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Civil Liberties

Civil liberties

Civil liberties are protections from the power of governments. Examples include the right to life, the right to privacy, the right to a fair trial, freedom of speech and freedom of assembly. These are usually guaranteed and protected by a constitution or by adherence to an international treaty. In many places there are disputes over certain liberties, regarding the question of whether they can be considered civil liberties at all, and, if so, whether they should be protected. Examples include reproductive rights, the right of gay marriage, and the right of narcotic possession. Most western democracies (as well as many other countries) have constitutions and public policies that protect civil liberties. The following sections of this article present a few examples.

European countries

The European Convention on Human Rights, to which most European countries, including all of the European Union, belong, lists forth a number of civil liberties. France's 1789 Declaration of the Rights of Man and of the Citizen, listing many civil liberties, is of constitutional force.

Canada

The Constitution of Canada includes the Canadian Charter of Rights and Freedoms which guarantees many of the same rights as the US constitution, with the notable exception of protection against establishment of religion. However, the Charter does protect freedom of religion.

China

Main article: Civil liberties in the People's Republic of China The People's Republic of China Constitution, especially its Fundamental Rights and Duties of Citizens, protects many civil liberties.

United Kingdom

John Landy (Prof. law U. of Cal)March 4, 2005 While the United Kingdom has no codified constitution, (it is only partially written) it is a signatory to the European Convention on Human Rights (ECHR) which covers both human rights and civil liberties, and the Human Rights Act, which incorporates the great majority of Convention rights directly into UK law. Derry Irvine (then the Lord Chancellor) was praised widely for his legal skill in overseeing the drafting of the bill. After the September 11, 2001 attacks the UK passed the Anti-Terrorism Crime and Security Act 2001, Part 4 of which provided for the indefinite detention without trial of foreign nationals whom the Home Secretary suspected of involvement in terrorism. In order to pass this legislation, the UK derogated from Article 5 of the Convention on the grounds that the terrorist threat to the UK constituted a 'public emergency threatening the life of the nation' within the terms of Article 15. In December 2004, the Judicial Committee of the House of Lords ruled by a majority of 8-1 that Part 4 of the 2001 Act was incompatible with Articles 5 and 14 of the Convention. Although a majority of the Law Lords agreed that the terrorist threat to the UK constituted a public emergency within the meaning of Article 15, it found that the use of indefinite detention was both disproportionate (in that less restrictive measures were available) and discriminatory (since UK nationals suspected of terrorism were not liable to indefinite detention). This prompted the government to pass the Prevention of Terrorism Act 2005, which provides for the use of 'control orders' against both UK and foreign nationals suspected of involvement in terrorism. The courts have yet to rule on the compatibility of these orders, although human rights groups have argued they are incompatible with both Article 5 (the right to liberty) and Article 6 (the right to a fair trial). Despite the UK's liberal heritage, the Government's Information Commissioner stated in 2004 that the country is currently in danger of becoming a surveillance society. See also British national identity card.

United States

Main article: Civil liberties in the United States The United States Constitution, especially its Bill of Rights, protects many civil liberties. Joseph Bialke Nov. 4, 2005 The Supreme Court has made a new ruling that detainees on the war on terror have the right to be charged and have a trial; over 100 detainees were just charged including the famous Jose Padilla case. All detainees will get this right. Also the Supreme Court has made it necessary that these trials will be as speedy as possible because there are over 3,000 cases it could take some time.

Estonia

Main article: Civil liberties in Estonia The Estonia Constitution protects many civil liberties.

External links

- [http://www.freedomhouse.org/ratings/index.htm Freedom House country ratings] Category:Privacy
- [http://soufron.free.fr/soufron-spip/article.php3?id_article=103 European Privacy Protection for Wikipedia Users] on the blog of Jean-Baptiste Soufron

Government

A government is the body that has the power to make and enforce laws within an organization or group. In its broadest sense, "to govern" means to administer or supervise, whether over an area of land, a set group of people, or a collection of assets. The word government is derived the Greek Κυβερνήτης (kubernites), which means "steersman", "governor", "pilot" or "rudder".

Definitions

One approach is to define government as the decision-making arm of the state, and define the latter on the basis of the control it has over violence and the use of force within its territory. Specifically, the state (and by extension the government) has been considered by some to be the entity that holds a monopoly on the legitimate use of force within a territory. This view has been taken by the political economist Max Weber and subsequent political philosophers. The exact meaning of it depends on what is understood by “legitimate”. If we use the term in an ethical sense, then this definition would suggest that an organisation might be considered a state by its supporters but not by its detractors. An alternative definition is to take "legitimate" violence to be simply that which has active or tacit acceptance by the vast majority of the population. In this view, the presence of insurrection or civil war against an entity would jeopardise its claim to be a state, provided the insurrection enjoyed significant popular support. Similarly, an entity that shared military or police power with independent militias and bandits could be considered to have a monopoly on “legitimate” violence but to be failing to enforce it, reducing its claim to statehood. In practice, such situations are often described as "failed states". Government can also be defined as the political means of creating and enforcing laws; typically via a bureaucratic hierarchy. Under this definition, a purely despotic organization which controls a territory without defining laws would not be considered a government. Another alternative is to define a government as an organisation that attempts to maintain control of a territory, where "control" involves activities such as collecting taxes, controlling entry and exit to the state, preventing encroachment of territory by neighbouring states and preventing the establishment of alternative governments within the country. In Commonwealth English, the word "Government" can also be used to refer only to the executive branch, in this context being a synonym for the word "administration" in American English (e.g. the Blair Government, the Bush Administration). In countries using the Westminster system, the Government (or party in Government) will also usually control the legislature. The French use of the word gouvernement covers both meanings, whereas Canadian French generally uses it to mean the executive branch. The German word Regierung refers only to government as the executive branch; the wider meaning of the word, government as a system, can be translated as Staatsgewalt.

Forms of government

Various forms of government have been implemented. A government in a developed state is likely to have various sub-organisations known as offices, departments, or agencies, which are headed by politically appointed officials, often called ministers or secretaries. Ministers may in theory act as advisors to the head of state, but in practice have a certain amount of direct power in specific areas. In most modern democracies, the elected legislative assembly has the power to dismiss the government, but in those states that have a separate head of government and head of state, the head of state generally has great latitude in appointing a new one.

Theories

There are a wide range of theories about the reasons for establishing governments. The four major ones are briefly described below. Note that they do not always fully oppose each other - it is possible for a person to subscribe to a combination of ideas from two or more of these theories.

Greed and oppression

Many political philosophies that are opposed to the existence of a government (such as Anarchism, and to a lesser extent Marxism), as well as others, emphasize the historical roots of governments - the fact that governments, along with private property, originated from the authority of warlords and petty despots who took, by force, certain patches of land as their own (and began exercising authority over the people living on that land). Thus, it is argued that governments exist to enforce the will of the strong and oppress the weak.

Order and tradition

The various forms of conservatism, by contrast, generally see the government as a positive force that brings order out of chaos, establishes laws to end the "war of all against all", encourages moral virtue while punishing vice, and respects tradition. Sometimes, in this view, the government is seen as something ordained by a higher power, as in the divine right of kings, which human beings have a duty to obey.

Natural rights

Natural rights are the basis for the theory of government shared by most branches of liberalism (including libertarianism). In this view, human beings are born with certain natural rights, and governments are established strictly for the purpose of protecting those rights. What the natural rights actually are is a matter of dispute among liberals; indeed, each branch of liberalism has its own set of rights that it considers to be natural, and these rights are sometimes mutually exclusive with the rights supported by other liberals.

Social contract

One of the most influential theories of government in the past two hundred years has been the social contract, on which modern democracy and most forms of socialism are founded. The social contract theory holds that governments are created by the people in order to provide for collective needs (such as safety from crime) that cannot be properly satisfied using purely individual means. Governments thus exist for the purpose of serving the needs and wishes of the people, and their relationship with the people is clearly stipulated in a "social contract" (a constitution and a set of laws) which both the government and the people must abide by. If a majority is unhappy, it may change the social contract. If a minority is unhappy, it may persuade the majority to change the contract, or it may opt out of it by emigration or secession.

