We are currently witnessing a Cultural Revolution that, based on the idea of turning sex into a commodity, seeks to subvert traditional institutions of human society such as marriage and family, but will ultimately result in subverting human life as such. While it seems self-evident that human life must be one of the highest-ranking values in any truly human legal order (and hence the right to life the fundament for any other fundamental right), it appears that many find it difficult to understand that social institutions like marriage and the family are similarly important.
Yet it is the family that, being the basic social unit, makes human life possible. Marriage and Family are institutions that are pre-existent to the state; it is these institutions that make the existence of the state possible, not the inverse. A society without families would by necessity be a totalitarian, un-free and inhuman society, in which those in power would be able to intrude into all and every aspect of citizens’ lives. It comes at no surprise, then, that the only political visionaries who have seriously thought of abolishing the institution of the family were the likes of Fourier (who wanted to replace it with his “phalanstères”) or Pol Pot (whose stone-age communism involved the total dissolution of families). A dystopian, yet fairly realistic, idea of what a society without families would look like is provided by Aldous Huxley’s Brave New World: a society where people do not marry any more, where sexual promiscuity is not only accepted but compulsory, and where procreation is organized by the state and takes place in vitro in state-owned fertilization and breeding facilities.
The family creates a sphere of intimacy and autonomy, an inter-generational network of mutual love and solidarity, into which the state is not allowed to interfere as long as he does not need to interfere. The principle of subsidiarity, if correctly understood, means that smaller social units should be allowed to do themselves whatever they are capable of doing themselves, and that the greater unit should only intervene where the smaller unit is not able to achieve the objective. This principle is not only based on the assumption that smaller social units can be more efficient, but it also guarantees the plurality and freedom in a society.
One such smaller unit – indeed the small social unit by excellence – is the family. It serves the purpose of procreation, provides social security, solidarity, and education. It follows that the state’s role in these areas, if correctly understood, can only be ancillary to the role of families. For example, education is a right of parents, which means that the parents are the primary educators of their children, and the state’s role must be limited to providing assistance to the parents. In the same vein, the state should provide social security only if and where family networks and local communities are not capable of providing them.
If the family is in a crisis today, that crisis seems to a large extent due to the emergence of hypertrophic social welfare systems, which, usurping many of the natural functions of families, seemingly make family and marriage redundant. In actual fact, however, those welfare systems are not sustainable in the long run: they are themselves over-indebted and, at the same time, constitute a major cause for the over-indebtedness of many national economies; they are inefficient and encourage irresponsible and anti-social behaviour. It is only a question of time that, when they will break down, people will again have to rely on their families. But there is a risk that, if families will not exist anymore as a strong social network, our individualistic society will face an unprecedented problem.
Given that international human rights treaties as well as national constitutions pay abundant lip-service to the importance of families, it would be impossible for any opponent to say that marriage and family should not enjoy special protection. Instead, the strategy used by the cultural revolutionaries consists in saying that all and everything should be called a “family”: the concept is watered down beyond recognisability.
The problem is that while important human rights documents such as the UDHR or the ICCPR do recognize the importance of families, they contain no definition of what a family is, because this seemed self-evident at the time of drafting.
It is not self-evident any more.
While not so long ago everyone would have agreed that a family consists of a married couple and their common offspring, this concept is nowadays increasingly called into question. For example, the authors of the afore-mentioned “Yogyakarta Principles” (a pretentious document that seeks to advance legal recognition and privileges for homosexuals) say that laws and policies should “recognise the diversity of family forms, including those not defined by descent or marriage”. A policy paper recently published by the EU Family Platform, a research network set up by the EU to inform the debate on family policy states that there is a need “to move beyond an over-emphasis on the nuclear family and grasp new notions of family relationships, which may include a variety of different networks providing support and resources such as grandparents, relatives, friends and colleagues“. Various politicians have been heard saying that in their view a family is “wherever persons take responsibility for each other”.
More importantly, the idea that the notion “family” could be extended to other social groups, including same-sex couples, seems to gain ground even in institutions such as the European Court of Human Rights, which in its decision in the case of Schalk and Kopf v. Austria, went as far as making the following statement:
“The Court notes that … a rapid evolution of social attitudes towards same-sex couples has taken place in many member States. Since then a considerable number of member States have afforded legal recognition to same-sex couples. Certain provisions of EU law also reflect a growing tendency to include same-sex couples in the notion of “family”.
In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.
The Court therefore concludes that the facts of the present case fall within the notion of “private life” as well as “family life” within the meaning of Article 8 (of the European Convention of Human Rights).”
