I didn’t expect to be writing another update about gay equality around the world so soon after the last one, but things must be accelerating. Five pieces of news here starting with down under:
Two private members’ bills were introduced into the federal parliament, late February 2012. Stephen Jones (Labour Party) moved one, while the other was moved by Adam Brandt (Greens) and Andrew Wilkie (Independent). They seek to legalise same-sex marriage, but will exempt churches from performing such marriages if they do not feel comfortable doing so.
The bills were expected after the ruling Labour Party, at its convention held last December, voted strongly to shift the party’s position to supporting marriage equality. Finance Minister Penny Wong was among those urging strongly for it. However, the party conference also endorsed, albeit more narrowly (by 208 votes to 184), a motion to allow its MPs the freedom to vote according to their conscience in parliament; in other words, the party whip will not be used.
Whether the private members’ bills pass will largely depend on the position taken by the opposition Liberal Party. If its leader Tony Abbot bows to pressure and allows a conscience vote for his MPs, then there is a good chance that gay marriage will be a reality this year. If not, and he insists on cracking the party whip to vote against the bills, it will be an uphill battle to get the bills passed.
Meanwhile, a new opinion poll, conducted early February 2012, showed two-thirds of Australians supporting marriage equality. Sampling 786 respondents,
It showed 62 per cent support same-sex marriage – results consistent with previous polls.
Support was strongest amongst young voters; with 81 per cent of respondents aged 18-24 supporting same-sex marriage.
Only a slight majority of older voters support legal reform, with 51 per cent of respondents aged 50-64 supporting a change to allow gay couples to marry.
— Sydney Morning Herald, 13 February 2012, New poll backs same-sex marriage, by Josephine Tovey
Maryland is slated to became the eighth state in the US to legalise gay marriage (not including the District of Columbia which has also done so), when Governor Martin O’Malley (pic, left) signs it into law today. The necessary bills had passed both houses of the legislature. The House of Delegates had voted 72-67 in favour, while the Senate approved the measure 25-22 last week.
Opponents are organising a referendum on this in November to reverse the law. They will need to collect 55,736 valid signatures of Maryland voters to put it on the ballot, a hurdle that is not too difficult. However, unlike as recently as five years ago, it is now no longer certain that a popular vote will yield a result conservatives want.
The Washington Post recently reported on its own polling results:
Overall, the Post poll found that 50 percent of Marylanders support allowing gay and lesbian couples to marry while 44 percent are opposed.
The new poll found a sharp divide among Maryland Democrats based on race. Among whites, 71 percent support same-sex marriage, while 24 percent do not. Among blacks, 41 percent are supportive, while 53 percent are opposed. Maryland has the largest percentage of African Americans of any state outside of the Deep South.
— Washington Post, 31 January 2012, Half of Maryland residents back legalizing same-sex marriage, by John Wagner and Peyton M. Craighill
The poll sampled 1,064 Maryland adults. The results have a margin of error of plus or minus 3.5 percentage points.
New Jersey, USA
Maryland’s next-door-neighbour New Jersey had a different story. There, Governor Chris Christie vetoed the marriage equality bill that had been passed by the Assembly 42-33 and the Senate 24-16.
Writing on Huffington Post 25 Feb 2012, New Jersey Senate President Stephen M Sweeney (who supported the bills) expressed his disappointment:
Driven by national ambition that would rather see him be president (or vice president) than do what is right, the governor first tried to deflect his position on the issue by calling for a public vote on whether or not same-sex couples should be allowed to marry.
Anyone who is a student of history knows that you never, ever put the rights of the minority up for a vote of the majority; the majority will almost always vote it down. Not only was Governor Christie clearly ignorant of history on this issue, but his newfound sense of populism (the governor never seems to ask for a public referendum on any other issue) was also a way to relieve his Republican colleagues in the Legislature of their duty to serve the people. Our job as legislators is to act. If we are going to simply punt on every difficult issue that comes up, we might as well pack our bags and head home.
What is interesting about New Jersey is that civil unions for same-sex partners, with all the substantive rights of marriage, have been in place since 2006 when the state’s supreme court ruled that not giving same-sex couples the same rights as opposite-sex couples violated the equal protection clause of the state constitution. However, new plaintiffs have stepped forward to say that the label of “marriage” is important too and denying it to same-sex couples in civil union is discriminatory. They argue that when it comes to insurance offices, workplace benefits and hospital emergency rooms, saying “we’re married to each other” obtains a different treatment from “we’re civil unioned to each other” whether it’s because of a lack of education or discriminatory attitudes.
The new case is proceeding on the basis of both the equality provisions of the state and US constitutions. At a procedural hearing, the New Jersey government, defendants in the case, contended that the term “marriage” has historically been defined as being between a man and a woman.
