Same-Sex Marriage/Constitutionalism and their Centrality to Equality Rights in Hong Kong: A Comparative–Socio-Legal Appraisal

Abstract

Whether an individual has a right to marry another person of the same sex has garnered tremendous judicial, political and scholarly attention in the past decade, and it certainly will continue to do so in the years to come, for such a right is one which sexual minority rights activists consider to be part and parcel of their struggle for equality whilst opponents of homosexuality and sexual minority rights regard it as the ultimate destruction of marriage and society. Adopting a comparative and socio-legal approach, this paper refutes the notion that homosexuality and protection of sexual minorities, including recognition of the right of a person to marry another person of the same sex, are Western concepts inapplicable in Hong Kong, a conservative Confucian society. In doing so, the author also questions the place of Christianity and the Bible in Hong Kong society and dissects those verses in the Bible on which opponents of homosexuality and sexual minority rights rely. Then, referring to debates on the issue and on judicial activism, the author maintains that recognition of the right of a person to marry another person of the same sex constitutes a constitutional and democratic requirement which an impartial and responsible judiciary must uphold. Finally, the author analyses Hong Kong's international treaty obligations in relation to same-sex marriage and to active protection of the right of equality of all persons, irrespective of their sexual orientations, within its jurisdiction.

Acknowledgements

The Author wishes to thank the Gender, Sexuality and Law Research Group at Keele University School of Law, and especially Jane Krishnadas and Nicky Priaulx, for welcoming him as Visiting Fellow during which time this paper was substantially expanded. This paper has benefited greatly from the comments the Author received in his guest seminar at Keele University School of Law (9 May 2006) based on an earlier version. The Author is further grateful to Eric Heinze, Clare Hemmings, and the participants in the Author's guest seminars at the Centre for Comparative and Public Law at the University of Hong Kong (15 September 2006) and the Centre for International and Public Law at the Australian National University (20 October 2006) for their valuable comments on subsequent versions of this paper, and to Kevin Boreham for correcting him on an important point and Ann Kent for passing on information on a recent development in China. Last but not least, the Author is indebted to Paul Serfaty for all the support and confidence he has given him in his academic endeavours, and for their partnership.

Notes

1. See Patrick Devlin, The Enforcement of Morals (London: Oxford University Press 1965); contrast with Ronald Dworkin, ‘Lord Devlin and The Enforcement of Morals’, Yale Law Journal, Vol.75 (1966), p.986; H. L. A. Hart, ‘Social Solidarity and the Enforcement of Morality’, University of Chicago Law Review, Vol.35 (1967), p.1, and H. L. A. Hart, Liberty and Morality (London: Oxford University Press 1971). See also Russell Hittinger, ‘The Hart–Devlin Debate Revisited’, American Journal of Jurisprudence, Vol.35 (1990), p.47.

2. For a discussion on negative electoral campaigning, see Richard R. Lau and Gerald M. Pomper, ‘Effects of Negative Campaigning on Turnout in U.S. Senate Elections, 1988–1998’, Journal of Politics, Vol.63 (2001), p.804.

3. They are, namely, Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah.

4. Lockyer v. California, S122923, 12 August 2004.

5. Goodridge v. Department of Public Health, 440 Mass 309 (2003); see also subsequent In re Opinions of the Justices to the Senate, 440 Mass 1201 (2004), on the question of whether civil union would be sufficient to satisfy the Council's judgment in Goodridge, which the Council answered in the negative.

6. The constitutional amendments to the respective State Constitutions of Arkansas, Georgia, Kentucky, Michigan, North Dakota, and Oklahoma proscribe official recognition also of civil union and domestic partnership, with Ohio prohibiting the state from granting any recognition or benefits to same-sex couples that are attributable to their same-sex relational status.

7. These countries include Denmark (including Greenland), Norway, Sweden, Hungary, Iceland, France, Germany, Portugal, Finland, Croatia, Israel, Luxembourg, New Zealand, the United Kingdom, Andorra, Slovenia, Austria, and Switzerland.

8. The various states include Vermont, California, Oregon, Hawaii, New Jersey, Maine, and Connecticut, as well as the District of Columbia.

9. It must be pointed out, however, that Hawaii in 1998 amended its Constitution only to permit the legislature ‘to reserve marriage to opposite-sex couples’, and the Hawaiian state legislature has since refrained from so acting. The other state jurisdictions that have amended their constitutions to disallow official recognition of same-sex marriage are Alabama, Alaska, Colorado, Idaho, Kansas, Louisiana, Missouri, Nebraska, Nevada, South Carolina, South Dakota, Tennessee, Texas, Virginia, and Wisconsin.

10. Constitution of the United States of America, Art.V.

11. 517 US 620 (1996).

12. Phil C. W. Chan, ‘The Lack of Sexual Orientation Anti-Discrimination Legislation in Hong Kong: Breach of International and Domestic Legal Obligations’, International Journal of Human Rights, Vol.9 (2005), p.69.

13. Leung T. C. William Roy v. Secretary for Justice [2005] 3 HKLRD 657.

14. The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, 29 ILM 1519 (1990), as adopted by the Seventh National People's Congress at its Third Session on 4 April 1990 in pursuance of the 1984 Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, 23 ILM 1366 (1984).

15. Basic Law of Hong Kong, Art.25.

16. Adopted and opened for signature, ratification and accession by U.N. G.A. Res. 2200A(XXI) of 16 December 1966 and entered into force on 23 March 1976.

17. Basic Law of Hong Kong, Art.39.

18. Hong Kong Bill of Rights Ordinance (Cap. 383), Art.22.

19. Secretary for Justice v. Leung T. C. William Roy [2006] 4 HKLRD 211.

20. See, e.g., Phil Chan, ‘Everyone is Equal before the Law’, South China Morning Post, 10 August 2004, p.A11; Tim Cribb, ‘Justice for All: Gay Lobby Groups and Religious Bodies Appear Set for a Showdown as the Government Moves a Step Closer to Formulating Anti-Discrimination Laws’, South China Morning Post, 27 January 2005, p.A16.

21. Law Reform Commission of Hong Kong, Report on Laws Governing Homosexual Conduct (Topic 2) (Hong Kong: Law Reform Commission of Hong Kong 1983); Hong Kong Government, Homosexual Offences: Should the Law Be Changed? – A Consultation Paper (Hong Kong: Government Printer 1988); Home Affairs Bureau, Equal Opportunities: A Study on Discrimination on the Ground of Sexual Orientation: A Consultative Paper (Hong Kong: Government Printer 1996).

22. William M. Evan, ‘Law as an Instrument of Social Change’, in Alvin W. Gouldner and S. M. Miller (eds), Applied Sociology: Opportunities and Problems (New York: Free Press 1965), pp.285–93 at p.286.

23. (1866) 1 LR P & D 130.

