ARGUMENTS AGAINST SAME SEX MARRIAGE

ARGUMENTS AGAINST SAME SEX MARRIAGE

Preliminarily, it is important to state that arguments against same sex marriage are mostly hinged on morality, necessary limitation of freedom and protection of children and the concept of family.

An argument against same-sex marriage is that it is susceptible to the slippery slope[1] which holds that allowing same-sex marriage implies allowing ‘bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity’[2]. It is argued that allowing same-sex marriage can only be a function of moral relativism or turpitude — the unwillingness to make any moral judgments, or the failure to make the right ones.[3]

Another argument against same sex marriage borders on the well being of the children who are not by their own decisions being raised in same-sex marriage homes. It has been argued that the ideal or optimal setting for raising children is a home consisting of a married man and woman with their biological children[4].

In the case of Baehr v. Lewin [5] the state of Hawaii argued that because same-sex couples are unable to provide this ideal setting, the State argued, their children would be burdened:

“Based on the medical, biological, psychological, social, and other evidence, all else being equal, same sex couples cannot best parent a child in their household. . . . Hawaii appropriately subsidizes those parents who, all else being equal, are the best able to parent children, thereby protecting the welfare of those children as they grow up, as well as the welfare of those who associate with them”

Some opponents object to same-sex marriage on purely religious grounds. Opponents often explain that extending marriage to same-sex couples will undercut the conventional purpose of marriage as interpreted by cultural, religious, and traditional understanding. Moderate Christians further explain that same-sex marriage goes against biblical teaching. As an example, there is the Bible verse Genesis 19:5 which refers to the behavior which biblically contributed to the destruction of the ancient cities - Sodom and Gomorrah. Other passages are Leviticus 18:22 which states;

“You must not have sexual intercourse with a male as one has sexual intercourse with a woman; it is a detestable act.”

Leviticus 20:13 states that

“if a man has sexual intercourse with a male as one has sexual intercourse with a woman, the two of them have committed an abomination. They must be put to death; their blood guilt is on themselves.”

In the New Testament of the Bible, 1st Corinthians 6:8-10 and Romans 1:24 further buttress the points made in the Old Testament.

Another argument against same- sex marriage is the procreative argument. First, there are assertions that such marriages would be contrary to the basic moral purpose of marriage. The two major claims in this regard are that: the only legitimate purpose of marriage is to channel procreation into stable units and that since same-sex couples cannot procreate, they should not be able to marry; or only sexual relations designed to lead to procreation are morally acceptable and that marriage should be limited to those who engage in morally acceptable sexual relations.[6]

It is argued that heterosexual unions provide the procreative foundation of the family unit that is the chief social building block of civilization and legalization of same sex marriage changes the social importance of marriage from its natural function of reproduction into a mere legality or freedom to have sex. In opposing same-sex marriage in various state courts, a common key argument against allowing same-sex marriage has been the use of legal marriage to foster the state's interest in human reproduction.

In Anderson et al. v. King County[7] in which several same-sex couples argued that the state of Washington's version of the Defense of Marriage Act (DOMA) was unconstitutional, the Washington Supreme Court ruled 5 to 4 that the law was constitutional. Writing in the majority opinion, Justice Barbara Madsen wrote in 2006:

“The Legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race and furthers the well-being of children by encouraging families where children are reared in homes headed by children's biological parents.”

Opponents of same sex marriage have asserted that the central purposes of marriage are procreation and childrearing, and that children are harmed or disadvantaged when reared in homosexual households[8]

Man–woman marriage is the irreplaceable foundation of the child-rearing mode that correlates with the optimal outcomes deemed crucial for a child’s and hence society’s well being. These outcomes include physical, mental, and emotional health and development; academic performance and levels of attainment; and avoidance of crime and other forms of self- and other destructive behavior such as drug abuse and high-risk sexual conduct.[9]

They further argue that accepting same-sex marriage necessarily means accepting that the societal institution of marriage is intended primarily for the benefit of the partners to the marriage, and only secondarily for the children born into it. And it means abolishing the norm that children have a prima facie right to know and be reared within their own biological family by their mother and father.[10]

Opponents of same sex marriage have a concern that same sex parenting may produce psychological or adjustment problems in children such as anxiety, depression, lowered self esteem, or behavior problems, and that homosexual parents themselves are more likely to have serious mental health problems that may adversely impact their children. There is the concern that children of same sex parents will be teased or rejected by peers, and thus experience difficulties in their social relationships. There is also the concern that children of same sex parents will have gender identity problems and are more likely to become homosexual[11].

