Equality, Dignity and Same-Sex Marriage

Equality, Dignity, and Same-Sex Marriage
Equality, Dignity,
and Same-Sex Marriage
A Rights Disagreement in
Democratic Societies
By
Man Yee Karen Lee
LEIDEN BOSTON
2010
This book is printed on acid-free paper.

Library of Congress Cataloging-in-Publication Data
Lee, Man Yee Karen.
Equality, dignity, and same-sex marriage : a rights disagreement in democratic
societies / by Man Yee Karen Lee.
p. cm.
Includes bibliographical references and index.
ISBN 978-90-04-17926-4 (hardback : alk. paper) 1. Same-sex marriage--Law
and legislation. 2. Civil unions--Law and legislation. 3. Gay couples--Legal status,
laws, etc. 4. Gay rights. 5. Equality before the law. I. Title.
K699.L44 2010
346.0168--dc22
2010003712
ISBN 978 90 04 17926 4

Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands.
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Fees are subject to change.
printed in the netherlands
To my grandmother
CONTENTS
Acknowledgments ......................................................................................xi
List of Cases...............................................................................................xiii
Introduction ................................................................................................. 1
Rights and disagreements ..................................................................... 1
Equality, human dignity and rights ..................................................... 3
Equality, human dignity and the disagreement on
same-sex marriage ............................................................................. 4
The incremental development and the changing
rights claims........................................................................................ 8
An overview ..........................................................................................10
1. Same-Sex Marriage: History, Law, and Disagreements ...................16
Same-sex marriage: a world survey ...................................................16
The European pioneer: Denmark ..................................................16
From Denmark to Nordic nations .................................................17
The first same-sex marriage: the Netherlands .............................18
Belgium joins the Netherlands.......................................................20
Spain follows ....................................................................................21
Canada: same-sex marriage arrives in North America ..............22
United States: a fragmented picture and an
uncertain future ...........................................................................25
United Kingdom: an inclusive model of Civil
Partnership ...................................................................................32
South Africa: same-sex marriage arrives in Africa .....................34
Asia-Pacific and beyond: developments continue.......................36
A sprawling phenomenon ..............................................................38
The incremental development and the evolving
rights claim .......................................................................................40
Same-sex marriage and civil union: the same but different? ..........43
Pragmatic liberalism and full equality ..............................................46
Same-sex marriage under international law .....................................46
The United Nations Human Rights Committee ..........................47
The European Court of Human Rights .........................................48
Why can same-sex marriage be morally controversial?..................51
viii
contents
A normative inquiry into same-sex marriage ..................................54

The proponents case for same-sex marriage................................55
The opponents case against same-sex marriage ..........................62
Conclusion ............................................................................................70
2. The Classic Concept of Equality and the Case for
Same-Sex Marriage ..........................................................................73
Equality and same-sex marriage ........................................................76
The meaning of equality ......................................................................82
The problem of equality rhetoric .......................................................84
Why formal equality? ..........................................................................86
Why not formal equality? ...................................................................88
The paradox of formal equality: leveling up or down?....................94
Same-sex marriage: leveling up or down? ........................................98
Formal equality and equal rights for gays and lesbians ................100
What is being compared? ..................................................................102
Conduct-based equality.............................................................102
Class-based equality ...................................................................104
Who is being compared? ...................................................................107
Why equal?..........................................................................................109
Does treatment as equals live up to the commitment
to equality?......................................................................................113
Analysis: does formal equality sustain the claim for
same-sex marriage? .......................................................................116
True equality: deconstructing marriage? ........................................124
Is equality possible? ...........................................................................128
Conclusion ..........................................................................................130
3. Human Dignity and Same-Sex Marriage ........................................132
Human dignity in international law and
constitutional law...........................................................................132
The meaning of human dignity ........................................................135
The historical and philosophical roots of human dignity .............135
Dignity: descriptive or normative? ..................................................140
Two concepts of rights .......................................................................142
Dignity and intrinsic worth ..............................................................144
Dignity and respect ............................................................................145
Dignity as a multi-layered concept ..................................................148
Dignity in context ..............................................................................154
Some reflections on dignity ..............................................................157
contents
ix
Dignity and same-sex marriage .......................................................159

Conclusion ..........................................................................................163
4. Human Dignity and its Role in the Equality Jurisprudence .........167
The Canadian way: human dignity and
substantive equality .......................................................................168
Law v Canada: the norm-setting case .............................................173
Dignity and its critics.........................................................................176
The reasonable person test ................................................................178
A divided court: many tales of dignity ............................................179
M v H: impairing vs enhancing dignity ......................................179
Lavoie v Canada: the court split four ways.................................182
Gosselin v Quebec: who is more disadvantaged? ........................184
Nova Scotia v Walsh: the capriciousness of
dignity impairment ...................................................................187
What is left for human dignity?........................................................189
Jurisprudential transplant: dignity and equality
in South Africa ...............................................................................190
President of the Republic of South Africa & Another
v Hugo: where it all begins .......................................................193
Harksen v Lane NO & Others: a jurisprudential
Legoland?....................................................................................195
Is dignity still worth defending?.......................................................197
Dignity: promises and limitations ...................................................200
Nurturing a culture of reason in a deliberative society .................204
Deliberative democracy in resolving disagreements
on equality and dignity .................................................................206
Dignity in same-sex marriage jurisprudence .................................207
Conclusion ..........................................................................................212
Looking Back and Looking Forward ....................................................215
Looking back: the progress, moral disagreement
and philosophy ...............................................................................215
The world survey ................................................................................217
The arguments: liberal vs conservative ...........................................219
Equality, dignity, and same-sex marriage .......................................221
Equality and same-sex marriage ......................................................222
Dignity and same-sex marriage .......................................................226
Looking forward: finding common ground?..................................228
Deliberative democracy and same-sex marriage ...........................232
contents
Deliberation as the discipline of rights .......................................232
Deliberation and equality .............................................................234
Deliberation and same-sex marriage ..........................................237
Public deliberation in practice .....................................................240
A democratic culture, equality, and dignity ...................................243
Bibliography .............................................................................................249
Index .........................................................................................................259
ACKNOWLEDGMENTS
This book is largely based on my doctoral thesis with the University of
Hong Kong. The University is where my ideas brewed and developed,
with constant support and assistance from the Faculty of Law, its
members and librarians at the Lui Che Woo Law Library. In particular,
I am deeply grateful for the guidance of my supervisor, Professor
Benny Tai, whose insightful comments encouraged me to go on
during those moments of intellectual stagnation. I also thank my
internal examiners, Professor Albert Chen and Dr. Anne Cheung of
the Faculty of Law, and external examiner, Dr. Nicholas Smith of
Massey University, New Zealand. I benefited immensely from their
comments and suggestions.
Academic pursuits could be lonely if not for the presence of dear
friends from whom I received considerable support, spiritually as well
as intellectually. I thank Rebecca Lee, Karen Kong and Firew Kebede
Tiba of the Faculty of Law whose friendships I cherish. During my
four-year doctoral study, I had the honor of working with a number of
brilliant fellow students my comrades who reminded me constantly
that I was not alone in the midst of a sea of academic literature. I thank
them all.
Special thanks are due to Professor Ben Richardson, Mr. Don
McIntosh, Mr. James Henri, Dr. Kwan Kai Man and Dr. Hung Tsz Wan
Andrew who have given me valuable comments and encouragement at
different stages of this academic endeavor.
I thank my editor, Dr. Robert Morris. I am very grateful for his
meticulousness, responsiveness and personal insights on the issues.
I could not have asked for a better editor.
I also thank Hong Kong Shue Yan University, where I am currently
teaching, for supporting the publication of this book.
As the saying goes to save the best for last, I thank my family,
especially my parents and two younger brothers. Without their support
and understanding I could not have gone that far.
It is with deep regret that our beloved grandmother could not see
the day when this book is published. But she remains part of our lives.
I dedicate this book to her.
LIST OF CASES
Canada
Andrews v Law Society of British Columbia [1989] 1 SCR 143.
Barbeau v British Columbia [2003] BCCA 251.
Eldridge v British Columbia [1997] 3 SCR 624.
Gosselin v Quebec [2002] 4 SCR 429.
Halpern v Canada [2003] 65 OR (3d) 161 (CA).
Halpern v Canada [2002] 60 OR (3d) 321 (Div. Ct.).
Hendricks v Quebec [2002] JQ 3816.
Lavoie v Canada [2002] 1 SCR 769.
Law v Canada [1999] 1 SCR 497.
M v H [1999] 2 SCR 3.
Miron v Trudel [1995] 2 SCR 418.
Nova Scotia v Walsh [2002] 4 SCR 325.
R. v M.(C.) [1995] 98 CCC (3d) 481.
Reference re Same-Sex Marriage [2004] 3 SCR 698.
Vriend v Alberta [1998] 1 SCR 493.
European Commission of Human Rights
Sutherland v U. K. [1997] ECHR 25186/94 (ECommHR).
European Court of Human Rights
Burke v U.K. (ECtHR, Fourth Section, Application no 19807/06)
(Declared inadmissible on 11 July 2006).
Dudgeon v U. K. [1981] 4 EHRR 149.
Frette v France [2002] ECHR 36515/97, ECtHR.
Goodwin v U. K. [2002] 2 FCR 577, ECtHR.
Karner v Austria [2003] ECHR 40016/98, ECtHR.
Laskey, Jaggard & Brown v U. K. (decided on 19 February 1997) 24
EHRR 39.
Modinos v Cyprus [1993] 16 EHRR 485.
Norris v Ireland [1988] 13 EHRR 186.
xiv
list of cases
Stubbings & Others v UK [1997] 23 EHRR 213.

The case of E.B. v France [2008] ECHR 43546/02.
Hong Kong
Leung TC William Roy v Secretary for Justice [2006] (CACV 317/
2005).
Leung TC William Roy v Secretary for Justice [2005] (HCAL 160/
2004).
India
Naz Foundation v Government of NCT of Delhi & Others [WP(C)7455/
2001] (decided 2 July 2009)
Israel
Yossi Ben-Ari v Commissioner of Population Registry, Ministry of the
Interior, HCJ 3045/05 (21.11.2006), tak-supreme 2006(4), 1725.
New Zealand
Quilter v Attorney General (1998) 1 NZLR 52.
Quilter v Attorney General (1996) NZFLR 481.
South Africa
Brink v Kitshoff NO [1996] (6) BCLR 752 (CC).
Dawood & Another v Minister of Home Affairs & Others; Shalabi &
Another v Minister of Home Affairs & Others; Thomas & Another v
Minister of Home Affairs & Others [2000] (8) BCLR 837 (CC).
Du Toit & Another v Minister of Welfare and Population Development &
Others (Lesbian and Gay Equality Project as amicus curiae) [2002]
(10) BCLR 1006 (CC).
Harksen v Lane NO & Others [1997] (11) BCLR 1489 (CC).
J & Another v Director General, Department of Home Affairs & Others
[2003] (5) BCLR 463 (CC).
list of cases
xv
Minister of Home Affairs & Another v Fourie & Another [2006] (3)
BCLR 355 (CC).
National Coalition for Gay and Lesbian Equality & Others v Minister of
Home Affairs & Others [2000] (1) BCLR 39 (CC).
National Coalition for Gay and Lesbian Equality & Another v Minister
of Justice & Others [1998] (12) BCLR 1517 (CC).
President of the Republic of South Africa & Another v Hugo [1997] (6)
BCLR 708 (CC).
Prinsloo v Van der Linde & Another [1997] (6) BCLR 759 (CC).
S v Makwanyane & Another [1995](6) BCLR 665 (CC).
Satchwell v President of the Republic of South Africa & Another [2002]
(9) BCLR 986 (CC).
United Kingdom
A v Secretary of State for the Home Department [2005] 2 AC 68.
Arthur JS Hall & Co v Simons [2002] 1 AC 615.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1948] 1 KB 223.
Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27.
Ghaidan v Godin-Mendoza [2004] 2 AC 557.
Matadeen v Pointu [1999] 1 AC 98.
R v Brown [1994] 1 AC 212 (HL).
R (on the application of Burke) v General Medical Council [2006] QB
273 (CA (Civ Div)).
R (on the application of Burke) v General Medical Council [2005]
QB 424.
R (on the application of Carson) v Secretary of State for Work and
Pensions [2005] 2 WLR 1369.
R (on the application of Carson) v Secretary of State for Work and
Pensions [2003] All ER 577.
Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 (CA).
Wandsworth London BC v Michalak [2003] WLR 617.
United Nations Human Rights Committee
Joslin v New Zealand (Comm No 902/1999, UN Doc CCPR/C/75/
D/902/1999, 30 July 2002).
xvi
list of cases
Toonen v Australia (Comm No 488/1992, UN Doc CCPR/C/50/D/488/

1992, 4 April 1994).
Wackenheim v France (Comm No 854/1999, UN Doc CCPR/C/75/D/
854/1999, 15 July 2002).
Young v Australia (Comm No 941/2000, UN Doc CCPR/C/78/D/
941/2000, 6 Aug 2003).
United States
Baehr v Lewin (Haw. 1993) 852 P 2d 44.
Baker v Nelson (1972) 409 US 810.
Baker v Nelson (1971)191 NW 2d 185.
Baker v State (Vt. 1999) 744 A 2d 864.
Bowers v Hardwick (1986) 478 US 186.
Brause v Bureau of Vital Statistics (1998) WL 88743 (Alaska Super. Ct.
Feb. 27, 1998).
Brown v Board of Education (1954) 347 US 483.
Califano v Goldfarb (1977) 430 US 199.
Califano v Webster (1977) 430 US 313.
Craig v Boren (1976) 429 US 190.
Cruzan v Director, Missouri Department of Health (1990) 497 US 261.
Furman v Georgia (1972) 408 US 238.
Gonzales v Carhart (2007) 550 US 124.
Goodridge v Department of Public Health (2003) 798 NE 2d 941.
Griswold v Connecticut (1965) 381 US 479.
Kerrigan v Commissioner of Public Health (2008) 289 Conn. 135.
Kiyoshi Hirabayashi v U.S. (1943) 320 US 81.
Korematsu v U.S. (1944) 323 US 214.
Korematsu v U.S. (N.D. Cal. 1984) 584 F. Supp. 1406.
Lawrence v Texas (2003) 539 US 558.
Lewis v Harris (N.J. 2006) 908 A. 2d 196.
Lockyer v City and County of San Francisco (2004) 33 Cal. 4th 1055.
Loving v Virginia (1967) 388 US 1.
Maher v Roe (1977) 432 US 464.
Olmstead v U.S. (1928) 277 US 438.
Opinions of the Justices to the Senate (2004) 802 NE 2d 565.
Palmer v Thompson (1971) 403 US 217.
Plessy v Ferguson (1896) 163 US 537.
Re Marriage Cases (Cal. 2008) 183 P 3d 384.
list of cases
Reed v Reed (1971) 404 US 71.
Roe v Wade (1973) 410 US 113.
Romer v Evans (1996) 517 US 620.
Strauss v Horton (2009) 46 Cal. 4th 364.
Trop v Dulles (1958) 356 US 86.
U.S. v Carolene Products Co. (1938) 304 US 144.
U.S. v Virginia (1996) 518 US 515.
Varnum v Brien (Iowa 2009) 763 NW 2d 862.
Watson v City of Memphis (1963) 373 US 526.
Yick Wo v Hopkins (1886) 118 US 356.
xvii
INTRODUCTION
The fact that human rights and human dignity precepts have been
implemented and interrelated by Supreme Court decisionmakers, however, does not exhaust inquiry into jurisprudentially
based approaches to implementation. This is especially true when
theories of implementation normally remain unarticulated in the
opinions of the justices who utilize human right standards.
Jordan J. Paust1
We do disagree about rights, and it is understandable that we do.
We should neither fear nor be ashamed of such disagreement, nor
hush and hustle it away from the forums in which important
decisions of principle are made in our society. We should welcome
it. Such disagreement is a sign the best possible sign in
modern circumstances that people take rights seriously.
Jeremy Waldron2
Rights and disagreements

The Universal Declaration of Human Rights (UDHR)3 has entered
its seventh decade in proclaiming the universal aspiration for equality, human dignity and the rights that derive from them. Still, there
remains no unanimous view about the meaning and the nature of
rights.4 Moreover, we continue to disagree about what rights we have
and what they are based on.5 We may generally recognize the right
to privacy but not as to the extent that it entails. Does it merely aim
to let people alone?6 Is it broad enough to encompass a womans
1
Jordan J. Paust, Human Dignity as a Constitutional Right: A Jurisprudentially
Based Inquiry into Criteria and Content, (1984) 27 Howard Law Journal 145, p 212.
2
Jeremy Waldron, Law and Disagreement (Oxford: Clarendon Press, 1999), p 311
[Waldron I].
3
Universal Declaration of Human Rights (UDHR), GA Res 217(III), UN GAOR, 3d
Sess, Supp No 13, UN Doc A/810 (1948) [UDHR].
4
Alan Gewirth, Self-Fulfillment (Princeton: Princeton University Press, 1998),
pp 162164.
5
See Waldron I (n 2 above), p 11.
6
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, (1890) 4 Harvard
Law Review 193.
introduction
decision whether or not to terminate her pregnancy?7 Does the right

to engage in private and consensual sex derive from the liberty clause or
the equality guarantee under the Fourteenth Amendment to the U.S.
Constitution?8
These are some of the disagreements pertaining to rights which
remain in dispute today. They concern difficult issues that reasonable people rightly differ. They raise important questions that some of
us are adamant in defense of the answers that we believe to be correct.
But it does not suggest that we have people out there who possess
the truth about rights a truth which their opponents willfully or
irrationally fail to acknowledge because they are blinded by ignorance,
prejudice or interest.9 The issues pertaining to rights and justice, as
Jeremy Waldron observes, are too complicated to allow such a shallow
conclusion.10 It is not even about two nemeses fighting each other out
of sheer self-interest. If equality and human dignity are indeed universal values crossing race, sex or every other divide, it can even be
assumed that the disagreeing parties are arguing in good faith. Hence,
anyone who disagrees with others on rights need not be discouraged
from believing that his own view is correct. Instead, it is the time that
we keep faith with our convictions.11 It does not mean that we should
disregard the contradictions. Rather, it is the time for us to reflect on
the fundamental condition of being with others fellow bearers
of rights who have their own view of the world and their own account
of the proper relations between human beings.12 The task remains for
us to identify and participate in the forums in which those decisions of
fundamental principle are made in society. In an earlier work, Waldron
writes:
If the role of a theory of justice is to enable all the members of a society
to justify to one another their shared institutions and the basic arrangements for the distribution of benefits and burdens in their society, then
maybe we can find the first principles of such a theory in the conditions
and presuppositions of the activity of justification itself. These ideas
Roe v Wade (1973) 410 US 113, p 153.

