Homosexual marriage

The homosexual marriage indicates the Mariage between two of the same people sex.

The expression even of homosexual marriage is often shown, dictionaries with the support, to be a Oxymore. However if the current dictionaries often indicate the marriage like " the union legitimates of a man and a femme" , the expression " marriage homosexuel" was adopted by the media and by the political personalities to indicate the extension to the homosexual couples of the right to the marriage such as there exists for the heterosexual couples. Moreover, legalization in Quebec should lead to the evolution of the French-speaking dictionaries.

Positions of the partisans and the opponents

Fact, on the level of their rights, there exists a difference in mode legal between the heterosexual couples and the homosexual couples. In the name of a concept of indifferent equality of rights of the sentimental and sexual orientation, those require an equal treatment which passes by a lifting of the interdict. The following arguments are advanced:
  • to make it possible to any person to found a family (many a Constitution S throughout the world confers the title of basic right to him),
  • to allow the already existing homoparentales families (in free Union) to have a means of recognition of their family as such,

Contrary, the opponents with the homosexual marriage rather present the marriage like a hétérosexuelle specificity, where the man and the woman are certainly equal, but not identical nor interchangeable (in particular compared to maternity, and its effects on the life of the couple and the professional life of married), which implies sterile installations by definition between two of the same people sex.

The religious considerations are very present in the reasons for opposition (almost all the confessions sacrilize the marriage of a man and of a woman and almost none regards the life between two people of the same sex as sacred union).

Lastly, a very small minority considers that the marriage is not (or more) the business of the State, and that thus the question is not to extend the benefit of the marriage, but rather to remove it as a procedure of State. This opinion is based on considerations:

  • religious: religious character of the marriage;
  • political, for the liberals or anarchists: not intervention of the State in the relations between people.

Related questions

Homoparentality

See also: Homoparentalité

The questions of the Adoption, and more generally, of the recognition of the parentality of homosexual are also elements of the debate, distinct but very dependant. Indeed the large majority of the opponents to the marriage between homosexual are also against the recognition of the homoparentality.

They advance like principal argument family balance, since by definition the child is the fruit of the union of two parents of different sex. The question is thus to know if an educational environment made up of two of the same parents sex does not harm the child and his development.

Studies start to flower, in particular in the United States, on the many cases of children living under the responsibility of homosexual parents, in particular when the two parents are women.

These studies are still to confirm because too recent: it misses in particular a general study on a big number of children of different cultures, and with the passing of a whole generation. However, the first undertaken studies do not show significant differences between these children and the others, which would tend to reject the assumption of a negative effect.

It should however be specified that these studies meet critics very sharp as for the way in which they are carried out|date= August 29th, 2007 As when the sample of 58 studied children is provided by the association even which asserts the homosexual adoption and which only adults, members of association, are questioned (and not children concerned) to conclude that the children did not suffer to be high by two “fathers” or two “mothers”, or when they compare the development of children raised by the homosexual ones with that of children raised by only one relative or a family recomposed, who constitute situations known as being difficult for the children.

Civil union

See also: Civil union

Compromised between Cohabitation (or union in fact) and Marriage, they, though exclusively, are usually not created for the of the same couples sex with the objective to give rights equivalent to those of the marriage.

Some see there an increasing recognition of the homosexual couples and thus a step in favor of the marriage. Others see there a way of doing pleasure with the two camps.

The partisans can find there an example of officialization of the homosexual life of couple. The opponents can see quasi-systematic prohibitions of the adoption there.

These civil unions thus raise enormously fear and of hope.

Homophobie

The evolutions on a world level of the legislations since many years led to the authorization (or the de-penalization) of the sexual relationships between of the same people sex agreeing. Those remain prohibited in eighty States. The access to the marriage requires beforehand the recognition of the human rights of the homosexual ones.

Rights of homosexual in the world

Except for some States (Netherlands, Belgium, Spain, Canada, Massachusetts, South Africa), the of the same people sex are not allowed to marry together. However, certain ethnos groups animists authorize the marriages or unions between members of the same sex: the sexual relations between women remain however banished within the framework of these unions (at the Nuer S and the Yoruba for example), while the men profit from a union " complète" where the sexual relations are authorized (at the Navaho S and the Zuñi S for example).