In addition, opponents of same sex marriage argue that gays and lesbians are inherently unfit to be parents because they are more likely to sexually abuse children, to engage in promiscuous sexual conduct that puts their children at risk for premature and inappropriate sexual behavior, and to have unstable families due to relationship infidelity[12].

The claim that living with a same-sex couple does not affect a child’s sexuality is implausible. Men and women differ in significant ways[13].

Other aspects of homosexual relationships make same-sex couples less likely to be good parents. Heterosexual relationships are more durable. The bond between woman and man is rooted in the biological necessity to nurture human infants for a long time[14].

Homosexuals have less reason to bond as couples and, when they do bond, less reason for the bond to be enduring and exclusive. Not surprisingly, then, homosexuals are less inclined than heterosexuals to marry[15], and gays who do marry have a high divorce rate[16]. Gay couples do not bear children and thus do not treat marriage with the same importance that heterosexual couples do.[17]

They may choose to marry only when they no longer feel attractive enough for the promiscuity of the homosexual “meat market” and opponents of same sex marriage claim that many gay men are promiscuous to an extent incompatible with marriage.[18] Given the fragility of homosexual relationships, children in these homes are more likely to suffer the stresses of divorce and to learn that marriage is temporary, not a lasting relationship of trust. Given the frequent infidelity in homosexual couples, children in these homes are more likely to witness conflict over infidelity and to see it as a normal part of marriage. A child whose mother lives with a man other than his biological father is more likely to be abused by that man than a child living with his biological father is likely to be abused by him.[19]

Every child raised by a gay male couple has at least one unrelated male adult in the home. There is no reason to think that such a child will fare better than a child living with an unrelated heterosexual male. The high rates of child sex abuse among homosexuals and bisexuals[20]are also a cause for concern. At the least, given the uncertain effects of homosexual parenting, the children raised by homosexual couples are being treated as guinea pigs, which is troubling.

Opponents of same sex marriage also hold their opinion based on health and medical grounds. Due in part to promiscuity, homosexuals have high rates of disease. Gay men became more cautious about sex after the onset of AIDs, but infection rates soon rebounded to their former levels.[21]

The tendency of male homosexual acts to spread disease may help explain the revulsion many people feel about them. Lesbians also suffer high rates of certain diseases and drug abuse.[22] Homosexuals also have higher rates of suicide, mental illness, and drug and substance abuse.[23]

Opponents of same-sex marriage explain that with the legalization of same sex marriage, artificial reproduction would be given an official stamp and it would become even harder for the law to control. Artificial reproduction is more problematic than adoption because the former is harder for the law to monitor. Every adoption must be approved by a court charged to protect the child. Artificial reproduction gets little legal oversight.[24] This is also because artificial reproduction differs from adoption in that the former is irreversible. If an adoption goes awry it can be rescinded, but the artificial creation of a human being cannot be undone. Neither artificially created children nor adoptees have an adequate natural family to which they can return. The difference between the two is that for the artificially created child this happens by the design of the custodial parents. The law has paid little attention to the rights of children regarding their biological parents because in the past there was no threat to these rights. Children lived with their natural parents unless the parents died, voluntarily surrendered them, or were found unfit by a court.

Opponents of same sex marriage claim that this separation damages children and that children artificially conceived and raised apart from their biological fathers hunger for an abiding paternal presence.[25] Opponents of recognizing such marriages argue that it is better for children to be raised by two opposite-sex married parents, claiming that children need parents of both sexes as role models.[26]

Indeed it can be seen that there are myriads of arguments for both sides of the spectrum. An assertion central to this analysis is that the substantial degree of this sentiments is fostered by specific shortcomings of law and practice in the current system.