Operations

Governments concern themselves with regulating and administering many areas of human activity, such as trade, education, medicine, entertainment, and war.

Enforcement of power

Governments use a variety of methods to maintain the established order, such as police and military forces, (particularly under despotism, see also police state), making agreements with other states, and maintaining support within the state. Typical methods of maintaining support and legitimacy include providing the infrastructure for administration, justice, transport, communication, social welfare etc., claiming support from deities, providing benefits to elites, holding elections for important posts within the state, limiting the power of the state through laws and constitutions (see also Bill of Rights) and appealing to nationalism. Different political ideologies hold different ideas on what the government should or should not do.

Territory

The modern standard unit of territory is a country. In addition to the meaning used above, the word state can refer either to a government or to its territory. Within a territory, subnational entities may have local governments which do not have the full power of a national government (for example, they will generally lack the authority to declare war or carry out diplomatic negotiations).

Scale of government

Main articles: government ownership, government spending The scale to which government should exist and operate in the world is a matter of debate. Government spending in developed countries varies considerably but generally makes up between about 30% and 70% of their GDP.

Right to life

Right to life or Pro-life, in its broadest sense, refers to holding human life as a paramount value. The right to life is central to debates on the issues of abortion, capital punishment, euthanasia, and, to a somewhat lesser extent, war.

Juridical views

The United States Declaration of Independence calls life one of the "unalienable rights," meaning that our sense of self-preservation cannot be separated from the human psyche. As a result, the declaration continues, we create governments to secure those rights that will always be part of our nature. When a government no longer respects the most fundamental reasons for its creation, our "right" and "duty" is to overthrow it.

Opposing viewpoints

The philosopher Peter Singer holds that the right to life is grounded in the ability to plan and anticipate one's future. This extends the concept to animals, such as apes, but since the unborn, infants and severely disabled people lack this, he states that abortion, painless infanticide and euthanasia can be "justified" (but are not obligatory) in certain special circumstances, for instance in the case of severely disabled infants whose life would cause suffering both to themselves and to their parents. Many people with a pro-life viewpoint would strongly disagree with this thesis. More mainstream opponents to the "right to life" ideology would state that abortion is not murder, hence "pro-choicers" are no less "pro-life" than "pro-lifers." They would also state that capital punishment and war are necessary tools to protect society and civilization as a whole, and are thus morally acceptable.

Right to a fair trial

The Right to a fair trial is an essential right in all countries respecting the rule of law. It is explicitly proclaimed in the Sixth Amendment of the US Constitution, Article Ten of the Universal Declaration of Human Rights, Article Six of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world. The essential ingredients for a fair and just civil trial must include a competent, neutral and detached judge (an independent judge); the absence of any intimidation of witnesses and ideally, an equal weight of arms i.e. a level playing field in terms of legal representation.

Divergent approaches

These are general principle, and, understandably, there exist divergent approaches and appreciation to what constitutes a fair trial. Proponents of both major classes of systems of criminal procedure (the adversarial system and the inquisitorial system) allege that their system offers defendent a fairer trial than the other system. There may be differences on points of procedures: for instance, some jurisdictions, in certain circumstances, allow trials of defendants in their absence (in absentia) while some other jurisdictions consider that a trial can only be fair if the defendant has attended it. In cases of extradition, the extraditing country generally requires that the country requesting extradition offers the defendant a fair trial. In some cases, this has led to some procedural defenses by defendants who alleged that their trial would not be fair according to the rules of the extraditing country. As an example, murderer Ira Einhorn waged a legal battle against his extradition from France to the state of Pennsylvania on grounds that his trial occurred in absentia and rendered a final judgment. Other (historical) divergences are stated below.

Ingredients of a fair trial

Right to counsel

Nowadays, it is generally believed that a fair trial includes the possibility for the defendant to be assisted by counsel (i.e. lawyers), and that if he cannot afford having his own lawyer, the government should appoint one for him, or pay his lawyer expenses. However, this has not historically always been the case:
- Before the Prisoners' Counsel Act (1836), felony defendants did not have the possibility of having a counsel in British courts. It was thought, at the time, that counsels would serve no purpose in criminal proceedings, where what matters is deciding fact: the defendant should simply tell the truth to the court, without the interference of some counsel.
- In the United States, while the right to counsel in trials by the federal government was recognized by the US Bill of Rights, the affirmation that this right extended to cases tried by state courts (i.e. most criminal trials, including for crimes such as murder in most cases) came much later. While some state supreme courts affirmed this right during the 19th century, it was only in 1963 that the US Supreme Court affirmed the right for defendants to have counsel in trials for serious crimes. On the other hand, some other countries had adopted the right to counsel earlier on. For instance, the Napoleonic Code of Criminal Instruction, adopted in France in 1808 and inspiring many similar codes in civil law countries, made it compulsory that the defendant should have a lawyer when tried in the assize courts (which judged severe crimes). Category:Legal ethics Category:Rights of the accused

Freedom of assembly

Freedom of assembly is the freedom to associate with, or organize any groups, gatherings, clubs, or organizations that one wishes. Freedom of assembly is held to be a key right in liberal democracies, whereby citizens may form or join any political party, special interest group, or union without government restrictions. In legal systems without freedom of assembly, certain political parties or groups may be banned, with harsh penalties for any members. Public protests against the government are usually banned as well.

Tiered rights

In legal or political systems where rights tend to be ranked in a hierarchy, or "tiered", such that some rights are considered more worthy of protection by the state than others, freedom of assembly is generally located on the top tier. However, the very concept of assigning relative value to rights by way of tiers tends to be controversial. Those who consider the right of assembly to exist on the "top" tier will sometimes concede that the state may legitimately ban groups which support terrorism or violence. This makes freedom of assembly closely linked with notions of freedom of speech. Thus, while one can be allowed to advocate the murder of the President, one is not necessarily allowed to be a member of a group that seeks to achieve this goal. The freedom of assembly in order to protest sometimes conflicts with laws intended to protect public safety, even in democratic countries: in many cities, the police are authorized by law to disperse any crowd (including a crowd of political protesters) which threatens public safety, or which the police cannot control. The idea is to prevent rioting. Often local law requires that a permit must be obtained in advance by protest organizers if a protest march is anticipated; the permit application can be denied. Sometimes this bureaucratic power is abused by lawmakers if the protest is not a popular one in the community or with the local government, with the permit process in some cities taking a great deal of time, organization, and even money required before a permit is issued -- and then, when issued, time and location restrictions are sometimes added. From time to time, local permit laws collide in court with the freedoms of assembly and of speech, such as in February 2003 when protests were anticipated over the exclusion of women from membership at the Augusta National Golf Club where golf's Masters Tournament is played every year. The Richmond County, Georgia county commission implemented a new rule requiring 20 days of advance notice before a protest, and giving the county sheriff the power to approve or deny permits, and to dictate the location of demonstrations. The sheriff turned down a permit to protest in front of the golf club but approved a protest half a mile away. Two courts upheld the ordinance granting the sheriff this power.

Legal validity

- United States - First Amendment to the Constitution of the United States
- Canada - Canadian Charter of Rights and Freedoms which is constituted as Part I of the Constitution of Canada of 1982
- Universal Declaration of Human Rights - article 20
- France - article 431-1 of the Nouveau Code Pénal
- Republic of Ireland - Guaranteed by Article 40.6.1 of the Constitution of Ireland, but only when exercised "peaceably and without arms" and not a "nuisance to the general public".
- European Union (as well as all countries inside the Council of Europe) - Article 11 of the European Convention of Human Rights.