Africa

South Africa

The South Africa is the only State of the unintermitting to include in its Constitution of 1996 any prohibition of discrimination with respect to the sexual orientation. Following a complaint deposited by a couple lesbian, the Constitutional court is seized and judges the law on the marriage, defined as the union of a man and a woman, anticonstitutional because discriminatory. End 2005, the Court gives one year to the Parliament to settle the question, the government then submits a Bill to the Parliament and this last organizes a vast public consultation, where the majority of the religious organizations firmly condemned this law (only the Église Anglican and the reformed Dutch Église are not opposite there).

The November 14th 2006, the South-African Parliament adopts by 230 votes for and 41 against and 3 abstentions the Civil Union Bill , which allows the Civil union and the marriage (contrary to what was envisaged in the initial text) between two people, whatever their sex. To come into effect, there remains nothing any more but the consultation of the National council of the provinces (Upper House with advisory capacity) and the promulgation of the president Thabo Mbeki. This last travels abroad, leaves from there with its vice-president, Phumzile Mlambo-Ngcuka, the care to promulgate the law, which is made the November 30th 2006, the South Africa becomes thus the first State of Africa has to legalize the union civilian and the homosexual marriage.

Democratic republic of Congo

In Democratic republic of Congo, the Constitution of the Third Republic defines, in article 40, the marriage like the right “to marry with the person of its choice, opposed sex, and to found a family”; thus prohibiting the homosexual marriage.

America

Generally, homosexuality is legalized practically everywhere in America, even without recognition at least of the civil pacts (except in Venezuela and Guyana).

However, the civil pacts are legalized in certain States of the Brésil, the Argentine or the the United States. They are also legalized in the French communities of overseas in America (in French Guiana, Martinique, and with Saint-Pierre-and-Miquelon) according to the French law relating to the PACS which grants a civil recognition and rights to all the nonmarried couples whatever their sex. In the same way the civil pacts are legalized with the Greenland according to the Danish law. In the Antilles and the Caribbean, the homosexual couples are recognized according to the local territorial legislative framework in the overseas territories Dutch (Aruba, Dutch West Indies of which the Dutchwoman part of the island of Saint Martin's day) and British.

In fact, the American continent seems for the moment concerned with the question of the homosexual marriage only in two countries of North America: Canada and the United States. Canada evolved because of its legal and constitutional operation to a total recognition of the homosexual marriage and the unit of the rights and duties which are attached there.

On their side, the United States sees a hardening of the positions in favor of the prohibition of the homosexual marriage because of an intense lobbying, even if attempts took place in certain States, then cancelled by court order. Massachusetts authorizes the gay marriage, and its position was recently reinforced in 2007

Canada: Authorized marriage

See also: Homosexual marriage in Canada

With the Canada, the situation is evolutionary, because of recent court orders.

The definition of the marriage is a federal competence, and the federal law defined the marriage as the union of two people of different sex.

Before the adoption of the C-38 bill, the courses of call of eight provinces and a territory considered to be all discriminatory this definition like opposite with the Canadian Charte of the rights and freedoms, and thus of no effect (according to the system in force in Canada, justice ensures the equivalent of a constitutional control on the laws).

Since these decisions, the homosexual marriages were allowed in these provinces and territories:

This last judgment, with 9 provinces and territories on 13, made unconstitutional the old provision of the federal code and it had become imperative to redefine the marriage constitutionally in order to it relégaliser. At once, the federal government filed in the C-38 bill, entitled Loi on the civil wedding , aiming at legalizing the marriage between joint of the same sex on the whole of the Canadian territory, by removing the restriction of sex.

This bill was adopted (by 158 votes against 133) by the House of Commons the June 28th 2005, it was approved by the Sénat (by 47 votes against 21) the July 19th 2005 and received the following day the royal Sanction. Thus, the July 20th 2005, the law is definitively adopted and the Canada becomes the third country in the world to authorize everywhere on its territory the marriages of joint of the same sex, and the first in America.

The victory of the preserving to the general elections of 2006 of the January 23rd had temporarily opened a period of uncertainty on the future of the homosexual marriage to the Canada. The Prime Minister Stephen Harper considered that there had never been of really free vote on this subject, since the members of the liberal cabinet , as well as the caucus néo-democrat in entirety, had been obliged to vote in favor of the bill (a liberal minister was obliged to resign in order to vote against the bill, and the only deputy néo-democrat to be voted against was expelled of her party). He had thus promised that its government would reconsider the question to the autumn 2006 by holding a free vote about a motion proposing the re-establishment of the traditional definition of the marriage.

