Debate on Same-Sex Marriages

Written by Zahra Annisa Fitri (81822200028)

for Ritsumeikan University PBL Program's Civil Law course

Same-sex marriage is the marriage between partners of the same sex or gender identity—for instance, a marriage between two men or two women. Many countries regulate same-sex through law, religion, and custom. Nevertheless, the legal and social reactions have varied from celebration to criminalization.

Proponents of same-sex marriage claim that same-sex marriage bans are unconstitutional and discriminatory. There are some arguments supporting this stance.

First, denying some people the option to marry would be discriminatory. Different-sex couples get benefits, such as rights and protections in federal law, such as family health coverage, granting tax, inheritance rights, and bereavement leave. They also get protection if the relationship ends, such as support for their spouse or child, custody of their children, and a proper property division. If same-sex couples are not recognized, they will not get access to the benefits and become a second class of citizens. Thus, protecting same-sex marriage means protecting liberty and equality and recognizing all people's human rights.

Second, denying same-sex marriage may come from a religious view as the Christian tradition has long been a powerful influence in Europe and US. However, religious marriage and marriage offered by the state could be separated. Religion should be separated from the state to enable the country to function democratically.

Last, marriage is not only for procreation. Civil law has traditionally believed in the procreation of offspring as the principle of marriage¹. Nevertheless, it is not the only one. That is why marriage qualification never includes "desire or ability to create offspring". If so, couples that are infertile or not expecting to have children should be banned from getting married. The law had also historically endorsed marriage as a 'help and assistance partnership'. Same-sex marriage supported it, which does not rely upon partners of different sexes. Nevertheless, opportunities for same-sex couples to parent are now increasing, e.g., through adoption, IVF, and surrogacy.

As of 2022, 31 countries have legalized same-sex marriage. In the US, all fifty states legalized it as the Equal Protection Clause assures same-sex marriage. In Colombia, the country's Constitutional Court ruled that starting a family in keeping with their sexual orientation and receiving equal treatment under the law are free to be chosen independently. Same-sex marriage is regulated the same as the marriages of opposite-sex couples.

However, opponents argue that marriage has been characterized as being between a man and woman, primarily for procreation. They claim that, first, same-sex couples could get advantages and protections without changing the definition of marriage. States can pass laws that would benefit same-sex couples as well as different-sex couples who do not want to marry.

Second, because a same-sex marriage means adopting heterosexual forms of family, it gives up distinctively same-sex family forms and perhaps even same-sex culture. Thus, it runs contrary to some LGBT movement's primary goals: the affirmation of their identity and culture, and the validation of numerous forms of relationships².

Lastly, same-sex marriage is disobedient to the word of God. It clashes with many religious groups' beliefs, such as Christianity, Orthodox Judaism, Theravada Buddhists, and Islam. Some also considered same-sex marriage contrary to norms, morals, and nature.

For example, legalizing same-sex marriage in Indonesia is complex and controversial due to religious and cultural concerns. Although legalizing same-sex marriage in some countries is a form of respect and protection of human rights, it is essential to note that human rights implementation follows the people's norms, principles, and beliefs, and it is not a violation of human rights. It is acceptable for the state to do that to protect others' rights to ensure public order, stability, and welfare. Considering same-sex marriage violates the Indonesian people's core norms, principles, and beliefs, most Indonesian people do not accept this issue. Same-sex marriage recognition in Indonesia disregards the Marriage Law and the Indonesian people's way of life, as marriage in Indonesia is not simply a civic arrangement but a case of essential customary and religious faiths and laws. Unless the Indonesian people's religious philosophy is switched, the request for legal safeguard for same-sex marriage will scarcely obtain an actual lookout in conservative Indonesia, as of 2019, only 9% of Indonesians were reported considering that homosexuality should be tolerated by society—increasing from only 3% in 2013³. As for 2022, because Indonesia's parliament is discussing the country's criminal code, LGBTQ rights activists are even concerned that the state could use new legal standards to criminalize same-sex couples. Another example of current circumstances is when a current podcast by an Indonesian celebrity named Deddy Corbuzier started public irritation because he interviewed a gay Indonesian man and his German husband regarding their life as a couple in Germany. Shortly, the #UnsubscribePodcastCorbuzier hashtag became hot on Twitter, and at the end of the day, Corbuzier removed the interview from his YouTube channel and published a public apology⁴.

Japan also does not recognize same-sex marriages. However, the reason is different from Indonesia as the state must take a neutral and non-unifying attitude toward all religions and denominations. The problem, however, lies in a broader social context. The government persists in defining a household based on heterosexual marriage, and societal distaste for gendered expectations about marriage exists⁵. The gendered division of work and patriarchal family characteristics are mainly unchanged. Thus, at least unspoken concern with same-sex marriage quietly represses sexual minorities and forces them to blend into heterosexual norms⁶. However, no laws explicitly discriminate against or actively protect the rights of same-sex couples. Also, although the same-sex partnership is not legally admitted, 9 prefectures including Osaka and Tokyo, and more than 200 municipalities have already introduced same-sex partnership system to officially recognize same-sex couple. Same-sex couples with registering their partnership have certain rights previously denied to them, including living in public housing together and visiting a partner in the hospital. Nevertheless, same-sex couples who desire to have children are still unable to do adoption. Also, there are still no regulations for assisted reproductive technology (ART) and treatments that relates to it⁷. Therefore, same-sex couples in Japan must deal with their relationship without legal status or by stating it as a false adoptive parent-child relationship⁸.

Besides getting rejected of their marriage, same-sex couples may also face discrimination and even prosecution. For example, consensual same-sex acts were criminalized in Brunei with death penalty punishments⁹. However, on the contrary, although same-sex marriages are not legally recognized too in India, a judge in India once said that the sexual orientation of a person is an essential attribute of privacy¹⁰.

In conclusion, there are many stances on same-sex marriage. Some countries legalize and support it, while the rest do not recognize it, and some even criminalize it. Legalizing same-sex marriage depends on the country's history, as well as its norm, principle, and belief. East-West binaries may not adequately describe East-West dynamics¹¹. However, we cannot deny that countries enacting national laws allowing same-sex marriage now are mostly in Europe and the Americas. In contrast, Asia countries such as Indonesia and Japan have their own venerable traditions that may hold up the legalization of same-sex marriages.

Word count: 1,173 words

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3. ^{^} ‘More Indonesians tolerant of homosexuality, though vast majority still say no: Pew survey’. (2020). The Jakarta Post. https://www.thejakartapost.com/news/2020/06/26/more-indonesians-tolerant-of-homosexuality-though-vast-majority-still-say-no-pew-survey.html

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10. ^{^} ‘Same-sex marriage in India: why are Indian courts taking so long?’. (2022, March 30). The Leaflet. https://theleaflet.in/same-sex-marriage-in-india-why-are-indian-courts-taking-so-long/

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