Lawrence v Texas (2003) 539 US 558. This was the disagreement between the
majority led by Kennedy J and the concurring opinion of OConnor J.
9
10
Ibid.
11
Ibid., p 311.
12
Ibid., pp 311312.
8
introduction
have yet to be elaborated in a fully convincing theory. But it is, I think,

in this area rather than in pious lip-service to slogans about human dignity or autonomy that the real importance of theories of rights is to be
found.13
According to him, focusing on the process and rationale of the justifications of rights, rather than wrangling over slogans like dignity and their
correct interpretations, is the way forward. Although I believe that society needs to find the right place and the right way to resolve our disagreements on rights, I do not go as far as Waldron in suggesting that
equality and dignity are just slogans. There is profound collective wisdom in affirming them as universal pillars of human rights. But one
should distinguish between political consensus and legal principle, particularly when the two ideas are being relied on to argue for some of the
most contentious human rights same-sex marriage being one of them
as I will elaborate in the rest of this book. Therefore, I believe that knowing what these two concepts are held out to mean is essential so that we
can identify the bone of contention and what exactly are being disagreed upon. Waldrons visionary exercise will be the next step after one
has thoroughly explored and critically assessed the extent of meanings and applications of equality and dignity, in light of the dynamics
they created in rights jurisprudence. This book aims to take on this
precursory task using the legalization of same-sex marriage as a contemporary example, with a hope to shed light on the next step of setting
the conditions in which reasonable people, who care about equality and
dignity, can justify with each other on the contentious issues of rights.
Equality, human dignity and rights
Human rights are not mere slogans as we live in a world full of their
concerns. One need not finish reading the domestic or international
section of a newspaper to realize the plethora of human rights abuses
and defenses on a daily basis. The right to food and shelter is the most
basic of entitlements any human beings could ask for. For many, it
remains a distant luxury. The rights to freedom of speech and freedom
of religion are two hallmarks of a liberal society. Yet in the most liberal of the sort, people are still fighting for the rights to speak their
13
Jeremy Waldron, Introduction in Jeremy Waldron (ed), Theories of Rights
(Oxford: Oxford University Press, 1984) 120, p 20 [Waldron II].
introduction
conscience or to put on the very symbol they deem integral to their

soul. While the rights movement has made advances in the right to die
with dignity, for example, those living on the street may just be wondering what the right to live with dignity is all about.
In each of these scenarios, people have reasons to justify why their
rights matter. In 1948, the post-war United Nations endorsed the
UDHR which purportedly contains the universal justifications of
human rights.14 In the Preamble, it is recognized that the inherent dignity and the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world.
Hence the most fundamental of all human rights declarations under
Art 1: All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act towards
one another in a spirit of brotherhood. Ever since, the ideas of equality and dignity have become the primary and utmost justifications
to treat everyone as equal member of the human family.
The affirmation of equal dignity was an awakening call to societies
still recuperating from the heinous deprivations of it. The belief that
every person counts rekindled the quest for a world where freedom,
justice and peace belong to all people regardless of differences. For
Martin Luther King Jr., it was the conviction in equality that made his
American dream alive in 1963, that one day this nation will rise up
and live out the true meaning of its creed: We hold these truths to be
self-evident, that all men are created equal.15 Now, equality remains
the prime justification for people asking to be treated no differently
than others. As racial equality has become a mainstream cause in the
post-apartheid age alongside the virtually accomplished campaign for
sexual equality in many parts of the world, another once unimaginable dream is being partially fulfilled.
Equality, human dignity and the disagreement on same-sex marriage
Since 2001, several places have shown the world what equality means
to those who once dared not speak the name of their love. The legalization of same-sex marriage bears witness to the step-by-step successes
14
See UDHR (n 3 above).

Martin Luther King Jr., I have a dream (delivered 28 August 1963, at the Lincoln
Memorial, Washington D.C.). Available at http://www.americanrhetoric.com/speeches/
mlkihaveadream.htm (visited 15 Aug 09).
15
introduction
achieved by the campaigns of equal rights for gays and lesbians over the
past decades. From abolishing criminal punishment for sodomy, legislating against discrimination on grounds of sexual orientation, and
recognizing the right to same-sex marriage, the tenet of equality has
been transformed according to the incremental advances made, each
proving to be a step ahead of another. That equality can be used to justify not only decriminalizing sodomy,16 but also legal recognition of
same-sex relationships,17 shows the changing nature of the argument
and its implications. As will be shown in the coming chapters, courts
seldom care to distinguish the nuances between claims of equality in
criminal prosecutions and that concerning legal recognition of samesex marriages. It is as if equality were political trumps held by individuals, as rights to Ronald Dworkin, against which majority decisions
must be subordinate.18 At the same time, theorists continue to argue
whether equality is a mere tautology,19 or a substantive idea which leads
to the liberation of all.20 Amid the obscurities, it is uncertain which
concept of equality is being endorsed when judges use a general tone of
equality to uphold the right to same-sex marriage.
The trump status of equality is further entrenched when a closely
related jurisprudential heavyweight human dignity comes into the
picture. This is a concept being put side by side with equality, not only
in the UDHR, but also in all major international human rights covenants.21 As will be shown in the coming chapters, the idea of equal dignity is a distinguished feature in a number of domestic constitutions. It
is placed so high on the constitutional pedestal that fundamental rights
are being interpreted in light of the underlying value of dignity.
16
In National Coalition for Gay and Lesbian Equality & Another v Minister of Justice
& Others, [1998] (12) BCLR 1517 (CC), para 22, the Constitutional Court of South
Africa considered the common law offence of sodomy in respect to equality. It focused
on the status of gays and lesbians as a subordinate minority group which had long been
deprived of the equal protection and benefit of the law. At paras 108109, Sachs J said
that it is the sexual orientation of male homosexuals that is being punished by antisodomy laws.
17
Minister of Home Affairs & Another v Fourie & Another [2006] (3) BCLR 355
(CC), paras 7583 [Fourie].
18
Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), p xi.
19
Peter Westen, The Empty Idea of Equality, (1982) 95 Harvard Law Review 537
[Westen].
20
Sandra Fredman, Discrimination Law (Oxford: Oxford University Press, 2002).
21
The International Covenant on Civil and Political Rights (ICCPR) (19 December
1966, 999 UNTS 171) and the International Covenant on Economic, Social, and
Cultural Rights (ICESCR) (adopted by General Assembly resolution 2200A (XXI) of
16 December 1966).
introduction
Nevertheless, this prominent role in the international human rights

discourse does not translate into a universal understanding of what
dignity means. Those international treaties that so proudly proclaim
the idea do not define it, nor do the many constitutions that make it a
cardinal value. The declaration of inherent dignity seems to be selfexplanatory. But judges must give reasons when they decide to adopt
this justification to uphold a right. Hence, dignity is often understood
to be ones perception of self-worth and self-respect in response to
treatment by others.22 A substantive and coherent definition thus gives
way to an assessment of sense and sensibility.
This is the current state of affairs in the context of same-sex marriage. Equality and dignity, the exact meanings of which are often
unaccounted for, have become the very reasons for courts to uphold
same-sex couples right to marriage. In a decision which gathered
momentum for legalizing same-sex marriage in Canada, the Ontario
Court of Appeal invoked the Aristotelian notion of equality and
found that the similar situations between same-sex and heterosexual
couples rendered their differential treatments regarding marriage
discriminatory.23 Because the former have the same aspirations of
conjugal bliss and in fact live a life no differently from other married
couples, the marriage ban was held to be discrimination on grounds
of sexual orientation. Unequal as it was, the fact that gays and lesbians were not allowed to join the institution of marriage also left a
deep scar to their dignity. As the court said, it perpetuated the view
that they are not worthy of the same respect and recognition as
opposite-sex couples.24 This judicial opinion has eventually created
a prominent school of thought on same-sex marriage in North
America.25 While the South African courts have a more inclusive
approach towards equality, they have followed closely the dignitycentered jurisprudence developed by the Canadian courts.26 As a result,
the prevailing judicial consensus to date is: where there is a dignity
violation there is inequality.
22
Halpern v Canada [2003] 65 OR (3d) 161 (CA), para 3 [Halpern]; Fourie (n 17
above), para 50.
23
Ibid., Halpern, paras 9394.
24
Ibid., para 94.
25
Goodridge v Department of Public Health (2003) 798 NE 2d 941 [Goodridge].
26
President of the Republic of South Africa & Another v Hugo [1997] (6) BCLR
708 (CC).
introduction
According to this line of thinking, dignity is held to be violated when

gays and lesbians are not respected as being equally capable as their
heterosexual counterparts of forming committed marital relationships.
So far, the politics of equal dignity is built on the idea that all human
beings are equally worthy of respect.27 The underpinning idea is: the
universal human potential that all human beings share is the fundamental reason for giving each of them equal respect. But respect is
itself a subjective idea. What actual measures are there to give everyone
equal respect remain disputable,28 not to mention disagreements on the
circumstances that give rise to a violation of dignity as demonstrated in
the decisions of the Canadian and South African courts.29 The difficulty, to a large extent, lies in the indeterminacies surrounding the
meaning and interpretation of equality and dignity. As I will argue,
the two ideas are capable of being perceived in different ways by people
having different kinds of concerns and of leading to contrasting
visions. Hence, I think Waldron is right to the extent that relying on
equality and dignity alone to justify the claims of rights may produce
an over-simplified view of things.30 In fact, the competing opinions on
legalization of same-sex marriage perhaps demonstrate that arguments
of equality and dignity do not necessarily come from the proponent
alone. Those who do not accept the idea of same-sex marriage have
other reasons to understand equality and dignity in different ways.
The different and, at times, conflicting opinions on the meaning and
scope of the two universal human rights concepts attest to the realities
of law and politics. People, however intellectual, continue to disagree
over what rights we have and what their bases are. The diverse views
over the concepts of equality and dignity loom large when they are
being applied to justify the many rights claims of our time. Same-sex
marriage is one prominent example whose justifications revolve around
the two ideas, and by its nature, leads to controversies usually couched
in moral debates which seem to pit groups against each other. As in all
political disagreements, one should be slow to suggest outright that
either the proponent or opponent possesses the true and only understanding of ideas about justice. What I aim to achieve primarily in this
27
Charles Taylor, The Politics of Recognition in Amy Gutmann (ed),
Multiculturalism and The Politics of Recognition (Princeton: Princeton University
Press, 1992) 2574, p 41.
28
Ibid., pp 3738.
29
See Chapter 4 for a detailed analysis of the cases.
30
See Waldron II (n 13 above).
introduction
book is to interrogate the different views pertaining to the notions of

equality and dignity, and their implications to the rights jurisprudence
particularly that of same-sex marriage. In view of the seemingly unsolvable disagreements over the matter, my second goal is to shed light on
how society can move forward under the theme of deliberative
democracy.
The incremental development and the changing rights claims
The movement for same-sex marriage is like a train in motion. Since its
debut in the Netherlands in 2001, to date, it has secured full legal status
in 13 jurisdictions spanning three continents: Europe, America and
Africa. On the basis of comparative law, Kees Waaldijk observes that
the development in Europe followed a step-by-step approach which
saw an incremental trend of rights claims by gays and lesbians leading
up to the legalization of same-sex marriage.31 William Eskridge and
Darren Spedale also note a similar pattern in the U.S.32 According to
Waaldijk, this step-by-step approach features three prominent milestones: decriminalization of homosexuality, anti-discrimination legislation, and partnership legislation.33
By decriminalization, the state declares its retreat from probing into
peoples private life. Leaving people alone means that there is no point
maintaining a different age of consent between homosexuals and heterosexuals, hence the lowering of the legal age to engage in buggery.
Still, the right to privacy only goes so far as protecting what people do
in private. To ensure equal treatment for gays and lesbians in the public
sphere, the next imperative is legislating anti-discrimination law. Now,
the state demands that society treat gays and lesbians equally lest punitive measures should be imposed on the transgressors. Thus, the focus
of legal sanction changes from regulating the behaviors of homosexual
citizens to that of members of the public. Once society is supposed to
treat everyone the same regardless of their sexual orientation, it
31
Kees Waaldijk, Civil Developments: Patterns of Reform in the Legal Position of
Same-Sex Partners in Europe, (2000) 17 Canadian Journal of Family Law 62
[Waaldijk].
32
William N. Eskridge Jr. & Darren R. Spedale, Gay Marriage: For Better or for
Worse? What Weve Learned from the Evidence (Oxford: Oxford University Press,
2006).
33
See Waaldijk (n 31 above), p 66.
introduction
becomes questionable as to why same-sex couples do not enjoy the

rights and benefits that married heterosexuals do. At this point, registered partnership or civil union legislation harmonizes the legal regime
between homosexuals and heterosexuals as far as material benefits are
concerned. But the existence of an institution mimicking marriage in
every aspect except the name is conspicuous. It attracts suspicion that
same-sex couples are being treated as second-class citizens under a
second-class institution.34 The legalization of same-sex marriage, therefore, seems to be the only logical conclusion if equality means identical
treatment in all manner of life.
The above account shows that the notion of equal treatment has
undergone subtle changes every time a new legal regime is created in
response to the incremental claims in the course of the gay rights movement. Each stage of development requires a higher level of behavioral
fine-tuning while reveals an increasingly assertive voice of gays and
lesbians. The scope of protection expands from the private to the public
sphere. The nature of protection changes from equal opportunity to
equal recognition. It is this changing nature of legal and conceptual
ramifications that makes one ask whether equality and dignity are
sufficient to assume the role of a one-size-fits-all justification of
rights.35
When arguing for an equality practice approach to achieve the
goals of gays and lesbians in a pragmatic manner, Eskridge writes,
a polity which is a democracy and whose citizens have heterogeneous
views about important matters is one where immediate full equality is
not always possible, not practical, not even desirable.36 Same-sex marriage is one of those matters that otherwise tolerant people may have
reservation about.37 It is because not only are there diverse views about
what equality means, people have disputes over the ensuing implications especially when their long-held family values are being challenged
as in the case of legalizing same-sex marriage. If liberal democracy is
where tolerance and mutual respect are preached and practiced, the
way in which human rights campaigns are run should be in keeping
with these values. In the disputes over rights, Waldron believes that
34
See Goodridge (n 25 above), p 948.

36
William N. Eskridge Jr., Equality Practice: Liberal Reflections on the Jurisprudence on Civil Unions, (2001) 64 Albany Law Review 853, p 871 [Eskridge].
37
Linda J. Lacey & D. Marianne Blair, The Legislative Backlash to Advances in
Rights for Same-sex Couples, (2004) 40 Tulsa Law Review 371, p 374.
35
10
introduction
society should stop treating such disagreements as mere political feuds

and should seek a common view amid the clash of convictions.38 This
involves a process in which people respond to each others contrasting
views with respect because of the fundamental reason that they are all
equal right-bearers. The theme of deliberative democracy in light of
moral controversies such as same-sex marriage will be explored in the
final chapter. While I do not claim that deliberative democracy can
resolve our problems all at once, I believe that this idea reminds us that
humans are essentially moral agents who care more than just our own
well-being. Otherwise, the whole regime of human rights would not
have stood. But it does not mean that finding a way out of our current
deadlock on same-sex marriage would be quick and easy. What the following chapters seek to achieve is an understanding of the big picture,
the theories, and the disagreements, as well as pointing a way in which
society could move ahead in the long run.
An overview
Chapter 1 traces the civil rights development for gays and lesbians particularly regarding legal recognition of their relationships in the past
two decades. Step by step, here and there, we have seen sodomy being
struck off many criminal codes, anti-discrimination laws come into
being, and same-sex couples become legal spouses. The study shows
how the innovative moves taken by a few Scandinavian states in the late
1980s were echoed and transformed into a bigger same-sex marriage
campaign within a decade, spanning continents from Europe, America,
to Africa. Over the years, aspiring gay and lesbian litigants, having
exhausted all domestic legal channels, have sought justice in regional or
international human rights courts. No defining decision has yet been
made on the issue. But the legal tussles at the domestic and international
levels can be a barometer of moral disagreements in everyday life.
In this Chapter, I argue that the dispute over same-sex marriage is
both a moral and a legal issue. Although I may not subscribe fully to
the treatises of Max Weber and J. M. Balkin, I believe that Webers
social-groups analysis39 and Balkins theory of status competition40 help
38
See Waldron I (n 2 above), pp 12, 311312.

