Gay Marriage Shock!

Shock? Well, lots of people seem surprised and shocked that quite so many Tory MPs voted against it. Makes you wonder what they think "Conservative" means in "Conservative and Unionist Party"?

Regardless of whether you are for or ag'in gay marriage, it is hardly a conservative measure.

If I didn't know better ...

And I think that I do, I'd suggest that Breanna Manning was some sort of crazy strawman (strawwoman, strawperson, strawdangerouslyconfusednutjob?) dreamt up by USian religio-conservatives to demonstrate just how quickly the (US) Army would go to hell in a handcart if they dared to let fags in.

Gay Marriage, the ASA and Archbishop brûlée

His Grace, well on the conservative side of the debate, has got in to trouble with the Advertising Standards Authority. Which is really quite difficult for somebody who has been charcoal for quite so many years. Being the blogosphere, quite a few people have weighed in on it. So, here's my ha'penny's worth.

Firstly, the ASA should fuck right off. If there has been a complaint or ten, then they should direct their wrath, queries, whatever to the advertisers - in this case the Coalition for Marriage - not Cranmer. As per this recent case. ASDA were hauled in front of not-the-beak, not the TV company or the ad agency.

Secondly, this is a clear matter of current political controversy. There are clear ECHR / HRA Article 9 and 10 points to be made in terms of running the ads. On both sides.

Thirdly, my personal point of view? Ideally, I'd like the government just to back completely off from the whole marriage business. Allow nearly anybody to have a registered partnership - and it really doesn't need to be sexual. The whole "next of kin" thing is the clearest example, to my mind, of allowing a life-long partner, a relation or friend - subsequent to official acknowledgement by both parties - similar rights to a spouse. The right to make the appropriate decisions in nasty situations should defer to the person most likely to make the decision you would want, not some Victorian hang-over of who is your "closest relation". The "I don't want to be thrown out of our house if one of us dies" scenario scores highly too - even if you think heavy death duties are appropriate, this is only delaying, not cancelling them.

Marriage can then be left to the churches. The Quakers, Episcopal Church and Reform Jews can marry gayers. Islam, the Roman Catholics, the Orthodox (Christian or Jew) can refuse. Of course, this won't happen. In which case, my personal view is that allowing gay marriage is a good thing. YMMV.

And, I can't see the legal point being made following the ECHR Schalk judgement. If the government makes marriage available to homosexuals - as it already has to trans-sexuals, there is nothing in that judgement which says that churches will be able to be forced to conduct gay weddings. Divorcees, trans-sexuals, non-confirmed members of the relevant church are already permitted marriage, yet the various faiths are specifically and explicitly permitted, unlike civil registrars, to allow or deny wedding services based on their beliefs. I cannot see any difference in ECHR between these cases and homosexuals.

Although, as a corollary, I could see that a law permitting civil marriages to homosexuals while banning churches from conducting gay weddings could be subject to Article 14 challenge. I expect that the current legal status is only maintained because a similar ban on conducting heterosexual registrations with religious overtones or on church premises applies.

What is "Illegal"?

Disclaimer - this is the author's opinion on what the law is, not what the law should be ...

Amnesty International on the Uganda "Bahati" or "Round 'em, put 'em in a field ..." Bill:

"Certain provisions in this bill are illegal; they are also immoral," said Kate Sheill, Amnesty International's expert on sexual rights. "They criminalize a sector of society for being who they are, when what the government should be doing instead is protecting them from discrimination and abuse."

Okay - there is only one word in that that I disagree - obvious from the title - and that is "illegal". I happen to think that both the Bahati Bill and the current position in Ugandan law (under Section 140 of the Uganda Penal Code) is certainly arguably dodgy law under Articles 21(1) and 32(1) of the Ugandan Constitution, although readers will note that Article 21(2) of the Constitution expressly does not mention "sexual preference" and, in fact, Article 31(2a) explicitly discriminates against homosexuals - although no more than the UK or the USA (the latter federal) do - in denying 'marriage' - (Ed notes: he is trying hard not to do a Princess Bride / Peter Cook thing here ...) But I don't think that is Amnesty's point - I think they are talking about "International Human Rights Law", here:

The final section of the bill provides for Uganda to nullify any of its international or regional commitments that it deems "contradictory to the spirit and provisions enshrined in this Act." As both the African Commission and the UN Human Rights Committee have held, a state cannot, through its domestic law, negate its international human rights obligations.

But a state can withdraw from or otherwise abrogate those treaties it has freely entered into and anyway, a reasonably careful search of the UN doesn't actually show any treaty or covenant explicitly requiring equal treatment on the basis of sexual preference. Nope, not explicitly. You do have the International Covenant on Civil and Political Rights - to which Uganda is a State Party without reservation (since 21 June 1995). Now, Article 2(1) states (my bold):

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, 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.

Which you could read, for the States Parties, that they agree not to discriminate against people with the 'other status' of fancying or bonking people of their own sex. But this is not settled law - never mind that Article 23 of the Covenant itself seems to imply marriage being specifically between man & woman - the mere existence of the "UN Declaration on Sexual Orientation and Gender Identity" and the opposing Arab League sponsored declaration (with nearly as many signatories - 57 compared to 67) shows that, despite the completely non-binding Yogyakarta Principles.

There are aspects of the Bahati Bill, regardless of your opinion on the core issue of homosexual rights, that are utterly distasteful (and probably even more easily corallable as illegal under Uganda's Constitution or international obligations):

• The death penalty. Although Uganda are not a signatory to the 2nd Optional Protocol to the Convenant, the Article 6(2) of the Convenant restricts the death penalty accordingly: "sentence of death may be imposed only for the most serious crimes". As s3(1)(b), just for example, of the Bill would impose the death penalty for consensual, protected homosexual acts for adults with HIV, I am fairly sure it would fall foul of this (whereas s3(1)(a) - homosexual paedophile acts might not?)
• The restrictions on free speech.
• The requirement (under penalty of prison) to inform on your friends, colleagues or mere acquaintances.
• The explicit extension of the Stasi clause to ministers of religion with, at least as far as the Christian ones are concerned, the consequent violation of the sacrament of confession (thus possibly breaching the Article 18 rights on freedom of religion, although the qualification in 18(3) for morals is noted. And this is, fundamentally, an argument about opposing morals.)

So, I don't think the Bahati Bill would be "illegal". It might require amendment of the Ugandan constitution, it might (although I don't think it does) require Uganda to withdraw from some treaties currently binding it. Doesn't make it right, I know, but just saying ...