Monday, 5 March 2012

Gay Marriage, the Universal Declaration and a Cardinal

Cardinal Keith O'Brien has launched an attack on gay marriage in the United Kingdom, saying that its legalization "represents a grotesque subversion of a universally accepted human right". O'Brien is head of the Catholic Church in Scotland. This morning, interviewed on BBC4, he twice referred to the Universal Declaration of Human Rights as authority for his proposition that same sex marriage breaches fundamental human rights.
Here is what the Universal Declaration states:

Article 16
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 2 is also relevant:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.  (my italics)
A literal reading of article 16 does not indicate anything that would suggest it condemns same sex marriage. What article 16 does is recognize the right to marry. Arguably, especially taken in the context of the adoption in 1948, it was meant by the drafters to apply to couples of opposite sex.
I am in the course of completing a compilation of the drafting history of the Universal Declaration of Human Rights, to be published by Cambridge University Press. I have reviewed all of the documents relating to the drafting of article 16, and I do not think there is anything in that material to support the Cardinal's interpretation.
The only significant issue when article 16 was being drafted was clarifying the status of women as equal partners in marriage, and affirming their right to divorce on the same terms as men (" its dissolution"). I suspect that the distinguished Cardinal doesn't even agree with article 16's recognition of such a right.
It is a well-recognized principle of interpretation that international legal texts are to be construed in a dynamic manner, taking into account evolving values. Although article 2 does not specifically mention sexual orientation - the subject did not arise in 1948 - for many years I have given it as an example of a contemporary reading of the provision (note the words "such as").
Cardinal O'Brien is hoping to get some progressive buzz out of his invocation of the Universal Declaration of Human Rights. This morning's BBC interviewer challenged him very well on some points, but unfortunately did not take him up on this abusive and incorrect reference to the Declaration.
The Cardinal is in over his head He doesn't know what he is talking about here. The Universal Declaration of Human Rights, taken as a whole and read in a contemporary context, provides support for legalization of same-sex marriage.


Unknown said...

Even if the Universal Declaration did not support the legalisation of gay marriage, the suggestion that a human rights instrument has any business prohibiting it would still - with respect - be faintly ludicrous. The fact that straight couples have the right to marry in no way entails that gay couples must not be given the same right.

Jonathan said...

"It is a well-recognized principle of interpretation that international legal texts are to be construed in a dynamic manner, taking into account evolving values"

But whose values? In this case, since it is a 'universal declaration', it should be universal values. It is still only a minority of countries who accept same-sex marriage.

Nicolas Bellord said...

Could you please let us have the authority for your statement that international documents have to be interpreted in a dynamic manner i.e. for ever changing.