While researching her excellent book, “Homosexuality and World Religions,” Prof. Arlene Swidler visited China and asked scholars there about the status of homosexuals. Were there any laws against gays/lesbians? she enquired. The answer was No. Then were there perhaps laws that, intending to protect families, worked against the rights of gays/lesbians? After a long debate among themselves, the Chinese specialists ended the discussion by declaring categorically that there was no problem; there are no homosexuals in China, period.
Laws about morality have existed from time immemorial. And problems arising from (de)criminalizing (im)moral acts, or even accepting them as part and parcel of legitimate contracts between consenting adults, have challenged courts and judicial systems for just as long. Courts cannot function in a vacuum, disregarding considerations which are often extra- legal in character; and these considerations include the moral values held by society.
According to the teachings of most world religions, homosexuality is an immoral act. This of couse does not mean that homosexuality was and is not practiced, but since the issue became politicized more than 30 years ago, the practice of same-sex relations has been decriminalized by many countries, from Canada to Egypt.
More recently, both in Canada and in much of Europe, contracts between two consenting gay/lesbian individuals have been accepted as valid equivalents to the traditional man/woman “marriage.” This has led governments to extend social benefits to same-sex couples.
Today in Canada it is illegal for three consenting adults, such as a man and two women, to be husband and wives. They can, however, be husband, wife, and mistress. They can even be part of a legal contract, in effect a husband and two “wives.” But the law cannot allow a man to “marry” his mistress if he already has a wife, even if his faith allows it. Why? Because the issue has not yet been politicized.
So what do you do in a liberal democracy when the moral beliefs and traditions of different groups collide? It seems the best way out may be a multiplicity of laws to accommodate them all.
The Netherlands was the first country in the world to give gay/lesbian couples the same legal rights as straight couples, including the right to marry. But in Canada, the situation is more complicated.
Our federal government drafted its controversial same-sex legislation only after two provincial superior courts (Ontario and B.C.) ruled that it is unconstitutional to deny same-sex couples the right to marry. The proposed federal legislation replaces the common-law notion of a union between a man and a woman with a new definition that states: “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.”
That definition clearly excludes marriage between more than two persons, yet affirms religious freedom by recognizing the right of all faiths to allow or refuse marriage to same-sex couples according to their own moral teachings.
The federal government has referred its draft legislation to the Supreme Court of Canada to ensure that its contents are constitutional. A free vote will then be held in Parliament this fall.
The proposed legislation is opposed by many faith leaders, including those of the Roman Catholic, Protestant, Jewish, Muslim and Hindu communities; and if it were not for Catholics taking the lead, few other religious leaders would dare to voice any public opposition to it.
During debates over same-sex marriages in the Netherlands, a fundamentalist Christian Protestant politician who compared homosexuals to thieves, was taken to court, but eventually acquitted. And an Imam was warned by the BVD (Dutch internal intelligence service) that he could be expelled from the country on charges of working against the integration of ethnic minorities into Dutch society, after he described homosexuality as a disease which can be cured.
Opposition to same-sex marriage legislation in Canada received recent support from President George W. Bush, who declared that the legal protections of marriage should apply only to the union of a man and a woman, adding that U.S. government lawyers are exploring measures to legally define marriage in that way. “I believe a marriage is between a man and a woman,” he said. “I think we ought to codify that one way or the other.”
If Canadian MPs vote this fall according to the views held by their constituencies, the new legislation will not pass. But this will not solve the problem, because the federal government must then introduce a new compromise. And if the Supreme Court of Canada were to rule that the prerogative of all faiths to allow or refuse marriage to same-sex couples is unconstitutional, this would be worse still.
The fundamental basis of Law, any law, can be traced back to religious roots, for religious teachings promote law and order by stating that each individual is predestined or “saved” for eternal salvation or damnation. Furthermore, religious teachings from most faith traditions state that while an individual has no way of knowing his or her destiny, a sign of impending salvation has always been respect for and adherence to moral values.
So should Canada now look for a new term, other than “marriage,” to describe same-sex unions? Linguists and theologians, please help!
Mohamed Elmasry is a professor of electrical and computer engineering at the University of Waterloo and national president of the Canadian Islamic Congress.