Max Weber, Economy and Society: An Outline of Interpretative Sociology, Vol 2,
eds. Guenther Roth & Claus Wittich (Berkeley: University of California Press, 1978).
40
J. M. Balkin, The Constitution of Status, (1997) 106 Yale Law Journal 2313.
39
introduction
11
shed light on some of the possible moral tensions that people experience in society. In particular, it is worth pondering that disagreements
arising from the legalization of same-sex marriage may not be driven
by animus alone. Hence, the alleged discrimination against gays and
lesbians can be understood in terms of a distinction between a preferable and a less preferable moral choice. It is followed by a discussion of
major moral arguments from proponents and opponents of same-sex
marriage. In a nutshell, the proponents case revolves around the
notions of equality, dignity, privacy, autonomy and self-fulfillment,
while downplaying the relationship between marriage and procreation.
On the contrary, the opponents emphasize the un-severable link
between marriage and procreation, not only for the interests of children but also for the future of family and society. While the former see
re-defining marriage as a natural extension of equal rights in a triumphant anti-discrimination era, those holding a conservative opinion
ponder whether it is asking too much of the abstract notions of equality
and dignity.
The following chapters attempt to deconstruct the concepts of equality and dignity in the context of same-sex marriage jurisprudence.
Chapter 2 follows the idea of equality to its Aristotelian root. The formal principle like should be treated alike sets the judicial tone of
equality. One after the other, courts have denounced discrimination
against same-sex couples stigmatized as being incapable to marry,
when their relationships are deemed to be comparably similar to that
of their heterosexual counterparts. I argue that arguments based on
this comparative conception of equality require precision and normative contents when presented in their strongest manner in justifying
the claim for same-sex marriage, as opposed to other forms of equality
measures such as sodomy decriminalization and anti-discrimination
laws.
In fact, the concept of formal equality is not immune from criticisms.
Some legal theorists see it as a mere tautology or a political slogan.41
For radical feminist or liberationist critics, same-sex marriage does
nothing to advance equality for the sexual minorities but only perpetuates an unequal social structure.42 To truly liberalize all from
41
See Westen (n 19 above).

Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and
Lesbian Marriage Will Not Dismantle the Legal Structure of Gender in Every
Marriage , (1993) 79 Virginia Law Review 1535.
42
12
introduction
oppression, they argue that overhauling the entire societal structure is

the only way to eliminate inequalities. In the context of same-sex marriage, it will mean abolishing the institution of marriage and freeing
people from all formal relationship arrangements. This equality proposal raises questions. Will liberalization of this kind lead to a truly
egalitarian world? How should democracy be perceived and implemented in making sure everyone has an equal chance to participate in
deciding how they want to live?
Above all, who gets the right to equality right? Before considering
this question, one must look at a closely related concept dignity the
status of which in major human rights instruments and court decisions
is no less than equality. In fact, in many circumstances the two concepts are melded together. Universally appealing as the idea of dignity
may sound, its meaning is as elusive, if not more than, as that of equality. The UDHR does not define dignity despite its prominent status in
international human rights discourse. Because of the notions inherent
subjectivity, dignity is said to carry different content for different people.43 It means that while people can be of one voice on the centrality
of dignity in the theory of rights, they may not see eye to eye when it
comes to what it actually implies. Therefore, it is argued, dignity is at
best a placeholder for a more substantial theory of human rights; at
worst, a mere empty shell the only function of which is to plug a major
jurisprudential gap.44 Considering the preponderance of dignity and its
close link with equality in justifying the right to same-sex marriage,
these comments go to the creditability and viability of the prevailing
jurisprudence in this contentious area of human rights. Indeed, there is
more to say about dignity other than the clich of universality and
humanity. Its enormous content and the jurisprudential puzzles it created will be discussed in Chapters 3 and 4 in the context of rights
litigation.
Chapter 3 interrogates the meaning of dignity as a primary justification for same-sex marriage alongside equality. Despite being a fundamental ground of human rights in major international covenants
and many domestic constitutions, dignity continues to be taken as
43
Christopher McCrudden, Human Dignity and Judicial Interpretation of

Human Rights, (2008) 19 European Journal of International Law 655724, p 678
[McCrudden].
44
Frank van Dun, Human Dignity: Reason or Desire? Natural Rights versus
Human Rights, (2001) 15 Journal of Libertarian Studies 1, p 14.
introduction
13
self-explanatory. Its profound content includes much more than a psychological perception of self-respect and self-worth. It is a concept with
various philosophical, anthropological, religious, and cultural roots
dating back to the Classical Age. Dignity can be understood in
ways descriptive or normative, objective or subjective. It has implications not only to an individual, but also to the group one identifies with,
as well as the human species to which every human being belongs.
A concept so rich requires judicial interpretations in an articulate
and coherent manner when fundamental rights are decided in its light.
As Chapter 4 argues, the courts in two leading bills of rights jurisdictions are not up to the task. Case law shows a judicial trend which
merges dignity with equality as the pointer of identifying unequal
treatment. Instead of focusing on personal characteristics and disadvantages,45 both the Canadian Supreme Court and Constitutional
Court of South Africa ask: did the victim of alleged inequalities suffer
a violation of dignity?46 While judges are ill-fitted to second-guess peoples state of mind, they have nevertheless ventured to decide whether
the dignity of an equality claimant is hurt, thus yielding inconsistent
judicial results. The ensuing conceptual confusion is twofold: we end
up having little substantive grasp of both equality and dignity. As a
result, the courts sometimes need to resort to other values to justify the
finding of discrimination.
This tendency can be seen in case law upholding the right to samesex marriage in both Canada and South Africa, where the idea of liberty was considered together with dignity in finding discrimination
against gays and lesbians. In Halpern v Canada, the court found that
the lack of a fundamental choice to marry constitutes a discriminatory aspect of the common law definition of marriage because the
liberty interest for gays and lesbians is compromised.47 Similarly, the
court in Minister of Home Affairs & Another v Fourie & Another held
that to deny same-sex couples a choice to join the institution of
marriage, given its legal and social significance, negates their right to
45
In Andrews v Law Society of British Columbia [1989] 1 SCR 143, p 168, McIntyre J
pointed to personal characteristics and disadvantages as strong indicators of
discrimination.
46
See Law v Canada [1999] 1 SCR 497, which has been followed by all subsequent
equality decisions in the Supreme Court of Canada. Its counterpart in the Constitutional
Court of South Africa is President of the Republic of South Africa & Another v Hugo
[1997] (6) BCLR 708 (CC).
47
See Halpern (n 22 above), para 87.
14
introduction
self-definition in a most profound way.48 While liberty is a fundamental value that can be relevant to the right to marriage, using it as part of
the justification under the courts dignity-centered equality jurisprudence seems only to dilute the concept of dignity. The question remains
that whether dignity is indeed so lack of core content that it requires
other values to serve as support.
Nevertheless, I maintain that equality and dignity are more than
simply empty slogans. There is profound collective wisdom in affirming them as universal pillars of human rights. But one should distinguish between political consensus and legal principle, particularly
when the two ideas are being relied on to argue for some of the most
contentious human rights. The difficulty lies in the fact that they can be
interpreted differently by different people whether they are legally or
philosophically trained. Therefore, unraveling the mysteries around
equality and dignity does not resolve the disagreements on rights. This
study probably raises more questions than it attempts to answer. But if
justice is truly everyones business and not just for judges; if justice
demands equality not only in word but also in deed; if justice allows
people to argue for, or against, what they genuinely believe is good,
society should move beyond arguing over meanings only and start
contemplating the process in which disagreeing parties can openly
deliberate with one another.49 It is the way that Waldron believes a
democratic polity should go to resolve citizens genuine disagreements
on rights.
The final chapter does two things. First, it looks back on our journey
in tracing the development of same-sex marriage and the accompanying theories and disagreements. Second, it attempts to find out whether
and how the ideal of deliberative democracy can be applied in
approaching the dispute over the matter. I see deliberative democracy
as a way to realize Waldrons so-called activity of justification, although
he does not share the idealistic assumption that he believes is being
held by theorists of deliberative democracy: once we get a genuine
deliberative democracy, the sordid business of counting votes will be
largely unnecessary, at least on serious matters of principle.50 He takes
the view that despite deliberation, people will continue to disagree in
good faith about the issues of rights that will eventually need to be
48
49
50
See Fourie (n 17 above), para 72.

See Waldron I (n 2 above), pp 9193.
introduction
15
settled by the legislature. Still, deliberative democracy is worth exploring for a society in disagreement. As Dworkin says in support of the
idea, [i]t would nevertheless be a great improvement if they came to
see their continuing disagreements as controversies about the best
interpretation of fundamental values they all share rather than simply
as confrontations between two divergent worldviews neither of which
is comprehensible to the other.51
51
Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate
(Princeton: Princeton University Press, 2006), p 22.
CHAPTER ONE
SAME-SEX MARRIAGE: HISTORY, LAW,

AND DISAGREEMENTS
Same-sex marriage: a world survey
The European pioneer: Denmark
The idea of legally recognizing same-sex relationships began in
Scandinavia.1 In 1989, Denmark was the first in the world to enact
registered partnership law. The Danish Government commissioned a
national study on the situation of gays and lesbians in 1984, aimed at
eliminating discrimination and facilitating permanent relationships
for this sexual minority. Before a report was published in 1988,
Denmark had already attempted to establish a level-playing field by
reducing inheritance tax payable by homosexual couples to put it on
a par with that of married heterosexual couples. At the same time,
the government amended the penal code making vilifying behaviors and differential treatments in commercial activities based on
sexual orientation a criminal offence.2 In 1989, the parliament finally
passed the Registered Partnership Act. The law applies exclusively to
same-sex couples with the stated purpose of equalizing the social
and legal status of same-sex and heterosexual couples who wish to
marry. Gays and lesbians, upon registering their relationships with
official registries, are entitled to the same rights and responsibilities
once only enjoyed by their heterosexual counterparts. Nevertheless,
registered partners are not free to adopt children or hold official
wedding ceremonies in the state Lutheran church. The law also
requires one of the partners to be a Danish citizen and hold current
1
Generally speaking, Scandinavia refers to Denmark, Norway, Sweden and
Iceland.
2
According to Art 266 b Penal Code, vilifying behaviors refer to publicly or deliberately disseminate statements or other reports by which any group of people are
threatened, ridiculed or degraded. See Equality For Lesbians and Gay Men: A relevant
issue in the civil and social dialogue, A report of ILGA-Europe, the European Region of
the International Lesbian and Gay Association (June 1998), p 38. Available at http://
www.ilga-europe.org/europe/publications/non_periodical [ILGA-Europe Report June
1998] (visited 7 Jun 09).
same-sex marriage: history, law, and disagreements
17
residency.3 Some of the restrictions were relaxed in 1999.4 The introduction of a parliamentary bill in March 2009 may see same-sex
couples jointly adopt in future.5
From Denmark to Nordic nations
Denmarks move was followed by governments in various parts of
Northwestern Europe. In subsequent years, the rest of the Nordic
neighbors Norway in 1993, Sweden in 1995, Iceland in 1996 and
Finland in 2001 all established registered partnership regimes granting quasi-marriage status exclusively to same-sex couples.6 To a large
extent, their legislations mirrored the Danish prototype with similar
relaxation in the law over the years. Stepchild (second-parent) adoption has been available in Norway and Iceland while Sweden opened
all forms of adoption. Finland remained restrictive on adoption perhaps because of its shorter history in legalizing same-sex partnerships.7
Like Denmark, all of the four Nordic countries have a state church
which is not obligated to solemnize same-sex unions under the states
registered partnership law. Therefore, unless individual congregations
exercise discretion to give their blessing, same-sex couples can only
exchange vows in a civil ceremony.8 Nevertheless, since the first law
was made in 1989, the Nordic bloc nations have gradually harmonized
their registered partnership regimes. In 1999, the Danish Government
took the lead again by amending its law to give registered partners
3
Marianne Delpo Kulow, Same Sex Marriage: A Scandinavian Perspective, (2002)
24 Loyola of Los Angeles International and Comparative Law Review 419, pp 421425
[Kulow].
4
Ibid., pp 424425, except the ban on stranger adoption (adoption of unrelated
children jointly). See p 430.
5
See Parliamentary Majority for Same-sex Adoption, The Copenhagen Post Online
(18 March 2009). Available at http://www.cphpost.dk/news/politics/90-politics/45091parliamentary-majority-for-same-sex-adoption.html (visited 23 Dec 09).
6
Kees Waaldijk, Civil Developments: Patterns of Reform in the Legal Position of
Same-Sex Partners in Europe, (2000) 17 Canadian Journal of Family Law 62, p 80
[Waaldijk I].
7
Kees Waaldijk, Others May Follow: The Introduction of Marriage, QuasiMarriage, and Semi-Marriage for Same-Sex Couples in European Countries, (2004) 38
New England Law Review 569, p 587 [Waaldijk II].
8
See Kulow (n 3 above), p 425. Sweden saw a progressive development on 27
October 2005, when the Church Assembly, the highest body of authority in the Swedish
Church, voted to allow same-sex partners to be blessed in a special ceremony in the
Swedish Church. Later, the Ministry of Justice announced that starting April 2006,
civil registrars no longer have discretion to refuse to solemnize same-sex unions
and will run the risk of losing authority in performing wedding ceremonies if they
18
chapter one
who were citizens of Norway, Sweden or Iceland the same rights as its
nationals.9
The first same-sex marriage: the Netherlands
Changes continued to sweep across Europe as new institutions recognizing same-sex relationships came into being.10 Starting November
1999, France began registering both same-sex and heterosexual couples under the Civil Solidarity Pact. Owing to the lack of political support, the status did not offer rights and benefits comparable to a
marriage. Germany has had the regime of life partnerships in place
since 1 August 2001. Same-sex couples, upon registration, are entitled
to a limited range of rights and obligations. The real breakthrough
came from the Netherlands. Although the Netherlands only started to
recognize registered partnerships in 1998 nine years after its debut, it
did not take too long before it caught up and outstripped Denmark.11
In fact, as far as the legal protection given to homosexual citizens is
concerned, the Dutch have never been much behind.12 In the late
1980s, two test cases were brought to court where the homosexual couples claimed that the state ban on same-sex marriage violated their
human rights.13 These legal challenges arose because the marriage statute in the Netherlands contained gender-neutral language, which made
it possible to argue that marriage could be between people of the same
gender. While the cases made no legal breakthrough at a time when the
refuse to do the same for same-sex partners. See EURO-LETTER, No 125 (Nov 2005),
pp 67. Available at http://www.ilga-europe.org/europe/publications/euro_letter/2005/
in_english/euroletter_125_november_2005 (visited 7 Jun 09).
9
Steffen Jensen, Adoption Rights to Danish Gay or Lesbian Couples-Partnership
Law Changed, EURO-LETTER, No 70 (May 1999), p 1. Available at http://www
.ilga-europe.org/europe/publications/euro_letter/1999/euroletter_70_may_1999 (visited 7 Jun 09).
10
See Waaldijk II (n 7 above), pp 587588.
11
The Netherlands was the first country in the world to legalize same-sex marriage
in 2001, giving full legal rights to married same-sex couples including the right to apply
for stranger adoption for domestic children. See Kulow (n 3 above), p 433.
12
The Netherlands was among the very first countries in Europe to decriminalize
homosexual activity in 1811, after France in 1791, Belgium and Luxembourg in 1794.
See Waaldijk I (n 6 above), p 68.
13
The two cases both went before the Amsterdam District Court at the first instance.
One of them subsequently reached the Supreme Court. In resolving the issue, the court
nevertheless expressed sympathy and referred to the legislature as a place for settling
the dust. See Kees Waaldijk & Andrew Clapham (eds), Homosexuality: A European
Community Issue: Essays on Lesbian and Gay Rights in European Law and Policy
(Dordrecht: Martinus Nijhoff Publishers, 1993), p 92. For a detailed discussion,
19
link between marriage and procreation was unquestioned, both the

district court and the Supreme Court held that the matter was one for
the legislature.
The tenacity of those eager to tie the knot did not falter. Rather, subtle
progress was achieved on the sidelines. As Dutch law permits municipalities to maintain an unlimited number of registers, it later provided
an opportunity for same-sex couples to demand the setting up of marriage registers to officially record their relationships.14 In the years following 1991, over 130 municipalities started registering same-sex
couples. Despite the lack of a legal status, the willingness of the municipalities to register same-sex relationships carried significant political
and symbolic values, paving the way for a sequence of legislative initiatives favorable to homosexual citizens.15 In 1992, the same year when the
Dutch Government amended the Penal Code criminalizing discrimination on grounds of homosexuality, a state commission issued a report
which recommended adopting Denmarks registered partnership law.16
In 1994, the government enacted the General Equal Treatment Act
which contains comprehensive legal protections for gays and lesbians.17
The momentum of change then took on a dual track. In August 1996,
when the registered partnership bill was still being considered by the
Dutch Parliament, the government set up a state commission to investigate the legal implications of allowing civil marriage for same-sex
couples. In March 1998, two months after registered partnerships came
into effect and three weeks before the general election, members of the
lower chamber of parliament urged the government to legalize samesex marriages. Finally, the return of a liberal/social coalition government which had made introducing same-sex marriage their election
manifesto saw the passage of a bill that re-defined marriage to include
same-sex couples. On 1 April 2001, the Netherlands became the first
country to legalize same-sex marriages.18
see Nancy G. Maxwell, Opening Civil Marriage to Same-Gender Couples:
A Netherlands-United States Comparison, (2001) 18 Arizona Journal of International
& Comparative Law 141, pp 142147 [Maxwell].
14
Ibid., Maxwell, p 149.
15
Ibid.
16
Ibid. The term homosexual and heterosexual orientation was inserted in Arts
137c, d, e and f of the Penal Code to criminalize mistreatment, inciting discrimination
and violence targeted at an individual because of his/her homosexuality. See ILGAEurope Report June 1998 (n 2 above), pp 7374.
17
Waaldijk II (n 7 above), p 578.
18
The Netherlands was also the first country in the world to permit stranger adoption of domestic children by same-sex couples. See Maxwell (n 13 above), pp 150152.
20
chapter one
Belgium joins the Netherlands