Reproductive rights

Reproductive rights is a controversial political term to refer to "women's rights" in areas of sexual reproduction, including the rights to reproduce (such as forced sterilization) as well as rights not to reproduce, (such as birth control, abortion). Uncontroversially, the term represents the political framing of contraception and abortion as rights, particular to women, as women, exclusively, are the biological vessels of human reproduction. In this context, "reproductive rights" is largely synonymous with "pro-choice," meaning a position that a woman ought to be the decision maker in whether to bring her pregnancy to term. Many "pro-life" advocates claim that the term is simply mincing words —claiming there to be no practical (hence meaningful) difference between the two statements. However, supporters of reproductive rights may consider it misleading to say, in the context of reproduction politics, that a political figure "supports abortion", when instead that person may simply support a "woman's right to choose abortion among other alternatives." Supporters claim that such principle falls within the context of right to privacy, and freedom from "governmental interference" —supporting the "legalization of abortion" rather than "supporting abortion" itself. Still other reproductive rights advocates favor the term because they embrace a basic human rights moral justification for their position rather then the right to privacy logic of United States Constitutional interpretation. Category:Human rights

Gay marriage

Same-sex marriage is marriage between individuals who are of the same legal or biological sex. It is also called gender-neutral marriage, equal marriage, and gay marriage (favored by proponents, along with just marriage), and homosexual marriage (sometimes favored by opponents). These terms may have different connotations, and may be favored by various audiences. For discussion of other forms of civil and religious same-sex unions distinct from marriage, see the articles linked in the pertinent section below. In the late 1990s and early 2000s, progress towards and bans of same-sex marriage created a topic of debate all over the world. Currently, same-sex marriages are recognized nationwide in four countries: Belgium, Canada, the Netherlands, Spain; and also in the state of Massachusetts in the United States (although these marriages have no legal recognition at the federal level in the US). The Republic of South Africa also is set to join them by December 2006 as a result of several recent court rulings in favour of same-sex marriage. When it does, an estimated 155 million people worldwide, or approximately 2.5% of the world's total population, will live in places where same-sex marriage exists. Civil unions and other forms of legal recognition for same-sex couples, which offer most if not all the rights accorded in a civil marriage, exist in the majority of countries in Europe, parts of South America (Argentina, Brazil), regions of Oceania (Australia, New Zealand), and additional territories in North America (CA, CT, D.C., HI, ME, NJ, VT). The article below defines same-sex marriage but also presents the arguments for and against the institution.

Terminology

Some consider the terms "gay marriage" and "homosexual marriage" to be inaccurate in referring to this issue since homosexuals may seek an opposite-sex marriage and non-homosexuals may seek a same-sex marriage. The term gay is variously used to refer to only gay men, to gay men and lesbians, and to LGB or LGBT people in general. Aside from the semantic issues concerning bisexuality, in the case of an intersex or transgender partner, an otherwise heterosexual marriage could be classifed either legally or genetically as a same-sex marriage. The term "same-gender marriage" can be seen to be problematic when gender and characteristic sex diverge. For example, a transman is considered legally a woman in certain countries or jurisdictions. Thus if he married a man, it would be considered an "opposite sex marriage" in those jurisdictions, though he and his partner would be the same gender. In other countries or jurisdictions he would be considered a man, so his marriage would be a same-sex marriage. The term "gender-neutral marriage" is preferred by many in politics and media, as it could really describe a marriage between any two adults. Some activists foresee a time when the law is "neutral" to the perceived "sexist" status of marriage in the U.S. Proponents of same-sex marriage may argue that the correct term for same-sex marriage is simply "marriage", though their opponents argue that such conflation of same-sex and opposite-sex marriage is a loaded term, and a misunderstanding of the traditional definition of marriage. They further assert that it is a threat to the institution of traditional marriage. Proponents of traditional marriage believe that such gender confusion is a product of modern society and that the traditional Western definition of marriage as being between one man and one woman is clear. One proposed solution is to do away with the word "marriage" and refer to all legal marriages (regardless of gender) as civil partnerships. Mixed marriage: the term "mixed marriage" is usually not used in reference to the same-sex marriage debate. It does not refer to marriage of two persons of different genders, but rather to the marriage of two persons of different religions, cultures or races.

History of same-sex unions

For detailed information, see History of homosexuality and Same-sex marriage timeline.

Asia

Same-gender romantic love or sexual desire has been recorded since ancient times in the east. Such desire often took the form of same-sex unions, usually between men, and often included some difference in age (there is far less information available on relationships among women in ancient times. There are a number of possible reasons for this: an attitude that women were not important enough to write about; or that same-sex attraction between women was not valued as it was between men; or that women were not afforded equal status with men, so that, while men were free to pursue sexual and romantic pleasure both within and without marriage, women often were not). In China, especially in the southern province of Fujian where male love was especially cultivated, men would marry youths in elaborate ceremonies. The marriages would last a number of years, at the end of which the elder partner would help the younger find a (female) wife and settle down to raise a family. Generally, this practice was reflective of the value Chinese culture placed on the reciprocal relationship between benevolent elders teaching and guiding the obedient younger members of society See also:
- Homosexuality in China
- Homosexuality in Japan

Classical Europe

Main article: Pederasty There has been a long history of same-sex unions in the Western world. That many early western societies tolerated, and even celebrated, same-sex relationships is well-established, though not necessarily well-known. Evidence of same-sex marriage, however, is less clear, but there exists some evidence, often controversial, of same-sex marriages in ancient Rome and Greece. In Hellenic Greece, the common pederastic relationships between Greek men (erastes) and youths (eromenos) who had come of age were, it has been argued, analogous to marriage in several aspects. The age of the youth was similar to the age at which women married (the mid-teens), and the relationship could only be undertaken with the consent of the father. This consent, just as in the case of a daughter's marriage, was contingent on the suitor's social standing. The relationship, just like a marriage, consisted of very specific social and religious responsibilities, and also had a sexual component. In ancient Rome, the Emperor Nero is reported to have married, at different times, two other men in wedding ceremonies. Other Roman Emperors, including Diocletian, are reported to have done the same thing. Increasingly influential Christianity promoted marriage for procreative purposes, combined with the Roman use of sexuality as a form of dominance, as well as a means to conquer a male enemy through rape, have been linked with the increasing intolerance of homosexuality in Rome. See also Historical pederastic couples

Christian Europe

Historical pederastic couples historian John Boswell considers them an example of an early Christian same-sex union reflective of tolerant early Christians attitudes toward homosexuality based on this icon depicting what some claim is a religious wedding with Jesus as best man and still surviving writings. Most theologians and historians disagree.]] In medieval Europe, homosexual relations were much less open or accepted than in the classical world. However, much like the courtly love a knight might bear for his lady, deep, passionate friendship between people of the same sex was not only possible but celebrated. The "love" in such relationships has traditionally been assumed to be Platonic; but modern scholars often question this. As part of the remains of a floor of a Dominican church in Istanbul were found two gravestones marking the resting places of two knights of the royal chamber of Richard II — Sir William Neville and Sir John Clanvowe, who died days apart in October 1391. Each of their shields holds an identical coat of arms both knights' familial arms side-by-side: "impaled," that is to say, like a married couple's. Thus the companionship and formal union associated with marriage are present; the only doubt is whether sex itself was. [http://www.lrb.co.uk/v27/n11/davi02_.html]

North America

:Main article: Two-Spirit Same-sex marriage has been documented in many societies that were not subject to Christian influence. In North America, among the Native American societies, it has taken the form of two-spirit-type relationships, in which some male members of the tribe, from an early age, heed a calling to take on female gender with all its responsibilities. They are prized as wives by the other men in the tribe, who enter into formal marriages with these two-spirit men. They are also respected as being especially powerful shamans. In the United States during the nineteenth century, there was recognition of the relationship of two women making a long-term commitment to each other and cohabitating, referred to at the time as a Boston marriage; however, the general public at the time likely assumed that sexual activities were not part of the relation.

Africa

In Africa, among the Azande of the Congo, men would marry youths for whom they had to pay a bride-price to the father. These marriages likewise were understood to be of a temporary nature.

