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Excluding gays and lesbians from marriage amounts to denial of equal protection of the law and unfair discrimination by the state against them because of their sexual orientation

There is need to appreciate the history of the institution of marriage in our law. It all dates back during the classical Roman law period when marriage was a purely a private institution which did not involve the state.

Even after Christianity became the official religion of the Roman Empire in 313 AD, no religious or ecclesiastical rite was essential.

All that was required for the existence of a marriage was reciprocally expressed consent of parties. After the disintegration of the Roman Empire in the West, when the Church began to control marriage, parties were encouraged to declare their consent before a priest and to receive a blessing. Such marriages were regarded as “regular” marriages.

There were also so-called “irregular” marriages which were based on the consent of the parties alone without a blessing from a priest. Parties to “irregular” marriages were often subjected to ecclesiastical and secular penalties, but their marriages were nonetheless as valid as the “regular” ones.

Since then, marriage has evolved to become an institution that was governed both by religion and state, arguments to explain this control are many. Many of the present marriage laws in Kenya borrow heavily from religious doctrines as far as Council of Trent in 1563.

The proposed Marriage Bill defines marriage to be a union between a man and a woman intended to last for a lifetime. This very well mirrors article 45 (2) of the constitution of Kenya which provides that every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.

Both article 45(2) of the constitution and clause 3 of the Marriage Bill fly loathe of a key pillar to our bill of rights in Chapter Four of the constitution.

Article 27 provides that every person is equal before the law and has the right to equal protection and equal benefit of the law . It also states that 'equality includes the full and equal enjoyment of all rights and fundamental freedoms (including the right to marry).

The article goes on to forbid the state from discriminating directly or indirectly against any person on any ground, including among other grounds that of sex. Simply put, providing the right to marry but limiting it to only to the opposite sex is discrimination on the grounds of sex.

The capacity to choose to get married enhances the liberty, the autonomy and the dignity of a couple committed for life to each other.

It offers them the option of entering an honourable and profound estate that is adorned with legal and social recognition, rewarded with many privileges and secured by many automatic obligations.

It offers a social and legal shrine for love and commitment and for a future shared with another human being to the exclusion of all others.

More deeply, the exclusionary definition of marriage under the Marriage Bill injures gays and lesbians because it implies a judgement on them.

It suggests not only that their relationships and commitments and loving bonds are inferior, but that they themselves can never be fully part of the community of moral equals that the Constitution promises to create for all. Gay marriages would not deprive others of any rights.

It would not reduce the respectability or frequency of heterosexual marriages. Gay marriages would give gays and lesbians access to enjoy equal rights with other Kenyans, without limiting that enjoyed by others.

Is Kenya ready for gay marriages? There has been evidence and awareness on the part of legislature of the changing nature of the concept of the family and jurisprudence of marriage equality in our society.

Until the new constitution, the principle of legal equality between the spouses had not been enshrined in our law. The rules forming part of our matrimonial relations which put the husband in a superior position and the wife in an inferior one are no longer part of our law. The Judiciary in 2010 upheld woman-to-woman marriages in Nandi tradition for purposes of inheritance.

With such progress in marriage equality, there is still the story of lesbians and gays that centres on their sexuality and which has hitherto hindered progress in discussion rights of homosexuals in the Kenyan society.

Whether because of disgust, confusion, or ignorance about homosexuality, lesbian and gay sexual lives dominates the discourse of not only same-sex marriages, but all lesbian and gay issues.

The classification of lesbians and gays as 'exclusively sexual beings' stands in stark contrast to the perception of heterosexuals as 'people who, along with many other activities in their lives, occasionally engage in sex.' Through this narrative, lesbians and gays are reduced to one-dimensional creatures, defined by their sex and sexuality

This stereotype is in itself a denial of equal dignity and worth which in turn degenerates into a denial of humanity and lead to inhuman treatment by the rest of society in many other ways.

This is deeply demeaning and frequently has the cruel effect of undermining the confidence and sense of self-worth and self-respect of lesbians and gays

The Kenyan Constitution strongly represents a commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos expressly articulated in chapter four and one of the Constitution.

Democratic, universalistic, caring and aspirationally egalitarian society embraces everyone and accepts people for who they are.

So to penalise people for being who and what they are is profoundly disrespectful of the human personality and violatory of equality.

Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference.

Respect for human rights also requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour or extolling one form as supreme, and another as inferior, but an acknowledgement and acceptance of difference.

At the very least, it affirms that difference should not be the basis for exclusion, marginalisation and stigma. At best, it celebrates the vitality that difference brings to every society.

The Marriage Bill ignored a central element of law making. That every person is equal before the law and has the right to equal protection and equal benefit of the law.

Excluding gays and lesbians from marriage amounts to denial of equal protection of the law and unfair discrimination by the state against them because of their sexual orientation.

My legal crystal ball shows me no need to panic, the law might pass and hold , but for a while. This marriage bill, for excluding gay marriage and come we stay marriages, for not allowing women to be equally polygamous as it allows the men to be, for threatening to rule love with criminal sanctions of breach of marriage promise, this marriage bill, is nonsense upon stilts.

* Eric Gitari is a human rights lawyer and acknowledges use of dictum from Justice Sachs in Minister for Home Affairs Vs Lesbian and Gay Equality Project.
The article was first published by The Star newspaper in Kenya.