Two years later, Belgium joined the Netherlands. In many ways, the
Belgian experience was akin to that of the Dutch. Belgium was among
the first European countries to decriminalize homosexuality in 1794.
But its anti-discrimination law on grounds of sexual orientation did
not come into effect until early 2003, a few months before the government legalized same-sex marriages.19 Similar to the Dutch, same-sex
couples in Belgium first went to the municipalities to register their relationships. Since October 1996, every municipality has been obliged to
record in its Register of Inhabitants contracts of cohabitation signed by
local same-sex couples. This arrangement formed the skeleton of the
statutory cohabitation bill later approved by parliament in 1998,
although its implementation was initially stalled by a conservative
majority.20 In a twist similar to their Dutch counterparts, the liberal
coalition, having stipulated legalization of same-sex partnerships in its
election platform, subsequently won the parliament and swiftly legalized cohabitation for both homosexual and heterosexual couples on 1
January 2000.21
Having secured some property and financial rights for cohabiting
couples, the parliament honored its election promise and proceeded to
equalize other rights between homosexual and heterosexual couples.
In a familiar move, the Belgian Parliament amended the countrys Civil
Code to change the definition of marriage so that two persons of different sex or of the same sex may contract into a marriage. The new law
took effect on 1 June 2003, making Belgium the second country to legislate same-sex marriages.22
19
See Waaldijk II (n 7 above), p 583. Belgiums anti-discrimination law came late as
compared with neighboring European countries. Norway was the first to explicitly legislate against homosexual discrimination in 1981, followed by Denmark in 1987,
Sweden in 1987, Ireland in 1989, the Netherlands in 1992, Finland in 1995, Spain in
1995 and Luxembourg in 1997. See Waaldijk I (n 6 above), p 75.
20
The federal government adopted the cohabitation law on 23 November 1998,
while no date was set for its entering into force. See Anke Hintijens, The Present
Situation of Partnership Regulations in Belgium, EURO-LETTER, No 66 (Dec 1998),
pp 35. Available at http://www.ilga-europe.org/europe/publications/euro_letter/
1998/euroletter_66_december_1998 (visited 7 Jun 09).
21
Remko van Kol, Belgiums New Government Coalition Promises Legal
Breakthrough, EURO-LETTER, No 73 (Sep. 1999), p 3. Available at http://www
.ilga-europe.org/europe/publications/euro_letter/1999/euroletter_73_september_
1999 (visited 7 Jun 09).
22
See Waaldijk II (n 7 above), p 581.
21
From then on, the development has sped up. In 2005, the world witnessed same-sex marriages being affirmed in two more countries
Spain and Canada.
Spain follows
The development in Spain struck a chord similar to its two European
predecessors in terms of legislative history. The Spanish Government
decriminalized homosexuality as early as 1822. Nevertheless, lingering
provisions continued to prohibit homosexual acts with minors until
the late 1980s.23 During the dictatorship rule of Franco, homosexuals
were treated as degraded people along with drug addicts and vagabonds. The years between 1971 and 1979 also saw the segregation of
many homosexuals in society under the Law of Dangerousness and
Social Rehabilitation.24 It was not until Francos death in 1975 that the
plight of gays and lesbians improved. By the 1980s, apartheid-style
laws against them had been abolished. As civil activism grew, the quest
for equality entered the political arena as the Spanish Workers Socialist
Party came into power in 1982. By the time the party left office, a law
had already been in place allowing a partner in a de facto relationship
to subrogate a leasing contract regardless of sexual orientation. As the
conservative Popular Party took over in 1996, further proposals were
halted, but the issue of same-sex marriage later emerged in the run-up
to the elections in May 2003.25
Following the footsteps of the Dutch and Belgians, Spain allowed
regional governments to set up their own partnership registration
regimes. By 1998, virtually all major cities had had their own registration offices. Symbolic as the procedure was, it signified the recognition by a state institution and boosted the lobbying of the national
government for recognizing same-sex relationships.26 At the time,
legal protections were in place in some regional governments. Among
23
Despite the equalization of the age of consent for both heterosexuals and homosexuals in 1822, a separate provision against serious scandal and indecency continued to be in force prohibiting some homosexual acts between adults and homosexual
acts with minors. See Waaldijk I (n 6 above), p 68.
24
Jos Ignacio Pichardo Galn, Same-sex couples in Spain. Historical, contextual
and symbolic factors, in Digoix Marie & Festy, Patrick (eds), Same-sex couples, samesex partnerships, and homosexual marriages: A focus on cross-national differentials.
Documents de travail n 124, Ined, 2004, 159173, p 159 [Pichardo Galn].
25
Ibid., pp 159161.
26
See ILGA-Europe Report June 1998 (n 2 above), p 79.
22
chapter one
those, the law passed in 2003 by the Basque Country was the most
progressive, providing same-sex partners with inheritance, fostering
and adoption rights.27
Same-sex marriage as a political issue emerged as the incumbent
Socialist Prime Minister Zapatero took office with his liberal social
agenda in April 2004. As part of his plan to create a secular state in the
traditionally Catholic nation, Zapatero proposed the same-sex marriage bill shortly after the election.28 The bill stated that matrimony
shall have the same requisites and effects regardless of whether the
persons involved are of the same or different sex.29 Despite strong
opposition from the Roman Catholic Church and conservative parliamentarians,30 Congress passed the bill on 30 June 2005, making Spain
the third country to give same-sex couples the rights to marry and
adopt children. Before the vote, Zapatero addressed Congress saying,
We are not the first, but I am sure we will not be the last. After us will
come many other countries, driven, ladies and gentlemen, by two
unstoppable forces: freedom and equality.31 A month later, the same
bill was passed by the Canadian Parliament following a series of court
cases in favor of same-sex marriage.
Canada: same-sex marriage arrives in North America
Compared to Europe, decriminalization of homosexuality is a recent
phenomenon in Canada. When canvassing support for his proposed
amendment to the Criminal Code, the then Justice Minister Pierre
Trudeau said in 1967, there is no place for the state in the bedrooms of
the nation except when it involves the public or minors.32 In 1969,
27
See Pichardo Galn (n 24 above), pp 163164.

Same-sex marriage: ultimate sign of equality or end of gay liberation?, (Summer
2005) ILGA Europe Newsletter, Vol 5, Issue 2, p 14. Available at http://www
.ilga-europe.org/europe/publications/newsletter (visited 7 Jun 09).
29
Ibid.
30
Before the Congress voted, about 180,000 people, including 20 bishops, took part
in a church-backed demonstration in Madrid to show their opposition to the bill. See
Dale Fuchs, Spanish MPs legalise gay marriage, The Guardian (1 July 2005). Available
at http://www.guardian.co.uk/world/2005/jul/01/spain.gayrights (visited 8 Dec 05).
31
Staff & agencies, Spain legalises gay marriage, The Guardian (30 June 2005).
Available at http://www.guardian.co.uk/world/2005/jun/30/gayrights.spain (visited
8 Dec 05).
32
See the archive video clip of interview with Mr. Pierre Trudeau which was broadcast on 21 December 1967. Available at http://archives.cbc.ca/politics/rights_freedoms/
clips/538-2671/ (visited 8 Dec 05).
28
23
Canada decriminalized private homosexual activities between consenting male adults.33 The removal of the legal stigma unleashed the
yearning for equal treatment on the part of homosexual rights activists
nationwide. In 1996, the federal government, adopting the Canadian
Human Rights Commissions recommendation made in 1979, inserted
sexual orientation into the Human Rights Act 1985, marking another
leap of equality for the countrys gay and lesbian citizens.34
This preliminary scene follows the European incremental pattern of
achieving one breakthrough after another. What sets the Canadian
experience apart is that the momentum for legalizing same-sex marriage originated from the court instead of the parliament. In 1995, the
Canadian Supreme Court unanimously read sexual orientation into
the Canadian Charter of Rights and Freedoms (the Canadian Charter)
as an analogous ground of discrimination.35 The landmark judgment
immediately negated any law which discriminated between heterosexual and homosexual relationships. What followed was a plethora of
homosexual litigants fighting for equal rights across the country which
culminated in the 1999 decision of M v H.36 This case arose from
Ontarios Family Law Act which restricted spousal benefits to heterosexual couples.37 The majority of the Supreme Court held that excluding homosexual partners from the meaning of spouse violated the
equality guarantee under the Canadian Charter. It perpetuated the disadvantages suffered by homosexual couples by degrading their relationships as less worthy of recognition and protection,38 and was not
demonstrably justified in a free and democratic society.39
The ruling was greeted with executive deference. While Ontario was
given six months to amend the impugned provision, other provincial
33
The Criminal Law Amendment Act, 196869 (S.C. 196869, c.38), passed as Bill
C-150 in May 1969, amended the Criminal Code to decriminalize consensual homosexual acts between male adults. See Donald W. McLeod, Lesbian and Gay Liberation
in Canada: A Selected Annotated Chronology, 19641975 (Toronto: ECW Press/
Homewood Books, 1996), pp 4243.
34
1996 Annual Report, Canadian Human Rights Commission. Available at http://
www.chrc-ccdp.ca/publications/1996_ar/default-en.asp (visited 21 Dec 05).
35
Egan v Canada [1995] 2 SCR 513.
36
M v H [1999] 2 SCR 3.
37
Section 29 of the Family Law Act, R.S.O. 1990, c. F.3 defines a spouse as a person
who is actually married or either of a man and woman who are not married to each
other and have cohabited . . .
38
See M v H (n 36 above), p 57, per Cory and Iacobucci JJ.
39
Ibid., p 89.
24
chapter one
governments also considered reviewing their own laws.40 Having perceived that it was only a matter of time before the Supreme Court would
extend the meaning of spouse to include same-sex couples for all federal legislation, the federal government subsequently passed the
Modernization of Benefits and Obligations Act in February 2000, giving
same-sex couples the same rights and benefits as heterosexual cohabitating couples while affirming the status of heterosexual marriage.41
However substantial the quasi-marriage benefits appeared, the aspiration to marry proved too strong to be tamed. Although M v H stopped
short of endorsing same-sex marriage, the majority held that excluding
same-sex partners from the benefits available to their heterosexual
counterparts promoted the stigma that they are less worthy of recognition and protection. This comment revealed that the marriage law
which barred homosexual couples from marriage actually stood on
shaky ground. A trilogy of appellant cases in the following years was a
sign that the long-fought battle for same-sex marriage had finally come
of age in Canada.
Halpern v Canada upheld same-sex marriage for the first time in
Canada.42 In July 2002, the Ontario Superior Court ruled that the common law definition of marriage violated the Canadian Charter and
should be changed to the voluntary union for life of two persons to the
exclusion of all others.43 Just as the federal government immediately
appealed, two months later, the Superior Court in Quebec reached a
similar decision in Hendricks v Quebec.44 Not long after the Ontario
Court of Appeal upheld the Superior Courts ruling in June 2003,45 the
40
After the decision, the Ontario Premier said he would abide by the courts ruling
and start reviewing the laws, as did the Premiers of Saskatchewan and Manitoba. Even
before the ruling, British Columbia had already passed some laws recognizing the status of same-sex relationships. See Most Premiers Ready to Make Changes after SameSex Ruling, CBS News Online (last updated 26 May 00). Available at http://cbc.ca/
cgi-bin/templates/view.cgi?/news/1999/05/21/gay990521 (visited 21 Dec 05).
41
Bill C-23 was introduced in 1999 on the heels of M v H to create the Modernization
of Benefits and Obligations Act, which would amend 68 federal statutes to extend benefits and obligations to same-sex couples. See Kathleen Lahey, Becoming Persons in
Canadian Law: Genuine Equality or Separate But Equal? in Robert Wintemute and
Mads Andens (eds), Legal Recognition of Same-Sex Partnerships: A Study of National,
European and International Law (Oxford: Hart Publishing, 2001) 237275, pp 262263
[Wintemute & Andens].
42
43
Ibid., para 309.
44
Hendricks v Quebec [2002] JQ 3816.
45
Halpern v Canada [2003] 65 OR (3d) 161 (CA) [Halpern].
25
British Columbia Court of Appeal delivered a unanimous decision

changing the definition of marriage to accommodate gays and lesbians.46 Meanwhile, in an act which signified a shift of his former
conservative view on the issue, Prime Minister Chrtien announced
on 19 June 2003 that the federal government would not appeal and
would introduce legislation to conform to the judicial rulings. Before
tabling the bill for a parliamentary vote, the federal government asked
the Supreme Court to consider the Proposal for an Act respecting
certain aspects of legal capacity for marriage for civil purposes.47 On
9 December 2004, while declining to rule on the constitutionality of
the traditional meaning of marriage, the Supreme Court held that
Parliament has authority to change the definition of marriage and reaffirmed the freedom of religious organizations to refuse to perform
marriages deemed incompatible with their religious beliefs.
This judicial clearance finally led to a free vote in the House of
Commons where positions on the issue were divided across party lines.
Following an emotive appeal from Prime Minister Paul Martin (who
had previously voted to support traditional marriage) urging fellow
parliamentarians to evolve with the laws and respect the rights of all
Canadians, the bill was passed on 28 June 2005.48 Having been endorsed
by the Senate and the Royal Assent, the Civil Marriage Act symbolized
the evolution of marriage to become the lawful union of two persons
to the exclusion of all others in Canada from 20 July 2005.
United States: a fragmented picture and an uncertain future
The unified action taken in federalist Canada was a far cry from that
of its southern neighbor. In the U.S., the legal regimes regulating
same-sex relationships are rather fragmented amid court battles, federal law constraints, and other legal complications. To date, there are
six states in the U.S. which recognize same-sex marriage: Massachusetts,
Connecticut, Iowa, Vermont, Maine, and New Hampshire.
The U.S. shares Canadas long history of legal sanction against homosexual activities. Sodomy was a criminal offence in common law and
was prohibited in the original 13 states when they ratified the Bill of
46
Barbeau v British Columbia [2003] BCCA 251.

