The State, Human Rights and Marriage

There has been a lot of attention lately to the topic of same sex marriages, so, in light of my focus on the Universal Declaration of Human Rights  (U.N. 1948), I thought this might be a good topic to explore.

Personally, I know many same sex couples and I have friends who have successfully raised healthy families, friends who are now grandparents, so in my mind this debate was over a long time ago and it is about time the world caught up.

The reason why some countries seem to lag behind others when it comes to accepting laws that stray from the traditional are to be found in how much their government identifies with the accepted religious beliefs of its culture.

That is because legal laws are made on advice of ethical committees, which are composed of representatives of the dominant belief systems of a country; either its ruling religious institutions or in the case of countries claiming secular values and religious tolerance, the representatives from many different religions and members of (traditional) academic institutions.

In that light, and keeping in mind that this paper is almost 65 years old, let’s have a look at what the Human Rights Declaration actually says about marriage.

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 a 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.

Now, “the family” as the “fundamental group unit” is defined in different dictionaries as either “a group of people sharing a household”,  “a social unit consisting of parents and their children”, or “a group of people closely related by blood”, but no matter which definition one chooses, nowhere does it mention that these parents have to be of a specific gender when founding this family.

Opponents of same sex marriage could argue that under 16.1, where it mentions “without any limitation due to race, nationality or religion”, gender is not specified so that a government has the right to make a law without violating the rights of its citizens.

This is true, but religion is specified and most of the objections against same sex marriage are based on religious arguments and religion is separately mentioned in the Declaration:

 Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

If everyone has this right, then one entity (including the state) may not impose its religious views on its members.

So, it isn’t enough to just look at the article that deals with the topic of discussion, in this case, marriage; we need to see it in the context of the entire Declaration and ask whether the state (the writer of the legal laws) and the church (the writer of the moral ones) have more rights according to the Declaration than do individuals.

We need to ask whether the purpose of the state (or the church) as a social or cultural institution is to protect its members or is it also a moral judge?

Article 29


(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms and others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

To begin with, 29.1 does not say that the duties of the individual are to obey the moral teachings of the community but rather that the community is there to ensure that he is able to be free and develop as a person. The “personality” of a homosexual person cannot develop fully if he is asked to oppress his nature.

According to 29.2, the state is there to make laws to protect the rights and freedoms of its people and to ensure public order. Outside of this, the state has no right in the daily life of individuals or to dictate their beliefs or lifestyle.

Therefore, if “only to such limitations as are determined by law solely for the purpose of… the rights and freedoms of others and… public order…” then any limitations (prohibitions) shall have to be justified by their interfering with the freedom of others or with public order, and if not, they are in violation of human rights.

And seeing that the only difference between a heterosexual couple and a homosexual couple is to be found in the bedroom – which is a territory that neither the state nor the church have any business entering – and which in no possible way disrupts the public order, the prohibition of same sex marriages cannot be justified.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.  

A state that poses as a moral teacher is no longer protecting individual rights. In all of history, those that stood out as dictatorships were those that interfered in people’s private lives, took over the rearing of the children and told people what to believe and how to live. The moment the state oversteps its limits as protector of the individual’s freedoms and rights within the community, by dictating their beliefs or lifestyle, it has become a dictatorship.

The only angle left, and the one used by every government or church opposing same sex marriage (and any other such alternative lifestyle), is to claim that this opposes “meeting the just requirements of morality”(29.2).

And here lies the weakness of the Human Rights Declaration itself, for “morality” is an abstract term that refers to a notion of right and wrong behaviour as interpreted according to the perspective of the reader. This means that a state (or church) can impose its interpretation of morality on its members and make legal laws claiming to be in accord with human rights, while, in fact, the individual’s rights and freedoms and his perspective of right and wrong are ignored.

So, despite the UN Declaration, as a moral law and not a legal one, claiming human rights on the basis of its democratic views, in fact the interpretation of its articles is subject to the accepted beliefs of every nation that signed it.

The reason for this lies not so much in the religious views themselves as in the idea that the church (or the state) has the right or duty to set the moral values for its subjects. And it is in that belief that I think it contradicts the very foundation of the UN Declaration: that of “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family”.