RECENT LEGAL DEVELOPMENTS IN RELATION TO SAME SEX MARRIAGE

UNITED STATES OF AMERICA

In the United States, same-sex marriage has been legal nationwide since June 2015, when the United States Supreme Court ruled in Obergefell v. Hodges that state-level bans on same-sex marriage are unconstitutional[27]. The court ruled that the denial of marriage licenses to same-sex couples and the refusal to recognize those marriages performed in other jurisdictions violates the Due Process and the Equal Protection clauses of the Fourteenth Amendment of the United States Constitution. The ruling overturned a precedent, Baker v. Nelson[28].

During the period 2003 - 2015, various lower court decisions, state legislation, and popular referendums had already legalized same-sex marriage to some degree in thirty-eight out of fifty U.S. states, in the U.S. territory Guam, and in the District of Columbia. The Supreme Court addressed that question two years later in 2015, ruling, in Obergefell[29], that same-sex married couples were to be constitutionally accorded the same recognition as opposite-sex couples at state/territory levels, as well as at federal level.

In the United States such professional organizations as the American Psychiatric Association[30], American Psychological Association[31], American Sociological Association, American Anthropological Association[32], American Medical Association, American Academy of Pediatrics[33], American Academy of Nursing[34], and National Association of Social Workers[35] have said that claims that the legal recognition of marriage for same–sex couples undermines the institution of marriage and harms children are inconsistent with the scientific evidence which supports the conclusions: that homosexuality is a normal expression of human sexuality that is not chosen; that gay and lesbian people form stable, committed relationships essentially equivalent to heterosexual relationships; that same-sex parents are no less capable than opposite-sex parents to raise children; that no civilization or viable social order depends on an institution of exclusive heterosexual marriage; and that the children of same-sex parents are no less psychologically healthy and well-adjusted than children of opposite-sex parents[36].

UNITED STATES CASE LAW ON SAME SEX MARRIAGE

1970s

a. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). Upholds a Minnesota law defining marriage as the union of a man and a woman. (Overruled by Obergefell v. Hodges)

1. Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973). Upholds the denial of a marriage license to two women in Kentucky based on dictionary definitions of marriage, despite the fact that state statutes do not specify the gender of marriage partners[37].

2. Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974). A ban on same-sex marriage is a constitutional form of "gender discrimination"; the historical definition of marriage is between one man and one woman, and same-sex couples are inherently ineligible to marry.

1980s

a. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111. A same-sex marriage does not make one a "spouse" under the Immigration and Nationality Act.

1. De Santo v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984). Same-sex couples can not divorce because they cannot form a common law marriage[38].

1990s

a. In re Estate of Cooper, 564 N.Y.S.2d 684 (Fam. Ct. 1990). The state has a compelling interest in fostering the traditional institution of marriage and prohibiting same-sex marriage.

1. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). A statute limiting marriage to opposite-sex couples violates the Hawaii constitution's equal-protection clause unless the state can show that the statute is both justified by compelling state interests and also narrowly tailored. This ruling prompted the adoption of Hawaii's constitutional amendment allowing the legislature to restrict marriage to different-sex couples and the federal Defense of Marriage Act.

2. Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995). DC does not authorise same-sex marriage; denial of a marriage license does not violate the Due Process Clause of the United States Constitution.

3. Storrs v. Holcomb, 645 N.Y.S.2d 286 (App. Div. 1996). New York does not recognize or authorize same-sex marriage. Overturned in part by Martinez v. County of Monroe in 2008.

4. In re Estate of Hall, 707 N.E.2d 201, 206 (Ill. App. Ct. 1998). Illinois does not recognize a same-sex marriage. The petitioner's claim to be in a same-sex marriage was not in a marriage recognized by law.

5. Baker v. Vermont, 170 Vt. 194; 744 A.2d 864 (Vt. 1999). The Common Benefits Clause of the state constitution requires that same-sex couples be granted the same legal rights as married persons, though it need not be called marriage.

2000s

a. Rosengarten v. Downes, 806 A.2d 1066 (Conn. Ct. App. 2002). Connecticut will not dissolve a Vermont civil union.