Reference re Same-Sex Marriage [2004] 3 SCR 698.
48
See the Address by Prime Minister Paul Martin on Bill C-38 (The Civil Marriage
Act), 16 February 2005, Office of the Prime Minister. Available at http://www.pm.gc
.ca/eng/news.asp?id=421(visited 22 Dec 05).
47
26
chapter one
Rights in 1791.49 It remained a crime in all of the 50 states until 1961,

when Illinois decriminalized private consensual sexual conducts
between adults.50 At the time when the Supreme Court upheld a Georgia
sodomy law in Bowers v Hardwick in 1986,51 consenting adults who
performed the act in private were at their peril as sodomy remained
illegal in 25 states. The number was down to 13 when the Supreme
Court in Lawrence v Texas overruled Bowers in 2003, denouncing as
unconstitutional a Texas law which criminalized homosexual sexual
conduct.52 Although the majority emphasized that the decision did not
involve whether the government must give formal recognition to any
relationship that homosexual persons seek to enter,53 Lawrence
appeared to give a boost to the same-sex marriage campaign across the
U.S. In November 2003, a few months after Lawrence, the Supreme
Judicial Court of Massachusetts approved same-sex marriage for the
first time, making Massachusetts the first U.S. state to grant gays and
lesbians the right to marry.54
In Goodridge v Department of Public Health, the Supreme Judicial
Court of Massachusetts ruled that excluding same-sex couples from
the protection, benefits and obligations of civil marriage violated the
Massachusetts Constitution. Following Halpern, the court re-construed
civil marriage to mean the voluntary union of two persons as spouses,
to the exclusion of all others.55 With 180 days to conform to the ruling,
49
No Author, Survey on the Constitutional Right to Privacy In the Context of

Homosexual Activity, (1986) 40 University of Miami Law Review 521, pp 524526.
50
Ibid.
51
Bowers v Hardwick (1986) 478 US 186, pp 192193. In that case, a Georgia statute
criminalizing sodomy, defined as performing or submitting to any sexual act involving
the sex organs of one person and the mouth or anus of another, was challenged. The
majority of the Supreme Court held that the Due Process Clause of the Fourteenth
Amendment of the U.S. Constitution does not confer any fundamental right on homosexuals to engage in acts of consensual sodomy [Bowers].
52
Lawrence v Texas (2003) 539 US 558, p 573. The impugned law was a provision
in the Texas Penal Code prohibiting deviate sexual intercourse, which included
any contact between any part of the genitals of one person and the mouth or anus of
another person, between people of the same sex. Facing a similar challenge as in
1986, the Supreme Court overruled Bowers on the basis that consenting adults have
under the Due Process Clause full right to engage in their conduct without state intervention. The Texas statute was unconstitutional as it furthered no legitimate state
interest which could justify its intrusion into the personal and private life of the individual [Lawrence].
53
Ibid., p 578.
54
Goodridge v Department of Public Health (2003) 798 NE 2d 941[Goodridge].
55
Ibid., pp 969970.
27
the legislature in February 2004 took Vermonts approach and proposed a Civil Unions Bill, only to be advised by the court that creating
a second-class citizen status for same-sex couples by withholding the
marriage right remained unconstitutional.56 As a result, the original
ruling took effect on 17 May 2004 and same-sex marriage became legal
in Massachusetts.
The feat in Massachusetts gave many gays and lesbians the first taste
of success after decades of struggles for the right to marry. As early as
the early 1970s, U.S. courts began to entertain cases of the kind. In
1971, a gay couple launched a legal challenge against a Minnesota official who had refused to grant them marriage license.57 The Supreme
Court of Minnesota dismissed the claim. Citing the Scripture, the court
said, [t]he institution of marriage as a union of man and woman,
uniquely involving the procreation and rearing of children, is as old as
the book of Genesis.58 The case subsequently reached the U.S. Supreme
Court which dismissed the appeal for want of jurisdiction, sealing the
original decision as the state authority.59
Two decades on, the fight for same-sex marriage under the Equal
Protection and Due Process Clauses of the U.S. Constitution has triumphed in some state courts only to be overturned by subsequent state
constitutional amendments. In 1993, the Hawaii Supreme Court held
that restricting marriage to heterosexual couples was a sex-based
classification and would violate the Equal Protection Clause under the
Hawaiian Constitution in absence of a compelling state interest.60 In
1998, the Superior Court of Alaska went a little further in holding that
the marriage ban against same-sex couples not only attracted an equal
56
Opinions of the Justices to the Senate (2004) 802 NE 2d 565 [Opinions of the
Justices].
57
Baker v Nelson (1971)191 NW 2d 185.
58
Ibid., p 186.
59
Baker v Nelson (1972) 409 US 810. The U.S. Supreme Court on 10 October 1972
dismissed an appeal from a decision of the Supreme Court of Minnesota for want
of a substantial federal question. See the original decision in the Supreme Court
of Minnesota, Baker v Nelson (n 57 above). The Court held that denying marriage
license to a same-sex couple did not violate the Equal Protection Clause of the U.S.
Constitution. While affirming that marriage is one of the basic civil rights of man, the
court distinguished Loving v Virginia (1967) 388 US 1, which ruled down an antimiscegenation law prohibiting interracial marriages, on the grounds that in commonsense and in a constitutional sense, there is a clear distinction between a marital
restriction based merely upon race and one based upon the fundamental difference in
sex [Loving].
60
Baehr v Lewin (Haw. 1993) 852 P. 2d 44 [Baehr].
28
chapter one
protection claim under the state constitution, but also implicated the
constitutional right to privacy.61 Both judgments, however, were rendered moot by subsequent state constitutional amendments.62 During
the intermittent period where the state was required to justify the continued restriction of same-sex marriage following a judgment of unconstitutionality, legislatures in both Hawaii and Alaska sought voters
support to amend the state constitution which would grant them power
to entrench marriage as a heterosexual union within the state.63 These
state constitutional amendments show that in the U.S., judicial activism remains susceptible to any countermeasures by state legislatures
over the issue of same-sex marriage.
Despite setbacks in Hawaii and Alaska, Vermont made the first state
in the U.S. to recognize the relationships of same-sex couples in 1999.
In Baker v State, the Vermont Supreme Court ruled that the Common
Benefits Clause of the Vermont Constitution requires the state to
extend to same-sex couples the common benefits and protections that
flow from marriage under Vermont law.64 Short of ordering the state to
issue marriage licenses to same-sex couples, the court required the
state to find alternative means to extend the constitutionally required
common benefits and protections of marriage to same-sex couples.
Unlike its Hawaiian and Alaskan counterparts, the legislature heeded
the call and voted to allow civil unions between same-sex couples. The
Civil Union Act became law in 2000.65 For the first time in the U.S.,
same-sex couples were recognized and accorded the same state-created
rights and responsibilities as legal spouses under a parallel system.66
61
Brause v Bureau of Vital Statistics (1998) WL 88743 (Alaska Super. Ct. Feb. 27,
1998).
62
Mark E. Wojcik, The wedding bells heard around the world: years from now, will
we wonder why we worried about same-sex marriage?, (2004) 24 Northern Illinois
University Law Review 589, pp 616619 [Wojcik].
63
In Hawaii, voters approved a proposed constitutional amendment on 3 November
1998, with a new section to the Hawaii State Constitution that reads, The legislature
shall have the power to reserve marriage to opposite-sex couples. The same happened
to Alaska, resulting in the amendment of Art 1. 25 of the state constitution which
reads, a marriage may exist only between one man and one woman. See Wojcik,
Ibid.
64
Baker v State (Vt. 1999) 744 A. 2d 864 [Baker].
65
An Act Relating to Civil Unions, 2000 Vt. Acts & Resolves 91 (codified at Vt. Stat.
Ann. Tit. 15, 12011207 (Supp. 2001) ).
66
Vermont made history again in April 2009 as the first U.S. State to legalize samesex marriage by legislation rather than court ruling. The Bill, S. 115, referred to as An
Act to Protect Religious Freedom and Recognize Equality in Civil Marriage, had been
29
The difference between civil union and marriage, however, lies not only
in the fact that the former is recognized only in the state where it was
created, but also in the name.67
Because of the lacking of consensus on the issue, the decisions in
Goodridge and Baker did not spearhead a change of federal law regarding the legal position of same-sex couples as in the case of Canada. To
a large extent, it was due to the complications that stemmed from the
Defense of Marriage Act (DOMA),68 a federal law passed in 1996 which
has eventually been adopted in the majority of states to resist same-sex
marriages. DOMA was a federal response to the successful lawsuits
won by gay rights activists in Hawaii, Alaska and Vermont. Created to
contain the effect of legal recognition within individual states, DOMA
was so worded that no state shall be required to give effect to any marriage in relation to two persons of the same sex under the laws of
another state.69 At the same time, the meanings of marriage and
spouse were federally codified to involve only partners of the opposite sex.70 Despite the criticism that DOMA is unconstitutional under
the Full Faith and Credit Clause of the U.S. Constitution,71 a majority of
states have either passed their own versions of DOMA or amended
passed by both houses of the legislature on 7 April 2009 and took effect on 1 September
2009. For more detail about its legislative history, see the official website of the Vermont
Human Rights Commission. Available at http://hrc.vermont.gov/Same-sex+Marriage
(visited 7 Jun 09).
67
Mary L Bonauto, The Freedom to Marry for Same-Sex Couples in the United
States of America in Wintemute & Andens (n 41 above) 177207, pp 200202;
William N. Eskridge Jr., Equality Practice: Civil Unions and the Future of Gay Rights
(New York: Routledge, 2002), p 123 [Eskridge I].
68
Defense of Marriage Act (Pub. L. No. 104199, 100 Stat. 2419 (Sept. 21, 1996)
codified at 28 U.S.C. 1738C (1997) ) [DOMA].
69
Ibid., s 2, DOMA.
70
Ibid., s 3, DOMA defines marriage to mean only a legal union between one man
and one woman as husband and wife.
71
Section 1 of Art IV of the U.S. Constitution provides that Full 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.
While the original author of DOMA, then senior member of the Judiciary Committee,
Bob Barr, remains adamant that DOMA is a reasonable solution that leaves the choice
to the states, legal commentators like Harvard law professor Laurence Tribe described
such discretion given to states to ignore the official acts of sister states as having dubious validity. See Bob Barr, The Federal Marriage Amendment: Why Conservatives
and Liberals Alike Should Be Very Glad It Failed (16 Jul 2004), available at http://
writ.findlaw.com/commentary/20040716_barr.html (visited 28 Dec 05); Laurence
H. Tribe, American Constitutional Law, 3rd Edn (Mineola: Foundation Press, 2000),
p 1247 (fn 49).
30
chapter one
their constitutions to entrench marriage as between a man and a

woman.72
Despite the criticisms against DOMA, its supporters in Congress
proposed another controversial federal law to strengthen its immunity
in 2004. On 22 July 2004, the House of Representatives approved the
Marriage Protection Act (MPA) which aimed at restricting all levels of
court including the Supreme Court from hearing cases against
DOMA.73 MPAs final passage will hinge on a majority vote in both
Houses of Congress and approval from the President, which may not
be attainable in the near future. Today, the fate of DOMA remains
uncertain. In August 2009, in response to a lawsuit filed in California
challenging DOMA, legal counsel representing the Department of
Justice expressed the federal governments moral support for DOMAs
repeal while defending its constitutionality for as long as Congress
makes no move.74
Legalization of same-sex marriage in the U.S. is in a state of flux.
California provides a case in point. Having ruled in 2004 that the City
and County of San Francisco acted unlawfully by issuing marriage certificates to same-sex couples without a judicial green light,75 the
Supreme Court of California declared unconstitutional the state marriage law restricting marriage to heterosexual couples in May 2008.76
After same-sex marriage had been officially legal since 16 June 2008,77
72
See map of Statewide Marriage Prohibitions (updated 4 Jun 2009). Available

at http://www.hrc.org/documents/marriage_prohibitions_2009.pdf (visited 7 Jun 09)
[Marriage Prohibitions].
73
The Marriage Protection Act (H.R. 3313) (MPA) was introduced by Representative
John Hostettler and passed by the House of Representatives on 22 July 2004. MPAs
constitutionality is subject to criticisms. See Joanna Grossman, The Proposed Marriage
Protection Act: Why It May Be Unconstitutional? (27 Jul 2004). Available at http://
writ.findlaw.com/grossman/20040727.html (visited 28 Dec 05); Vikram David Amar,
The Marriage Protection Act Bill Passed by the House of Representatives: Trying to
Make Sense of the Nonsensical (6 Aug 2004). Available at http://writ.findlaw.com/
amar/20040806.html (visited 11 Jan 06).
74
Carol J. Williams, Obama Lawyers Offer Reluctant Defense of Gay Marriage
Ban (17 Aug 2009). Available at latimes.com/news/nationworld/nation/la-na-gaymarriage18-2009aug18,0,6851543.story (visited 18 Aug 09).
75
Lockyer v City and County of San Francisco (2004) 33 Cal. 4th 1055 [Lockyer].
76
Re Marriage Cases (Cal. 2008) 183 P 3d 384.
77
Pursuant to an Order it filed in re Marriage Cases on 15 May 2008, the California
Supreme Court denied requests to stay its decision until after the November 2008 election as well as petitions for rehearing. See the official website of Judicial Council of
California. Available at http://www.courtinfo.ca.gov/presscenter/newsreleases/NR3108.PDF (visited 7 Jun 09).
31
things took another sharp turn. On the same day as the U.S. Presidential
Election on 4 November 2008, Californian voters approved a state constitutional amendment entrenching the status of heterosexual marriage, which in effect reversed legalization of same-sex marriage in
force for only four months.78 Constitutional amendment Proposition 8,
known as the California Marriage Protection Act, entrenches marriage in the state as between a man and a woman.79 After its passage,
the status of the California Supreme Courts 2008 ruling and that for
those who had married pursuant to it was left hanging. The very court
that had started the saga finally capped the dispute, for now, when it
ruled on 26 May 2009, upholding the results of the constitutional
amendment while affirming the legality of same-sex marriages performed prior to its adoption.80
At the same time, other states seem in have been going in the opposite direction from California. In fact, in the space of six months since
November 2008, five more U.S. states have legalized same-sex marriage.81 A divided Connecticut Supreme Court ruled on 10 October
2008 that equal protection under the state constitution requires it be
legalized in Connecticut.82 This was followed by Iowa six months later,
this time, through a unanimous Iowa Supreme Court on 3 April 2009.83
With no party asking for a re-hearing, same-sex marriage became legal
in the state by the end of the month. Just 14 days after the Iowa decision, both houses of the Vermont Legislature passed An Act to Protect
Religious Freedom and Recognize Equality in Civil Marriage.84 Having
been the first U.S. State to recognize civil unions, Vermont set itself
78
The official text of Proposition 8 is available at Californias Government website. See http://voterguide.sos.ca.gov/past/2008/general/text-proposed-laws/text-ofproposed-laws.pdf#prop8 (visited 7 Jun 09).
79
Californias electoral measure resonated with voters in Florida and Arizona.
On the same day, Florida passed the Florida Marriage Protection Amendment 05-10
and Arizona passed Resolution 1042, which blocked recognition of same-sex marriage in their respective states. For Florida, see http://election.dos.state.fl.us/initiatives/
initdetail.asp?account=41550&seqnum=1; for Arizona, see http://www.azleg.gov/
FormatDocument.asp?inDoc=/legtext/48leg/2r/bills/scr1042h.htm (visited 7 Jun 09).
80
Strauss v Horton (2009) 46 Cal. 4th 364.
81
They are, in the order that same-sex marriage was legalized, Connecticut, Iowa,
Vermont, Maine and New Hampshire.
82
Kerrigan v Commissioner of Public Health (2008) 289 Conn. 135.
83
Varnum v Brien (Iowa 2009) 763 NW 2d 862.
84
The Bill, S.115, which was passed on 7 April 2009, took effect on 1 September
2009. Details are available at the Vermont Human Rights Commissions official website:
http://hrc.vermont.gov/Same-sex+Marriage.
32
chapter one
apart from its federal counterparts again by being the first U.S. State to
legalize same-sex marriages by legislative initiative instead of judicial
ruling. In the two consecutive months following, the Governor of
Maine and New Hampshire respectively signed into law bills approved
by state legislatures giving gays and lesbians the right to marry.85 The
string of judicial and legislative approvals after the rough-and-tumble
in California shows how volatile the issue is in a divided America.
The U.S. presents a fragmented picture of the legalization of samesex marriage. To date, it is available in six states. Around ten other
states have their own regimes that confer rights and benefits on samesex couples to different extents.86 But the majority remains opposed to
giving full legal recognition to same-sex couples. More than thirty
states either have state constitutional amendments restricting marriage
to a man and a woman or have state law that restricts marriage to heterosexual couples.87 The future remains uncertain with court decisions
and state constitutional amendments being taken as the alternate steps
each of them has the effect of invalidating the other. It is all the more so
with a federal government that morally disapproves DOMA, a federal
law entrenching heterosexual marriages, while being hesitant to act
upon its conviction.
United Kingdom: an inclusive model of Civil Partnership
Compared to the U.S., the Westminster government in the U.K. shows
more determination in achieving a compromised model in a less divided
society. It followed a smoother path by focusing on domestic reforms
and compliance with international law. In the same year that Massachusetts legalized same-sex marriage, the U.K. Parliament passed the
85
Maines Governor signed the Bill, LD 1020 (SP 384), titled An Act to End
Discrimination in Civil Marriage and Affirm Religious Freedom into law on 6 May
2009. See http://www.maine.gov/tools/whatsnew/index.php?topic=Gov+News&id=
72146&v=Article-2006. On 3 June 2009, New Hampshires Governor signed into law
the House Bill, 436-FN-LOCAL, known as An Act relative to civil marriage and civil
unions. See http://www.gencourt.state.nh.us/legislation/2009/HB0436.html.
86
See map of Marriage Equality & Other Relationship Recognition Laws (updated
20 Jul 2009). Available at http://www.hrc.org/documents/Relationship_Recognition_
Laws_Map.pdf (visited 18 Aug 09). In July 2009, Hawaiis attempt to pass a civil union bill
failed after its Senate prevented the bill from being voted upon. See Derrick DePledge,
Democrats miffed over opposition from Gabbard (26 July 2009). Available at http://
www.honoluluadvertiser.com/article/20090726/NEWS01/907260365/Democrats+
miffed+over+opposition+by+Gabbard (visited 25 Aug 09).
87
See Marriage Prohibitions (n 72 above).
33
Civil Partnership Act on 18 November 2004.88 This historic move came

less than forty years after homosexuals were no longer treated as criminals in the U.K. Under British common law, sodomy was known as buggery, a crime punishable by hanging under the Buggery Act of 1533,
until 1861 when the Offences Against the Person Act was passed to
regulate homosexuality.89 Like the U.S. and Canada, decriminalization
of homosexual conducts is a recent phenomenon in the U.K. The Sexual
Offences Act 1967 lifted the ban on consenting adults aged twenty-one
or more to privately engage in homosexual acts.90 Then the development followed a step-by-step approach. After decriminalization the
next step was harmonizing the age of consent between homosexuals
and heterosexuals. In 1994, the age of consent for homosexuals was
reduced to eighteen under the Criminal Justice and Public Order Act.91
In 1997, the European Commission of Human Rights in Sutherland
v U. K. ruled that the disparity in the age of consent discriminated
against homosexuals and violated the European Convention on Human
Rights (ECHR).92 This ruling prompted the British Government to
equalize the age of consent for all to sixteen in 2000.93 The incremental
path was then on a fast track. In 2002, the U.K. Parliament passed a
new adoption law.94 For the first time, same-sex and unmarried heterosexual couples could apply for adoption provided one of the partners
was the parent of the child.95 The Sexual Offences Act 2003 abolished
the centuries-old crimes of buggery and gross indecency.96
By that time, it had been two years since same-sex couples could get
married in the Netherlands and more than ten years since the Danish
88
The Civil Partnership Act 2004 (2004 Chapter 33), applicable to England and
Wales, Scotland and Northern Ireland, came into force from 19 December 2005.
89
Stephen Cretney, Same Sex Relationships: From Odious Crime to Gay Marriage
(Oxford: Oxford University Press, 2006), pp 23 [Cretney].
90
Section 1, Sexual Offences Act 1967.
91
Sections 143 & 145, Criminal Justice and Public Order Act 1994.
92
In Sutherland v U.K. [1997] ECHR 25186/94 (ECommHR), the European
Commission of Human Rights declared in its report of 1 July 1997 that the disparity in
the age of consent between homosexuals and heterosexuals violated Articles 8 (respect
for private life) and 14 (non-discrimination) of the ECHR [Sutherland].
93
Sexual Offences (Amendment) Act 2000.
94
The Adoption and Children Act 2002.
95
Under the Adoption and Children Act 2002, people in same-sex relationships can
apply for adoption either as a couple or as an individual, in the first case, if one of the
partners is the mother or father of the child and has attained the age of 18 years, or in
the second case, if the applicant has attained 21 years of age, and the court is satisfied
that he or she is the partner of a parent of the child. See s 50(2)(a) & s 51(2).
96
Section 9, Sexual Offences Act 2003.
34
chapter one
Government had opened up registered partnerships. Following