24. Ibid. p.133.

25. Section 40(1) of the Marriage Ordinance (Cap.181) states that ‘[e]very marriage under this Ordinance shall be a Christian marriage or the civil equivalent of a Christian marriage.’ Section 40(2) goes on to elucidate that ‘[t]he expression “Christian marriage or the civil equivalent of a Christian marriage” implies a formal ceremony recognized by the law as involving the voluntary union for life of one man and one woman to the exclusion of all others.’

26. It is pertinent to note that under Article 158 of the Basic Law of Hong Kong, the power of interpretation of the Basic Law of Hong Kong is vested in the Standing Committee of the National People's Congress of the People's Republic of China ultimately. However, the same provision prescribes that the Standing Committee ‘shall authorise the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region’ (emphasis added). It is submitted that the equal recognition and protection of sexual minorities in Hong Kong in general and in relation to the marriage laws of Hong Kong, which does not ‘[concern] affairs which are the responsibility of the Central People's Government, or [concern] the relationship between the Central Authorities and the Region’ (ibid.), falls within the limits of autonomy of the Region, so much so that the Central Authorities are not to intervene. (Indeed, it is worth noting that it is official policy of the Central Authorities that sexual minorities do not exist within their jurisdiction, such that there are no explicit laws concerning homosexuality.) For a discussion on Article 158 and its constitutional, legal and political implications, see Phil C. W. Chan, ‘Hong Kong's Political Autonomy and its Continuing Struggle for Universal Suffrage’, Singapore Journal of Legal Studies [2006].

27. A. Belden Fields and Wolf-Dieter Narr, ‘Human Rights as a Holistic Concept’, Human Rights Quarterly, Vol.14 (1992), p.1 at p.5.

28. 25 Henr. VIII c.6. According to H. Montgomery Hyde, The Other Love: An Historical and Contemporary Survey of Homosexuality in Britain (London: Heinemann 1970), p.40, the statute was repealed in 1553, by 1 Mar. c.1; but reinstated intact in 1563, by 5 Eliz. I c.17. Mandatory death penalty was replaced with life imprisonment under section 61 of the Offences Against the Person Act 1861 (c. 100) as the maximum penalty for anal intercourse between males.

29. Offences Against the Person Act 1861, s.61.

30. Offences Against the Person Ordinance 1865, s.50.

31. Criminal Law Amendment Act 1885 (c.69), s.11, since repealed by section 140 of and Schedule 7 to the Sexual Offences Act 2003 (c.42). The equivalent legislative provision in Hong Kong was section 51 of the Offences Against the Person Ordinance (Cap.212), since repealed and replaced by section 118H of the Crimes Ordinance (Cap.200) which provides that ‘[a] man who (a) commits an act of gross indecency with a man under the age of 21; or (b) being under the age of 21 commits an act of gross indecency with another man, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 2 years.’

32. R. v. Hornby and Peaple [1946] 2 All ER 487.

33. Sexual Offences Act 2003, s.140 and Sch.7.

34. Jeffrey Weeks, Coming Out: Homosexual Politics in Britain from the Nineteenth Century to the Present, revised ed. (London and New York: Quartet Books 1990), p.22; Donald J. West and Andrea Wöelke, ‘England’, in Donald J. West and Richard Green (eds), Sociolegal Control of Homosexuality: A Multi-Nation Comparison (New York: Plenum Press 1997), pp.197–220 at p.197.

35. Nicholas Bamforth, Sexuality, Morals and Justice: A Theory of Lesbian and Gay Rights Law (London: Cassell 1997), p.25.

36. Richard Plant, The Pink Triangle: The Nazi War Against Homosexuals (New York: H. Holt 1986).

37. Nicole LaViolette and Sandra Whitworth, ‘No Safe Haven: Sexuality as a Universal Human Right and Gay and Lesbian Activism in International Politics’, Millennium: Journal of International Studies, Vol.23 (1994), p.563.

38. Amnesty International, Breaking the Silence: Human Rights Violations Based on Sexual Orientation (London: Amnesty International 1997).

39. Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No.005), opened for signature on 4 November 1950 and entered into force on 3 September 1953. The Convention was amended subsequently by Protocol No.11 (ETS No.155) to the Convention, opened for signature on 11 May 1994 and entered into force on 1 November 1998, to the effect that the then existing supervisory mechanism, consisting of a European Court of Human Rights and a European Commission of Human Rights, be restructured and replaced with a single and permanent European Court of Human Rights. For an account of the theory and practice of the European Convention on Human Rights, see P. van Dijk and G. J. H. van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd ed. (The Hague: Kluwer International 1998).

40. West and Wöelke (note 34) pp.197–8.

41. Great Britain Committee on Homosexual Offences and Prostitution, Report of the Committee on Homosexual Offences and Prostitution, Cmnd.247 (London: Her Majesty's Stationery Office 1957).

42. Section 12(1) of the Sexual Offences Act 1956 (c.69), since repealed by section 140 of and Schedule 7 to the Sexual Offences Act 2003, states that ‘[i]t is felony for a person to commit buggery with another person or with an animal.’ Although the felony of buggery as stipulated by the provision was not limited by any gender imposition, the history of the offence of buggery as antecedent (as from 1533) and subsequent (up to 2003) to the provision in the 1956 Act, together with the fact that only males and not females were capable of committing gross indecency (or the procurement thereof), a similarly classed unnatural offence originating in section 11 of the Criminal Law Amendment Act 1885 (c.69) and reinforced by section 13 of the same 1956 Act which was repealed in toto by the 2003 Act, sufficiently demonstrates that the felony of buggery as stipulated (yet undefined) by section 12(1) exclusively targeted a man who engaged in sexual conduct with another man and not a woman who engaged in sexual conduct with another woman or an individual who engaged in sexual conduct with another individual whose gender differs from his or hers.

43. Sexual Offences Act 1967 (c.60), s.1(1).

44. Homosexuality was decriminalised in Scotland only in 1980 by section 80 of the Criminal Justice (Scotland) Act 1980 (c.62) and in Northern Ireland in 1982 by Article 3 of the Homosexual Offences (Northern Ireland) Order 1982 (S.I.1982/1536 (N.I.19)).

45. Canada, for instance, decriminalised homosexuality in 1969 by section 7 of the Criminal Law Amendment Act 1968–69, S.C.1968–69, c.38. The then Prime Minister Pierre Trudeau was quoted in John Yogis, Randall Duplak and J. Royden Trainor, Sexual Orientation and Canadian Law: An Assessment of the Law Affecting Lesbian and Gay Persons (Toronto: Emond Montgomery Publications 1996), p.2, as declaring that ‘the criminal law has no place in the bedrooms of the nation’.

46. Alfred Kinsey, Wardell B. Pomeroy and Clyde E. Martin, Sexual Behavior in the Human Male (Philadelphia: Saunders 1948); Alfred Kinsey et al., Sexual Behavior in the Human Female (Philadelphia: Saunders 1953).

47. See American Psychiatric Association, ‘Position Statement on Homosexuality and Civil Rights’, American Journal of Psychiatry, Vol.131, No.4 (1973), p.497.