1. Burns v. Burns, 560 S.E.2d 47 (Ga. Ct. App. 2002). Marriage is the union of one man and one woman.

2. Frandsen v. County of Brevard, 828 So. 2d 386 (Fla. 2001). The Florida constitution will not be construed to recognize same-sex marriage; sex classifications not subject to strict scrutiny under the Florida constitution.

3. In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002). A post-operative transgender woman, registered as male at birth certificate, may not marry a cisgender man, because the former is still male in the eyes of the law, and Kansas only recognizes the marriage of a man and a woman.

4. Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003) The constitution of Arizona does not provide the right to same-sex marriage.

5. Morrison v. Sadler, 2003 WL 23119998 (Ind. Super. Ct. 2003). Indiana's Defense of Marriage Act is valid.

6. Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003). The denial of marriage licenses to same-sex couples violated provisions of the state constitution guaranteeing individual liberty and equality, and it was not rationally related to a legitimate state interest.

7. Langan v. St. Vincent's Hospital, 802 N.Y.S.2d 476 (App. Div. 2005). For the purposes of New York's wrongful death statute the survivor partner from a Vermont civil union lacks standing as a "spouse".

8. Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). Nebraska's Initiative Measure 416 does not violate Fourteenth Amendment's Equal Protection Clause, was not a bill of attainder, and does not violate the First Amendment[39].

9. Lewis v. Harris, 908 A.2d 196 (N.J. 2006). Prohibiting same-sex marriage does not violate the New Jersey constitution, but the state must extend all the rights and responsibilities of marriage to same-sex couples. The legislature has 180 days to amend the marriage laws or create a "parallel structure".

10. Andersen v. King County, 138 P.3d 963 (Wash. 2006). Washington's Defense of Marriage Act does not violate the state constitution.

11. Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006). The New York State Constitution does not require that marriage rights be extended to same-sex couples.[40]

12. Conaway v. Deane, 932 A.2d 571 (Md. 2007). Upholds a Maryland law defining marriage as the union of a man and a woman.

13. Martinez v. County of Monroe, 850 N.Y.S.2d 740 (App. Div. 2008). Because New York recognizes the marriages of opposite-sex couples from other jurisdictions, it must do the same for same-sex couples[41].

14. In re Marriage Cases, 183 P.3d 384 (Cal. 2008). Limiting marriage to opposite-sex couples is invalid under the equal protection clause of the California Constitution. Full marriage rights, not merely domestic partnership, must be offered to same-sex couples[42].

15. Kerrigan v. Commissioner of Public Health 957 A.2d 407 (Conn. 2008). The availability of civil unions but not marriage to same-sex partners is a violation of the equality and liberty provisions of the Connecticut Constitution.

16. Strauss v. Horton, 207 P.3d 48 (Cal. 2009). Proposition 8 was validly adopted, and marriages contracted before its adoption remain valid[43].

17. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). Barring same-sex couples from marriage violates the equal protection provisions of the Iowa Constitution. Equal protection requires full marriage, rather than civil unions or some other substitute, for same-sex couples.

2010s

Challenges to DOMA Section 3

a. Gill v. Office of Personnel Management (2009–2013). Section 3 of the federal Defense of Marriage Act is found unconstitutional in U.S. district court. The First Circuit Court of Appeals affirms that ruling and stays implementation pending appeal. Windsor finds Section 3 unconstitutional and appeal of Gill is denied by the Supreme Court.

1. Massachusetts v. United States Department of Health and Human Services (2009–2013). Decided alongside Gill with the same outcome.

2. Golinski v. Office of Personnel Management (2010–2013). Section 3 of the federal Defense of Marriage Act is found unconstitutional in U.S. district court, which determines that sexual orientation is a quasi-suspect classification requiring the court to apply intermediate scrutiny, that is, to determine whether Section 3 relates to an important government interest. On appeal the case is held in abeyance pending the decision of the U.S. Supreme Court in Windsor, which settles the issues raised in Golinski, the appeal of which to the Supreme Court is then denied.