Sutherland, both the European Court of Human Rights (ECtHR) and
the U.K. courts eventually recognized the legal status of cohabitating
same-sex partners in tenancy situations.97 As the winds of change continued, it appeared to be a natural development when the House of
Lords approved a civil partnership bill on 17 November 2004, giving a
quasi-marriage status to registered same-sex couples.98 The Civil
Partnership Act, described as an all embracing partnership act, treats
same-sex couples virtually the same as heterosexual married couples in
terms of legal rights, benefits and obligations.99 Legal formalities flowing from the institution of marriage equally attach to registered partnerships upon registration as well as dissolution.100 As same-sex couples
were allowed to adopt unrelated children pursuant to the Adoption
and Children Act 2002, by now all the legal incidents of civil partnerships were on a par with that of traditional marriages. In the U.K., it
appears that registered civil partnerships are the same as marriages
except in name.101
South Africa: same-sex marriage arrives in Africa
The jurisdictions mentioned thus far are predominantly European.
A ruling of the Constitutional Court of South Africa on 1 December
97
In Ghaidan v Godin-Mendoza [2004] 2 AC 557, the House of Lords held that
under s 3(1) of the Human Rights Act 1998, it is possible to interpret the spouse
category in the Rent Act 1977 as covering a surviving same-sex partner for succession
purpose, to avoid sexual orientation discrimination violating Articles 14 and 8, which
echoed the 2003 judgment made by the ECtHR in a virtually identical case in Karner v
Austria [2003] ECHR 40016/98, ECtHR.
98
See s 1, the Civil Partnership Act 2004.
99
According to a distinguished U.K. family lawyer, Stephen Cretney, the Civil
Partnership Act does not explicitly require civil partners to be homosexual or have a
sexual relationship of any kind. So, arguably the law is available to any unrelated couple
of the same sex aged 16 or older, provided neither of them is already married. Quoted
in Joshua Rozenberg, All-embracing partnership act, The Daily Telegraph, 6 Oct
2005. Available at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/10/
06/nlaw06.xml (visited 12 Jan 06).
100
See Chapters 1 & 2, Civil Partnership Act. Like a marriage, a civil partnership
cannot be dissolved by the parties alone. The Act provides for the making of dissolution, nullity, separation and presumption of death orders. As under the law of divorce,
the court has wide discretion to make financial orders if one of the partners has failed
to provide reasonable maintenance for the other, or for a child in the family.
101
Although the law clearly stipulates that the place of registration must not be in
religious premises, thus ruling out formal registration ceremony in any religious
manner.
35
2005 eventually drew South Africa into the growing league of nations
that recognizes same-sex marriage.102
The Constitutional Court of South Africa has been the spur for eradicating discrimination against homosexuals in perhaps one of the
worlds most liberal jurisdictions. South Africa is the first country
whose constitution explicitly protects gays and lesbians from discrimination.103 In 1998, the Court ruled that the common law offence of sodomy and its inclusion in criminal provisions was unconstitutional.104
The first hurdle facing homosexual men disappeared as consensual
sexual conduct between males was decriminalized. Over the years,
South Africa has removed past restrictions against gays and lesbians in
a piecemeal fashion. One by one, the Constitutional Court has struck
down legislation which restricted the legal entitlements of people in
same-sex relationships, including immigration privileges, spousal benefits, adoption and parental rights.105
Having laid the foundation of a progressive jurisprudence on sexual
orientation discrimination, the Constitutional Court assented when
the claimants came asking for the right to same-sex marriage in 2005.
102
(CC)[Fourie].
103
Section 9(3) of the Constitution of the Republic of South Africa 1996 provides
The state may not unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth.
104
In the 1998 case of National Coalition for Gay and Lesbian Equality & Another v
Minister of Justice & Others, [1998] (12) BCLR 1517 (CC) [the NCGLE case], the
Constitutional Court held that the common law offence of sodomy, its criminalization
under s 20A of the Sexual Offences Act 1957, the inclusion of sodomy in Schedule 1 of
the Criminal Procedure Act 1977 and in Schedule 1 of the Security Officers Act 1987,
are inconsistent with the constitutional guarantee of non-discrimination under s 9 of
the Constitution. For an analysis of the judgment, see Pierre De Vos, Sexual Orientation
and the Right to Equality in the South African Constitution: National Coalition for Gay
and Lesbian Equality & Another v Minister of Justice & Others, (2000) 117 South African
Law Journal 17.
105
In National Coalition for Gay and Lesbian Equality & Others v Minister of Home
Affairs & Others [2000] (1) BCLR 39 (CC), the existing immigration law was held
discriminatory for excluding same-sex partners. In Satchwell v President of the
Republic of South Africa & Another [2002] (9) BCLR 986 (CC), the provision giving
pension rights to surviving heterosexual spouses only was ruled unconstitutional. In
Du Toit & Another v Minister of Welfare and Population Development & Others
(Lesbian and Gay Equality Project as amicus curiae) [2002] (10) BCLR 1006 (CC),
the adoption right was extended to same-sex couples. In J & Another v Director
General, Department of Home Affairs & Others [2003] (5) BCLR 463 (CC), the court
affirmed the parental rights of lesbian partners where one of the partners was artificially inseminated.
36
chapter one
In Minister of Home Affairs & Another v Fourie & Another,106 the Court
held that the common law definition of marriage, so far as it excludes
same-sex couples from enjoying the same status as heterosexual
spouses, was discriminatory and unconstitutional, and directed the
parliament to include same-sex couples as legal spouses. All judges but
one decided to suspend the judgment for twelve months to allow parliament time to amend the law, while the dissenting judge held that the
court should take the chance to develop the common law by reading
the word spouse in the Marriage Act so as to permit same-sex couples
to get married without any delay.107 Indeed there was no delay. The
Civil Union Act entered into force on 1 December 2006, a day before
the judicial deadline.108 Inclusive as the law was intended, same-sex
couples could choose the institution they wish to enter. Its long title
reads, To provide for the solemnisation of civil unions, by way of
either a marriage or civil partnership; the legal consequences of civil
unions; and to provide for matters incidental thereto.109 To date, South
Africa is the first African nation to legalize same-sex marriage.
Asia-Pacific and beyond: developments continue
So far, same-sex marriage and its alternative models including registered partnership and civil union are recognized in countries spanning
three continents. One may observe that the movement is largely confined to North-western Europe and limited parts of the Englishspeaking world. But if we look at the bigger picture where legal changes
have occurred in other places that gradually enhance protection for
same-sex couples, the idea of providing legal recognition to them has
started to take root in Asia-Pacific and beyond. As we will see below, a
number of non-European countries have made varying degrees of
progress in providing greater legal recognition to gays and lesbians. In
addition, two more European countries legalized same-sex marriage
in 2009.
106
See Fourie (n 102 above).

All seven judges concurred with Sachs Js holding to suspend judgment for
twelve months to allow the parliament to amend the law; while O Regan J dissented
on this aspect and held that the court should, without delay, include the words or
spouse in s 30(1) of the Marriage Act 25 of 1961. See Fourie (n 102 above), para 169,
per ORegan J.
108
The Civil Union Act (No. 17 of 2006), Republic of South Africa (Assented to 29
Nov 2006).
109
See the long title of the Civil Union Bill 2006 (B26B2006).
107
37
In Asia-Pacific, while no national court has ever ruled in favor of

same-sex marriages, initiatives were taken by some governments.
New Zealand became the regions pioneer when its parliament passed
the Civil Union Act in December 2004, which went into effect on
26 April 2005.110 This move followed the governments earlier decision
to protect gays and lesbians from discrimination. In 1986, the New
Zealand Government equalized the age of consent to sixteen for everyone and decriminalized consensual homosexual conduct between
adult males by enacting the Homosexual Law Reform Act.111 Similar
to the Canadian Human Rights Act 1985, the New Zealand Human
Rights Act 1993 includes sexual orientation as a prohibited ground
of discrimination.112
Having the law in place, New Zealand courts began to grapple with
the issue of same-sex marriage in 1996, when three lesbian couples
sought to obtain marriage certificates.113 The case eventually reached
the Court of Appeal. Having considered both international human
rights jurisprudence and domestic human rights regimes, the majority
affirmed the common law definition of marriage and found no discrimination against gays and lesbians, settling the legal disputes in New
Zealand for the time.114 Six years later, when same-sex marriage had
finally become a reality, New Zealand was quick to respond not to the
extent as did the Canadians but comparable to the British. The government approved the Civil Union Act 2004, less than a month after the
British Parliament had passed the civil partnership legislation.115 Being
more inclusive than the British model, the New Zealand act extends to
110
The Civil Union Act (2004 No. 102) was passed on 9 December 2004.
See the Preamble to the Homosexual Law Reform Act 1986, No 33: An Act to
amend the Crimes Act 1961 by removing criminal sanctions against consensual homosexual conduct between males, and by consequentially amending the law relating to
consensual anal intercourse.
112
Section 21 (m), New Zealand Human Rights Act 1993.
113
In Quilter v Attorney General (1996) NZFLR 481, the High Court in Auckland
dismissed the application, holding that it was lawful for the Register-General of
Births, Deaths and Marriages to refuse issuing marriage licenses to the lesbian
couples.
114
Quilter v Attorney General (1998) 1 NZLR 523. New Zealands Marriage Act 1955
contains no provision defining a marriage. Although Thomas J, in dissenting, found
the exclusion from marriage discriminatory to same-sex couples under human rights
analysis, he agreed with the majority opinion that it was up to the parliament to change
the law of marriage.
115
See Civil Unions Bill passed, The New Zealand Herald, 9 December 2004.
111
38
chapter one
all unmarried heterosexual and homosexual couples, once registered

as civil unions, the same legal rights and obligations associated with
marriage.
A sprawling phenomenon
Like a moving train, the movement for same-sex marriage continues to
re-visit the places where it all began. Since June 2008, two Scandinavian
nations which had legalized registered partnership in the early years of
its inception, finally allowed same-sex marriage by legislation. The
Norwegian Parliament passed the law in June 2008, followed by its
Swedish counterpart in April 2009.116 Even without a marriage title,
same-sex relationships are increasingly recognized in many places in
varying degrees and by different names. Since 2001, relationship models styled civil union or registered partnership have sprung up in some
of the most unexpected places. Civil union made its Latin American
debut in the Argentine capital of Buenos Aires in 2002.117 Now, civil
partnership laws are scattered in states throughout Latin America like
Brazil and Mexico.118 In Eastern Europe, the Czech Republic made history as the first in the former Eastern Bloc to recognize civil partnerships in July 2006.119 A new development also took place in Israel
although it does not recognize same-sex marriage or same-sex union
performed domestically. In November 2006, several Israeli same-sex
couples who had married overseas challenged the governments refusal
to register their status in state registry. On the ground that registration
is only a matter of state statistics, the Supreme Court of Israel ruled in
116
See EURO-LETTER, No. 154 (Jun 2008). Available at http://www.ilga-europe
.org/europe/publications/euro_letter/2008/in_english/euroletter_154_june_2008; see
also EURO-LETTER, No. 164 (Apr 2009). Available at http://www.ilga-europe.org/
europe/publications/euro_letter/2009/in_english/euroletter_164_april_2009 (visited
7 Jun 09).
117
The Act of Civil Union (2002) came into effect in the city of Buenos Aires in
2003. See the Official Tourism Site of the city of Buenos Aires. Available at http://www
.bue.gov.ar/actividades/index.php?menu_id=112&lang=en (visited 30 Sep 08).
118
Mexican state near Texas passes gay union law (11 Jan 2007). Available at http://
www.washingtonpost.com/wp-dyn/content/article/2007/01/11/AR2007011102502
.html (visited 15 Jan 07).
119
Hilda Hoy, New era for gay rights movement: Advocates call for changes in recently passed partnership law, The Prague Post (10 Jan 2007). Available at http://www
.praguepost.com/articles/2007/01/10/new-era-for-gay-rights-movement.php (visited
13 Jan 07).
39
favor of the claimants by ordering the government to register their

same-sex marriages.120
The above shows that an increasing number of jurisdictions have
made some progress in response to the campaign for same-sex marriage. Legal recognition of same-sex relationships, by whatever name,
seems to be a sprawling phenomenon. At present, eight countries (the
Netherlands, Belgium, Spain, Canada, U.S., South Africa, Norway and
Sweden) comprising thirteen jurisdictions (taking into account the six
U.S. States: Massachusetts, Connecticut, Iowa, Vermont, Maine and
New Hampshire) have full-fledged same-sex marriages.
In addition, a 2009 ruling of an Indian high court is symbolic for the
countrys gay rights movement.121 The case arose as a non-governmental organization challenged the constitutionality of a 138-year-old
provision in the Indian Penal Code that criminalizes sodomy in all
circumstances.122 The High Court of Delhi, after observing a volume of
international case law in light of international human rights principles,
held that the law targets homosexuals as a class123 and severely affects
the rights and interests of homosexuals and deeply impairs their dignity.124 Hence, the impugned provision is unconstitutional under Arts
14, 15 and 21 of the Indian Constitution that guarantee the rights to
equality and personal liberty.125 While this decision does not concern
the legalization of same-sex relationships, it is hailed by human rights
activists as a first step to equality for Indias gays and lesbians.126
120
Yossi Ben-Ari v Commissioner of Population Registry, Ministry of the Interior,
HCJ 3045/05 (21.11.2006), tak-supreme 2006(4), 1725.
121
Naz Foundation v Government of NCT of Delhi and Others [WP(C)7455/2001]
(decided 2 July 2009) Available at http://www.law.nyu.edu/ecm_dlv2/groups/public/
@nyu_law_website__news/documents/documents/ecm_pro_062331.pdf (visited 19
Aug 09)[Naz].
122
Section 377 of the Indian Penal Code, 1860 (IPC) is entitled Unnatural Offences
and reads, Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine.
123
See Naz (n 121 above), para 94.
124
Ibid., para 92.
125
Articles 14 and 15 guarantee the right to equality and against discrimination on
a number of grounds while Art 21 protects the right to personal liberty. See the
Constitution of India. Available at http://indiacode.nic.in/coiweb/welcome.html (visited 19 Aug 09).
126
See the press release by Amnesty International (3 Jul 2009). Available at http://
www.amnesty.org/en/news-and-updates/news/india-ruling-against-sodomy-lawsfirst-step-equality-20090703 (visited 19 Aug 09).
40
chapter one
The incremental development and the evolving rights claim
The fact that the Indian court decision is hailed as a first step perhaps
indicates that there are some more steps ahead before gays and lesbians
can achieve full equality. As the above international survey observes,
same-sex marriage did not happen overnight. In those European countries where it is legal, different legal measures protecting the rights of
gays and lesbians were already in place before governments made the
decision to legalize same-sex marriage. This, according to Kees
Waaldijk, reflects a step-by-step approach in achieving the goal of
legalization of same-sex marriage.127 William Eskridge and Darren
Spedale have a similar observation in the U.S. context.128 As Waaldijk
argues, the incremental trend noticeable in Western Europe has
invariably followed three prominent steps: decriminalization, antidiscrimination and partnership legislation.129 Legalization of same-sex
marriage, therefore, represents the final destination after a number of
steps taken each of which helped gays and lesbians move towards
greater equality. At the same time, each step forward represents a
slightly different claim which in turn implicates a wider audience.
The crux lies in the changing nature of the rights claimed by gays
and lesbians. Over the decades, the subject matter of anti-discrimination
on grounds of sexual orientation has evolved from an issue of individual privacy to a reality for the entire society. Our preceding discussion
on the developments in different countries serves as an illustration.
Abolishing sodomy laws first removed the criminal tag attached to
homosexual men. By decriminalization, the state declares it no longer
has jurisdiction in what consenting adults do in their private life. It
signifies the paramount status of the right to be left alone, the privacy
right Brandeis J has famously coined in the U.S. Supreme Court as most
valued by civilized men.130 Once the state has withdrawn from probing
into its citizens bedroom, it leaves little reason to maintain a different
127
See Waaldijk I (n 6 above).

