Homosexuality and modern family law

1. Homosexuality and modern family law Group names: Janina, Xiaohan, Yan, Sandra, Barbara

2. Overview • Introduction • Controversies over homosexuality • Geographical Situation concerning the same-sex marriage • Conclusion about whether marriage is a right in itself and whether a state should be gender blind

3. Introduction • Definition of what a marriage is, differs a lot depending on whether you consider how marriages are defined by the different religions or by different states, most have in common, that they see the marriage as a bond between two persons that is culturally and legally recognized as such. • Marriage of today has developed from: having an amount of different partners, over polygamy to monogamy

4. Introduction • Marriage in the pre-christian era was hardly monogam, but because of the expansion of monotheistic religions and the spread of European norms and values in the 15th century, monogamy became common • Marriage in the Roman Empire was holy and the ideal was also to just marry once • In the middle-ages only those could marry who could effort a family -> a huge amount of people was excluded from marriage • In the modern era, until the 20th century, Christian religion still had a huge influence on partnerships - reason to marry was to build a family and to beget children

5. Introduction • Today, monogamy still prevails the few states and religions that allow polygamy. • In former times: marriage had to be formed by a man and a woman and homosexual partnerships were not recognized at all, but since the beginning of the 21st century many countries find ways to allow and build legal institutions to tie the knot for same-sex partnerships. • Common ones are the registered partnerships (since 1998) and the same-sex marriages (since 2001- Netherlands was the first country introducing it) • Difference between these: a registered partnership is an own legal institution which has been built for same-sex couples while the same-sex marriage applies exactly the same law for homosexual couples as for heterosexual couples -> sometimes having special codes for discussed topics (as for example adoption). • Number of states, who introduce the same-sex marriage is increasing

6. Introduction • First same-sex marriage took place on the 16th of April 1061 in Spain, where a pastor wedded two men, Pedro Díaz and Muño Vandilaz, in a small chapel. The document about this marriage has been found in the abbey of San Miguel de Celanova. • Today the same-sex marriage is still a huge debate in many states, especially in those where religion is strong and has political influence. • There are hardly religious institutions that allow same-sex marriages. But in a few Jewish and Christian Churches same-sex marriage is possible. These are the United Church of Christ, the Metropolitan Community Church, the United Church of Canada, the Swedish Church, the Danish Church and in parts of the reform Judaism.

7. Controversies over homosexuality • The arguments about ‘homosexuality’ of opponents • The arguments about ‘homosexuality’ of proponents

8. The reason why homosexual union or marriage is objected • 1. Authorities of Bible or Nature • 2. A dissolution of Marriage • 3. Juridico-technical • 4. International Relationship

9. The arguments of proponents • The principle of equality. • The opportunity for greater emotional and financial security in relationships, as well as for increased seriousness and responsibility in feelings and actions. • Formal equality and official approval would strengthen long-term monogamous relationships among homosexuals. • The United State, European Union and New Zealand are against sexual orientation discrimination. • Article 14 of the European Convention. • A Canadian case: Halpern et al v Attorney General of Canada et al: In its final ruling, the Court of Appeal reformulated the definition of marriage in Ontario to be "the voluntary union for life of two persons to the exclusion of all others “.

10. Geographical Situation concerning the same-sex marriage

11. Countries are divided in three groups • Those which allow the homosexual marriage. • Those which regulate it as another type of partnership. • Those which do not recognize same sex unions.

12. There are different levels within each group depending on the rights given to these couples.

13. 1.Those which allow the homosexual marriage. • Netherlands was the first country to legalize homosexual marriage in April 2001. Since then, homosexual marriage is legal in Belgium, Spain, Canada, South Africa,  Norway, Sweden, Portugal, Iceland, Argentina, and Denmark. Besides, Mexico City, Quintana Roo, the District of Columbia in the U.S., and several U.S. states: Massachusetts, Connecticut, Vermont, Iowa, New Hampshire, New York, California, Washington, Maryland (2013) and Maine (2013). • Some of them also include the right to adopt.

14. 2. Those which regulate it as another type of partnership. • In these countries there is legal recognition of same-sex couples, (as civil unions) giving them similar rights and obligations. Countries as Germany, United Kingdom, France, Switzerland, Austria, Australia, or Slovenia have this system. • However, things are changing in most of them.

15. In U.S., Barack Obama has declared that he is in favor of same-sex marriage. • In U.K, Cameron (from the Conservative party) declared a plan to legalize gay marriage before 2015.

16. In France, François Hollande will regulate the right to marriage by homosexual couples and the right to adopt.

17. 3. Countries which do not recognize same sex unions. • There are 78 countries where homosexuality is punished. • There are several countries where the homosexuality has imposed the death penalty ( such as Iran, Sudan, Saudi Arabia, Mauritania, Yemen and Uganda).

18. Is entering in marriage a right in itself? • The right to marry is a right in itself. • Article 16 of the Human Right Declaration: “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”. • But is it a right for same-sex couple? HRL doesn’t give a definition of family. • Article 12 of the European Convention on Human Rights: «Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right ». • But is it a right for same-sex couple? Schalk et Kopf v. Austria

19. The Article 14 section 1 of the US Constitution:“…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” • Loving vs. Virginia • Does it apply to same-sex couple? Supreme court has never ruled, but judicial court of Massachusetts (2003) ruled in favor of same-sex right to enter marriage.

20. Conclusion • Same sex marriage is still a very disputed matter, as it opposes moralistic views and equal treatment defenders. Countries around the world are divided but history seems slowly moving toward the general acceptance of strictly same sex marriage. • Should then the state be gender blind in the same way as it is color blind? Cory booker, the mayor of Newark remarkably said: “Like racial minorities and women, homosexuals as a group have historically faced societal and government discrimination based on a personal characteristic they cannot control. Thus, as with race and gender, the federal courts must be the guardians of justice and ensure that they are treated equally”.