48. (1981) 4 EHRR 149.

49. 478 US 186 (1986).

50. Local Government Act 1986 (c.10).

51. Local Government Act 1988 (c.9), s.42(2).

52. Local Government Act 1988.

53. Local Government Act 2003 (c.26), s.127(2) and Sch.8(1), para.1. The Scottish Parliament in July 2000 repealed Section 28 by its Ethical Standards in Public Life etc. (Scotland) Act 2000 (2000 asp 7), s.36(1) and Sch.4, para.1.

54. Local Government Act 1986, s.2A.

55. 1(3) IHRR 97 (1994).

56. Ibid. para.6.8.

57. Article 26 of the International Covenant on Civil and Political Rights states that ‘[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, religion, political or other opinion, national or social origin, property, birth or other status.’

58. Toonen (note 55) para.8.7.

59. (1997) 24 EHRR CD22.

60. Section 145 of the Criminal Justice and Public Order Act 1994 (c.33), amended in 2000 and subsequently repealed in 2003, stipulated the age of consent for male same-sex sexual activity at 18.

61. Section 6 of the Sexual Offences Act 1956 (c.69) stipulates the age of consent for vaginal intercourse at 16.

62. Article 14 of the European Convention on Human Rights states that ‘[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national authority, property, birth or other status.’ It should be noted that the European Court of Human Rights in X and Y v. The Netherlands (1986) 8 EHRR 235, at para.32, ruled that Article 14 ‘has no independent existence; it constitutes one particular element (non-discrimination) of each of the rights safeguarded by the Convention. The Articles enshrining those rights may be violated alone or in conjunction with Article 14. An examination of the case under Article 14 is not generally required when the Court finds a violation of one of the former Articles taken alone. The position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case.’ However, in accordance with Protocol 12 to the European Convention on Human Rights (ETS No.177), signed at Rome on 4 November 2000 and entered into force 1 April 2005, it is now no longer necessary to allege and establish breach of a Convention right in order for a claim of discrimination to succeed under the Convention, so long as the right in question is set forth by law (Article 1, taken under Article 3 as additional article to the Convention).

63. Article 8(1) of the European Convention on Human Rights states that ‘[e]veryone has the right to respect for his private and family life, his home and his correspondence.’

64. Salgueiro da Silva Mouta v. Portugal (2001) 31 EHRR 1055; Smith and Grady v. United Kingdom (2000) 29 EHRR 493.

65. United Nations Human Rights Committee, Communication No. 941/2000, CCPR/C/78/D/941/2000, 6 August 2003.

66. Ibid. para.10.4.

67. Ibid. para.12.

68. Canadian Charter of Rights and Freedoms (Part I, Constitution Act 1982, S.C.1982, c.79; Canada Act 1982 (United Kingdom), c.11).

69. Egan v. Canada (1995), 124 DLR (4th) 609.

70. Section 15(1) of the Canadian Charter of Rights and Freedoms states that ‘[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’ It should be pointed out that discrimination may be justified under section 1 of the Charter in that ‘[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’

71. Vriend v. Alberta (1998) 156 DLR (4th) 385.

72. The age of consent for anal intercourse was set at 18 by section 159(2)(b) of the Canadian Criminal Code. Sub-section (2)(a) of the provision provided that an underage married couple, consisting of husband and wife, be exempt from conviction for the offence of anal intercourse. Such marital status defence was denounced by Ontario Court of Appeal Justice Abella (as she then was) in R. v. M. (C.), (1995) 98 CCC (3d) 481, 488: ‘The grounds of age and marital status are also engaged, not only because s.159 has a particularly disparate impact on how the consensual sexual choices of adolescent gay men are treated, but also because the exemption for “husband and wife” is clearly illusory for a gay couple. However, these grounds are inextricable from the conclusion that the violation of equality is based primarily on sexual orientation and, in my view, analytically offer no independent grounds upon which to found a s.15 violation. The age and marital status grounds are triggered because they are aspects of how s.159 disproportionately and arbitrarily disadvantages gay men; but absent their relationship to sexual orientation it is difficult to see how, on their own, they are violative of the equality guarantee. I agree, therefore, with the respondent's and interveners’ submissions that s.159 of the Criminal Code arbitrarily disadvantages gay men and therefore violates s.15 of the Charter on the grounds of sexual orientation.'

73. The age of consent for vaginal intercourse is set at 14 by section 151 of the Canadian Criminal Code.

74. Ontario Court of Appeal Justice Abella (as she then was) in R. v. M. (C.) (note 72) maintained, at 488, that ‘[a]nal intercourse is a basic form of sexual expression for gay men. The prohibition of this form of sexual conduct found in s.159 accordingly has an adverse impact on them. Unmarried, heterosexual adolescents 14 or over can participate in consensual intercourse without criminal penalties; gay adolescents cannot. It perpetuates rather than narrows the gap for an historically disadvantaged group – gay men – it does so arbitrarily and stereotypically and is, therefore, a discriminatory provision which infringes the guarantee of equality.’

75. R. v. Roy, (1998) 101 DLR (4th) 148 (Québec Court of Appeal); R. v. M. (C.), ibid. (Ontario Court of Appeal).

76. (1999) 1 SA 6.

77. 39(4) ILM 798 (2000).

78. Case CCT 232/03, 30 November 2004.

79. Minister of Home Affairs v. Fourie, Case CCT 60/04, 1 December 2005.

80. Civil Union Act 2006.

81. Final Constitution of the Republic of South Africa of 1996, Art.9(3). Article 9(5) of the Constitution goes on to indicate that discrimination on any of the grounds in Article 9(3) is deemed to be unfair ‘unless it is established that the discrimination is fair.’

82. Article 9(4), ibid., states that ‘[n]o person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.’

83. Ibid. Art.10.

84. Sexual Offences Act 2003, s.140 and Sch.7.

85. Signed and proclaimed by Presidents of the European Parliament, of the Council of the European Union, and of the European Commission at the European Council meeting in Nice on 7 December 2000.

86. Article 21 of the Charter states that ‘[a]ny discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall beprohibited.’

87. 539 US 558 (2003).

88. Carole J. Petersen, ‘Hong Kong and the Unprecedented Transfer of Sovereignty: Values in Transition: The Development of the Gay and Lesbian Rights Movement in Hong Kong’, Loyola of Los Angeles International and Comparative Law Review, Vol.19 (1997), p.337 at p.340.

89. For a complete account of the MacLennan Affairs, see Sir T. L. Yang, Report of the Commission of Inquiry into Inspector MacLennan's Case (Hong Kong: Government Printer 1981).

90. Law Reform Commission of Hong Kong, Report on Laws Governing Homosexual Conduct (Topic 2) (Hong Kong: Law Reform Commission of Hong Kong 1983).

91. Ibid. para.12.11.

92. Ibid. para.12.22. See also Petersen (note 88) p.344.

93. Hong Kong Government, Homosexual Offence: Should the Law Be Changed? – A Consultation Paper (Hong Kong: Government Printer 1988).