December 7th, 2006, it introduced a motion whose text was: “  That this Room requires of the government to deposit a law aiming at restoring the traditional definition of the marriage without touching the civil unions and while respecting the existing marriages between of the same people sexe.  ” Motion was rejected with 175 votes against and 123 votes for. Several deputies having voted against the law C-38 introducing the homosexual marriage into 2005 voted against motion for rétablissment traditional marriage in 2006. Two of the opposition parties, is the Québécois Bloc and the New Democratic party, forced their deputies to vote according to the line of the party, i.e. against motion; the vote was thus not freer than the last time. However, Stephen Harper indicated that it will hold never again of vote on the subject. The majority of the analysts estimate that motion had been presented only to respect the electoral commitment undertaken at the time of the election of 2006 and that the Prime Minister hoped to lose the vote in order to be able to leave the question behind him before the next federal election.

The United States: a question concerned with the States

In 2004,62% of the Americans were favorable to the recognition of a legal statute of the homosexual unions (marriage or civil union). Only the State of the Massachusetts authorizes the homosexual marriage. One can thus see there a very limited extension of the homosexual marriage. Moreover, for questions of interior policy, one rather witnesses a hardening of the positions against at the national level.

Indeed, so following a decision of the Supreme court of the State of Massachusetts, the marriage between joint of the same sex is recognized legally in this State, contrary, several States voted amendments with their Constitution in order to prohibit any law recognizing the homosexual marriages.

During the year 2004, many counties and municipalities (whose San Francisco with the action of the mayor Gavin Newsom and Portland) undertook to solemnize homosexual marriages against the liking of the governments of their States. The legal results varied, but the majority of these actions were cancelled by later court orders.

The homosexual marriage is classified nevertheless among the most significant subjects on the political plan of the United States. Many politicians preach a federal constitutional amendment (single in the world) which would banish for always the homosexual marriages. Many others, which do not support the homosexual marriage, estimate that a similar amendment is unacceptable.

The will of president George W. Bush to register in the Constitution this prohibition of the homosexual marriage caused hostile reactions, including girl junior by her own vice-president, Mary Cheney, itself lesbian. For Mary Cheney which was expressed on the chain of TV FOX, near of the republican mediums, “This amendment on the homosexual marriage amounts registering the principle of discrimination in the Constitution It is a bad law”.

The official policy is that homosexuality does not exist in the army whose image must remain detached from this question, with respect to an American population still mainly hostile in certain States, where the acts of homophobie even violent one are repressed little. Consequently, it is impossible for them to carry felt sorry for and to continue the authors of acts homophobes of which they would have been victims, or to be declared pilot in criminal cases whose homosexual ones could have been victims, or to contract a civil union, even a marriage, even in the States where these unions are legalized.

However, it should be noted that even if the cohabitation even the civil union of homosexual are authorized in certain States, it is not the same for the legal statute of the sexual relationships since certain States differentiate the lawful age from the necessary sexual majority to authorize the homosexual relations.

The Vermont in the North-East of the United States, granted in 1999 the right to the marriage or of the rights equivalent to the homosexual couples . The legislature of Vermont chose to authorize the civil unions guaranteeing to homosexual almost all the rights and the privileges granted to the traditional couples within the framework of the marriage. In October 2006, the Supreme court of the New Jersey gave six months to the legislator of the State to modify the legislation on the Mariage in order to recognize the right of the gay couples to profit from all the advantages offered to the married couples Hétérosexuel S. the court left freedom to the legislator to choose between the Homosexual marriage (like the Massachusetts since 2004) and a new system of Civil union (as in the Vermont and the Connecticut). The New Jersey would be however the only state to authorize such unions (or marriage) for nonthe residents.

Asia

Israel

The homosexual marriage is not legal in Israel. Inter alia reasons, it is the Rabbin At which controls the institution of the marriage (and of the divorce). This question is thus very related to that of the relationship between Judaïsme and homosexuality.

However, the November 21st 2006, the Supreme court of Israel ordered with the government to recognize marriages of of the same couples sex celebrated in Canada. This decision does not constitute therefore a recognition by the State of the homosexual marriage, which will require a change of the legislation by the Knesset. A deputy already suggested that it will present a private bill to try to circumvent the decision of the Court.