Current status of same-sex religious marriage

Congo Most Abrahamic religions disapprove of (and, therefore, do not bless or endorse in any way) same-sex marriages. In this section, only the exceptions are listed, although some adherents of disapproving religions may be individually more sympathetic. In Canada, the issue of same-sex marriage has split the religious community, with the United Church of Canada, the country's largest Protestant denomination, and some elements of the Anglican Church of Canada being supportive. In 2002, the Anglican Diocese of New Westminster in British Columbia (which includes Greater Vancouver) began allowing its churches to bless same-sex unions in marriage-like ceremonies. In response, bishops from Africa, Asia and Latin America, representing more than one-third of Anglican Communion members worldwide, cut their relations with the diocese. Reform Judaism, the largest branch of Judaism outside Israel, allows religious weddings for same-sex couples within their synagogues, provided they are both adherents of the Jewish faith. On July 4, 2005, the General Synod of the United Church of Christ approved a resolution affirming equal marriage rights regardless of gender. The leadership of this denomination made claims like "the 1.3 million member UCC became the largest Christian denomination to approve marriage equality", despite the Synod's lack of authority to speak for the denomination's largely autonomous congregations. The specifics of the resolution did not change any church's religious marriage policies, but urged UCC congregations to advocate for civil marriage equality. In keeping with the polity of that denomination, doctrinal matters like wedding policies remain under the authority of each local congregation. Religious same-sex wedding ceremonies are already performed in Unitarian Universalist churches, some Reform synagogues, some Quaker congregations (mostly associated with unprogrammed meetings; see the main article), and by the Metropolitan Community Church. Jodo Shinshu, the dominant form of Buddhism in Japan (with a significant presence in the United States), states "there is no basic difference between homosexuality and heterosexuality" [http://www.slbuddhist.org/thoughts/2004/#Gay%20Buddhist%20Marriage?]. In accordance with that principle it offers religious rites for same-sex couples. This tradition of accepting same-sex relationships dates back to ancient Japan with only a brief discontinuance during the early 1900s (when Western nations suggested a proscription).

Current status of same-sex civil marriage

United States In the late 20th and early 21st centuries, there has been a growing movement in a number of countries to regard civil-marriages as a right which should be extended to all citizens regardless of sexual orientation. Civil-marriages entail a wide range of entitlements, including social security, health insurance, taxation, inheritance and other benefits unavailable to couples unmarried in the eyes of the law. Restricting legal recognition to opposite-sex couples excludes same-sex couples from gaining legal access to these benefits. Similarly, though certain rights extending from marriage can be replicated by legal means (e.g. by drawing up contracts), many cannot; thus same-sex couples may still face insecurity in areas such as inheritance, hospital visitation and immigration. Lack of legal recognition also makes it more difficult for same-sex couples to adopt children. At present, same-sex marriages are legal nationwide in only four countries: namely the Netherlands, Belgium, Spain, and Canada. South Africa is to join them by December 2006. Same-sex marriage is also legal in the U.S. state of Massachusetts.

Africa

South Africa is in the process of reorganizing certain government departments to support gay marriages. As of July 2005, the Department of Home Affairs had completed the design and printing of new forms to allow for same-sex couples to apply for immigration and residence benefits. Several same-sex couples are already legally recognized as married, thanks to the definition of "spouse" in South Africa's Immmigration Act of 2002. Same-sex marriage is handled by means of notarial contract. A contract for "mutual emotional and financial support to the exclusion of all others" is drawn up, and signed in the presence of a Commissioner of Oaths. The cost is about 350 Rand (approx $50 USD) depending on the lawyer that constructs the contract. The agreement is fairly simple and usually only two or three pages. Home Affairs waives application fees in the case of a foreign national marrying a South African citizen, just as with a hetereosexual marriage of the same type. This change has prompted some other slight changes in South African Law. The period for which partners (including hetereosexuals) must be in a relationship before a foreign spouse qualifies to apply for permanent residence has been extended to 5 years. Also, marriage contracts now have a "trial period" where if the couple ends the relationship the benefits to a foreign spouse such as visa status may be retracted with reasonable notice. It is unclear whether US Immigration has a loophole that allows a SA/US couple to apply for US residence as such.

South Africa: Update December 2005

In December 2005, in the case of Minister of Home Affairs v. Fourie, the Constitutional Court of South Africa ruled unanimously that it was unconstitutional to prevent people of the same gender marrying when marriage was permitted for people of opposite gender, and gave the South African Parliament one year to "rework laws allowing same-sex unions. If Parliament does not do this in one year, the Marriage Act will be rewritten to include the words "or spouse" to allow these unions to take place." It was held that although the doctrine of the separation of legislative and judicial powers was important, it could not be used to avoid the court's obligation to provide appropriate relief. The article states that same-sex couples may marry at present, but the marriage is not recognised in law. The ruling stated that the exclusion of same sex couples from marriage had represented a statement by the law that same-sex couples were outsiders, and their relationships less important than those of heterosexual couples, and that the right of the plaintiffs to celebrate their union therefore represented more than a right to enter a legal arrangement with significant consequences. "It represented a major symbolical milestone in their long walk to equality and dignity." (Sources: [http://www.mg.co.za/articlepage.aspx?area=/breaking_news/breaking_news__national&articleid=258183 Mail & Guardian Online, Dec 1 2005, Johannesburg] and [http://www.mg.co.za/articlepage.aspx?area=/breaking_news/breaking_news__national&articleid=258227 update])

Asia

In 2003 the government of the Republic of China (Taiwan) led by the Presidential office proposed legislation granting marriages to same-sex couples under the Human Rights Basic Law; however it faced opposition among cabinet members and has been stalled since. Currently Taiwan does not have any form of same-sex unions. The National People's Congress, legislature of the People's Republic of China (PRC), proposed legislation allowing same-sex marriages in 2003. During the course of the debate the proposal failed to garner the 30 votes needed for a placement on the agenda. Same-sex marriage supporters have vowed to keep pressing for its passage in the PRC. The Communist Party of the Philippines conducted the country’s first same-sex marriage in 2005; however it was not recognized by the government. Within the government there has been fierce debate on the issue of same-sex unions. Generally the Communist Party supports legislation allowing such marriages while the Roman Catholic Church opposes it. The King of Cambodia, Norodom Sihanouk, announced in 2004 that he supports legislation granting marriages to same-sex couples. He is hugely revered among Cambodians; however since his proclamation there have been no legislative efforts to allow them.

Europe

2004 Same-sex civil marriages currently are legally recognized nationwide only in the Netherlands, Belgium and Spain. Belgium extends all the rights of marriage minus adoption to same-sex couples. Spain and the Netherlands, on the other hand, make no distinction whatsoever, and therefore, also extend adoption rights to same-sex couples. In late January 2005, the Swedish government put together a committee of the major political parties to study whether or not the country should allow same-sex marriages. [http://www.gaynz.com/news/default.asp?dismode=article&artid=2188]. After being elected in June 2004, Spanish prime minister Zapatero restated his pre-election pledge to push for legalization of same-sex marriage. [http://news.bbc.co.uk/2/hi/business/3548727.stm] On 1 October, 2004, the Spanish Government approved a bill to legalize same-sex marriage, including adoption rights. The bill received full parliamentary approval on June 30, 2005 and passed into law on July 2. Polls suggest that 62% to 66% of Spain supports same-sex marriage. [http://www.planetout.com/news/article.html?2005/04/21/5][http://www.cadenaser.com/articulo.html?xref=20050701csrcsrsoc_3&type=Tes&anchor=][http://www.angus-reid.com/polls/index.cfm/fuseaction/viewItem/itemID/7887] For more information see Same-sex marriage in Spain. On 18 November 2004 the United Kingdom Parliament passed the Civil Partnership Act, which will come into force during 2005 and will allow same-sex couples to register their partnership. The Government stressed during the passage of the Bill that it is not same-sex marriage, and some gay activists have criticised the Act for not using the terminology of marriage. However, the rights and duties of partners under this legislation will be almost exactly the same as for married couples. An amendment proposing similar rights for family members living together was rejected. See Civil unions in the United Kingdom. In May 2004, the largest opposition party in France, the French Socialist Party, announced its support for same-sex marriage. A 2004 poll by ELLE found that 64% of France supports same-sex marriage and 49% supports adoption by same-sex couples. [http://www.365gay.com/newscon04/06/060504frWed.htm] See Same-sex marriage in France