Worse? What Weve Learned from the Evidence (Oxford: Oxford University Press, 2006),
pp 228231 [Eskridge & Spedale].
129
See Waaldijk I (n 6 above), p 66. See also Kees Waaldijk, Small Changes: How
the Road to Same-Sex Marriage Got Paved in the Netherlands in Wintemute &
Andens (n 41 above) 437464.
130
Olmstead v U.S. (1928) 277 U.S. 438, per Brandeis J (dissenting); see also Samuel D.
Warren & Louis D. Brandeis, The Right to Privacy, (1890) 4 Harvard Law Review 193.
128
41
age of consent for heterosexuals and homosexuals. Hence the equalization of the consenting age which in effect lowers the age of engaging in
legal buggery. At this point, it remains for the individuals to decide and
take responsibility for their personal behaviors.
The nature of the rights claim takes a new course as the government enacts anti-discrimination law on the grounds of sexual orientation. Asking people to refrain from giving differential treatment to
gays and lesbians lest they should face legal sanctions means that a
private matter is also a public issue. Merely leaving people alone is no
longer enough. In this case, the subject matter changes from state
non-interference of private acts to state circumscription of public
behaviors. The bystander is no longer just looking on.
Under anti-discrimination law, the role of the third party changes
from being an outsider of someone elses privacy to a participant in
influencing how this someone else fares in public life. It is what people
do not what they omit to do that matters. Correspondingly, the
scope of protection expands from the minoritys private life to the
spheres of education, employment, trades and services, involving people who previously have had nothing to do with the groups personal
affairs. At this stage, merely leaving people alone falls short of the
threshold of equality. The rationale of anti-discrimination law is to
enlist the support and compliance of every citizen in achieving equality
for gays and lesbians. Now, it is the behaviors of the third party that are
being regulated. According to overseas experience, when the spirit of
non-discrimination is translated into state policies, over time, people
are thought to be more receptive to and accommodating of the sexual
minorities.131
Once society is supposed to treat gays and lesbians as everyone else,
the legal oblivion of their relationships looks all the more visible. At
this point, registered partnership or civil union legislations plug the
gap, taking the rights movement to new grounds. Legal recognition
becomes the next signpost of the changing nature of campaign for gays
and lesbians. By conferring on same-sex couples the same rights and
obligations as legal spouses, the state calls upon the third party to give
not only equivalent treatment but also recognition of a marriage-like
status. If the law does help shaping public attitude,132 it is at this stage
131
William N. Eskridge Jr., Equality Practice: Liberal Reflections on the Jurisprudence on Civil Unions, (2001) 64 Albany Law Review 853, p 877 [Eskridge II].
132
Ibid.
42
chapter one
that people are told to start adjusting their beliefs on human relationships after having adjusted their behaviors.
However, civil partnership or civil union or whatever it is called, still
falls short of the magic word. To the critics, these alternatives are reminiscent of the separate but equal doctrine used in racial segregation
which has long been laid to rest in the U.S. as perpetuating stigmatization and discrimination of the minority.133 This same-but-not-the-same
institution starts to pale when it comes before a maturing discourse of
recognition. This is the time when the moral quality of social relations can no longer be measured solely in terms of identical treatment;
rather, the notion of justice is linked to how, and as what, subjects
mutually recognize each other.134 According to Charles Taylor, when
equalization of rights and entitlements becomes the content of the politics of recognition, what is to be avoided at all costs is the existence of
first-class and second-class citizens.135 By making one institution for
heterosexual couples and another for same-sex couples, it has been
argued and the court in Goodridge concurred that the latter are
being relegated to a second-class status.136 The only solution, if not to
abolish marriage altogether, would be to assimilate same-sex couples to
the good of civil marriage.
If the advent of civil partnerships is the time for people to adjust
their belief on human relationships, it is urging them to think anew
when same-sex marriage arrives. Looking back, legalizing same-sex
marriage is a far cry from decriminalizing sodomy in the early years of
the long and incremental journey. While the latter proceeded on the
premise that homosexual citizens should be left alone like everyone
else, the former arguably denotes a stamp of social approval of homosexual relationships.137 Step by step, the notion of equal treatment has
undergone subtle changes. Each stage of the development requires a
higher level of behavioral fine-tuning while reveals an increasingly
133
Andrew Koppelman, The Miscegenation Analogy: Sodomy Laws as Sex
Discrimination, (1988) 98 Yale Law Journal 145 [Koppelman]. But according to
Eskridge, it was an inapt analogy. See Eskridge II (n 131 above), pp 854, 864865.
134
Axel Honneth, Recognition and Moral Obligation, (1997) 64 Social Research,
16-35, p 17.
135
Charles Taylor, The Politics of Recognition in Amy Gutmann (ed),
Multiculturalism and The Politics of Recognition (Princeton: Princeton University
Press, 1992) 25-74, p 37 [Taylor].
136
137
Richard A. Posner, Sex and Reason (Cambridge: Harvard University Press, 1992),
pp 311312.
43
assertive voice of gays and lesbians. What was once private is now public. What was once about material benefits now demands legal recognition. What was once about regulating peoples outward behaviors now
aims at influencing what comes to their mind. The focus of protection
also changes from equal opportunity to equal recognition. It is this
changing nature of legal and conceptual ramifications that makes one
ask whether equality and dignity are sufficient to assume the role of
a one-size-fits-all justification of rights.138 When the tide of human
rights has reached the point of re-defining the meaning of civil marriage, otherwise tolerant people may begin to ask whether it is equality
stretched too far.139 When arguing for an equality practice approach
to achieve the goals of gays and lesbians in a pragmatic manner,
Eskridge writes, a polity which is a democracy and whose citizens
have heterogeneous views about important matters is one where immediate full equality is not always possible, not practical, not even desirable.140 Not only are there diverse views about what equality means,
people have disputes over the ensuing implications especially when
their long-held family values are being challenged as in the case of
legalizing same-sex marriage. Therefore, he argues that when society is
not yet ready for granting full marriage rights to gays and lesbians, a
strategic compromise of allowing civil unions is probably the best
approach to achieve equality in a gradual and incremental manner.141
Same-sex marriage and civil union: the same but different?
Liberals may criticize civil unions as sacrificing the fundamental principle of liberalism under which the state is obliged to realize the values
of liberty and equality and treat every citizen as free and equal.142
Although liberalism does not require the state to regulate marriages
nor to attach legal rights and benefits to such relationships, once it has
decided to recognize and encourage marriages by conferring privileges
138
Jeremy Waldron, Introduction in Jeremy Waldron (ed), Theories of Rights
(Oxford: Oxford University Press, 1984) 1-20, p 20 [Waldron I].
139
Linda J. Lacey & D. Marianne Blair, The Legislative Backlash to Advances in
Rights for Same-sex Couples, (2004) 40 Tulsa Law Review 371, p 374.
140
See Eskridge II (n 131 above), p 871.
141
Ibid.
142
John Rawls, Political Liberalism (New York: Columbia University Press, 1996),
pp 37.
44
chapter one
on those who marry, liberalism does not allow the state to arbitrarily
withhold this recognition from some people.143 In the same way as the
U.S. Supreme Court once upheld the separate but equal policy to segregate blacks from whites,144 assigning same-sex couples to another
institution other than marriage is argued as proceeding on the same
discriminatory premise.145 Eskridge thinks that such an analogy is inapt
as he points to the bridging effects of civil unions in alleviating the
inequalities between same-sex couples and heterosexual couples.
Even if it is a sacrifice of liberal principles as Eskridge concedes,146 it
is arguably a pragmatic one. To take Vermonts pioneering civil union
law as an example, it was clear that at the time of legislation, the state
did not intend to bestow the status of civil marriage on same-sex
couples.147 Instead, it aimed at providing them the opportunity to
obtain the same benefits and protections afforded by Vermont law to
married opposite-sex couples. From the outset, the focus has been
about material support rather than status recognition. To this end,
Eskridge argues that the various rights and benefits available to samesex couples under the civil union law in fact narrow or even eliminate
the gap between same-sex and heterosexual couples as far as benefits
entitlements are concerned.148 Therefore, by focusing on providing the
same material benefits to same-sex couples as married couples, civil
unions serve an important facilitating function to allow the former to
shape their own lives as their heterosexual counterparts do. To the
extent that it helped enhance material equality for gays and lesbians,
Eskridge believes that Baker,149 the judgment that resulted in the legalization of civil union in Vermont, is analogous to Brown v Board of
Education,150 the landmark U.S. Supreme Court decision that overturned racial segregation in public schools, than to Plessy.
Nevertheless, in the U.S., a Vermont couple entering into a civil
union is not treated equally as far as federal law and inter-state recognition are concerned. As discussed earlier, the effect of DOMA is
143
See Eskridge II (n 131 above), p 855. It was to this effect that the U.S. Supreme
Court upheld the freedom to marry for the inter-racial couple in Loving (n 59 above).
144
Plessy v Ferguson (1896) 163 US 537 [Plessy].
145
See Koppelman (n 133 above).
146
147
See An Act Relating to Civil Unions, 2000 Vt. Acts & Resolves 91 (codified at
Vt. Stat. Ann. Tit. 15, 12011207 (Supp. 2001) ) 1(10).
148
Ibid., 1204. See also Eskridge II (n 131 above), p 867.
149
See Baker (n 64 above).
150
45
twofold.151 First, the federal government does not recognize same-sex

relationships; second, the rights and benefits attached to civil unions
are only good in the state that they are conferred. In other words, samesex couples under a civil union regime still face substantial legal and
social predicaments. Considering that a majority of states in the U.S.
either have their own versions of DOMA or constitutional amendments that restrict marriages to heterosexual couples,152 a civil union
status in many cases does not allow a same-sex couple to enjoy the
benefits they can otherwise enjoy in their home state once they moved
to another state.
But the more conspicuous difference between same-sex marriage
and civil union perhaps lies in the intangibles. After the Goodridge
decision, the Massachusetts legislature attempted to follow the footsteps of Vermont in proposing a civil union bill and sought the opinion of the Supreme Judicial Court.153 The court, however, emphasized
the intangible benefits that married couples enjoy including the
sense of security and family.154 What is more, the dissimilarity between
the titles civil marriage and civil union is not trivial as it represents a considered choice of language that reflects a demonstrable
assigning of same-sex, largely homosexual, couples to second-class
status.155 The significance of the name symbolizes what Taylor
called the politics of recognition.156 Because non-recognition or
misrecognition can inflict harm in the form of oppression or imprisoning a person in a reduced mode of being,157 the existence of first
class and second class citizens is antithetical to the equalization of
rights and entitlements.158
Dworkin also raised a question which points sharply to the fundamental difference between marriage and civil union: If there is no difference between the material and legal consequences of marriage or
a contrived civil union, then why should marriage be reserved for
151
See DOMA (n 68 above).

See Marriage Prohibitions (n 72 above). In this respect, the inconveniences facing couples of civil unions are the same as that of same-sex marriages.
153
See Opinions of the Justices (n 56 above).
154
Ibid., para 567.
155
Ibid., para 571. The Supreme Court of California expressed a similar opinion in
its decision to legalize same-sex marriage in California. See Re Marriage Cases (Cal.
2008) 183 P 3d 384, p 400.
156
See Taylor (n 135 above), pp 2574.
157
Ibid., p 25.
158
Ibid., p 37.
152
46
chapter one
heterosexuals?159 Perhaps because marriage has a unique spiritual or

cultural dimension that same-sex couples aspire as much as heterosexuals do. But the fact that there are reasons for granting the marital
status only to heterosexual couples explains just why civil union is not
an equivalent opportunity.
Pragmatic liberalism and full equality
But to Eskridge, it is all part of the step-by-step process. On the basis of
his pragmatic liberalism, he believes that it takes time for society to
accept the recognition of a right such as the right to same-sex marriage.160 By making the development step-by-step along a continuum of
moderate reforms, it allows people to gradually adjust their attitudes to
homosexuals and slowly empowers same-sex couples with a long-term
view to achieving full equality. It requires accommodation even from
gay rights activists because those who aspire for full equality ought to
settle for conditional equality out of humane respect for other peoples
feelings.161 A sense of reciprocity encourages people to try to understand and learn from others. This is a learning curve for all those
involved in the dispute over same-sex marriage because equality cannot be shoved down unwilling throats.162 Indeed, in a liberal democracy where tolerance and mutual respect are preached and practiced,
the way in which civil rights campaigns are run should be in keeping
with these values. How people in deep moral disagreements can contribute to this learning curve is a serious question. The theme of deliberative democracy in light of the same-sex marriage dispute will be
explored in the final chapter. While I do not claim that public deliberation can settle the disagreement overnight, I believe that moving in this
direction allows people to shed light on the meanings of equality and
mutual respect, and to realize them in society.
Same-sex marriage under international law
At present, international law does not provide much legal support for
a right to same-sex marriage. The precedent made so far has remained
159
Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political
Debate (Princeton: Princeton University Press, 2006), p 87.
160
See Eskridge II (n 131 above), pp 880881.
161
Ibid., p 877.
162
Ibid., p 881.
47
at the level of non-discrimination which focuses on the material

benefits available to same-sex cohabitating couples. A 2008 ECtHR
decision has overturned a prior ruling that banned a single homosexual adult from adoption on the grounds of the applicants sexual
orientation.163 But the court has yet to make a defining judgment at
the level of recognition of same-sex relationships under the ECHR.
Perhaps it is just a matter of time when a test case comes. Or is it
an indication that international consensus pauses at the point of nondiscrimination?
The United Nations Human Rights Committee
The issue of decriminalizing homosexuality under international law
was addressed by the United Nations Human Rights Committee (HRC)
in Toonen v Australia.164 In this case, a Tasmanian law which criminalized all forms of sexual conduct between consenting adult males
in private was challenged as violating the privacy (Art 17) and nondiscrimination (Arts 2(1) and 26) guarantees under the International
Covenant on Civil and Political Rights (ICCPR).165 While the HRC
agreed that the reference to sex in the non-discrimination articles
includes sexual orientation, it chose to ground its decision solely on
privacy. Deciding in light of the series of ECtHR cases in Dudgeon v
U.K.,166 Norris v Ireland,167 and Modinos v Cyprus168 where similar sodomy legislation had been held to have violated the right to privacy
under the ECHR, the HRC held that the breach of the privacy guarantee under Art 17 was enough to annul the impugned Tasmanian law,
leaving the issue of discrimination open.
A change of judicial sentiment was signaled in Young v Australia,169
nearly a decade after Toonen. In that case, the same-sex partner of the
deceased veteran was denied a pension due to his being excluded as the
dependant partner under the federal law of Australia. Having decided
in Toonen that Art 26 of the ICCPR covers discrimination based on
163
The case of E.B. v France [2008] ECHR 43546/02 [the E.B. case].
Toonen v Australia (Comm No 488/1992, UN Doc CCPR/C/50/D/488/1992,
4 April 1994)[Toonen].
165
International Covenant on Civil and Political Rights (ICCPR) (19 December
1966, 999 UNTS 171).
166
Dudgeon v U. K. [1981] 4 EHRR 149.
167
Norris v Ireland [1988] 13 EHRR 186.
168
Modinos v Cyprus [1993] 16 EHRR 485.
169
Young v Australia (Comm No 941/2000, UN Doc CCPR/C/78/D/941/2000,
6 Aug 2003).
164
48
chapter one
sexual orientation, the HRC ruled that the pension restriction was a
case of discrimination as the claimant was denied entitlement of the
benefit because of his homosexuality. This judgment started a new
chapter in the HRC jurisprudence as it started to acknowledge the positive rights of gays and lesbians.
If the incremental pattern seen in the European jurisdictions is anything to go by, the next judicial milestone would probably be the recognition of same-sex unions. Yet, the HRC has declined to rule in favor
of such a right under the ICCPR. In Joslin v New Zealand,170 two lesbian couples took the New Zealand Government to the international
court for its refusal to grant them marriage licenses under the countrys marriage law. While the complaint raised a number of violations
under the ICCPR, the HRC confined its analysis to the context of Art 23
of the ICCPR, the only substantive provision which defines the right to
marriage. It directed itself to the use of language under Art 23, where
marriages are expressed in gender-specific terms as between men and
women, with all other rights expressed in gender-neutral terms.171 The
HRC found that member states are only obliged to recognize marriage
to be the union between a man and a woman. Hence, New Zealand
committed no breach by refusing to recognize same-sex marriages.
Despite its unanimous decision, two members of the HRC raised the
possibility of discrimination due to the governments denying samesex couples certain rights and benefits available to married couples
without reasonable and objective justifications, where the former had
no choice to enter into marriage.172
The European Court of Human Rights
Similarly, the present jurisprudence of the ECtHR does not offer much
guidance on the issue of same-sex unions, the closest it gets being a
marriage involving transsexualism. Though in a different context, the
decision of Goodwin v U.K.173 might have signaled the move towards a
more liberal interpretation of the right to marriage. This case concerned
170
Joslin v New Zealand (Comm No 902/1999, UN Doc CCPR/C/75/D/902/1999,
30 July 2002)[Joslin].
171
Article 23(2) of the ICCPR states, The right of men and women of marriageable
age to marry and to found a family shall be recognized.
172
See Joslin (n 170 above). See the Individual opinion of Committee members
Mr. R Lallah and Mr. M Scheinin at the Appendix.
173
Goodwin v U.K. [2002] 2 FCR 577, ECt HR [Goodwin].
49
the legal rights and status of a post-surgery transsexual woman in particular the rights to privacy (Art 8), marriage (Art 12) and nondiscrimination (Art 14) under the ECHR. The ECtHR upheld the first
two claims. It ruled that the right to marry under Art 12 of the ECHR
allows the claimant to enter into marriage in her new gender.174 In so
holding, the ECtHR reversed the traditional view of marriage as
between persons of opposite biological sex, on the grounds that the
inability of a couple to conceive a child per se does not remove their
right to marriage recognized under Art 12. Although this decision does
not give rise to the right to same-sex marriage, its rationale suggests a
more inclusive approach as a result of the adoption of the Charter of
Fundamental Rights of the European Union (the Charter) in 2000.175
Article 9 of the Charter removes the gender-specific references of men
and women and paves the way for a new interpretation of marriage
should the right case come to the court.176
Still, the time has not come for the ECtHR. Frette v France177 underlined the dilemma of the court when acknowledging the presence of
both sexual orientation discrimination and its reasonable justifications.
In that case, Mr. Frette, a single homosexual man, sued France for failing to accept his application to adopt as did other heterosexual single
adults. The majority of the ECtHR opined that despite the fact that the
applicants sexual orientation was a decisive factor for the states refusal,
the interest of children was the paramount consideration in adoption
cases. As such the state measure had met the test of proportionality
and reasonableness and there was no unjustified discrimination under
Art 14 of the ECHR.178 In particular, the court noted that it was dealing
with the delicate issues regarding child rearing and societal interests
amid a lack of common ground among the member states of the
Council of Europe.179
174
Ibid., paras 97104.

