February 12, 2014

In a major breakthrough for supporters of same-sex marriage, the Feds opted to expand recognition of gay marriage in federal legal matters, such as bankruptcies, prison visits and survivor benefits. U.S. Attorney General Eric Holder, announced the federal expansion would include 34 states where same-sex marriage are currently illegal however, the new federal benefits will only apply where the U.S. government has jurisdiction.

Based on the new initiative, a same-sex couple married in New York can have a federal bankruptcy proceeding recognized in Alabama though, the state does not recognize same-sex marriages. Besides, a gay couple will have visitation rights like heterosexual couples to visit a partner incarcerated, and survivor benefits for police and firefighters killed on the job, including the right to refuse to testify against a spouse in a legal proceeding, a right that for long is available to heterosexual couples.

Opponents of gay marriage have called the latest development a move by the Obama administration, to undermine the right of states to make their own decisions regulating the institution of marriage. While it is no doubt there is an established opposition to gay marriage in the United States, the harshest critique so far, emanated from Africa especially Uganda, where opponents of same-sex marriage have criticized President Obama for trying to export “deviant sexual behavior” into  Africa.

Speaking in the capacity as the chairman of the National Task-force Against Homosexuality in Uganda, Pastor Dr. Martin Ssempa, said in a video taped during a forum against homosexuality that his country is working on a legislation to make sure sodomy and homosexuality “never see the light of legality” in Uganda. He called homosexuality “sick and deviant,” and went further to describe what homosexuals do in the privacy of their home some of which are too gruesome to explain here, but available in the video.

The Uganda, Anti-Homosexuality Bill called “Kill the Gays bill,” got passed in the Parliament of Uganda on December 20, 2013. The bill initially proposed a death penalty for gays but the death penalty proposal, was dropped after generating media attention in exchange for a life sentence for those engaged in homosexuality. The bill is currently awaiting signature of the President to become law. Likewise, in Nigeria, the government is debating a bill that would criminalize homosexuality and make same-sex marriages illegal.

The position here is objective and not advocacy of any kind. The point is most opposition to gay marriage coming from Africa and other parts of the world is based on morality. The notion that homosexuality is morally wrong, it is an act of moral turpitude contrary to community standard and goes against what is proper sexual behavior in the society. To the people of faith, homosexuality is sin and those engaged in it destined for hell because the Bible says so.

The question is should homosexuality and same-sex marriage be criminalized on the basis of morality or the fact that some believe it is aberrant behavior and therefore, morally wrong? My position is that of a legal mind based on the premise that the fact that an action is morally wrong does not make it legally wrong. In fact, in most civilized justice system, morality, though, has its place in decision-making, it has never been the basis for arriving at judgment in court proceedings and has no place in legal discourse when it comes to the matter of legality of an action. Court’ decisions are a matter of fact and evidence.

If tested on equal protection grounds to which every civilized nation subscribed, a law that criminalized homosexuality or gayness will fail scrutiny as overbroad and unfair. The idea that one could be jailed for life or sentenced to death based on sexual orientation and societal concept of morality deprives the individual of the right to liberty and equal protection, which every citizen deserves irrespective of race, gender or sexual orientation.

Even if the law is to proscribe the display of gayness as some are proposing in the case of Nigeria, such law is still legally wrong because to gays, the display of gayness is a form of speech. Any law targeted to such display, violates the freedom of speech and expression, which cannot be denied to any citizen anywhere in the world, irrespective of race, color, creed, gender or sexual orientation.

To criminalize homosexuality based on the belief that it is morally wrong is legally unsound and makes mockery of Uganda. In fact, it elevates homosexuality to the level of nakedness and indecent exposure considered illegal in most civilized nation. Homosexuality is a civil rights and privacy issue. The state has no business in a citizen’ bed or what a couple does in the privacy of their home. Decisions on such matters cannot be based on morality and personal beliefs. To make one criminal based on sexual orientation, contradicts the right to liberty and infringes on the right to privacy.

Dr. Adeyemi Oshunrinade [E. JD] is the author of  ‘Wills Law and Contests,’ ‘Constitutional Law-First Amendment’ and ‘SAVING LOVE’ available at Follow on Twitter @san0670.

Featured video is a product of Uganda Stands Against Homosexuality available on You Tube via the link

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Categories: Gay Issues, Sexual Orientation

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