North America

Same-sex marriage in France

Canada

Main article: Same-sex marriage in Canada In Canada between 2003 and 2005, court rulings in the provinces of Ontario, British Columbia, Quebec, Manitoba, New Brunswick, Nova Scotia, Saskatchewan, Newfoundland and Labrador, as well as the Yukon Territory, found the prohibition of same-sex marriage to be contrary to the Charter of Rights, thus legalizing it in those jurisdictions. On July 20, 2005, the Canadian Parliament passed the Civil Marriage Act defining marriage nationwide as "the lawful union of two persons to the exclusion of all others." Canada is also the only country without a residency requirement for same-sex marriage. The Supreme Court of Canada has ruled, on a reference question (Re: Same-Sex Marriage, 2004) that the government has the authority to amend the definition of marriage, but did not rule on whether or not such a change is required by the equality provisions of the Charter. The Court stated that such a ruling is not necessary because the federal government had accepted the rulings of lower courts. The Court also ruled that religious institutions could not be required to perform same-sex marriages. The original case that lead to the legalisaton of same-sex marriage in Canada came from the act of Rev. Brent Hawkes of the Metropolitan Community Church of Toronto who married two same sex couples within his congregation and then challenged the authorities to register these marriages. As of November 11th, 2004 the Canadian federal government's immigration department, the Department of Citizenship and Immigration Canada (CIC), considers same-sex marriages performed in Canada valid for the purposes of sponsoring a spouse to immigrate. See also [http://www.cic.gc.ca/english/sponsor/index.html CIC] and Same-sex marriage in Canada Immigration authorities there had previously considered long-term same-sex relationships to be equivalent to similar heterosexual relationships as grounds for sponsorship. The Canadian federal government introduced a bill for a law called the Civil Marriage Act to legalize same-sex marriage nationally. This bill (Bill C-38) was passed by the Canadian House of Commons on June 28, 2005, despite heated and vocal opposition from the Conservative Party of Canada. It was then passed by the Senate on July 19, 2005 and received Royal Assent on July 20 2005. It is now the law across Canada. Following the passage of Bill C-38, the government of Prince Edward Island initially refused to grant marriage licenses to same-sex couples on the grounds that the wording on the necessary documents had not yet been updated and that this would not be able to be completed until the fall sitting of the legislature at the earliest [http://www.cbc.ca/story/canada/national/2005/07/22/PEI-same-sex-050722.html] [http://www.365gay.com/newscon05/07/072305PEI.htm]. The province did pledge that it would make the necessary changes. However, following complaints charging that the imposed delay was illegal and infringed the legal rights of same-sex couples, the province reversed its position and the first same-sex marriage on Prince Edward Island occurred on August 20, 2005 [http://www.gaypei.com/docs/news/firstwedding.htm]. The two territories without same-sex marriage had also previously indicated they would comply with federal law. The Alberta government, although strongly opposed, has stated that it will register same-sex marriages, but will work to protect those who oppose it on social, cultural or religious grounds. Despite the passage of the Civil Marriage Act into law, the revised immigration policy (as of October 2005) still considers all same-sex marriages which took place in other countries (e.g. The Netherlands, Belgium, Spain, or the United States (Massachusetts)) to be invalid. For example, a Canadian citizen, legally married in The Netherlands to his same-sex Dutch partner, may not sponsor his Dutch partner for immigration as a spouse, despite the fact that both Dutch law and Canadian law make no distinction between opposite-sex and same-sex civil marriages (i.e. there is only one type of civil marriage, one type of civil marriage certificate). See [http://www.cic.gc.ca/english/sponsor/familymembers.html#sponsoring CIC]

United States

Main article: Same-sex marriage in the United States As of September 2005 in the United States, only the state of Massachusetts recognizes same-sex marriage, while California, Connecticut, the District of Columbia, Hawaii, Maine, New Jersey and Vermont grant persons in same-sex unions a similar legal status to those in a civil marriage by domestic partnership, civil union or reciprocal beneficiary laws. Seventeen states have constitutional amendments explicitly barring the recognition of same-sex marriage[http://hrc.org/Template.cfm?Section=Your_Community&Template=/ContentManagement/ContentDisplay.cfm&ContentID=19449], confining civil marriage to a legal union between a man and a woman. Twenty-seven states have legal statutes defining marriage to two persons of the opposite-sex. A small number of states ban any legal recognition of same-sex unions that would be equivalent to civil marriage. During the 2004 U.S. Presidential elections the question of whether same-sex unions should be recognized by the government became a paramount wedge issue. A strong faction within the Republican Party, the Christian Right sought a federal amendment banning any recognition of same-sex unions by any name. This position was adopted by the party's platform. Ten of the states with amendments banning same-sex marriage passed during these elections. President George W. Bush chose to support the Federal Marriage Amendment banning same-sex marriage while agreeing with the concept of federalism, that states themselves should settle other arrangements such as civil union, domestic partnership and reciprocal beneficiary. The Federal Marriage Amendment failed in the U.S. Senate by a greater than expected number, with several members of the Republican Party defying the party's platform. Advocates of same-sex marriage gathered support from African-American associations, feminists, scientists, Jews, Hispanic groups, celebrities, labor unions and the gay rights movement. A few Democratic Party state platforms endorsed same-sex marriage as well. Fourteen states that attempted to ban same-sex marriage by constitutional amendment failed in 2004 and six have failed in 2005. [http://www.hrc.org/Content/ContentGroups/Publications1/backlash_myth.pdf] Courts in the state of Hawaii in 1993 ruled that same-sex couples were entitled to same rights as married opposite-sex couples under their state’s Equal Protection Clause. Polls at the time indicated that the majority of residents favored allowing same-sex marriage, possibly due to predominantly non-European demographics. After the ruling many traditionalist Christian organizations from the American South poured substantial funds into the state in a public relations blitz attacking the ruling, and in 1998, Hawaiian voters amended their state Constitution to give their legislature the right to restrict marriage rights. The legislature created reciprocal benefits for same-sex couples; however this type of partnership contained substantially fewer rights than a marriage. In a partial response to the rulings in Hawaii the United States Congress in 1996 passed the Defense of Marriage Act. (Regarding the name of the act, see below.) The Act is meant to prevent the courts from using the Constitution's Full Faith and Credit clause to bring same-sex marriage to states that have rejected it by forcing one state to recognize the marriages of another state. In Alaska in 1998, a preliminary court ruling required state attorneys to demonstrate a compelling state interest for banning same-sex marriages. Before the court case could proceed, voters approved an amendment to the state constitution prohibiting same-sex unions. The Vermont Supreme Court in 1999 ruled that their state legislature must establish equal rights for same-sex couples similar to those of married opposite-sex couples. Legislators elected to create state level civil unions as what they argued was a middle-ground; this was signed into law by then-governor Howard Dean. The California legislature in 2003 approved legislation creating an equivalent of marriage on a state level for same-sex couples. Governor Gray Davis signed the domestic partnerships into law and it came into force in 2005. The Massachusetts Supreme Judicial Court on November 18, 2003, ruled in the case of Goodridge v. Department of Public Health that denial of marriage licenses to same-sex couples violates the state’s Equal Protection Clause. The court stayed its ruling until May 17, 2004. Beginning on that date, hundreds of same-sex couples were legally married in Massachusetts. Many municipalities in early 2004 wedded same-sex couples. These marriages took place in the states of California, New York, Oregon, New Mexico and New Jersey. All of them have been halted since and the marriages voided. New Jersey, District of Columbia and Maine legislators in 2004 approved domestic partnership laws granting same-sex couples all the same rights as a marriage on a state level. A Washington Court in 2004 ruled that the state must allow same-sex marriages. The ruling is currently pending an appeal to the state Supreme Court. The Native American Cherokee Nation in 2004 issued a moratorium on same-sex marriages while they consider their validity after a lesbian couple applied for a marriage. Due to their tribal sovereignty theoretically if they allowed them the government would have to recognize it. The Tribal Council unanimously approved a Constitutional amendment stating that the Cherokee defines marriage as between one man and one woman. The couple have appealed to the judicial court, on grounds that their union predated the amendment. On February 4, 2005, New York state trial court judge Doris Ling-Cohan ruled in Hernandez v. Robles that New York had to allow same sex couples to wed. The Appellate Division of the New York Supreme Court overturned that decision on December 8, 2005. See Same-sex marriage in New York. On March 15, 2005, the San Francisco County Superior Court ruled that California's state constitution forbids discrimination against same-sex couples wishing to be married, stating that there is "no rational purpose" for the ban and comparing it to racial segregation. This ruling has been stayed pending appeal. See Same-sex marriage in California. On April 20, 2005, Connecticut became the first state in the Union that legalized same-sex civil unions without a court order. Legislators in Maryland approved a domestic partnership bill in 2005; however on May 22 the Governor vetoed the bill, legislators are now pursuing an override of the veto. On May 12, 2005, a federal judge in Omaha struck down Nebraska's constitutional ban on same-sex marriages, civil unions, domestic partnerships, and other same-sex relationships. U.S. District Judge Joseph Bataillon ruled that the ban, known as Initiative 416, violates the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. Elsewhere in 2005, Salt Lake City, Utah Mayor Rocky Anderson proposed reciprocal benefits for same-sex couples. The measure was defeated and he has promised to revisit the issue in 2006. Legislation creating domestic partnerships is currently pending in Arizona and New Mexico. Civil union bills are pending as well in Montana and Oregon. Courts are considering same-sex marriage in Florida and Maryland. On September 6, 2005, the California State Legislature became the first state legislative body to approve a same sex marriage bill. The legislation passed after an earlier defeat in the State Assembly in June of 2005. The legislation was, however, vetoed by California Governor Arnold Schwarzenegger on September 29. On November 8, 2005, Texans voted overwhelmingly for a proposed amendment to the Texas Constitution defining marriage as between one man and one woman and preventing "institutions similar or identical to marriage" from being created. This step was taken in spite of the fact that Texas state laws already prohibited same-sex marriage because those behind the amendment feared that the law could be found unconstitutional and overturned by a court, as happened in Massachusetts. Potentially serious legal issues arise from the conflict between state domestic partnership/same-sex-marriage laws, and the structure of U.S. Federal law, which, under the Defense of Marriage Act, explicitly does not extend Federal law recognition to those unions. This means that, for example, though they may essentially be married under the law of some states, partners would not be entitled to spousal collateral rights to Social Security, to spouse benefits in the other partner's private employer pension (if that pension is governed by ERISA) and will not be treated as spouses for purposes of any Federal tax law.

