On June 26, the US Supreme Court ruled in its Obergefell versus Hodges decision that the 14th Amendment of the US Constitution guarantees same-sex couples the right to marry. By a vote of 5-4, the ruling swept away state bans on same-sex unions. Perhaps while a majority in the US and many around the world are celebrating the decision, it might be unpopular or foolish to consider dissent. However, there are some uncertainties.
Surely, people should be entitled to a basic right to love whomever and in whatever fashion they choose. However, in most parts of the world, including Asia, ethical opposition remains against the institutionalization of same-sex marriage and families that should be differentiated from disapproval of homosexuality. While homosexuality might not be fully accepted as a social norm, it is — in most cases — not baldly disparaged.
So if the broad concept of homosexuality is separated into three categories — same-sex behavior, same-sex relationships and same-sex marriage, most people could probably accept or understand the first two, but a large number would be opposed to the third. The social reservation with regard to institutionalizing the third category — still a significant 37 percent in the US according to a Gallup poll — should not be vilified because these people remain unwilling to assent to the new orthodoxy.
Most movements in Asia center on whether gay couples should be entitled to marriage and family rights. More people remain skeptical about a decline in traditional or nuclear family structures. In an expanded definition of marriage or family, which spouse would be the husband and which the wife? If a gay couple adopts a child, which partner should be called “mom” and which “dad”?
In Taiwan, 40 percent of the public is in favor of same-sex marriage, but 45 percent are against, a TVBS poll found last year. This perhaps coincides with a view that such disruption of traditional family structures would exacerbate the continued shrinking and aging of populations. No country in Asia has yet legalized same-sex marriage.
Moreover, “legislating from the bench” or activism on the part of the US Supreme Court is not good judicial practice. As US Chief Justice John Roberts wrote in his dissent: “The majority’s decision is an act of will, not legal judgement. The right it announces has no basis in the [US] Constitution or this court’s precedent.”
The desire to remake society according to popular insight should be delegated to the legislative branch. The US Congress, which represents public opinion, should legislate same-sex marriage — as 36 states and the District of Columbia have. It should not be of concern to the judiciary.
The comparison of conventional marriage laws to laws that denied equal treatment to African-Americans and women seems misguided. In contemporary times, lesbian and gay people have enjoyed such citizenship rights as suffrage, freedom of expression and protection from unjust discrimination. It is rather the socially recognized and approved attitudes toward marriage and family that have altered over time.
Upsetting legal order as constitutional and “meant to be” without a concrete juridical basis is a course that has no end. As US Justice Anthony Kennedy wrote in the majority opinion: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family... They ask for equal dignity in the eyes of the law. The constitution grants them that right.”
In the future, might the court rule to incorporate and stand for the constitutionality of juvenile, polygamous and incestuous associations as well?
Alfred Tsai is studying economics and political science at Columbia University.
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