3. United States v. Windsor (2010–2013). Section 3 of the federal Defense of Marriage Act is found unconstitutional in U.S. district court. The Second Circuit Court of Appeals affirms that ruling, as does the U.S. Supreme Court. The U.S. government began implementing the decision the same week.[44]

California Proposition 8

a. Hollingsworth v. Perry (2009–2013). California's Proposition 8, a voter-endorsed constitutional amendment banning same-sex marriage, is found unconstitutional in U.S. district court in Perry v. Schwarzenegger. The proposition's backers appeal to the Ninth Circuit Court of Appeals, which upholds the district court's finding of unconstitutionality in Perry v. Brown. The U.S. Supreme Court ruled that the proposition's backers lacked standing to appeal and left the district court ruling intact.[45]

Same-sex marriage rights

a. Christiansen v. Christiansen. On June 6, 2011, the Supreme Court of Wyoming grants a divorce to two women who married in Canada, but says its decision does not apply "in any context other than divorce".[46]

1. Port v. Cowan (2010–2012). Maryland must recognize valid out-of-state same-sex marriages under doctrine of comity.[47]

2. Garden State Equality v. Dow (2011–2013), New Jersey's civil unions violate due process guarantees; denying same-sex marriage ruled unconstitutional in state superior court. The N.J. Supreme Court refuses to stay the ruling and the state defendants drop their appeal.

3. Griego v. Oliver, 316 P.3d 865 (N.M. 2013). The New Mexico Supreme Court rules that the state constitution requires marriage rights to be extended to same-sex couples.

4. Whitewood v. Wolf (Pennsylvania). On May 20, 2014, Judge John E. Jones III rules that Pennsylvania's same-sex marriage ban is unconstitutional[48].

5. Geiger v. Kitzhaber and Rummell v. Kitzhaber (Oregon). On May 19, 2014, District Judge Michael J. McShane declares Oregon's same-sex marriage ban unconstitutional. [49]

6. Bostic v. Schaefer (Virginia). The Fourth Circuit on July 28, 2014, in a 2–1 decision, affirms a district court ruling that Virginia's denial of marriage righst to same-sex couples is unconstitutional. The Supreme Court denied review on October 6[50].

7. Baskin v. Bogan (Indiana) and Wolf v. Walker (Wisconsin). The Seventh Circuit consolidated these cases and on September 4, 2014, upheld two district court rulings that had found Indiana's and Wisconsin's bans on same-sex marriage unconstitutional. The U.S. Supreme Court denied review on October 6.[51]

8. Bishop v. Smith (Oklahoma). On July 18, 2014, the Tenth Circuit upholds the district court ruling that Oklahoma's ban on same-sex marriage is unconstitutional. The Supreme Court denied review on October 6.[52]

9. Kitchen v. Herbert (Utah). U.S. district court, 961 F. Supp. 2d 1181 (2013), rules the state's ban on same-sex marriage is unconstitutional. The Tenth Circuit Court of Appeals upholds that ruling upheld on June 25, 2014. All parties support review by the U.S. Supreme Court, and that court denied review on October 6.[53]

10. Barrier v. Vasterling (Missouri). State Circuit Judge J. Dale Youngs rules on October 3, 2014, that Missouri's refusal to recognize same-sex marriages from other jurisdictions violates the plaintiff same-sex couples' right to equal protection under both the state and federal constitutions.[54]

11. Caspar v. Snyder (Michigan). On January 15, 2015, U.S. District Judge Mark A. Goldsmith ruled that the state must recognize the validity of "window marriages" established on March 21 and 22, 2014, before the Sixth Circuit Court of Appeals stayed a district court ruling in DeBoer v. Snyder that found Michigan's ban on same-sex marriage unconstitutional, despite the fact that DeBoer was later reversed. The state chose not to appeal[55].

12. Obergefell v. Hodges (2013-2015) U.S. Supreme Court case finding state bans on same-sex marriage to be unconstitutional under the 14th Amendment. (Overturned Baker v. Nelson)

SOUTH AFRICA

In 2005, the Constitutional Court of South Africa decided Minister of Home Affairs v. Fourie,[56] giving the legislature one year to pass legislation that would allow same-sex couples to marry. The decision issued by Justice Albie Sachs used a narrative based on equality and dignity from beginning to end.

The overall tone of the decision emphasized that the meaning of marriage is not as important as the fact that it is a private choice that should be available, for the sake of equality and dignity, to same-sex couples. Fourie, therefore, was not a decision that rested on marriage, but rather on equality. More important still, it was a decision that incorporated a concept of equality which did not demand assimilation into the heterosexual majority[57].