Australia

Main article: Same-sex marriage in Australia Australia currently recognizes same-sex partnerships in all but two of its states: Victoria and South Australia. South Australia as of 2005 has legislation pending allowing the recognition of same-sex partnerships. Australian Prime Minister John Howard proposed an amendment to the marriage laws banning same-sex marriages, while allowing current domestic partnerships to continue to be determined on a state and territorial level: the same-sex marriage ban passed in 2004. He also barred same-sex couples from adopting children from overseas. Western Australia, Tasmania, and the Australian Capital Territory all allow same-sex couples to adopt children from within these states, although Tasmania requires same-sex couples to have a prior relationship with the child being adopted (eg, through being related to the child). It can be argued that the Victorian [http://www.dms.dpc.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/edfb620cf7503d1aca256da4001b08af/04fed56456ea4271ca256e5b00213efc/$FILE/01-027a.pdf Statute Law Amendment (Relationships) Act 2001] recognises domestic partnerships as being a couple who live together on a genuine domestic basis irrespective of gender. Whilst this is not explicit recognition of same-sex partnerships, the approach ensures equality of not only heterosexual and homosexual defacto or common law relationships, but other possible permutations which may or may not be based upon a sexual relationship. Nevertheless, since other relationship issues such as compulsory Superannuation are governed federally, discrimination against gays remains and is unlikely to change in the near future.

Other forms of same-sex partnership

The movement towards the legal recognition of same-sex marriages has resulted in changes in the law in many jurisdictions, though the extent of the changes have varied:
- Civil unions provide varying degrees of the rights and responsibilities of same-sex marriage, but use a different name for the arrangement. They exist in several European countries (Denmark, Finland, France, Germany, Iceland, Luxembourg, Norway, Portugal, Slovenia, Sweden, Switzerland, and the UK) as well as in the U.S. states of Vermont, California and Connecticut, the Canadian provinces of Quebec and Nova Scotia, (although marriage is legal in both provinces), the Australian states of New South Wales, Western Australia, and Tasmania (the Australian Capital Territory recognises domestic partnerships with the same rights as civil unions), New Zealand and the city of Buenos Aires, Argentina.
- Domestic partnerships or registered partnerships also provide varying degrees of privileges and responsibilities, usually fewer than those found in civil unions. They are often available to opposite-sex couples and exist in many jurisdictions. Even in jurisdictions where they are not legally recognized, many gay and lesbian couples choose to have weddings (also called "commitment ceremonies" in this context) to celebrate and affirm their relationship, fulfilling the social aspect of a marriage. Such ceremonies have no legal validity, however, and as such do not deal with issues such as inheritance, property rights or social security. Some writers have advanced the idea that the term "marriage" should be restricted to a religious context and that state and federal governments should not be involved in a religious rite. Some regard this as a governmental intrusion into religion; they believe that all statutes involving domestic contracts should replace the word "marriage" with "domestic partnership" and thus bypass the controversy of gender. This would then allow a domestic contract between any two individuals who have attained their majority. Conservative critics like National Review's Jennifer Morse respond that the conflation of marriage with contractual agreements is itself a threat to marriage that "has undermined more heterosexual marriages than anything, with the possible exception of adultery." [http://www.nationalreview.com/comment/morse200405200926.asp]

Controversy

The moral legitimacy of marriage between two people of the same sex hinges on how the authoritative definition of marriage is derived. If marriage is to have a religious foundation, the interpretation of religious texts and traditions will be key; if marriage is a social institution, legal agreement, or even a purely economic coupling, then pragmatic arguments will have more force (though moral issues will no doubt still arise). Gay rights advocates assert that marriage is a right since it is a legal agreement on the governmental level which should not be restricted to opposite-sex couples. Their opponents assert that same-sex "marriage" is not itself a right and should not be allowed on moral and/or religious grounds, or on the grounds that it will lead to a breakdown of the definition of marriage or of civil society. Most of the controversy centers around the government definition of marriage, rather than the blessing of same-sex unions by individual religious organizations, which may or may not be recognized as civil marriages. The debate is often perceived as being same-sex marriage advocates vs. religious (especially fundamentalist) or moral opponents. However, corporations and other groups sometimes give opposition or support to same-sex marriage not on any religious or moral grounds but instead with the aim acquiring some material benefit for their position. The prominence of many religious organisations, and the scriptural basis of their opposition to same-sex marriage, has led many advocates of Separation of Church & State to support the legalisation of gay marriage on the grounds that governments do not have the right to legislate on religious issues. Those in favour of same-sex marriage argue that homosexuals contribute as much as heterosexuals to the funding for private and public family coverage even when they have no access to it, and that discrimination decreases productivity. They support the equalization of male-male, female-female, and male-female relationships, and being able to marry whomever one chooses is seen as a civil right that should not be abridged by the government. Opponents answer that this view of marriage reduces marriage to little more than a means test for social benefits. They also see same-sex and male-female arrangements as inherently unequal, citing the fact that nothing less than humanity itself relies fully on the latter and not at all on the former, and trying to "equalize" such arrangements through force of law will only create gross social distortions to accommodate the gulf between such law and the observable facts of human nature. Some countries and states/provinces have judicial rulings that set precedence for same-sex marriage. However, popular majorities in some places continue to assert that the traditional concept of marriage cannot exist outside of a heterosexual relationship. To them, the male-female relationship has unique capacities and qualities that marriage was meant to recognize and foster that are not adequately acknowledged by the above definition.

