [of marriage] is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship.  In this sense, marriage is by nature heterosexual.  It would be possible to legally define marriage to include homosexual couples, but this would not change the biological and social realities that underlie the traditional marriage.”**

Ah, the good old “traditional marriage”.  What the HELL is that?  The “traditional marriage” is about ownership of land and movable property, such as women.  Marriage was the social construct that permitted men to police the sexual conduct of women and in this way try to ensure that the son who would inherit the land was in fact the product of their loins.  

And WHEN did this lovely “traditional marriage” exist? Well, it was prescribed in the Marriage Act of Switzerland UNTIL 1988 that wives had a legal obligation to obey their husbands.***  Nice. 

 

So the marriage that most of you have entered into, and which is based legally nowadays on the equality of spouses but apparently still tied to popping babies (or at least the theoretical possibility of doing so), and therefore not available to homosexuals, is a fleeting concoction of a few decades.  Before then marriage was something quite different.  Some of this “traditional” stuff still remains.  How many of you ladies were “given away” by your fathers as part of the ceremony?  The symbolism of THAT particular gesture is hardly subtle.

 

When I make these points in discussion, everyone (married) gets defensive and tells me that all this is nonsense and meaningless to THEIR very special relationship, which they are entitled to define for themselves.  Sure, everyone is indeed entitled to define their relationship as they wish.  But they are not entitled to define their “marriage” as they wish.  You see, the society has made a huge deal of ensuring that homosexuals CANNOT define their very special relationship as a marriage.  So once a (hetero) couple has decided that “marriage” is the relationship they wish to have, they are plunging into a structure that is predefined by law and society.  “[T]he words ‘I do’ bring the most intense private and voluntary commitment into the most public, law-governed and state-regulated domain.”****

 

Until the institution of marriage changes, becomes truly equal and keeps its nose out of my procreative designs, the society can keep its stinking marriage.  I indeed define my own relationship (well, F has a bit of a say as well…), and “marriage” is a definition I want to steer well clear of.*****

 

Now PLEASE tell me you were provoked enough to leave some comments.  Rebel! Protest! Tell me that my views suck and you never want to hear them again!

 

 

*You REALLY don’t want to get me started on the comments that were made during the debates in the Finnish Parliament when the Marriage Equality Bill was being debated.  It is remarkable how unashamedly regressive supposedly modern people can get when they oppose the human rights of others, but just don’t want to say that this is what they are doing.

**Egan v. Canada, [1995] 2 S.C.R. 513, p. 536 (La Forest, J.).

***A good short introduction to the development of the law on marriage in Switzerland is provided in Baddeley “Le droit de la famille, un droit en constante evolution”, in Chappuis,Foëx and Thévenoz, Le législateur et le droit privé : Colloque en l'honneur du professeur Gilles Petitpierre. (Genève, Schulthess, 2006) pp. 39-56.  Amusing in a painful way.

****Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005) (Sachs J).

 

*****Cue in smugness from friends from countries such as Canada (which changed its mind quite quickly after the Egan decision quoted above), France and the UK, where an equal marriage is of course already the reality.  I hereby raise an imaginary toast to C in Canada and T in England on their recent engagements to enter into an equal marriage!

Rant about Spanking with Dignity

One of the most challenging aspects of NGO work is to learn to pick your battles: to know when to insist on a point and when to drop it; when to challenge the government and when to work with them.  We are witnessing these decisions being taken every day, and it is fascinating to see how and where the strategic priorities and battle lines are drawn. 

 

The Legal Assistance Centre (LAC) has been very involved in drafting Namibia’s comprehensive Child Care and Protection Bill, which is about to go to the Parliament.  It has been twenty years in the making, so the patience and perseverance of the people pushing for it is admirable. 

 

LAC is also involved (by way of providing research help and materials to the prosecutor*) in a case against teachers from a private school who, against the express prohibition of the parents, physically chastised a student.

 

Namibia has an unfortunate culture of violence, and it is hard to see whether the prevalence of corporal punishment of children is the cause or the consequence of it.  A colleague told me that he was speaking to a young teacher, who seemed to care for the children and her job, but who didn’t think twice about hitting the students.  According to her, it was the only way to maintain discipline. 

 

Namibian courts have recently decided that public officials, such as teachers in state schools, police and social workers are not permitted to use violence against children.  This prohibition against corporal punishment is now being written also into the law by the Child Care and Protection Bill.  But I was very surprised, when I first read the Bill, to find out that the Bill is NOT outlawing corporal punishment altogether.  Parents are still allowed to use violence against their children.

 

I raised this with our boss Dianne, who is not only the person most involved with the drafting of the Bill, but also extremely skilled at the very kind of strategic thinking I mentioned at the beginning of the rant. 

 

Dianne explained that it would have been futile, in the current political climate, to push for an outright ban on corporal punishment.  It would not have been accepted.  So instead the Bill does something quite clever. 

 

First, it specifies that corporal punishment of children must always respect the “dignity” of the child, as guaranteed by the Constitution.  It is hoped that not only will this significantly limit the type and severity of chastisement that can be meted out by parents, but with time the constitutional notion of “dignity” will evolve and at some point a court will find that ANY violence against a child infringes the child’s dignity. 

 

Secondly, the Bill obligates the Ministry of Gender Equality and Child Welfare to develop programs to teach parents about non-violent forms of discipline.  This is something LAC is already involved in: practical workshops to teach Namibians (teachers, social workers, police, nurses, nannies …) about alternatives to hitting children.  Namibians are not mean or evil people.  They spank their kids because that is the only thing they know how to do when kids misbehave.

 

So the Child Care and Protection Bill appears to provide (hopefully) an effective compromise between a progressive legal framework and practical effort to effect change on the ground.  If only I could also learn to find this kind of balance between idealism and realism …  Watching what the people at LAC do is, I find, a good start.

 

 

 

* Amici curiae (“friends of the court” – third party interveners in litigation) are not permitted in Namibia, something LAC is thinking of challenging before the courts in its own right.