South Africa is famous for using dignity as a main pillar of constitutional doctrine. Dignity, as used by the South African Constitutional Court, is closely tied to the inherent equality of all human beings. In the words of the late Justice Arthur Chaskalson,

‘Acknowledging that dignity is a difficult concept to capture in precise terms, the Constitutional Court has held that the constitutional protection of dignity requires us at the least “to acknowledge the value and worth of all individuals as members of our society” and to treat all with “equal respect and concern.” Building on that has given dignity a central role in the Court’s evolving jurisprudence’.[58]’

Fourie not only opened the space for same-sex couples to access marriage, but on its way to accomplishing that, it created the conditions necessary for future decisions to focus on the protection of diverse families outside the marriage paradigm[59].

NIGERIA

After the visit of President Muhammadu Buhari to see United States, Barack Obama, for the first time to discuss political and economic issues as well as the fight against terrorism there is reason to believe that he will be encouraged to follow suit following the US Supreme Court ruling on same-sex marriage across the country’s 50 states and that is coupled with Obama’s open support for gay rights.

According to the Same-Sex Marriage Prohibition Act of 2014, which has since been condemned by the US, the United Kingdom and other western powers, people in Nigeria, who engage in gay relationships, are liable to 14 years in prison while those belonging to gay associations risk 10 years in prison. It also criminalises failure to report homosexual activity to the police.

The Anti-gay law has caused rifts between the US and Nigeria. Looking at the sequence of the turbulences Nigeria-US relations has faced, it will be observed since the beginning of Buhari administration, terrorism and anti-gay rights law are the major factors that engendered diplomatic row in Nigeria-US relations. There are various dimensions to the arguments on the impacts of Nigeria’s stance on gay marriage on her relationship with the US.[60] The quality or substance of the relationship between Nigeria and the US is over trivial matters. Foreign aids from the US to Nigeria is over trivial issues directed at survival instincts as against the needs for developmental and technological advancements that preside over the diplomatic discourses between the U.S. and some other countries of the world like China.[61] He further stressed that despite Russia’s anti-gay law and China’s laws that contradict western democratic ideology, the US did not threaten Russia with sanctions and still does business with China. The difference is in the quality or substance of the relationship.

Although neo-colonial patterns more often than not display a manipulation and control of the weak by the strong, the controversy over the gay rights shows a change of pattern that occurred with the seemingly weak Nigeria deciding its position on the subject despite global opposition[62].

According to Ayo Adeniran, a former Nigerian diplomat:

Nigeria should seize the moment and use the negatives of the gay diplomacy to free itself from the neo-colonial yoke....What is correct behaviour in this gay controversy is for Nigeria to call the bluff of the EU and the US. They see Africa as their neo-colonial backyard. Homosexuality is

against our cultural values’[63].

The implication of the pressures from the US is a pointer to the fact that the US desires to strengthen imperialistic cords as well as maintain a hold on Nigeria, arguably Africa’s most influential country. The US knowing that Nigeria occupies a significant role in Africa presently and in the future would want Nigeria to accept gay marriage as proper because Nigeria will drive the acceptance of homosexuality to other parts of the African continent.

However, it is a bold and welcome move made by Presient Buhari on his last visit to take the bull by the horn and address the issue of same sex marriage once and for all and thereby upholding a stand that gay marriage is unacceptable within the Nigerian territory.[64]

The implementation of the anti gay policy is an eye opener that Nigeria can without fear or favour of the U.S and the international community make her own indigenous policies that allow for development and preserve her values and sends a powerful message that – Nigeria would not bullied into doing what is unwise to gain favour in policy[65].

CONCLUSION

WHAT DOES THE FUTURE HOLD - SHOULD SAME SEX MARRIAGE BE LEGALISED

Debate over same sex marriage is growing across the world. While some countries like the United States of America, Belgium, Israel, South Africa have legalised it, others countries especially in Asia and Africa are encouraged to considering adopting same stance on the issue of same sex marriage but a few conservatives like the Republican Presidential Hopefuls Mike Huckabee and Jeb Bush have taken similar strong stands against it[66]. The trend is far entrenched in the United States where there have been fewer litigations on individual rights with respect to the right to privacy and right of free association, which are both ingredient to same sex marriage. All the states in the United States as at August 2015 have out-rightly made legislations in support of same sex marriage and others that hitherto didn’t have laws are being encouraged to do so going by the landmark ruling in Obergefell v. Hodges[67].