As a statement stemming from a high profile human rights body, these affirmations are unique, and it is therefore likely that they will, at least in Europe, be assiduously used by supporters of the cultural revolution as a point of reference in coming years. It is therefore necessary to note that this was a mere obiter dictum, i.e. a corollary statement that expresses the opinion of a majority of judges in one chamber of the Court and has no legal effect at all. It was not based on any other argument than a vague reference to “evolving mores”, and stands in open contradiction with the core finding in the same judgment that the right “to marry and found a family” (Article 12 of the Convention) is reserved to “a man and a woman of marriageable age”. The notion of “family life” (in Article 8) cannot without loss of consistency be dissociated from the notion of a “family” in Article 12.
Despite these obvious flaws, the Court has in subsequent decisions referenced this misguided obiter dictum as if it were some kind of established doctrine – id did so, however, without providing any additional supportive arguments.
A concept that is overstretched becomes meaningless. That is precisely the danger the family is facing today. If those “new notions of family relationships” were generally accepted, then nearly every group of persons wishing to be called by that name would be a “family”. That would include a school teacher and his pupils, a bus driver and his passengers, an employer and his employees, and of course all and every set-up of persons living in the same household. The concept of family promoted by the “Yogyakarta Principles” offers no criterion at all to determine what a family is – it only says which criteria should not be used: marriage and descent. But if marriage and descent are not the criteria, then the concept becomes arbitrary.
In other words, this seemingly benign idea of extending the concept of family could be the most efficient way of abolishing it.
It has been argued that “traditional” families will suffer no harm or disadvantage if other types of families receive the same legal recognition. One is tempted to wonder whether those making such assertions are really as naive as they pretend. In actual fact, a clear and correct definition of the concept of a family is a pre-condition for any targeted policy for families. Without it, it becomes impossible to speak about the family, impossible to recognize the specific contribution of families to the common good, and impossible to adopt policies that provide targeted support to families.
Besides, it obviously insults and demeans all parents who raise children to read in the ECtHR’s decisions that their relationship is of no greater value and dignity than the (unhealthy and by nature sterile) relationship between two sodomites.
It is therefore of primordial importance to ensure that a correct definition of the word “family” is introduced into the legal and political language. Without this, nothing can be done to protect the interest of the family, and whatever is done could quickly turn out detrimental. To define family as a married couple and their offspring is the first political priority.
The family is, more than anything else, an institution that is designed to protect the interest of children. It must therefore been understood and interpreted from that perspective.
If by nature each child has one (biological) father and one (biological) mother, it must be assumed that being raised by, and living together with, its biological father and mother is what is naturally best for a child’s healthy development. Therefore, a child has a natural right to live with, and be educated by, its own parents. Inversely, while it is clear that there is no right to a child (i.e. a right to become a father or a mother through whatever technical or legal means), it is also clear that parents have not only a natural responsibility, but also a natural right, to live with, and to be the first educators of, their children.
A healthy and just social order respects this specific relationship between children and their parents. It will therefore:
- protect the right of children to know the identity of, and to have regular contact with, their biological parents;
- protect the right of parents to know the identity of, and to have regular contact with, their biological children;
- provide parents with sufficient support, including moral and economic support, to spend time with, and fulfil the role of primary educators of, their children;
- base their policies on schooling and education on the principle that the state’s role as an educator is ancillary to that of the parents: the state must assist the parents in educating their children as they see fit, not the other way round;
- avoid giving undue privilege to the education of children in state-run institutions rather than by their parents (e.g. by prohibiting home schooling, or by providing disproportionate support to day care institutions while not providing similar support to parents who care for their own children, or by withholding appropriate support from privately run schools).
The specific role of parents as the primary educators of their children is recognized in international law:
- Article 26 (3) of the UDHR explicitly states that: “Parents have a prior right to choose the kind of education that shall be given to their children.”
- Much in the same vein, Article 13 (3) of the ICESC stipulates: “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.”
- Article 2 of the 1st Protocol to the European Convention on Human Rights states: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions.”
- Article 14 (3) of the EU Fundamental Rights Charter reaffirms that: “… the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected”.
There is an International Convention on the Rights of the Child at UN level. This convention has been ratified by an overwhelming majority of UN Member States. While there is an inherent risk that it could be used to supersede the natural rights of parents (because the question what corresponds, or does not correspond, to “the best interest of the child” is ultimately to be answered by state authorities rather than by parents), it nevertheless should be noted that, inter alia, the Convention explicitly recognizes the right of children to preserve their identity and family relations (Article 8 (1)) and to have contact with their parents (Article 9), as well as the right of parents to be the primary educators of their children (Article 20). It also states that in the case of adoption it is the interest of the child that must receive paramount consideration, not the interest of adoptive parents (Article 21).
In the light of the preceding considerations the question arises whether there should be any form of acceptance or legal recognition for “alternative forms of family” or not. Do cohabiting partners who live together, or same-sex partners, deserve any form of legal recognition? Where such recognition exists (in the form of “same-sex marriage”, “civil partnerships” or simply through laws that treat such couples as if they were married), should those provisions be repealed?