94. Ibid. para.19.

95. Ibid.

96. Norman J. Miners, The Government and Politics of Hong Kong, 5th ed. (Hong Kong: Oxford University Press 1991), p.27.

97. Basic Law of Hong Kong, Art.39.

98. Hong Kong Bill of Rights Ordinance (Cap.383), Art.22.

99. Hong Kong: Official Report of the Proceedings of the Legislative Council (Hansard) (1990/11 July 1990), P.2, p.1964.

100. Ibid. per Attorney General of Hong Kong Jeremy Mathews, p.1971.

101. Hong Kong, Official Report of the Proceedings of the Legislative Council (Hansard) (1991/10 July 1991), P.3, p.2738.

102. Crimes (Amendment) Ordinance 1991.

103. Crimes Ordinance (Cap.200), s.118C.

104. Phil C. W. Chan, ‘The Gay Age of Consent in Hong Kong’, Criminal Law Forum, Vol.15 (2004), p.273.

105. Leung T. C. William Roy v. Secretary for Justice [2005] 3 HKLRD 657.

106. Secretary for Justice v. Leung T. C. William Roy [2006] 4 HKLRD 211.

107. Hong Kong Government, Homosexual Offence: Should the Law Be Changed? – A Consultation Paper (Hong Kong: Government Printer 1988).

108. Ibid. para.43.

109. Ibid. para.5.

110. Subcommittee to Study Discrimination on the Ground of Sexual Orientation, ‘Minutes of Meeting of the Subcommittee to Study Discrimination on the Ground of Sexual Orientation held on 8 October 2001’: LC Paper No.CB(2)516/01–02, para.6.

111. [1973] AC 435.

112. Ibid. per Lord Reid, pp.458–9.

113. Hong Kong (Hansard) (note 101) per Legislative Councillor Selina Chow Liang Shuk-Yee, p.2741.

114. Mike Hepworth, Blackmail: Publicity and Secrecy in Everyday Life (London: Routledge 1975), p.72.

115. Crimes Ordinance, s.124.

116. Laud Humphreys, Out of the Closets: The Sociology of Homosexual Liberation (Englewood Cliffs, NJ: Prentice-Hall 1972), p.22.

117. Section 23(3) of the Theft Ordinance (Cap.210) states that ‘[a]ny person who commits blackmail shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years.’

118. Subcommittee (note 110) para.9.

119. Subcommittee to Study Discrimination on the Ground of Sexual Orientation, ‘Minutes of Meeting of the Subcommittee to Study Discrimination on the Ground of Sexual Orientation held on 29 November 2001’: LC Paper No.CB(2)2723/01-02, para.27.

120. Subcommittee (note 110) para.15.

121. [1992] 1 HKCLR 127.

122. Ibid. per Silke V.-P., p.141.

123. Ibid.

124. (1993) 3 HKPLR 72.

125. In an opt-quoted passage, Lord Woolf, ibid. p.100, maintained that ‘[w]hile the Hong Kong judiciary should be zealous in upholding an individual's rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public. In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature's attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime. It must be remembered that questions of policy remain primarily the responsibility of the legislature.’

126. [1998] 1 HKLRD 350.

127. Ibid. per Bokhary P.J., p.377.

128. (1989) 56 DLR (4th) 1.

129. Ibid. per McIntyre J., p.18.

130. (1968) 1 EHRR 252.

131. Ibid. p.284.

132. [1992] 2 HKCLR 207.

133. Ibid. per Bokhary J.A., p.217.

134. Andrews (note 128) per McIntyre J., p.18.

135. [1986] 1 SCR 103.

136. Ibid. per Dickson C.J., pp.138–9, citing R. v. Big M Drug Mart Limited, [1985] 1 SCR 295 at 352.

137. Hong Kong Bill of Rights Ordinance, s.7. As has been argued in Chan (note 12), the Hong Kong government's continued refusal to enact a Sexual Orientation Discrimination Ordinance notwithstanding the prevalence of discrimination and harassment in the community against members of sexual minorities amounts to discrimination by the government itself.

138. Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Oxford: Hart 1998), p.77.

139. See, e.g., John Flowerdew, The Final Years of British Hong Kong: The Discourse of Colonial Withdrawal (Basingstoke: Macmillan 1998).

140. See Chan (note 26).

141. Equal Opportunities Bill 1994, Legal Supplement No.3 to the Hong Kong Government Gazette, 1 July 1994, C991–C1275.

142. Ibid. C1012.

143. Kathleen Cheek-Milby, A Legislature Comes of Age: Hong Kong's Search for Influence and Identity (Hong Kong: Oxford University Press 1995), p.243.

144. L. C. Chau, ‘Labour and the Labour Market’, in H. C. Y. Ho and L. C. Chau (eds), The Economic System of Hong Kong (Hong Kong: Asian Research Services 1988), pp.169–89 at p.169.

145. Sex Discrimination Bill 1994, Legal Supplement No.3 to the Hong Kong Government Gazette, 14 October 1994, C1381–C1535.

146. Disability Discrimination Bill 1995, Legal Supplement No.3 to the Hong Kong Government Gazette, 21 April 1995, C965–C1103.

147. The two Bills were passed and enacted as the Sex Discrimination Ordinance (Cap.480) and the Disability Discrimination Ordinance (Cap.487) respectively.

148. Petersen (note 88) p.356.

149. Sex Discrimination Ordinance, s.63

150. Equal Opportunities (Family Responsibility, Sexuality and Age) Bill 1995, Legal Supplement No.3 to the Hong Kong Government Gazette, 30 June 1995, C1659–C1767.

151. Home Affairs Bureau, Equal Opportunities: A Study on Discrimination on the Ground of Sexual Orientation: A Consultative Paper (Hong Kong: Government Printer, 1996).

152. Ibid., para.51.

153. Nonetheless, there was enacted in 1997 a law that prohibits discrimination on grounds of family status, i.e., the Family Status Discrimination Ordinance (Cap.527).

154. Chan (note 12).

155. The Equal Opportunities Commission, created under section 63 of the Sex Discrimination Ordinance, is empowered to function and to launch formal investigations under sections 64 and 70 of the Sex Discrimination Ordinance; under sections 62 and 66 of the Disability Discrimination Ordinance; and under sections 44 and 48 of the Family Status Discrimination Ordinance. It follows that without a Sexual Orientation Discrimination Ordinance and the corresponding provisions therein the Commission is not capable of handling complaints or indeed enquiries that are based on grounds of sexual orientation. It should be noted, furthermore, that the Commission, due to its consistent success in fighting discrimination by the government, naturally is at odds with the government and its inaugural Chairperson Anna Wu was not offered renewal of her term, notwithstanding the recognition conferred upon the Commission by international bodies such as the United Nations Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights (Hong Kong): China, E/C.12/1/Add.58 (21 May 2001), para.7, that ‘[t]he Committee notes with satisfaction that the Equal Opportunities Commission established in 1996 is effectively carrying out its mandate without interference from the Government of [Hong Kong].’