But in her ruling giving the case the green light to proceed, Superior Court judge Linda Feinberg said that that might not be a sufficient argument. “[C]ourts have held that tradition alone ‘never can provide sufficient cause to discriminate against a protected class’ ,” she wrote.
Governments don’t have to to defend bad laws
The Obama administration is, at long last, taking a stronger pro-equality position. After pushing through the repeal of Don’t Ask, Don’t Tell at the end of last year, US Attorney-General Eric Holder sent a letter to congressional leaders 17 February 2012 telling them that the Department of Justice would no longer defend laws that prevent gay couples from receiving military and veterans benefits given to their heterosexual counterparts.
Referring to a current court case named McLaughlin v Panetta, Holder said the plaintiffs there are “seeking various federal benefits for their same-sex spouses. These benefits include medical and dental benefits, basic housing allowances, travel and transportation allowances, family separation benefits, military identification cards, visitation rights in military hospitals, survivor benefits and the right to be buried together in military cemeteries.”
Explaining the administration’s position, he said that he and President Obama “have concluded that classifications based on sexual orientation should be subject to a heightened standard of constitutional scrutiny under equal protection principles,” and that Section 3 and other parts of the Defense of Marriage Act (DOMA) fail such scrutiny. He told Congressional leaders that if Congress wants to defend the law in the aforementioned case, they are free to do so. But the Justice Department will not.
India’s Additional Solicitor-General makes a fool of himself
In what the Times of India headlined as a “goof-up”, Additional Solicitor-General P P Malhotra argued for the re-criminalisation of gay sex before the Supreme Court of India, employing unusually strong language. The only problem was that in doing so, this representative of the central government went way outside his remit. His arguments did not represent the government’s position.
In a goof-up, Government today tied itself in knots in the Supreme Court by first disapproving decriminalisation of gay sex terming it as “highly immoral” and later taking a different line, drawing sharp criticism from the bench.
Appearing for the Home Ministry, Addition Solicitor General P P Malhotra, argued that gay sex is against social order and the Indian society cannot imitate the practices prevailing in foreign countries.
“Gay sex is highly immoral and against social order and there is high chance of spreading of diseases (like AIDS) through such acts,” ASG Malhotra contended before a bench of justices G S Singhvi and S J Mukhopadhaya.
— Times of India, 23 Feb 2012, Government goof up on gay sex issue draws SC ire.
As news of Malhotra’s strong line spread like wildfire outside the courtroom, the Home Ministry had to quickly issue a statement disavowing Malhotra’s arguments, even before the court session had ended that afternoon. “Ministry of Home Affairs has not taken any position on homosexuality,” the statement said, adding that Malhotra had not been given any instruction except to convey the decision of the cabinet not to contest the Delhi High Court’s 2009 ruling.
Inside the courtroom, and as soon as Malhotra had finished speaking, another Additional Solicitor-General, Mohan Jain, quickly told the judges that he had been instructed to inform them that the central government was not taking any stand on the issue, repudiating everything his colleague had just said. Eyebrows were raised all around.
As readers may recall, in July 2009, the Delhi High Court read down Section 377 of the Indian Penal Code, saying this law’s criminalisation of “carnal knowledge against the order of nature” no longer applied to consenting adults. Several parties including an astrologer, but mostly religious groups, then lodged an appeal with the country’s supreme court. It is this appeal’s hearings that commenced last week. The government of India is not a party to the appeal. As the Home Ministry’s hastily issued statement explained, “After the judgement of the Delhi High Court decriminalising homosexuality was delivered, the matter was considered by the cabinet. The cabinet decided that the government [will] not appeal against the judgement to the Supreme Court.”
The GayBombay email list had some choice quotes from Malhotra’s unauthorised pleadings:
“What is immoral?”, asked the bench.
Malhotra: “Nature has made man and woman. His penis can be inserted into female organ because it is constructed for that. It is natural. Now if it is put in the back of a man where human waste goes out, the chances of spreading disease is high. There are UN studies to show this.”
Next, note the arrow of causation:
“I will show that HIV/AIDS is the cause of homosexuality,” said Mr Malhotra.
“That is not necessary. Ask your department to collect appropriate figures. HIV/AIDS may have nothing to do with homosexuality,” said the bench.
I have saved the best for last:
“Mr. Malhotra, by the way, nothing to do with the case, but do you know any person who is homosexual,” asked the Bench.
“Nobody, my lord,” replied Mr.Malhotra.
“They are avoiding our court,” joked the Bench. “You don’t know anybody?”
“I must confess my ignorance about modern society,” said Mr Malhotra.
“We appreciate your ignorance,” joked the Bench.