Proposition 8 – An exercise in popular prejudice

On August 4th a Judge in the District Court for the Northern District of the State of California ruled that Proposition 8, an amendment to the Constitution of California which stated that only heterosexual marriages would be recognised, violated the US constitution be denying same-sex couples their rights to due process and equal protection. Last week, on the 16th of August, the Ninth Circuit Court of Appeals, ruled that decision from the District court be stayed pending the outcome of the appeal by the proponents of Proposition 8. By preventing the first decision from having any effect until the Ninth Circuit has made a ruling on the appeal, a temporary stalemate for both parties had been created following the initial victory for the opponents. Last year when the debate on criminalising homosexuality was raging in Uganda, Kampala faced some disapproval from President Obama and Secretary Clinton, which was a little more than ironic given that Proposition 8 had been passed in California in November of 2008. The proposition removed state recognition from same-sex unions. A recognition that they had only won that same year in May due to a California Supreme Court decision rendered in the In re Marriage Cases. If the African Union were cheekier, it would have taken that opportunity to express its ‘concern’ and the treatment of homosexuals in some states of the US. This is not to defend or attack the debates and processes that are currently being undertaken in some countries on the issue of homosexuality and whether the rights guaranteed to their citizens should be extended to those that find attraction in people of their own sex. It is rather one armchair analyst’s opportunity to present a bias for granting of rights to everyone irrespective of what their orientation may be. One particular friend of this country, Pastor Rick Warren, would surely disapprove at the direction this purpose is driving me. Under Rwandan law, article 26 of the Constitution of the Republic and article 170 of the Preliminary Title and Book I of the Civil Code both state that civil marriage alone is recognised by the State with civil marriage being defined as a ‘voluntary union between a man and a woman’. In the Rwandan context, while homosexuality probably exists, there is nothing in tradition or law that provides for how a same-sex union would be recognised even while everyone would agree that marriage is a right to all citizens. The Minister of Justice recently made it clear that the criminal code would not penalise people of that particular orientation, which is nothing to sniff at if you consider the trials that two gay men had to undergo in Malawi recently. Our social conservatism seems to have chosen to ignore what several African countries would consider deviant. It should be said that a lot of the arguments that have been stated by those against granting the right to marriage to gay people sound suspiciously like those made in Europe, the Americas and apartheid South Africa against inter-racial marriage. They should be called out for what they are – discriminatory. Judge Vaughn Walker of the Court for the Northern District of the State of California said it best when he said, “[M]oral disapproval, without any other asserted state interest, has never been a rational basis for legislation”. Let’s overcome our prejudices and extend every right, including marriage, to every citizen despite anything we may think privately of them. okabatende@gmail.com Oscar Kabbatende is a lawyer