In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. Now, the US Supreme Court has issued a majority decision in Obergefell v. Hodges, that all states must accept the legality of same-sex marriages. We must take heed of this decision because it may well have a global impact, and we do not want Malaysians to be misled on these emerging “liberal” changes to our religious teachings on the meaning of marriage.
Justice Anthony Kennedy, seen as a pivotal swing vote in the case, wrote the majority opinion. All four justices who voted against the ruling wrote their own dissenting opinions: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, declaring the reasons for their opposition to the majority decision. Their reasoning is not whether or not same-sex marriage is legitimate in terms of human civilisation and spiritual culture. Their reasoning is that Supreme Court Judges do not have the right to force any state to change its definition of marriage itself.
We may liken this position to our own question of whether the United Nations, or others, have the right to force Malaysia to change its Federal Constitution on the matter of our religion of Islam, or upon any matter of sexually deviant behaviour that a tiny minority of the general public may like to follow.
Included all too briefly and only in passing in the American Supreme Court’s decision was the matter of children’s rights. When two adults who cannot procreate want to raise children together, where do these babies come from?
Each child is conceived by a mother and a father to whom that child has a natural right. When a child is placed in a same-sex-headed household, she will miss out on at least one critical parental relationship and a vital dual-gender influence. The nature of the adults’ union guarantees this. Whether by adoption, divorce, or third-party reproduction, the adults in this scenario satisfy their heart’s desires, while the child bears the most significant cost: missing out on one or more of her biological parents.
In San Diego, there appeared a few years back a large billboard in a downtown residential area, with the writing, “SELL YOUR BABY”, with a phone number. Upon investigation, it was found that the male homosexuals of the area often bought the extra children of large families so they could have families of their own. This business was fully licensed and legal. Aside from the question of deviation itself, we must ask whether making policy that intentionally deprives children of their fundamental rights is something that we should endorse or promote.
And a state’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called obsolete or illegal. In their constitutions, four American states maintain the meaning of “marriage” as a legal bond between two people of opposite gender, in other words, a man and a woman. And that has now ended. The five majority-opinion Supreme Court judges have closed the debate and enacted their own vision of marriage as a matter of individual gender choice. States must now change their constitutions, thereby stealing this issue from the people, who will no longer have the right to challenge perverse definitions of marriage now sweeping the world.
The Dissenting Opinion calls the Majority Opinion an act of will, not legal judgment. The right it announces has no precedent. The majority judges expressly disclaim judicial “caution” and omit even a pretence of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” As a result, the Court invalidates the marriage laws of more than half the American states and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. The dissenting judges rightly questioned, “Just who do we think we are?” – American arrogance in a nutshell.
The Dissenting Judges of the American court must be our guideline here, because they ask the question, “Who decides what marriage IS?” They deny that court judges following any philosophy whatsoever have that right. They insist it is the right of the people, not the judges. And we, the Muslims people, can never relinquish the right to follow our Revealed Book, in mortal fear of our souls in the Afterlife if we do not.
Azril Mohd Amin
Executive Director, Centre for Human Rights Research and Advocacy (CENTHRA)
Senior fellow, CENTHRA
Activist, Concerned Lawyers for Justice (CLJ)