Religious arguments

Some opponents object to same-sex marriage on religious grounds, arguing that extending marriage to same-sex couples undercuts the conventional meaning of marriage in various traditions or goes against the word of God [Romans 1:24-27], does not fulfill any procreational role, or sanctions a partnership centered around "aberrant" or "immoral" sexual acts. For example, James Dobson, in Marriage Under Fire and elsewhere, argues that legalization or even tolerance of same-sex "marriage" would redefine the family and lead to confusion in youths about their sexual identities[http://www.townhall.com/bookclub/dobson.html]. Proponents suggest that, under the principles of religious pluralism and the separation of church and state, religious arguments should not be used to constitute the law. It should be noted that not all religious people oppose gay marriage. Some churches and denominations, listed above, perform same-sex marriages. A fundamental concern of some people is that the legalization of same-sex marriage will lead to a direct attack via lawsuits against religions to force them to perform marriage ceremonies of which they do not approve, and additionally that established churches could be bankrupted by these types of lawsuits. This may be a realistic fear only in jurisdictions which restrict freedom of religion.

Societal arguments

Those who advocate that marriage should be defined exclusively as the union of one man and one woman argue that only a heterosexual union can provide the procreative foundation of the family unit that they see as the chief social building block of civilization. They argue that the definition proposed by same-sex marriage advocates changes the social importance of marriage from morality to mere custom, and may refer to themselves as "defenders" of traditional marriage. As any customary relationship may be considered "marriage", some argue that this then leads to undue legislative burden and an affront to the social value and responsibility of parenting one's own children. Some other people object to same-sex marriage on the grounds that the purpose of marriage is a procreative partnership and that the same-sex partnership is inherently sterile. Some who hold this view see marriage as the social codification of an evolved long-term mating strategy, with economic and legal benefits to facilitate family growth and stability. Others argue that because the law does not prohibit marriage between sterile heterosexual couples, or to women past menopause, the procreation argument cannot reasonably be used against same-sex marriage. Some same-sex marriage proponents, such as Andrew Sullivan, argue that same-sex marriage retains enough moral underpinning to support the familial role marriage plays in society despite the absence of a direct (that is, unassisted by medical or social agencies) procreative element. Also that the institution of marriage would be strengthened by making it available to more people, and argue further that same-sex marriage would encourage gays and lesbians to settle down with one partner and raise families. Others argue that marriage no longer retains a procreative function of the government since many governments offer child tax-credits and assistance regardless of marital status. Some philosophers object to same-sex marriage because of their inherent sterility. However, due to the legality of opposite-sex marriages in which one or both partners are sterile, these philosophers believe that all marriages should thus be lowered to "civil unions". These civil unions would then only receive the benefits of marriage which do not require expenditures from the government (e.g. tax breaks), and any monetary benefits would only be awarded based on the number of children living in a household. Some libertarians object to same-sex marriage because they are opposed to any form of state-sanctioned marriage, including opposite-sex unions. They are not necessarily opposed to the idea of a same-sex wedding itself, only that the government should not have any role in the event, nor for that matter should government approval be sought for opposite-sex marriages. See Libertarian perspectives on gay rights.

Arguments about tradition

There have been many ritual homosexual unions practiced historically that provide many of the same benefits entitled traditionally to marriages. Some cultures have considered a set of strictly defined and regulated homosexual qualities to denote a gender that transcended both male and female. As possessors of a third gender, such people could marry either men or women. Some people in the position to write the law for their country indulged themselves in calling some of their same-gender relationships a marriage, though they assumed no familial attachment. Calling a heterosexual union the same legal term as a homosexual union for a whole state or society is only a recent occurrence. With some notable exceptions, most societies have utilized a definition of marriage that included at least one man and one woman. Some societies have from ancient times permitted spouses to have multiple concurrent marriages (

DemocracY

Democracy

Public policy (law)

Public policy or ordre public is the body of fundamental principles that underpin the operation of legal systems in each state.

Examples

The most fundamental policy in the operation of any legal system is that ignorantia juris non excusat, the Latin for ignorance of the law is no excuse. It would completely undermine the enforcement of any law if the person potentially at fault was able to raise as a successful defence that he or she had not been aware of the particular law. For this reason, all the main legislatures publish their laws freely whether in hard copy or on the internet, while others offer them for sale to the public at affordable prices. Because everyone is entitled to access the laws as they affect their personal lives, all adults are assumed responsible enough to research the law before they act. If they fail to do so, they can hardly complain if their acts prove unlawful, no matter how transiently they may be within the jurisdiction (see presumed knowledge of the law). The only exception to this rule excuses those of reduced capacity, whether as infants or through mental illness (for example, see the principle of doli incapax which raises an irrebuttable presumption in Criminal Law that an infant is incapable of committing a crime). Similarly, in many branches of law, the Doctrine of Evasion prevents persons, both natural and artificial, from evading the application of obligations and liabilities already attaching to them. This represents a practical application of the policy that, as an outcome of the social contract, all persons owing allegiance to a state should be entitled to assume that everyone will receive fair and equal treatment before the law, i.e. there will be no favouritism or preferential treatment to any person by virtue of their rank or status within society. As such, this is an exception to the policy in the Law of Contract which usually allows the parties autonomy to enter into whatever agreement they want and which might otherwise be taken to permit the parties to exclude the normal operation of the law as between themselves (see the policy of freedom of contract). There are policies specific to all the main branches of law. Hence, one of the policies in Family Law is parens patriae, i.e. that the state is the default parent for all those children within its jurisdiction and that, if it is necessary to protect the interests of the child, the state will usurp the rights of the natural parents and assert its own rights as every child's legal guardian. Within the EU, the right of the child to be heard in any proceedings is a fundamental right provided in Article 24 Charter of Fundamental Rights of the European Union. The views of the child shall be considered on matters which concern them in accordance with their age and maturity. It also provides that the child's best interest shall be the primary consideration in all actions relating to children, whether taken by public authorities or private institutions. A policy which overlaps between Family Law and Contract is favor matrimonii which requires that any marriage entered into with a genuine commitment should be held valid unless there is some good reason to the contrary, matching Contract, where the preference is always to give effect to the genuine expectation of the parties.

Discussion

The policies adopted by states have come into being for a number of reasons. Some are aspects of the concept of sovereignty and reflect the essence of territoriality. Thus, public laws which either define the constitution of the state or regulate its powers can only apply within the boundaries agreed as a part of the process of de jure recognition of statehood by the international community. Other policies are aspects of the social contract, and they define and regulate the relationship between a state and those citizens who owe it allegiance. To that extent, these policies interact with (and sometimes overlap) civil rights and human rights. A number of these rights are defined at a supranational level and it will necessary for states to consider the extent to which international principles of law are to be allowed to influence the operation of law within their own territories. Independently of the work of the international community to produce harmonised principles, the courts in one state may sometimes be faced with lawsuits which either seek to evade the operation of foreign laws through forum shopping or seek the enforcement of "foreign" laws. This is becoming increasingly common as people now move with reasonable freedom between states and international trade routinely services markets in many different states. Such lawsuits will not be troublesome if the "foreign" law is the same as the forum law. But serious difficulties will arise if the application of the "foreign" law would produce a different result. These "conflicts are resolved under the systems of law known as Conflict of Laws.