156. See Ravina Shamdasani, ‘Gays to March for Equality Law’, South China Morning Post, 13 May 2005, p.A2.

157. For a discussion on the legal implications of the Hong Kong government's objection to civil partnership registration at the British consulate in the territory, see Phil C. W. Chan, ‘UK Civil Partnership Registration in Hong Kong under the Vienna Convention on Consular Relations and Strasbourg Jurisprudence’, King's College Law Journal, Vol.17, No.2 (2006), p.365.

158. Leung T. C. William Roy v. Secretary for Justice [2005] 3 HKLRD 657.

159. Secretary for Justice v. Leung T. C. William Roy [2006] 4 HKLRD 211.

160. Oliver Phillips, ‘Zimbabwean Law and the Production of a White Man's Disease’, Social & Legal Studies, Vol.6, No.4 (1997) Special Issue: Legal Perversions (ed. Leslie J. Moran), p.471 at p.474.

161. W. Michael Reisman, Law in Brief Encounters (New Haven, CT: Yale University Press 1999), p.154.

162. Abdullahi Ahmed An-Na‘im, ‘Toward a Cross-Cultural Approach to Defining International Standards of Human Rights’, in Abdullahi Ahmed An-Na‘im (ed.), Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia: University of Pennsylvania Press 1992), pp.19–43 at pp.27–28.

163. Shalom H. Schwartz, ‘Cultural Dimensions of Values: Toward an Understanding of National Differences’, in Uichol Kim, Harry C. Triandis, Cigdem Kagitcibasi, Sang-Chin Choi and Gene Yoon (eds), Individualism and Collectivism: Theory, Method, and Application (Thousand Oaks, CA: Sage 1994), pp.85–119 at p.92.

164. William K. Gabrenya, Jr. and Kwang-Kuo Hwang, ‘Chinese Social Interaction: Harmony and Hierarchy on the Good Earth’, in Michael Harris Bond (ed.), The Handbook of Chinese Psychology (Hong Kong: Oxford University Press 1996), pp.309–21 at p.310.

165. Ibid. p.309.

166. Fareed Zakaria, ‘Culture Is Destiny: A Conversation with Lee Kuan Yew’, Foreign Affairs, Vol.73, No.2 (1994), p.109.

167. Ibid. p.113.

168. David Y. F. Ho, ‘Filial Piety and Its Psychological Consequences’, in Bond (note 164) pp.155–65 at p.155.

169. Ibid.

170. Rhoda E. Howard, ‘Dignity, Community, and Human Rights’, in An-Na‘im (note 162) pp.81–101 at p.81.

171. Rhoda Howard, ‘Cultural Absolutism and the Nostalgia for Community’, Human Rights Quarterly, Vol.15 (1993), p.315 at p.335.

172. Fang-fu Ruan, ‘China’, in West and Green (note 34) pp.57–66 at p.57.

173. Matthew Harvey Sommer, Sex, Law, and Society in Late Imperial China (Palo Alto, CA: Stanford University Press 2000), p.114.

174. Ruan (note 172) p.63.

175. Ibid. pp.63–5.

176. Ibid. p.63.

177. Max Weber, The Religion of China: Confucianism and Taoism, trans. and ed. Hans H. Gerth (New York: Free Press 1951), p.144.

178. Tik-sang Liu, ‘A Nameless but Active Religion: An Anthropologist's View of Local Religion in Hong Kong and Macau’, China Quarterly, Vol.174 (2003), p.373 at p.390.

179. Eric Heinze, ‘Sexual Orientation and International Law: A Study in the Manufacture of Cross-Cultural “Sensitivity”’, Michigan Journal of International Law, Vol.22 (2001), p.283 at p.306.

180. See, e.g., Mei-Ling Hsu, Wen-Chi Lin and Tsui-Sung Wu, ‘Representations of “Us” and “Others” in the AIDS News Discourse: A Taiwanese Experience’, in Evelyne Micollier (ed.), Sexual Cultures in East Asia: The Social Construction of Sexuality and Sexual Risk in a Time of AIDS (London and New York: RoutledgeCurzon 2004), pp.183–222.

181. Ruth Fletcher, ‘Post-colonial Fragments: Representations of Abortion in Irish Law and Politics’, Journal of Law and Society Vol. 28 (2001), p.568 at p.573.

182. Ibid. p.570.

183. Clare Hemmings, ‘What's in a Name? Bisexuality, Transnational Sexuality Studies and Western Colonial Legacies’, in this Special Double Issue, p.13 at p.16.

184. Phillips (note 160) p.472.

185. Mary McIntosh, ‘The Homosexual Role’, in Steven Seidman (ed.), Queer Theory/Sociology (Cambridge, MA: Blackwell 1996), pp.33–40 at p.35.

186. See Kinsey, Pomeroy and Martin (note 46); Kinsey et al. (note 46).

187. See Phil C. W. Chan, ‘Hong Kong's Proposed Race Anti-Discrimination Legislation: A Discriminatory Bill Excluding Mainland Chinese Immigrants from Protection’, Chinese Journal of International Law, Vol.4 (2005), p.599.

188. Chaihark Hahm, ‘Law, Culture, and the Politics of Confucianism’, Columbia Journal of Asian Law, Vol.16 (2003), p.253 at p.257.

189. Ibid. p.269.

190. Ibid. p.279.

191. Ibid.

192. Will Kymlicka, Liberalism, Community and Culture (Oxford: Clarendon Press 1989), p.167.

193. Phil C. W. Chan, ‘No, it is not just a Phase: An Adolescent's Right to Sexual Minority Identity under the United Nations Convention on the Rights of the Child’, International Journal of Human Rights, Vol.10 (2006), p.161.

194. Adopted and opened for signature, ratification and accession by U.N. G.A. Res. 44/25 of 20 November 1989 and entered into force on 2 September 1990.

195. Sonia K. Katyal, ‘Sexuality and Sovereignty: The Global Limits and Possibilities of Lawrence’, William and Mary Bill of Rights Journal, Vol.14 (2006), p.1429.

196. Hong Kong (Hansard) (note 101) per Legislative Councillor Leung Wai-Tung, p.2747.

197. Stephen Macedo, ‘Homosexuality and the Conservative Mind’, Georgetown Law Journal, Vol.84 (1995), p.261 at p.299.

198. Dworkin (note 1) p.1002.

199. Chan (note 187).

200. (1995) 124 DLR (4th) 609.

201. Ibid. per La Forest J., p.619.

202. National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs (note 77) per Ackermann J., para.38.

203. 440 Mass 309 (2003).

204. 32 Cal 2d 711 (1948) (Supreme Court of California).

205. 388 US 1 (1967) (Supreme Court of the United States).

206. Goodridge (note 203) per Marshall C.J.

207. Fourie (note 78) per Cameron J.A. (with Mthiyane J.A., van Heerden J.A., Ponnan A.J.A. concurring), para.10.

208. 1997 (4) SA 1.