In Nigeria, like in most other parts of Africa, the high moral ground has been trodden as most of the people’s customs and age long practices concerning marriage sees Marriage either as a union between a man and a woman (Monogamy)or a man and many women (polygamy).

Religion, customs, traditions, morals, public opinions will always have a large role to play in the same sex marriage debate which is still ongoing.

RECOMMENDATIONS - THE WAY FORWARD

Traditionally and generally, marriage was defined as between a man and woman. President Barack Obama of the United States of America had changed his stance on same sex marriage as recently as October 2014[68] by accepting that same-sex marriage is a fundamental right or freedom to gay persons to live their lives as they choose. One may ponder therefore if the same-sex marriage debate is just a means to some unseen or political end rather than the ‘obvious’ argument of engendering personal rights.

Hendrik Hertsberg in his article on Infogram posited 10 Reasons why he thinks same sex marriage should be legalized[69]. I tend to agree with most of his submissions if we just decide not to view the subject of same sex marriage through the homophobic lens in Africa and particularly in Nigeria as when the chips are down, marriage should be between spouses and not genders.

1. Allowing gays the opportunity to get married will increase marriage rates because less couples will get divorced due to incompatibility or infertility. Legalizing gay marriage will decrease divorce rate because it cannot get any worse than it is right now. This is especially true in Nigeria where everyday we read newspaper reports of marriages crashing and this practice of homosexuality still goes on in secret especially in some clubs in Lagos and Abuja which i cannot name for fear of publication and possible attacks on my personality.

2. This type of marriage will have no impact whatsoever on heterosexual communities, just as racial integration in the 60's had no negative impact on white communities in the United States of America. This is the same concept with legalization of gay marriage, it will grant the LGBT community a right that has been immorally denied to them and then they can be free to love who they want and not be afraid to show it.

3. One of the major reasons that gay marriage is currently illegal in most African countries like Zimbabwe, Kenya, Zambia and Nigeria to mention a few is due to the religious interpretation that " homosexual are sinners." Such a religious perspective should have no place in legislative matters in Nigeria. Nigeria is a secular country and maintains secular views. Legalizing same sex marriage will have no negative impact on religion or the religious view of others, just as religion should not have any impact on the issue of gay marriage.

4. Same sex marriage is an issue of equal rights and so denying marriage to two individuals who love each other is to deny them a fundamental freedom. The Nigerian Constitution should be amended to read that persons should not be discriminated against on the basis of their sexual orientation and then we can go from there to where it becomes an acceptable practice.

6. In the United Kingdom[70] for instance same sex couples are legally allowed to enter into civil union partnership but this is not nearly the same thing as marriage. Marriage licenses grant innumerable rights to married couples, rights that are not endowed to gay couples in civil unions. The financial, medical, and social rights that are associated with marriage are unfortunately kept away from homosexual couples and it is unacceptable[71].

4. One of the main reasons why teenagers and even adults commit suicide are due to the child being bullied at their school as a result of his/her sexual orientation. The same acceptance that will come about due to legalizing gay marriage will show teens and adults alike that homosexuality is accepted and respected in society. We need to explain to younger generations that being different is not a social disability, so that they will never feel the need to take their own lives because they are gay. This is a case in point as over seventeen years ago in 1998 when Justin Fashanu, a British footballer of Nigerian descent was driven to commit suicide after being the first footballer to publicly admit his homosexual position[72]. Recent comments by his daughter alludes to the fact that he was hounded and ostracized by his family who saw his admittance as a means of cheap publicity stunt and an avenue to make easy income from television shows; treated as a deviant from the accepted moral ground of sexual liaison between man and woman.

5. Legalizing gay marriage will help establish. foster societal acceptance of gay couples and gay individuals. Couples as well as individuals in the LGBT community will seem less "different" from heterosexual lifestyle, so straight couples and individuals will be more inclined to accept homosexual couples into their communities.