Taiwan

More liberal than the China, Taiwan also introduced a bill of the human rights resulting in the legalization of the marriages of joint of the same the sex.

Europe

The situation on a European scale is rather confused. Certain countries or groupings of country take routes of the authorization, others are in more wait and see positions. Not a long time ago, of many people affirmed that we attend the birth of a right to the marriage for the homosexual ones on the European level. But this idea is contradicted more and more by the reality of the facts.

The homosexual marriage seems to have more and more difficulties of extending. And this right was many times refused by the European Court of the human rights. This one making prevail the freedom of the States to be organized as they wish it.

Despite everything these reserves, one witnesses more and more a recognition by the courts of a homosexual life of couple. This one makes it possible to avoid the most difficult conflicts resulting from the separation of the boyfriends by their will or their death (right of compensation, separation of the goods bought together, taken again lease,…).

Authorized homosexual marriage

Belgium
In Belgium it is authorized since the January 30th 2003. But filiation (recognition of the one of united like relative of the children of the other) and the adoption were not there at the beginning not possible. The opening of the marriage to the of the same couples sex was voted by a translinguistic coalition Socialist-liberal-ecologist. The liberals and the social-Christians however agreed to give their agreement only to the condition which the text does not include the right to filiation and the adoption. This right refused to homosexual was at the origin of the negative opinion given by the Council of State, which considered that the original intention of the marriage was to be used as framework with procreation. The government passed in addition to, judging, following the example many associations, that if one did not refuse the right to the marriage with the sterile people or ménopausées, it was not necessary to refuse it with the homosexual ones. A bill opening the adoption with the married couples or cohabiting under the same conditions whatever their sex is adopted by the Room of the representatives the December 2nd 2005 and by the Senate the April 20th 2006, the law, after royal sanction the May 18th, between into force 10 days after its official publication the June 20th with the Belgian Moniteur, is the June 30th 2006. Today the homosexual ones can marry and adopt legally in Belgium.

Spain
The June 30th 1998, the Parlement of the autonomous Communauté of the Catalogne adopted with the quasi-unanimity (100 votes for and 12 against) the Bill on the forms of life commune other than the Mariage. The law which results from it (the first of this type adopted in a country of Europe of the South), said law on the stable couples, allows the couples nonmarried, heterosexuals or homosexual, to have a statute as close as possible to that of the married couples in all the matters falling within the competence of the autonomous community. In 2004 the regional governments of Catalonia, of Navarre, Pays Basque and of Aragon authorized the adoption by the homosexual couples. The law which existed before 2004 in Catalonia authorized already the adoption by the gays and the lesbians, but allowed the couples only " of accueillir" children.

Finally, on a bill of the Socialist government, the Spanish deputies voted the June 30th 2005, by 187 votes for, 147 against and 4 abstentions, in favor of a bill authorizing the homosexual marriage and the adoption. The law came into effect with its signature by the Head of the State, the King Juan Carlos, and her publication in the Bulletin official of the State , the July 2nd 2005; the homosexual marriages are allowed since the July 3rd.

Spain became thus the third country in Europe and fourth in the world, to approve the marriage between homosexual and the first to accept the adoption without restriction. The law had modified the Civil code to introduce the following sentence: “ the marriage will answer the same conditions and will have the same effects that the contractors are same sex or of a different sex. ”.

The June 18th 2005, 166  000 people according to the police force (1,5 million according to the organizers) expressed against the law authorizing the homosexual marriage with Madrid. This demonstration was initiated by the Spanish Forum of family (FEF). Spanish bishop S and representatives of the Popular party (right-hand side) took part in the procession. The community gays and lesbians retorted the July 2nd with a demonstration and celebrate Pride, estimated at 100  000 by the authorities (2 million according to the organizers).

Netherlands
The homosexual marriage is authorized since April 1st 2001. The Netherlands were the first country to recognize the marriage of the homosexual ones. This recognition gave place to sharp debates. This legislation had been preceded by the law of July 5th, 1997 which already made it possible the homosexual couples to officially regulate their common life.

In the Dutch right, the marriage requires the same conditions and produces the same effects for the hétérosexuelles and homosexual unions.

However, the homosexual marriage does not have the same legal effects with regard to the children of the spouse. Indeed if the adoption of children of nationality Dutchwoman is also possible, filiation (recognition of the one of united as relative of the children of the other) is not automatic.