209. Ibid. per Goldstone J., para.41.

210. National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs (note 77) per Ackermann J., para.42.

211. Ibid. para.54.

212. (1998) 156 DLR (4th) 385.

213. Ibid. per Cory J., para.69.

214. See Carol Steiker, ‘The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification’, Harvard Law Review, Vol.98 (1985), p.1285.

215. See Chan (note 193).

216. Richard A. Posner, Sex and Reason (Cambridge, MA: Harvard University Press 1992), pp.296–7.

217. Chan (note 193) p.170.

218. Home Affairs Bureau, Consultative Paper (note 151) para.34.

219. Ibid.

220. Bernard Gert, Morality: Its Nature and Justification (New York and Oxford: Oxford University Press 1998), p.11.

221. Chan (note 12) pp.78–9.

222. Anoop Nayak and Mary Jane Kehily, ‘Playing It Straight: Masculinities, Homophobias and Schooling’, Journal of Gender Studies, Vol.5 (1996), p.211 at p.225.

223. Kathryn Abrams, ‘“Fighting Fire with Fire”: Rethinking the Role of Disgust in Hate Crimes’, California Law Review, Vol.90 (2002), p.1423 at p.1449.

224. Home Affairs Bureau, Consultative Paper (note 151) para.51.

225. Ann Hartman, ‘Out of the Closet: Revolution and Backlash’, Social Work, Vol.38 (1993), p.245 at p.245.

226. In December 1998, the Board of Trustees of the American Psychiatric Association condemned the use of reparative therapy for sexual minorities. Its unanimous Position Statement on Psychiatric Treatment and Sexual Orientation states that ‘[t]he potential risks of reparative therapy are great, including depression, anxiety and self-destructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce self-hatred already experienced by the patient. Many patients who have undergone reparative therapy relate that they were inaccurately told that homosexuals are lonely, unhappy individuals who never achieve acceptance or satisfaction. The possibility that the person might achieve happiness and satisfying interpersonal relationships as a gay man or lesbian is not presented, nor are alternative approaches to dealing [with] the effects of societal stigmatization discussed. … Therefore, the American Psychiatric Association opposes any psychiatric treatment, such as reparative or conversion therapy which is based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that the patient should change his/her sexual homosexual orientation.’ The American Psychiatric Association's warning was further augmented by its Position Statement on Therapies Focused on Attempts to Change Sexual Orientation (Reparative or Conversion Therapies) adopted in March 2000, which expands and elaborates on the 1998 resolution.

227. Phil C. W. Chan, ‘Truth and Light Casts an Unwelcome Shadow’, The Standard, 6 October 2005, p.A37.

228. Petersen (note 88) p.360.

229. Ibid. p.361.

230. Paul J. Kelly, ‘Impartiality: A Philosophical Perspective’, in András Sajó (ed.), Judicial Integrity (Leiden: Martinus Nijhoff Publishers 2004), pp.17–42 at pp.17–18.

231. J. Donald C. Galloway, ‘Three Models of (In)Equality’, McGill Law Journal, Vol.38 (1993), p.64 at pp.84–5.

232. Egan (note 200) per Iacobucci J., p.676.

233. Ibid., per L'Heureux-Dubé J., p.650.

234. Dworkin (note 1) pp.1000–1.

235. Department of Health, Press Release, 29 August 2006: ‘AIDS situation in the second quarter of 2006’, http://www.info.gov.hk/aids/english/press/2006/060829.htm (accessed 31 October 2006).

236. Subcommittee (note 110) para.50.

237. R. v. M. (C.), (1995) 98 CCC (3d) 481 at 488.

238. Leung T. C. William Roy v. Secretary for Justice [2005] 3 HKLRD 657 at 693–94 (Hong Kong Court of First Instance); Secretary for Justice v. Leung T. C. William Roy [2006] 4 HKLRD 211 at 236–37 (Hong Kong Court of Appeal).

239. Crimes Ordinance, s.118D.

240. Subcommittee to Study Discrimination on the Ground of Sexual Orientation, ‘Minutes of Meeting of the Subcommittee to Study Discrimination on the Ground of Sexual Orientation held on 19 April 2001’: LC Paper No.CB(2)2188/00-01, para.21.

241. Carlos A. Ball, ‘Moral Foundations for a Discourse on Same-Sex Marriage: Looking Beyond Political Liberalism’, Georgetown Law Journal, Vol.85 (1997), p.1871 at pp.1912–3.

242. Andrew Koppelman, ‘Is Marriage Inherently Heterosexual?’, American Journal of Jurisprudence, Vol.42 (1997), p.51 at p.62.

243. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press 1986), p.206.

244. 381 US 479 (1965).

245. Ibid. per Douglas J., p.486.

246. Timothy E. Lin, ‘Social Norms and Judicial Decisionmaking: Examining the Role of Narratives in Same-Sex Adoption Cases’, Columbia Law Review, Vol.99 (1999), p.739 at pp.741–2, quoting Julie Shapiro, ‘Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their Children’, Indiana Law Journal, Vol.71 (1996), p.623 at p.624.

247. Didi Herman, ‘(Il)legitimate Minorities: The American Christian Right's Anti-Gay-Rights Discourse’, Journal of Law and Society, Vol.23 (1996), p.346 at p.359.

248. Wayne Morgan and Kristen Walker, ‘Tolerance and Homosex: A Policy of Control and Containment’, Melbourne University Law Review, Vol.20 (1995), p.202 at p.206.

249. Ibid. p.207.

250. Martti Nissinen, Homoeroticism in the Biblical World: A Historical Perspective (Minneapolis: Fortress Press 1998), p.139.

251. Rhoda E. Howard-Hassmann, ‘Gay Rights and the Right to a Family: Conflicts between Liberal and Illiberal Belief Systems’, Human Rights Quarterly, Vol.23 (2001), p.73 at p.79.

252. Vriend (note 212) per Iacobucci J., p.434.

253. Civil Partnership Act 2004 (c.33), s.1.

254. See texts accompanying notes 7–8.

255. [2006] EWHC 2022 (Fam).

256. Ibid. paras.118–21.

257. (2001) 31 EHRR 1055.

258. Ibid. para.36. Article 14 has since reached the status of a substantive right under the European Convention on Human Rights; see text accompanying note 62.

259. Susan Wilkinson v. Celia Kitzinger and Others (note 255) para.116.

260. In re Opinions of the Justices to the Senate, 440 Mass 1201 (2004).

261. Ibid. per Marshall C.J., Greaney, Ireland, and Cowin JJ.

262. For the respective rulings by the courts of appeal of the three most populous Canadian provinces (two of which with substantial Chinese populations), see Halpern v. Canada (Attorney General), (2003) 225 DLR (4th) 529 (Ontario); Hendricks v. Québec (Procureur general), [2002] RJQ 2506 (Québec); EGALE Canada Inc. v. Canada (Attorney General), (2003) 225 DLR (4th) 472 (British Columbia).

