BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate since 2000 and BU commenter – see full bio.
Musings: It’s all about love… 7/12/2015
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“A new commandment I give unto you. That ye love one another; as I have loved you, that ye also love one another…” – John 13:34
As the on-going employment rights dispute between the Barbados Industrial Development Corporation [BIDC] and the National Union of Public Workers [NUPW] rapidly descends into farce, what with the dismissing employer now reportedly seeking what I suppose to be a declaration from the local courts as to its entitlement in the matter, and the Minister responsible for Labour castigating the NUPW but, remarkably, not the BIDC, for failing to revert to the status quo ante once attempts at political mediation have commenced, I consider that it may be an appropriate time for this column to step away from the fray and to leave resolution of the matter up to the workings of a social system that seeks to reduce even complex legal issues to primitive partisan political sentiment. I should state that I have heard or read nothing further on the issue so far to alter the view I offered two Sundays ago in the essay “Labour is not a commodity”.
Last Sunday also marked the expiry of proverbial nine days for the wonder of the decision of the Supreme Court of the United States that a marriage between members of the same sex was lawful in the several jurisdictions to have fretted its fitful “hour” upon the public stage. It should be recalled that this 5-4-majority ruling was a consequence of the court’s treatment of the Fourteenth Amendment to the US Constitution that enjoins the states from depriving “any person of life, liberty or property without due process of law” or denying “to any person within its jurisdiction equal protection of the law”.
Of course, this decision did not comport with the views of those who, for one reason or another, regard such a holding as nothing short of a sinful abomination. Hence, a decision that heralded a further evolution in what might be considered a human right, as some of those that preceded it, was subjected to the postulation of nightmare scenarios of the probable legalisation of paedophilia, polygamy, polyandry and even bestiality as a consequence of the judgment. This reaction is scarcely novel.
Similar sentiments might have been expressed by some elsewhere when it was decided in Brown v Topeka Board of Education that separate educational facilities based on race are inherently unequal; after Roe v Wade that limited the right of the state to regulate abortions; and at the ruling in the far less celebrated Torcaso v Watkins that the states and the Federal Government were not allowed to require any religious test for holding public office. That our local law is identical in these three respects might surprise more a few.
And for those who would call down the wrath of God on the US for this ruling, they must at the same time do so for the people of Ireland, Norway, South Africa, Sweden and Uruguay, to name a few, all jurisdictions where this form of marriage is lawful.
In my view, much of the angst is owed to a perception that the ruling serves only to adulterate the sanctity of traditional marriage although, as has been pointedly remarked elsewhere, this might better be preserved locally by prohibiting divorce and criminalizing adultery, phenomena that pose far more deleterious threats to that institution than the unlikely prospect of same-sex marriage between two strangers perhaps ever could.
As I suggested last week, marriage in these parts has always enjoyed a unique existence, one not necessarily consonant with Biblical teachings or of those latter-day apostles who purport to speak for God. From earliest times, it seemed to be viewed among the hoi polloi as an unnecessary and unarguably restrictive indulgence. Much more in vogue then was the visiting relationship that gave rise to the notorious phenomenon of the mother who “fathered” her children. One presumed advance on this was the “live-wid” relationship where the father came home at night although the parties never enjoyed the “benefit of clergy” …or of laity for that matter.
Eventually, these arrangements and their thitherto wrongly so-called, illegitimate, offspring were given legal sanction with very few dissenting voices, if any, at what was, in effect, substantially connived-at fornication. However, my earlier thesis that there are two Barbadoses, the imagined puritan and the actual hedonist, when it comes to traditional standards, especially those pertaining to sexuality, would be further justified in this regard and would have served to sanitise any perception of moral obloquy.
The truth is that the recent ruling is not the first time that the SCOTUS has had to treat with Biblical dogma and the institution of marriage. In the improbably titled Loving v Virginia in 1967, the Court was forced to contend with a lower court opinion that “Almighty God created the races, white, black, yellow, malay and red. And he placed them on separate continents. And, but for the interference with [H]is arrangement, there would be no cause for such marriage. The fact that he separated the races shows that [H]e did not intend for the races to mix…”
As a result of this assumedly self-evident proposition , Mildred Loving, a black woman, and Richard Loving, a white man, who had been validly married nine years previously in the District of Columbia, were convicted of the charge of violating the marriage laws of Virginia that provided “if any white person intermarry with a colored person or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punishable by confinement in the penitentiary for not less(sic) than one nor more than five years”.
In a brief unanimous judgment that would repay reading, the SCOTUS opined that restricting the freedom to marry because of racial classifications violated the central meaning of the Equal Protection Clause under the Fourteenth Amendment. And the Court gave short shrift to the argument, as it had done earlier in Brown v Topeka Board of Education, that equal application of the statute to blacks and whites was enough to remove the classifications from the Amendment’s proscription of all invidious racial discriminations.
There are obvious differences between the Loving case and the recent ruling on same sex marriage. For one, the selected Biblical passage prayed (no pun) in aid in the latter case, that “man should not lie with man as with a woman” is textual rather than ascribed as with the patently inaccurate thesis on separation of the races. For another, the Lovings were capable of procreation unlike a same-sex couple. Yet both of these considerations; the former because of its lack of bindingness in a secular constitutional polity as opposed to in a theocracy, the latter because of its treatment of what is merely one incident of the marital relationship as the sole key to the essential validity of that union, are inadequate to nullify the arguments of the US Supreme Court.
The truth is that marriage is not merely a religious institution, but is also a civil contractual arrangement that confers and imposes certain express and implied rights and obligations that are legally enforceable on either party. Indeed, even these incidents themselves, as many other precepts, have undergone fundamental change over the years in keeping with the evolution of the human perception of justice.
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