Discussed marriage

France

See also: Homosexual marriage in France

The homosexual marriage is not authorized in France. The debate, rather polemical, can lead the situation to evolve/move. In the absence of marriage, there exists since December 1999 an alternative, the Civil pact of solidarity (PACS). The PACS does not allow however the adoption the pacsé couple. The convention of pacs was modified in January 2007.

Evolution of the legislations

In 1960, in France, a law introduces a penal discrimination: the law of the November 25th 1960 (creating subparagraph 2 of article 330 of the Penal code) double the sorrow minimum for public insult with decency when they were homosexual reports/ratios (this law was removed by the law of the December 23rd 1980).

In 1962, the Illinois becomes the first American State with décriminaliser the Sodomie and in 1967, the the United Kingdom makes in the same way, followed in 1969 by the West Germany. From 1960 with 1970, the Bus bill of the Minister for the justice of the Canada, Pierre Elliott Trudeau, décriminalise sodomy between agreeing adults. “The State does not have to be involved in the room to sleep” had declared the minister who will become a few months later Prime Minister of Canada.

In 1977, the Charter of the rights and freedoms of the person of Quebec is amended. From now on, it is interdict to make discrimination based on the sexual orientation. It is about the first law in the world which prohibits this kind of discrimination in the sectors public and private (besides some cities and counties of the United States).

In 1982, the law of the August 4th dépénalise definitively homosexuality in France.

The May 17th 1990, the the World Health Organization (WHO) removes the homosexuality of the list of the mental diseases.

In 1995, Canada recognizes discrimination towards the homosexual ones as being anti nelle Constitution.

In 2001, the Netherlands recognize the homosexual marriage. And in February 2003, Belgium recognizes the homosexual marriage, but without effect on filiation and the adoption. The American Supreme court abolishes the laws in force in certain States against the homosexual practices.

Until 2004, two countries, seven provinces, a Canadian territory and an American State recognize the homosexual marriage legally.

The December 30th 2004 is founded in France the High authority of fight against discriminations and for the equality (DUMP), asked to fight inter alia - against the Homophobie, and to penalize the remarks homophobes.

The April 21st 2005, the Spanish deputies voted in favor of the legislation authorizing the marriage between people of the same sex. The first homosexual marriage of the country takes place in July of the same year.

The May 17th 2005, the first world day of fight against the homophobie takes place in 40 countries.

The June 5th 2005, the Swiss people accepts by Référendum the Federal law of the June 18th 2004 on the partnership recorded between people of the same sex (LPart).

In June 2005, the bill on the adoption by the homosexual ones is under discussion in parliamentary commission in Belgium.

In July 2005, the Canadian Parliament amends its Law on the marriage and the definition which it contains to recognize and allow the unions between people of the same sex by modifying the definition, which is now “the union of two people, other than very other”.

The December 19th 2005, the first homosexual union is celebrated in Northern Ireland. This civil union gives the same rights to the heterosexual couples and homosexual.

The March 15th 2006, the Czech deputies recognize a legal statute with the homosexual couples, reversing a Veto which the president Vaclav Klaus against this text had posed. The law was voted by 101 deputies (over the 177 present), necessary minimum so that the vote is valid. This statute, studied for the first time in 1998 and rejected by four times, is thus finally created.

The June 30th 2006 between in force in Belgium the law modifying the Civil code and thus allowing the adoption the married couples or cohabiting under the same conditions and that some is their sex. Course: Room on December 2nd, 2005, Senate on April 20th, 2006, royal sanction on May 18th, publication with the Belgian Monitor on June 20th and coming into effect 10 days later.

The November 30th 2006, the South Africa becomes thus the first State of Africa has to legalize the union civilian and the homosexual marriage.

January 1st 2007, civil union between in force in Swiss. It becomes interpretation, in Switzerland, of the marriages celebrated abroad.

See too

Related articles

External bonds

  • Study of compared legislation n° 134, June 2004 - the homosexual marriage in Europe (Parliamentary report of the French Senate)
  • Right compared of the EU law on the questions of homosexuality (file of LGBTH.com)
  • Article of the Observatory of the inequalities about the homosexual marriage and the homoparentality
  • Article of Sysyphe.org about the marriage and the rights of homosexual and the book '' Débander the theory queer '' of Sheila Jeffreys

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