263. [2004] 3 SCR 698.

264. Civil Marriage Act 2005, S.C. 2005, c.33, s.2.

265. Lawrence (note 87) per Scalia J., p.533 (dissenting opinion).

266. Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (New York: W. W. Norton 2005), pp.171–2.

267. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press 1980).

268. John Finnis, ‘Law, Morality, and “Sexual Orientation”’, Notre Dame Law Review, Vol.69 (1994), pp.1049 at p.1064.

269. Ibid. p.1068.

270. Ibid. p.1067.

271. Ibid. p.1055.

272. Macedo (note 197) p.277.

273. Andrew Bainham, ‘Family Law in a Pluralistic Society’, Journal of Law and Society, Vol.22 (1995), p.234 at p.238.

274. (1993) 100 DLR (4th) 658.

275. Ibid. per L'Heureux-Dubé, p.710 (dissenting opinion).

276. National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs (note 77) per Ackermann J., para.51.

277. Basil Chubb, The Politics of the Irish Constitution (Dublin: Institute of Public Administration 1991), p.39.

278. Constitution of Ireland of 1937, Preamble and Art.6(1).

279. State (Ryan) v. Lennon, [1935] IR 170; Ryan v. Attorney General, [1965] IR 294; McGee v. Attorney General and the Revenue Commissioners, [1974] IR 284.

280. Aisling O'Sullivan and Phil C. W. Chan, ‘Judicial Review in Ireland and the Relationship between the Irish Constitution and Natural Law’, Nottingham Law Journal, Vol.15, No.2 (2006), p.18.

281. The Preamble to Bunreacht na hÉireann, or the Constitution of Ireland as promulgated in 1937 by referendum, emphatically states that ‘[i]n the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Éire, [h]umbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, [g]ratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, [a]nd seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, [d]o hereby adopt, enact, and give to ourselves this Constitution.’

282. Article 6(1), ibid., states that ‘[a]ll powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.’

283. The fundamental rights of an individual are recognised and protected by Articles 40 to 44, ibid., where ‘natural law’ is repeatedly emphasised. It is important in this respect to note that in McGee v. Attorney General, [1974] IR 284, Irish Supreme Court Justice Walsh, at p.310, adamantly adjudged that ‘Articles 40, 41, 42 and 44 of the Constitution all fall within that section of the Constitution which is titled “Fundamental Rights”. Articles 41, 42 and 43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection. The individual has natural and human rights over which the State has no authority; and the family, as the natural primary and fundamental unit group of society, has rights as such which the State cannot control.’

284. In re Article 26 and the Information (Termination of Pregnancies) Bill, 1995 [1995] 1 IR 1.

285. [1966] IR 567.

286. [1980] IR 32.

287. F. F. V. R. von Prondzynski, ‘Natural Law and the Constitution’, Dublin University Law Journal (1977), p.32 at p.37.

288. Ibid.

289. Desmond M. Clarke, ‘The Role of Natural Law in the Irish Constitution’, Irish Jurist, Vol.17 (1982), p.187 at p.213.

290. G. v. An Bord Uchtála (note 286) per Kenny J., p.97.

291. (1991) 13 EHRR 186.

292. John Rawls, Political Liberalism (New York: Columbia University Press 1993), p.226.

293. Goodridge (note 203) per Marshall C.J.

294. [1961] IR 345.

295. Ibid. per Budd J., p.368.

296. Timothy W. Reinig, ‘Sin, Stigma and Society: A Critique of Morality and Values in Democratic Law and Policy’, Buffalo Law Review, Vol.38 (1990), p.859 at p.878.

297. See, e.g., Article 22 of the Universal Declaration of Human Rights, adopted and proclaimed by United Nations General Assembly Resolution 217A(III) of 10 December 1948, which states that ‘[e]veryone, as a member of society, has the right to social security and is entitled to realization … of the economic, social and cultural rights indispensable for his dignity and the free development of his personality’ (emphasis added).

298. Robert Wintemute, ‘Lesbian and Gay Inequality 2000: The Potential of the Human Rights Act 1998 and the Need for an Equality Act 2002’, European Human Rights Law Review [2000], p.603 at p.608.

299. Urvashi Vaid, Virtual Equality: The Mainstreaming of Gay and Lesbian Liberation (New York: Anchor 1995), p.194.

300. Reference re Same-Sex Marriage (note 263) per The Court, para.46.

301. Daniel A. Helminiak, What the Bible Really Says about Homosexuality: Recent Findings by Top Scholars Offer a Radical New View (San Francisco: Alamo Square Press 1994), p.12.

302. Kenneth A. Locke, ‘The Bible on Homosexuality: Exploring Its Meaning and Authority’, Journal of Homosexuality, Vol.48, No.2 (2004), p.127.

303. Ibid. pp.128–32. See also John Boswell, Christianity, Social Tolerance and Homosexuality: Gay People in Western Europe from the Beginning of the Christian Era to the Fourteenth Century (Chicago and London: University of Chicago Press 1980), pp.97–8.

304. Locke (note 302) pp.137–44; James B. Nelson, Embodiment: An Approach to Sexuality and Christian Theology (Minneapolis: Augsburg Publishing 1978), pp.186–7; Richard B. Hays, The Moral Vision of the New Testament: A Contemporary Introduction to New Testament Ethics (San Francisco: Harper 1996), p.388; L. William Countryman, Dirt, Greed and Sex: Sexual Ethics in the New Testament and their Implications for Today (Philadelphia: Fortress Press 1988), pp.115–6; M. L. Soards, Scripture and Homosexuality: Biblical Authority and the Church Today (Louisville, KY: Westminster John Knox Press 1995), pp.21–2. In this respect, it is useful to quote Romans 1:18–27 in detail: ‘For the wrath of God is revealed from heaven against all ungodliness and wickedness of those who by their wickedness suppress the truth. For what can be known about God is plain to them, because God has shown it to them. … So they are without excuse; for though they know God, they did not honour him as God or gave thanks to him, but they became futile in their thinking, and their senseless minds were darkened. Claiming to be wise, they became fools; and they exchanged the glory of the immortal God for images resembling a mortal human being or birds or four-footed animals or reptiles. Therefore, God gave them up in the lusts of their hearts to impurity, to the degrading of their bodies among themselves, because they exchanged the truth about God for a lie and worshipped and served the creature rather than the Creator. For this reason God gave them up to degrading passions. Their women exchanged natural intercourse [ten physiken khresin] for unnatural [para physin], and in the same way also the men giving up natural intercourse [ten physiken khresin] with women, were consumed with passion for one another. Men committed shameless acts with men and received in their own persons the due penalty for their error.’

305. Helminiak (note 301) p.64.

306. Locke (note 302) p.148.

307. Fourie (note 78) per Farlam J.A. (concurring and dissenting opinion), para.121.

308. Marriage Ordinance, s.40(1).

309. Hyde (note 23) p.133.

310. Reference re Same-Sex Marriage (note 263) per The Court, para.22.

311. Howard-Hassmann (note 251) p.82.

312. Nissinen (note 250) p.140.

313. [1989] 1 SCR 1296.