In recent years there has been a growing tendency in many jurisdictions to provide to (different sex) couples living in a “stable relationship” (i.e. couples that are not married but live in the same household) a status similar or identical to that of a married couple. It is argued that, given that those couples de facto are in a similar position, and live similar lives, to that of married couples, they should not be discriminated against.
This reasoning seems erroneous to us. There is a decisive difference that needs to be taken into account: while married couples have made a public and binding mutual commitment both ad intra (between themselves) and ad extra (towards the rest of society), cohabiting couples haven’t. Indeed, they have made the deliberate choice of not binding themselves – so why should they be treated as if they had done so?
The “equal treatment” of cohabiting with married couples can only result in two possible outcomes:
- the unmarried partners will only receive the social and fiscal benefits associated with marriage, without the legal obligations that apply to married couples (so-called “cherry-picking”). That would obviously constitute a very unequal treatment, as it would set a reward on the unwillingness to accept binding commitments and responsibilities.
- the cohabiting partners would also be held to accept the same obligations and responsibilities as married partners do. But that would mean to impose on them a choice they have never made for themselves (given that deliberately they have not married). Also, this would create considerable legal uncertainty, for it would ultimately be a public authority, and not the couple itself, who, on the base of rather vague criteria, would decide that the conditions for equal treatment are met.
Freedom means that people must be allowed to make decisions that have practical consequences. Therefore, in a free society, the State should respect the free decision of citizens whether they want to marry or not, and should treat them accordingly. The equal treatment of cohabiting with married couples is unjust, discriminatory, disrespects personal freedom, and creates legal uncertainty.
In addition, it may reasonably be argued that international law that obliges States to protect the right to marriage presupposes that the status of married people must significantly differ from the status of cohabiting people. Where this is not the case, the institution of “marriage” is rendered insignificant and nugatory. For this reason, the equal treatment of unmarried with married couples arguably constitutes a violation of human rights law.
Yet another question is whether, rather than foreseeing one single type of marriage, a State may, or should, legislate for different types of marriage-like institutions. One example for such an approach is France, where, besides marriage, there is a new institution called “PACS” (pacte civil de solidarité) that foresees a lower grade of mutual commitment than marriage, can be more easily divorced, but does not confer the same legal entitlements (notably with regard to the possibility of adoption or medically assisted procreation). It can be entered both by couples of different or same sex. While for the latter it is the only possibility to obtain legal recognition for their relationship, for the first it is a form of “low-grade marriage”.
This raises the question: if one accepts that there should be more than just one standard type of marriage, why should there be only two (and not, for example, ten) different types, each one varying with regard to the degree of mutual commitment and social/fiscal benefits? One could imagine legally registered “friendships”, “close friendships”, exclusive or non-exclusive “intimate friendships”, etc., and (why not?) even the possibility, at the other end of the scale, to conclude a type of marriage that nowadays does not seem to exist anymore in most countries, namely a marriage that cannot be divorced.
Ultimately, one might also ask why there should not be complete contractual freedom for people to arrange their own private lives as they see fit.
Against such tendencies, one might raise the following objections:
- The greater the variety of marriage-like institutions, the greater will be the confusion as regards the exact meaning of each of them – not only for third persons, but even for the two persons involved. While today there still is a commonly shared understanding in society on what a “marriage” is, this understanding would soon be completely diluted if there were a variety of different marriages. Marriage would thus lose its status as an institution that is respected in the public sphere, and thus be deprived of its public character.
- One of the very important purposes of marriage is the protection of the socially more vulnerable party (often the woman). If there were a variety of different “marriages”, or (even worse) if the meaning of “marriage” were the result of an individual negotiation between the two persons involved, then it would in all likelihood be the weaker partner who would lose out: he or she would be constrained to settle on more unfavourable terms than if there were only one standard type of marriage.
- It is significant that those arguing in favour of new types of marriage-like institutions (such as the French PACS) usually do so in view of introducing lower-grade marriages, whereas one has never heard of any such initiative to re-introduce a non-divorceable marriage (even though, among couples of marriageable age, there might be a real demand for it). It seems therefore that this is rather a strategy for the surreptitious destruction of marriage than a strategy to restore it.
In the light of the preceding considerations, it seems wholly inappropriate for a legislator to provide legal recognition and status of any form to couples that are unwilling or unable to marry. Where such laws exist, they should be repealed. The correct and fair solution is to legally treat those couples as what they are, namely as strangers.
If, however, such couples have children, then the rights of those children must be respected. This includes the right of children to know, and maintain contact to, both their parents. It also should be taken into account that there must be no discrimination with regard to any social benefits that the State grants to people in view of their children.