6. It will increase amount of children successfully adopted as most adoption agencies discriminate against gay couples and make it incredibly difficult for them to adopt children. Many agencies will only release children to "married" couples, therefore rejecting stable, loving, homosexual parents. By legalizing gay marriage around the world, adoption agencies will be forced to grant the same respect and right to homosexual couples. Gay marriage will increase the chances for thousands of foster children to gain loving parents and families. This is especially expedient in Nigeria where the adoption laws are in dire need of reform.

While it is expected that the Western world show some respect and restraint as Africa is largely a continent where the people are gingerly accepting western democracy and its allied cultures and traditions. There is no need to shove the idea of same-sex marriage down our throats as it can be done gradually without the threat of withdrawal of aid being thrown into the works. Throughout history, mankind have treated their sexuality discreetly and with utmost privacy. The rights to choose must remain in the hands of each sovereign nation, but not to be obnoxious as in Zimbabwe where Robert Mugabe is making homophobic statements about the gay community. Mugabe, who is known for his brutal crusades against homosexuality, was responding in bizarre fashion to the Supreme Court's landmark ruling that the Fourteenth Amendment to the U.S. Constitution guarantees gays and lesbians the same right to marry as heterosexuals.[73]

So many questions were raised in this work on the sensitive matter of same sex marriage. What is marriage and what goal or essence does it seek to achieve? What do the laws say about it in different climes? Would procreation continue to be the key function of marriage? Would tradition continue to be insufficient to ban same sex marriage? Would same sex marriage encourage stable relationships? Does same sex marriage infringe on the human rights of people of a religion or is it good or bad for society? Would gay marriage ever be acceptable on religious grounds?

What the future holds for same-sex marriage would continue to be determined by the people, and the people themselves. It is certain however that ‘new’ sets of families may emerge; those that may not be related by consanguinity or blood. It should be understood that marriage equality is the law of the land in some countries like the United States of America, Belgium, Denmark where same sex marriage is legalised. Perhaps the most amazing thing about the U.S. Supreme Court’s decision in Obergefell’s case, which recognizes marriage as a basic right, is that it’s not going to be very controversial[74].

Same-sex marriage will be an ordinary part of life in the U.S and very soon around the world. Bigotry will still be displayed and it will be appalling in some situations but changing attitudes takes time. And there are still legal and legislative challenges ahead, beginning with the Employment Non-Discrimination Act, which would make it illegal to fire people because they're gay in the United States and down to Nigeria which criminalizes the act of being homosexual talk more of getting married[75].

In other words, this is going to be very much like Loving v. Virginia, which recognized the right to marriage regardless of race or ethnicity. In practice, extending full citizenship and human rights to all regardless of sexual orientation and identity is actually not all that controversial – and the effect is likely to trickle down to nations who may not necessarily change their laws to accommodate marriage of same sex couples but would recognise marriages contracted elsewhere with limited exceptions[76].

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Redding, J.D., Ph.D. It’s Really About Sex: Same-Sex Marriage, Lesbigay Parenting, and the Psychology of Disgust, Villanova University School of Law Public Law and Legal Theory Working Paper No. 2007-22 October 2007. [13] See generally Steven Pinker, “The Blank Slate: The Modern Denial Of Human Nature” 343-50 (2002); David C. Geary, “Male, Female: The Evolution Of Human Sex Differences (1998); Dorion Sagan,” Gender Specifics: Why Women Aren’t Men, N.Y. TIMES, June 21, 1998, § 15, at 1 (stating that hormonal differences affect all organs of the body, abilities, behaviors, and effects of medication). [14] Dr. Bernard Chapais Quoted in Nicholas Wade, “New View of How Humans Moved Away from Apes”, N.Y. TIMES, Mar. 11, 2011 [15] Paul Ames, Dutch Gays Don’t Take Advantage of Opportunity to Marry (Apr. 20, 2011), available at http://www.globalpost.com Retrieved 8th July 2015 [16] Gunnar Andersson et al., The Demographics of Same-Sex Marriages in Norway and Sweden, Demography. 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