Tuesday, November 30, 2010

Family, Marriage, and Law

Apparently, international law is not terribly gender-neutral with respect to marriage.  Rita Joseph sets out "twelve facts" about family and marriage, including:

2. Article 23 of the ICCPR guarantees, first, protection by society and the state for the family as "the natural and fundamental group unit of society" and second, "the right of men and women of marriageable age to marry and to found a family".

3. In the event of the introduction of State or Territory laws that tamper with these protections, the Federal parliament has a constitutional external powers authority (and duty) to enact a general overriding law restoring marriage and family obligations originally promised in Article 23.

4. This article, according to the UN Human Rights Committee (General Comment 19), "implies, in principle, the possibility to procreate". (A General Comment is the most authoritative of all the prescriptions that may be issued by the UN human rights monitoring bodies.)

5. With specific regard to "the right to marry and to found a family", there is, of course, no requirement to procreate but rather a more exacting requirement for the two rights holders of this right to have "in principle, the possibility to procreate" through their marriage. This term, "in principle, the possibility to procreate", rules out definitively any genuine legal right of two persons of the same sex to marry.
...
10. Promoting same-sex "marriage" contravenes international human rights obligations for governments to provide "the widest possible protection and assistance" for the family, "particularly for its establishment" as "the natural and fundamental group unit of society" (International Covenant on Economic, Social and Cultural Rights Article 10).





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