Public policy in the context of Conflict of Laws

The general rule is that all higher courts have an "inherent jurisdiction" or "residual discretion" to apply the public policies of their state to clarify or more properly interpret the letter of their domestic laws and procedural rules. In Conflict cases, no court will apply a "foreign" law if the result of its application would be contrary to public policy. This is problematic because excluding the application of foreign laws would defeat the purpose of Conflict of Laws by giving automatic preference to the forum court's domestic law. Thus, for the most part, courts are slower to invoke public policy in cases involving a foreign element than when a domestic legal issue is involved. That said, in those countries that have adopted Treaty and Convention obligations involving human rights, (e.g. in the U.K. the Human Rights Act 1998 is now in operation) broader concepts of public policy may now apply. Thus, courts may have to consider the "justice" implicit in a law that allows a husband to divorce his wife, but not vice versa as an aspect of sexual discrimination. Similarly, it would be possible to question the propriety of polygamous marriages, the talaq system of divorce which is available in some Islamic states, and Jewish divorce known as the get, but it is likely that the courts would be cautious to avoid any implication that they were discriminating against religions. Equally difficult are the Family Laws which regulate incestuous relationships and capacity. For example, it is probable that one state should not be too quick to condemn another because it allows a marriage between an uncle and a niece, or allows a marriage with a girl of 13 (e.g. as in Northern Nigeria), particularly if the parties are not proposing residence in the forum state. Less controversial is the exclusion of foreign laws that are penal or territorial because they seek to collect taxes due to another state, e.g. in English Law, if foreign exchange control legislation is used as "an instrument of oppression", it may be denied extraterritorial enforcement (Re Helbert Wagg & Co Ltd [1956] Ch 323, 351). Similarly, otherwise valid contracts may be denied enforcement if to do so would assist an enemy of the forum state or would damage the political relationship with a friendly state. When considering questions of status, English courts have held that incapacities imposed on account of slavery (Somersett's Case [1771] 20 St Tr 1), religion (Re Metcalf's Trusts [1864] 2 De G J & S 122), alien nationality (Re Helbert Wagg & Co Ltd [1956] Ch 323 at pp.345/46), race (Oppenheimer v Cattermole [1976] A C 249 at pp.265, 276/78, 282/83), divorce (Scott v Att-Gen [1886] 11 P D 128), physical incompetence (Re Langley's Settlement [1962] Ch 541 at pp.556/57) and prodigality (Worms v De Valdor [1880] 49L J Ch. 261 and Re Selot's Trusts [1902] 1 Ch. 488) will be disregarded. Policy is also a key component to the process for the enforcement of foreign judgments. Category:International law Category:Law

European Union

: This article is about the European Union. For other meanings of 'EU', see the EU (disambiguation) page. The European Union or the EU is an intergovernmental and supranational union of 25 European countries, known as member states. It will include another 2 countries in 2007 - Romania and Bulgaria. The European Union was established under that name in 1992 by the Treaty on European Union (the Maastricht Treaty). However, many aspects of the Union existed before that date through a series of predecessor relationships, dating back to 1951. The European Union's activities cover all areas of public policy, from health and economic policy to foreign affairs and defence. However, the extent of its powers differs greatly between areas. Depending on the area in question, the EU may therefore resemble:
- a federation (for example, on monetary affairs, agricultural, trade and environmental policy)
- a confederation (for example, on social and economic policy, consumer protection, home affairs)
- an international organisation (for example, in foreign affairs) A key activity of the EU is the establishment and administration of a common single market, consisting of a customs union, a single currency (adopted by 12 of the 25 member states), a Common Agricultural Policy, a common trade policy, and a Common Fisheries Policy. The most important EU institutions are the Council of the European Union, the European Commission, the European Parliament and the European Court of Justice.

Status

The members of the European Union have transferred to it considerable sovereignty, more than that of any other non-sovereign regional organisation. As has been mentioned, in certain areas the EU begins to take on the character of a federation or confederation. However, in legal terms, member states remain the masters of the Treaties, which means that the Union does not have the power to transfer additional powers from states onto itself without their agreement through further international treaties. Further, in many areas member states have given up relatively little national sovereignty, particularly in key areas of national interest such as foreign relations and defence. This unique structure means the European Union is perhaps best seen as a sui generis entity. On 29 October, 2004, European heads of government and state signed the Treaty establishing a Constitution for Europe. This has been ratified by some member states and is currently awaiting ratification by the other states. However, this process faltered on May 29, 2005 when the majority of French voters rejected the constitution in a referendum by 54.7%. The French rejection was followed three days later by a Dutch one on June 1 when in the Netherlands 61.6% of voters refused the constitution as well. The current and future status of the European Union therefore continues to be subject of political controversy, with widely differing views both within and between member states. For example, in the United Kingdom, currently holding the EU presidency, one poll suggested that around 75% of the population are indifferent or opposed to the European Union. However, other countries are more in favour of European integration — soon after the Netherlands and the French voted "no" on the constitution, Luxembourg voted "yes."

Current issues

Major issues currently facing the European Union cover its membership, structure, procedures and policies; they include the adoption, abandonment or adjustment of the new constitutional treaty, the Union's enlargement to the south and east (see below), resolving the Union's problematic fiscal and democratic accountability, revision of the rules of the Stability and Growth Pact, and the future budget and the Common Agricultural Policy. At the next Intergovernmental Conference (IGC), which is a semi-annual meeting of EU member states' heads of state and government, EU member states must decide on how it will allocate the EU budget. Also, here is the issue of the "Financial Perspective", which is renegotiated every seven years. The next Financial Perspective will be for 2007-2013. Issues that will be controversial during upcoming budget debates will be the British rebate, France's benefits from the Common Agricultural Policy, Germany and the Netherlands' large contributions to the EU budget, and reform of the European Regional Development Funds. Many commentators have envisaged these debates to yield a major split between governments such as France and Germany, who call for a broader budget and a more federal union, and governments such as that of the UK, who demand a slimmer budget with more funding transferred to science and research (and whose watchword is modernisation). Turkey on 4 October 2005 furthered its will to enter the European Union, making them the first predominantly Muslim country to open membership talks with the organisation. Many states within the union are wary of this decision, chiefly Austria. Austrian apprehension for Turkey dates back for centuries, leading from the 1683 Battle of Vienna, where the Austrians defeated the Ottoman Turks. Fears of an influx of migration from Turkey into Austria if the country and its 70 million inhabitants are allowed into the union is a heated topic. Others argue that most of the country is on the wrong side of the Bosporus Strait, which many believe to be the dividing line between Europe and Asia. Turkey also refuses to acknowledge any relations with the state of Cyprus since Turkish troops invaded the northern section of the island in 1974 following a coup attempt by Greek ultra-nationalists. Austria has proposed for an esteemed partnership for Turkey which would come short of an actual membership. Turkey rejected that proposal. Other European states claim that denying Turkey to a membership would brew future hostilities with other Muslim nations.

Origins and history

1974 Attempts to unite the disparate nations of Europe precede the modern nation states; they have occurred repeatedly throughout the history of Europe. Three thousand years ago, Europe was dominated by the Celts, and then conquered and ruled by the Mediterranean centred Roman Empire. These early unions were created by force. The Frankish empire of Charlemagne and the Holy Roman Empire united large areas under a loose administration for hundreds of years. More recently the 1800s customs union under Napoleon and the 1940s conquests of Nazi Germany had only transitory existence. Given Europe's collections of languages and cultures, these attempts usually involved military subjugation of unwilling nations, leading to instability, others have lasted thousands of years and large spells of peace and economical and technological progress as in the Roman Empire's Pax Romana. One of the first proposals for peaceful unification through cooperation and equality of membership was made by the pacifist Victor Hugo in 1851. Following the catastrophes of the First World War and the Second World War, the impetus for the founding of (what was later to become) the European Union greatly increased, driven by the determination to rebuild Europe and to eliminate

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