If you haven’t heard about California’s Proposition 8, never mind, you can read up on it
here. The sum total of it is that after the courts granted it, the people of California, in a referendum, voted to restrict marriage to one man and one woman, and specifically outlawed gay marriage.
There was one problem that the referendum didn’t solve; thousands of gay men and women had already been married following the earlier court ruling that allowed them to. There was nothing in the Proposition 8 referendum that said what should be done about those couples. So, you had the incongruous situation where thousands of California’s citizens were married by law and then their marriages were put in limbo by public plebiscite that also had the power of the law behind it.
What does all this mean for the gay movement in Africa?
The first lesson is obvious. Despite what the empty tins like Uganda’s
Martin Ssempa and Nigeria’s
Bishop Akinola might have you believe, this debate is a secular one and not a religious one. And the reason for that is simple; apart from places like Northern Nigeria which is ruled according to Sharia Law, most laws in Africa, and indeed the world, are secular. That is scant comfort for any gay activist struggling to stay out of jail on account of his or her sexuality but it is a potent weapon where the law is concerned.
The reason why we should not give up on the law even in Africa where attitudes can be astonishingly Neanderthal is that for the most part
the law is still the best form of formal defense we have. Judges are proud, professional people and we have evidence that they don’t want to relegate their professional understanding of the law to public whim and government diktat. Else, how could Justice Arach have ruled in favor of
Victor Mukasa and Oyoo in the case they brought against the Government of Uganda?
Yes, yes, you have ridiculous judgments all the time, such as
the Malawian one that jailed two men on a homo-sodomy charge that cannot have been proven in court (the men were pardoned soon after by the president after pressure from external bodies) but, curiously, even bad judgments against us are helpful in the sense that they serve to illustrate publicly that injustice can reach as high as the courts.
Anyhow, back to Proposition 8 and what it could mean for the African gay struggle.
California legalized gay marriage through the courts, the voters overturned it in a referendum and again the courts have been forced to step in and overturn the will of the people. There is another lesson here for African gay men and women. The lesson is that the will of the people cannot be used to suppress the rights of minorities. In fact, the same California Courts have an excellent record of stepping in and striking down decisions taken by the will of the people that no sensible person today can defend.
Take the
14th Amendment (Equal Protection) that
ultra right winger, Pat Buchanan so flippantly passes over in his column. The 14th Amendment was used in California in the 1960s (as it was used by Judge Walker to overturn proposition 8) to overturn California’s other notorious plebiscite;
California Proposition 14. Proposition 14 was a referendum in the 60s that allowed white people to discriminate against black people in deciding whether to rent or sell homes to them. In a nutshell, it allowed landlords to use race as a reason to rent or not to blacks and even to evict them if they so chose. The referendum was passed overwhelmingly by California, but the courts reversed it on the grounds that it was discriminatory. Can anyone today say that the courts were wrong?
If you take the logic of the 14th Amendment closer to home, the Baganda in Uganda could hold a referendum on whether they want anyone of another tribe to live in Buganda. Yet, any sensible person will see that such a referendum would be unacceptable since it would reduce the rights of the minorities to the whims of the majority. Human rights must not be put to referendum precisely because history shows us that majority sentiment can be totally wrong and, yes, even immoral.
Since people like Pat Buchanan like to cite the US Constitution, you will find that the US Founding Fathers thought about this tyranny of the majority when they factored things like the filibuster into United States legislative processes. The filibuster is precisely meant to give the minority a tool to hold up the majority and at least give ample time for whatever decisions the majority might want to be properly discussed. A lone senator can thus talk and talk and talk until a bill that everyone else in the House wants runs out of debate time. The same is allowed in the British House of Parliament.
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| Ssempa – a direct beneficiary of the 1967 anti-Miscegenation ruling |
Had it been up to the majority in the 1920s, women would not have got the vote. Had it been up to the majority in America in the 1960s, black votes would have remained subject to the whims of white legislators. Had it been up to the majority in 1967, white and black people who fell in love would have remained barred from marrying. In a 9-0 ruling, the Supreme Court outlawed the Miscegenation laws in 1967 despite 70% of American opposing interracial marriages. Had the majority prevailed in 1967, Martin Ssempa who is now married to a white woman, would have have had to find someone else to fall in love with. That leaves Ssempa’s argument that the majority of Ugandans are against homosexuals in tatters. Majority opinion alone is not enough to ride roughshod over the rights of the minority.
This finally brings us to Pat Buchanan himself. Despite being married for more than 20 years, he remains childless. In the Catholic Church‘s eyes, therefore, his marriage is not as blessed as those that have begat children. Should the Catholic Church treat him as a lesser person in the eyes of God, since the mainstream Catholic view is that marriage is for procreation? That is for Pat Buchanan, Peter Akinola and Martin Ssempa to answer.