314. Ibid. per Wilson J., p.1328.

315. [1994] 3 SCR 835.

316. Ibid. per Lamer C.J., p.877.

317. Egan (note 200) per Cory J., p.675.

318. 543 US 551 (2005). The United States Supreme Court decision, referring to international and Strasbourg decisions, ruled the imposition of death penalty upon juveniles as unconstitutional.

319. An Act for the Relief of the Parents of Theresa Marie Schiavo 2005, http://news.findlaw.com/hdocs/docs/schiavo/bill31905.html (accessed 28 September 2005).

320. See, in particular, Schiavo ex rel. Schindler and Others v. Schiavo, 358 F.Supp.2d 1161 (2005) (United States Court of Appeals for the Eleventh Circuit).

321. Bush v. Schiavo, 885 So.2d 321 (2004).

322. The Los Angeles Times in ‘In ‘88, Accident Forced DeLays to Choose between Life, Death’, 27 March 2005, reported that DeLay himself had opposed artificially prolonging his father's life through a dialysis machine.

323. 347 US 483 (1954).

324. 410 US 113 (1973). The well-known United States Supreme Court decision recognised a constitutional right to abortion.

325. 74 Haw 530 (1993).

326. 110 Stat 2419 (1996).

327. Section 3, ibid., states that ‘[n]o State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.’

328. Section 1 of Article IV of the federal United States Constitution states that ‘[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.’

329. See, e.g., Paige E. Chabora, ‘Congress’ Power under the Full Faith and Credit Clause and the Defense of Marriage Act of 1996', Nebraska Law Review, Vol.76 (1997), p.604; Nancy J. Feather, ‘Defense of Marriage Acts: An Analysis under State Constitutional Law’, Temple Law Review, Vol.70 (1997), p.1017; Heather Hamilton, ‘The Defense of Marriage Act: A Critical Analysis of its Constitutionality under the Full Faith and Credit Clause’, DePaul Law Review, Vol.47 (1998), p.943; Julie L. B. Johnson, ‘The Meaning of “General Laws”: The Extent of Congress's Power under the Full Faith and Credit Clause and the Constitutionality of the Defense of Marriage Act’, University of Pennsylvania Law Review, Vol.145 (1997), p.1611; Andrew Koppelman, ‘Dumb and DOMA: Why the Defense of Marriage Act is Unconstitutional’, Iowa Law Review, Vol.83 (1997), p.351; Scott Ruskay-Kidd, ‘The Defense of Marriage Act and the Overextension of Congressional Authority’, Columbia Law Review, Vol.97 (1997), p.1435; Jeennie R. Shuki-Kunze, ‘The “Defenseless” Marriage Act: The Constitutionality of the Defense of Marriage Act as an Extension of Congressional Power under the Full Faith and Credit Clause’, Case Western Reserve Law Review, Vol.48 (1998), p.351.

330. It should be noted that section 11 of Chapter 207 of the General Laws of Massachusetts states that ‘[n]o marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.’ The constitutionality of the provision was upheld by the Massachusetts Supreme Judicial Council in Sandra Cote-Whitacre v. Department of Public Health, SJC-09436, 30 March 2006.

331. The First Amendment to the United States Constitution states that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’

332. 319 US 624 (1943).

333. Ibid. per Jackson J., pp.637–8.

334. Oakes (note 135) per Dickson C.J., p.225.

335. Goodridge (note 203) per Greaney J. (concurring opinion).

336. F. F. V. R. von Prondzynski, ‘The Protection of Constitutional Rights: Comparisons between Ireland and Germany’, Dublin University Law Journal (1979–80), p.14 at p.28.

337. United Nations Human Rights Committee, General Comment No.19: Protection of the Family, the Right to Marriage and Equality of the Spouses (Art.23), 27 July 1990.

338. International Covenant on Civil and Political Rights, Art.23(2).

339. United Nations Human Rights Committee, General Comment No.19 (note 337) para.2.

340. 1(3) IHRR 97 (1994).

341. Ibid. para.8.7.

342. United Nations Human Rights Committee, Communication No. 941/2000, CCPR/C/78/D/941/2000, 6 August 2003.

343. Ibid. para.10.4.

344. Ibid. para.12.

345. United Nations Human Rights Committee, Communication No.902/1999, CCPR/C/75/D/902/1999, 17 July 2002.

346. Ibid. para.8.3.

347. Article 16 of the International Covenant on Civil and Political Rights states that ‘[e]veryone shall have the right to recognition everywhere as a person before the law.’

348. Article 17(1), ibid., states that ‘[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’ Article 17(2) of the Covenant goes on to state that ‘[e]veryone has the right to the protection of the law against such interference or attacks.’

349. Article 23(1), ibid., states that ‘[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’

350. Joslin v. New Zealand (note 345) para.8.2.

351. Paul Rishworth, ‘Changing Times, Changing Minds, Changing Laws – Sexual Orientation and New Zealand Law, 1960 to 2005’, in this Special Double Issue, p.85 at p.95.

352. Nicholas Bala and Rebecca Jaremko Bromwich, ‘Context and Inclusivity in Canada's Evolving Definition of the Family’, International Journal of Law, Policy and the Family (2002), p.145 at p.147.

353. United Nations Human Rights Committee, Concluding Observations of the Human Rights Committee on the Hong Kong Special Administrative Region: Hong Kong (China), CCPR/C/79/Add.117, 4 November 1999.

354. Ibid. para.15.

355. Ibid.

356. International Covenant on Civil and Political Rights, Art.2(1).

357. Thomas Buergenthal, ‘To Respect and to Ensure: State Obligations and Permissible Derogations’, in Louis Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press 1981), pp.72–91 at pp.77–8.

358. Ibid. Art.2(2).

359. Ibid. Art.2(3)(a).

360. United Nations Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights (Hong Kong): China, E/C.12/1/Add.58, 21 May 2001, para.15(c).

361. Adopted and opened for signature, ratification and accession by UN GA Res. 2200A(XXI) of 16 December 1966 and entered into force on 3 January 1976.

362. Ibid. Art.7.

363. International Covenant on Economic, Social and Cultural Rights, Art.2(2).

364. Yvonne Klerk, ‘Working Paper on Article 2(2) and Article 3 of the International Covenant on Economic, Social and Cultural Rights’, Human Rights Quarterly, Vol.9 (1987), p.250 at p.260.

365. United Nations Committee on Economic, Social and Cultural Rights, Concluding Observations on Hong Kong (note 360) para.31.

366. Ibid. para.27.

367. See, e.g., Kristen Walker, ‘The Same-Sex Marriage Debate in Australia’, in this Special Double Issue, pp.109–30.

368. Goodridge (note 203) per Marshall C.J.

369. Heinze (note 179) p.307.