The right to marry

By Gordon Barlow (Tuesday, 29 April 2008)

Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a
family. [From Article 16 of the Universal Declaration of Human
Rights]

As always, we must bear in mind that this Declaration is a 1948 United
Nations resolution that defines a set of secular ideals for all the
nations of the world.  “Marry” is not defined, so we must fall
back on a standard definition such as “the formal uniting of a couple
for the purpose of cohabitation”.   

In keeping with the Declaration’s secular nature, Article 16 makes no
concession towards any religious taboos. It doesn’t go into such
issues as polygamy, the betrothal of minors, incestuous unions,
divorce and remarriage, and “custom” or “common-law” marriages. In
1948, same-sex marriages were as rare in Western cultures as mixed-
race marriages; but the histories of the world’s cultures contain many
examples of them, and the composers of the Declaration would have
known that.  The wording of Article 16 would have been carefully
chosen so as not to exclude same-sex partners from the declared “right
to marry.” 

The composers of Article 16 added an explanatory note in the body of
the item.  It reads: The family is the natural and
fundamental group unit of society and is entitled to protection by
society and the State.  The effect of this note is to make it
clear that all nations are expected to accommodate the wishes of all
persons who want their domestic partnerships to be registered as
official.

The family is indeed the natural and fundamental group-unit of
societies all over the world.  Different societies may recognise
different forms of “the family”, and different forms of formalisation
too. Increasingly, the civilised world is coming to terms with same-
sex marriages. They are usually called “civil unions” in the West.
That term means the same thing as marriage, when you think about it,
though in practice it carries fewer privileges. 

Most Western cultures recognise and accept serial monogamy. Even the
Roman Catholic Church – which for many years clung to the fiction of
nullification as the God-approved alternative to divorce – has come to
accept the democratic practicality of civil divorce. Some Eastern
cultures recognise and accept polygamous marriages, most forms of
which don’t acknowledge equal rights for the female spouses. Some
primitive cultures recognise custom-marriages that don’t require
registration with the central governments. 

Some nations used to require the authorities’ permission for marriages
that cross religious, national or racial boundaries – and some still
do.  Our Cayman Islands government shows signs of moving towards
a general policy of vetting the proposed spouses of Caymanian
citizens, for the ostensible purpose of preventing or nullifying
“marriages of convenience”. (It remains to be seen whether the vetting
will be done to all citizens’ spouses, or just native Caymanians’.)

The Immigration Law already denies citizenship (and sometimes even
continued residence) to a foreign spouse until his or her marriage to
a Caymanian has lasted ten or twelve years. So a mixed-marriage family
in Cayman is not entitled to protection by the law until after ten
years or so – even when children are born to the marriage. A foreign
wife who leaves an abusive Caymanian husband before the ten years are
up is liable to be deported – without her children. 

Brave enough to defy our popular local prejudice against
homosexuality, but not brave enough to acknowledge the obligation to
protect our mixed-marriage families… as usual, the British
Government is sending mixed signals about its loyalty to the
principles of basic human rights.