SAME-SEX MARRIAGE DEBATE. Part 2

Questions responded to by Prof. Eamonn Conway, Patrick Treacy SC and Dr. Van Nieuwenhove and published in Ireland in February 2015.

Collected in two parts and adapted for Cayman in 2019 by Bishop Nicholas Sykes.

Question 2. What has same-sex marriage got to do with children's rights?

Answer. The main argument put forward by those seeking to redefine marriage is that it is only about publicly recognising the relationships of gay and lesbian people, and this is necessary in the interests of fairness and equality. It is argued that the issue has nothing to do with children, or with children's rights.

This is not true. The section of the Constitution that is most in danger of forced amendment refers to "the right of every unmarried man and woman of marriageable age (as determined by law) freely to marry a person of the opposite sex and found a family." It is clearly therefore not just about adult relationships. In fact, marriage has always been about more than the private relationship between the two individuals concerned. By looking to the courts or to other Cayman institutions to redefine marriage constitutionally, those advocating same-sex marriage are acknowledging that marriage is not just about the private relationship of the couple.

There are many kinds of special human relationships that nourish and sustain people. In the particuar circumstances of our lives we can find ourselves deeply enriched by such relationships. But the State does not have or seek a role in publicly recognising them, not do we expect or demand that such relationships gain public recognition.

Why, then, is marriage different? The answer can only be that marriage, as between a man and a woman, plays a unique part in the public life of a community. This unique role is in bringing forth and nourishing new human life and in sustaining that life in the best possible way. Anthropologists wonder if the institution of marriage would ever really have evolved if young humans, as distinct from many other creatures, did not need such lengthy and sustained nurturing after birth.

It is true that some couples cannot have children. It is also true today many parents find themselves rearing children on their own; true also, that many children are reared without a relationship with their father or mother. Families and communities try to compensate as best they can in these circumstances. But we don't go out of our way to create these situations. We do not cease to wish that where at all possible a husband and wife would know the support and love of one another in rearing their children, and that a child would know and experience as closely as possible the love of a father and a mother. This we still see as the 'common good'.

It is this role that marriage plays in the common good that justifies it being singled out, protected and cherished in a special way. If it were only about the loving relationship of the couple, why would it need special constitutional protection?

Redefinition

The proposed redefinition of marriage as a legal contract "without distinction as to their sex" is saying that the special role marriage has had until now in bringing forth and nourishing new human life, only possible between a man and a woman, that is, with distinction of sex, will be incidental to marriage. Moreover it is saying that it is a matter of indifference to us as a society whether a child is raised by a father or a mother, or by two men or two women, and more basically, by its biological parents at all. This is what we will be conceding and conforming to if our Constitution, in which as a State we repose our deepest values, is, along with our Marriage Law, changed externally or by the courts. Other legal changes are bound to follow, such as giving same-sex and cohabiting couples exactly the same rights to adopt children as married mothers and fathers.

Reproduction

In due course, no matter how carefully the law seeks to regulate matters, technologies that until now have only been used to aid infertile heterosexual couples will be the ordinary means of reproduction for same-sex couples, who, biologically, cannot otherwise have children. Children could end up with several people they could properly refer to as their parents: The genetic mother who donated the egg, the surrogate mother who bore the child in her womb, the adopting lesbian mother, the father who donated the sperm and the adopting homosexual father. If the Constitution is changed by the courts or otherwise externally, with the inevitable and consequential changes in adoption law, all these kinds of parenting will have to be considered part of the 'new normal'. Experts have stated that in such situations the issue of legal guardianship of children will be very difficult to determine.

Culture

Are these changes about adults' needs rather than the needs of children? Are they likely to contribute to a culture in which children are viewed as commodities? We have to remember that the culture that engulfs us all predisposes us to value personal self-fulfilment above virtually everything else.

We have therefore to conclude that the introduction of same-sex marriage will put the needs of some adults before the natural rights of children to a father and a mother. This cannot but be damaging to society in general and to the institution of the family in particular. Our Constitution makes the specific direction that "the Legislature shall proceed on the basis that a child's best interests are of paramount importance in every matter concerning the child." Then we must ensure as best we can that it is the Legislature that "shall proceed", under this binding obligation, rather than any other authority which is not so bound.