Charter of Fundamental Rights of the European Union (2000/C 364/01), Official
Journal of the European Communities. Available at http://ec.europa.eu/external_
relations/human_rights/doc/charter_364_01en.pdf.
176
Article 9 reads, The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights. See
Charter of Fundamental Rights of the European Union (2000/C 364/01), Official
Journal of the European Communities. Available at http://ec.europa.eu/external_
relations/human_rights/doc/charter_364_01en.pdf.
177
Frette v France [2002] ECHR 36515/97, ECtHR [Frette].
178
Ibid., para 36.
179
Ibid., para 41.
175
50
chapter one
Frette has been distinguished and in effect overruled in the case

of E.B. v France in 2008.180 Also applying for adoption as a single adult
as did Mr. Frette, the claimant disclosed her stable lesbian relationship
and later had her application turned down by the authority. The ECtHR
distinguished Frette on the facts. First, the domestic authorities did not
expressly refer to the applicants choice of lifestyle in their refusal as
they had in Frette. Secondly, the authorities praised the applicants
child-raising and emotional capacities while they had questioned the
abilities of Mr. Frette. Thirdly, the authorities had considered the
attitude of the applicants stable partner which was not a factor in
Mr. Frettes application.181 Having made these observations, the court
ruled that although the authorities did not base their rejection solely on
the grounds of the applicants sexual orientation, it was one of the decisive factors and as such, contaminated the entire decision otherwise
legitimately made.182 Reflecting a shift of focus of its jurisprudence on
the matter, the ECtHR emphasized the private aspect of adoption:
Where sexual orientation is in issue, there is a need for particularly
convincing and weighty reasons to justify a difference in treatment
regarding rights falling within Article 8.183 Moreover, the consideration of the best interest of the child was actually favorable to the
applicant because of her child-rearing and emotional capacities.
According to the court, the applicants personal qualities would contribute to the best interests of the child.184 The decisive reason of the
authorities rejection, i.e. the applicants lack of a paternal referent, was
therefore held to have been based on her sexual orientation and was
not reasonably and objectively justified.185
The case of E.B. v France makes no reference to same-sex marriage.
But the different reasoning and holding from that of Frette signals that
the ECtHR may now be ready to take a more inclusive approach particularly when a claimants sexual orientation is said to be determinative in the denial of his or her rights under the ECHR. The Goodwin
decision already makes it possible for persons of the same biological
sex to marry under Art 12 of the ECHR. A more liberal interpretation
180
181
182
183
184
185
See the E.B. case (n 163 above).

Ibid., para 71.
Ibid., para 80.
Ibid., para 91.
Ibid., para 95.
Ibid., paras 89 & 96.
51
cannot be ruled out in future. The development of jurisprudence in

the HRC is also unpredictable. Jolin was decided when same-sex
marriage was just legalized in the Netherlands and nowhere else. As
things have changed so much since, this decision may need to be read in
light of the dictum of the two concurring judges about the lack of legal
rights for same-sex couples due to their impossibility to get married.
All in all, it may be just a matter of time before the right case comes
to either the ECtHR or the HRC for clarification as to whether the right
to marriage should be extended to same-sex couples. As more jurisdictions are recognizing the legal status of same-sex couples, a lack of
regional or international consensus would no longer provide a sustainable justification to continue the ban on same-sex marriage if it is found
to be in breach of national constitutions. Substantive arguments need
to be engaged in addressing what was once famously described as a
culture war.186 The U.S. Supreme Courts 1996 decision of Romer v
Evans not only forestalled a series of landmark gay rights cases in
America, but also highlighted the fine line between the so-called animus against a politically unpopular group and mere moral disapproval of homosexual conduct for preserving traditional sexual
mores.187 Besides being a judicial exercise of constitutional interpretation, it requires one to look at the issue as a larger struggle about whose
moral and cultural vision should prevail in society.188
Why can same-sex marriage be morally controversial?
The issues over homosexuality remain divisive. As societies have generally moved on from sexual or racial discrimination of the past, many
of them are still grappling with the claims of gays and lesbians
who want parity with the heterosexual majority in all aspects of life.
186
Romer v Evans (1996) 517 US 620, per Scalia J. In a strong dissent against invalidating Colorados constitutional amendment repealing discrimination laws in favor of
homosexuals, Scalia J writes, I think it no business of the courts (as opposed to the
political branch) to take sides in this culture war.
187
Kennedy J, writing for the majority, described the constitutional amendment as
motivated by animosity with a desire to harm a politically unpopular group. On the
other hand, to Scalia J, it was rather a modest attempt by seemingly tolerant Coloradans
to preserve traditional sexual mores against the efforts of a politically powerful
minority
188
J. M. Balkin, The Constitution of Status, (1997) 106 Yale Law Journal 2313,
p 2318 [Balkin].
52
chapter one
Perhaps it is because the difficult subject of religion is involved.189 Or

like abortion, there are indeed firm and deep-seated convictions of
value190 which make homosexuality an uncompromising subject for
many. In any event, just because there are disagreements does not mean
that there is animus or hatred between people. Instead, the underlying
cause may be a genuine clash of moral values that the law alone cannot
resolve.191
A socio-legal perspective presents an interesting and reflective angle
to look at how the issue of homosexuality plays out as a battle of morals. Using a status-based approach, J. M. Balkin attempts to shift the
focus centering on discrimination to one analyzing how society is
organized and stratified.192 It traces the social root of the controversy
which in turn highlights the imperative of a deep moral reflection for
society as a whole. According to this thesis, the democratic ideal is not
a confirmation of majority will but a commitment to create a democratic culture. It is a culture that rejects all unjust hierarchies of social
status and promotes equal status and equal standing for all people.193
To move in this direction one must first put aside the buzzwords of
discrimination and inequality and look at the underlying legal and
sociological realities.
According to Max Webers status-groups analysis of social structure,
our society is organized around a system of social meanings which in
turn forms a system of social hierarchy.194 One of the core sets of social
meanings in relation to family involves the superiority of both heterosexuality and masculinity. In this respect, homosexuals transgress the
embedded social meanings based on gender roles and thus have always
been granted a lower social status.195 As a result, any change of the
closet politics and the current social arrangements by conferring
189
Ben Schuman, Gods & Gays: Analyzing the Same-sex Marriage Debate from a
Religious Perspective, (2008) 96 Georgetown Law Journal 2103, pp 21042105
[Schuman]. The writer discusses how religious arguments extracted from the Christian
Bible were used to oppose same-sex marriage. See pp 21082113.
190
Jeremy Waldron, The Core of the Case against Judicial Review, (2006) 115 Yale
Law Journal 1346, p 1404 (fn141) [Waldron I].
191
See Balkin (n 188 above), p 2331.
192
Ibid., p 2374.
193
Ibid., pp 23142315.
194
Max Weber, Economy and Society: An Outline of Interpretive Sociology, Vol 2, eds.
Guenther Roth & Claus Wittich (Berkeley: University of California Press, 1978),
pp 926939.
195
See Balkin (n 188 above), p 2362. In Webers words, status honor is normally
expressed by the fact that above all else a specific style of life is expected from all those
53
equal rights to gays and lesbians are easily seen as transgressing the
superiority of both heterosexuality and masculinity, and giving them
special rights and a green light on homosexuality.196 The ensuing
competition of social status and the associated benefits between homosexuals and heterosexuals is one of the cultural struggles in society.197
But this cultural struggle is not necessarily the by-product of an animus against homosexuals. It is a battle of moral visions. As Balkin
observes, people in opposing homosexuality may merely mean to
express their moral disapproval of homosexual conducts. Their desire
to preserve the status of heterosexual marriage, therefore, may be no
less sincere than that of same-sex couples fighting for the right to
marry.198 While a status-based approach sees the conflict between gay
rights advocates and their opponents as a competition of status, it does
not change its nature as an authentic moral debate about which form of
life should be honored and supported. Hence, the meaning of discrimination in this case can be more accurately described as a distinction
between what is morally more worthy and what is morally less worthy.199 But the issue is no less controversial where discrimination is a
matter of distinction rather than a matter of oppression.
If we structure the whole debate in this way, the next question
Balkin asks is whether this status hierarchy is unjust and thus warrants constitutional intervention.200 Since moral arguments are used,
particularly by the conservatives, to justify the existing status hierarchies and the unshakable position of traditional marriage, to answer
Balkins question one must be morally critical about claims of morality.201 It is not to say that one should disregard any moral values that
he dislikes. A status-based approach invites us to look at the dominant social structures and modes of social stratification, and critique
if there is a connection between the moral justifications the majorities offer and the preservation of their superior status.202 This is a
flexible and open-ended exercise. Judicial interpretation of specific
who wish to belong to the circle. Applying this, the lifestyles of gays and lesbians do
not match that of heterosexuals hence their relatively lower social status. Ibid., p 932.
196
Ibid., Balkin, p 2336.
197
Ibid., p 2321.
198
Ibid., p 2332.
199
Ibid., p 2336.
200
Ibid., p 2358.
201
Ibid., p 2364.
202
Ibid., p 2374.
54
chapter one
constitutional clauses alone does not suffice. What we should be

committed to is a continued project of self-understanding and selfgovernance which requires us to reflect on whether the existing forms
of status hierarchy are just, and how as a democratic society we are to
deal with them.203 People may not agree any time soon on what is the
most morally and socially desirable way to address this task. Different
moral visions will keep on competing with each other. But in a democratic society committed to promoting a democratic culture, we
should start to find ways to deliberate with each other on a continuous
basis about how society should move forward. This aspect will be
explored in the final chapter.
A normative inquiry into same-sex marriage
Apart from revealing the possible social root of the dispute over homosexuality, the above socio-legal approach highlights the need to look at
the moral arguments used to support or reject the claim of same-sex
marriage. If the crux need not be hostile discrimination against minorities as the status-based analysis suggests, it pays to look at the normative arguments from both the proponents and opponents in order to
identify the issues at stake. One should not uncritically pigeonhole
groups as liberal or conservative amid the sophisticated human rights
discourses nowadays. People can be liberal on abortion but take a conservative view on marriage. Similarly, a conservative on sexual liberty
can be compassionate about the right of gays and lesbians to get married.204 Therefore, in the debate over same-sex marriage, the competing
arguments should be understood in terms of a moving spectrum that
runs between the liberal opinions which place cardinal values on individual autonomy, equality, dignity, liberty and privacy, and the conservative opinions which emphasize the link between marriage and
procreation, traditional family values, and public policy considerations. Together this diversity of arguments sets the scene of the moral
disagreement on rights.
203
Ibid., pp 23442345.
Robert P. George, Public Reason and Political Conflict: Abortion and
Homosexuality, (1997) 106 Yale Law Journal 2475, p 2497 [George I]. In his debate
with Stephen Macedo, George notes that despite Macedos support of same-sex marriage as a commitment for two loving individuals, he is no sexual liberationist and in
fact rejects many forms of even consensual sexual acts.
204
55
The proponents case for same-sex marriage

The proponents case starts with the notions of equality and dignity: the
two predominant grounds upon which arguments for same-sex marriage are usually made. They are the two grounds which possess strong
judicial as well as constitutional credentials. The Ontario Court of
Appeal, in affirming a lower courts decision to legalize same-sex marriage in Halpern, began its judgment saying, this case is ultimately
about the recognition and protection of human dignity and equality in
the context of the social structures available to conjugal couples in
Canada.205 Likewise, the Supreme Court of Massachusetts in Goodridge
proclaimed, The Massachusetts Constitution affirms the dignity and
equality of all individuals. It forbids the creation of second-class citizens.206 The Constitutional Court of South Africa in Fourie posed an
opening question in the same spirit: Does the law deny equal protection to and discriminate unfairly against same-sex couples by excluding them from marriage?207 In these cases, the concepts of equality
and dignity are regarded as the mainstay in justifying the right to
same-sex marriage.
For its advocates, the quest for same-sex marriage is part of the gay
rights movement that originated in Europe. As a comprehensive study
of American law on family and marriage in 2003 suggests, the perpetuation of marriage discrimination in the United States represents a
denial of civil rights to same-sex couples that is increasingly out of step
with the trend toward marriage equality across the Western world.208
As Waaldijk argues, experience in many European countries suggests
that the legalization of same-sex marriage often proceeded on a stepby-step basis.209 Law reforms starting from the abolition of sodomy
offences, legislation of anti-discrimination laws to recognition of samesex partnerships in parts of the Western world reflect the gradual
advancement of equality as gays and lesbians took part in the human
rights movement.
Equality-based arguments are probably versatile enough to justify
laws banning employment discrimination, creating partnership rights
205

207
See Fourie (n 102 above), p 373.
208
No Author, Developments in the LawThe Law of Marriage and Family: II.
Inching Down the Aisle: Differing Paths Toward the Legalization of Same-Sex Marriage
in the United States and Europe, (2003) 116 Harvard Law Review 2004, p 2006.
209
See Waaldijk I (n 6 above).
206
56
chapter one
or allowing adoption by gays and lesbians, all on the basis that otherwise they will be treated unequally on grounds of their sexual orientation.210 Yet the interpretations of equality are as diverse as its usages and
different understandings of it can give rise to differently structured
justifications for laws and law reform.211 For example, the classical case
of equality formal equality renders equal treatment only to those who
are equals, in a way justifies inequality in some circumstances.212 On
the other hand, the concept of equal opportunity aims at disregarding difference and creating a level-playing field for everyone.213
Implementing equality according to the different conceptions thus
engenders completely different policy results. The rub is: The choice
between different conceptions of equality is not one of logic but of values or policy.214
Therefore, in the context of same-sex marriage, the question what is
equality? must be sorted out first before one uses it to justify the right
to same-sex marriage. In any case, one should not rely on equality
alone. In light of its inherent inconsistencies, equality-based arguments
are not sustainable analytically as a justification for law reform.215 There
is a need for a thorough study of the meanings and rationales of equality in order to reveal its strengths and limitations in human rights discourses. This will be dealt with in greater detail in Chapter 2.
In response to this critique, one may argue that equality does not
stand alone in the discourse of same-sex marriage, because the idea of
human dignity sits side by side to bolster its strength and appeal. The
reference of equal human dignity in the UDHR seems to suggest that
equality and dignity are two sides of the same coin. In Halpern, the
court opined that the finding of discrimination concerns substantive
equality and the emphasis is on human dignity, which is the self-respect
and self-worth a person or a group feels.216 According to the court,
210
Nicholas Bamforth, Sexuality, Morals and Justice: A Theory of Lesbian and Gay
Rights Law (London: Cassell, 1997), pp 235236 [Bamforth I].
211
Ibid., p 236. Similarly, Sandra Fredman writes, equality can be formulated in
different ways, depending on which underlying conception is chosen. Hence, equal
treatment can lead to inequality in some cases while unequal treatment might be necessary in others in order to achieve equality. See Sandra Fredman, Discrimination Law
(Oxford: Oxford University Press, 2002), p 2 [Fredman].
212
Ibid., Fredman, pp 711.
213
Ibid., pp 1415.
214
Ibid., p 2.
215
See Bamforth I (n 210 above), pp 236237.
216
57
excluding same-sex couples from a fundamental societal institution

such as marriage perpetuates the view that they are not capable of
forming loving and lasting relationships and that their relationships
are less worthy of recognition.217 It offends the dignity of persons in
same-sex relationships.218 The Constitutional Court of South Africa
echoed this view, holding that denying same-sex partners the same
respect and protection heterosexual partners have constitutes a crass,
blunt, cruel and serious invasion of their dignity.219 The underpinning
idea is that sexual or emotional desires, aspirations and behaviors are
quintessential to being human and are worthy of equal respect regardless of ones sexual orientation.220 Therefore, withholding legal recognition from same-sex relationships stigmatizes gays and lesbians as being
undeserving of full consideration as human beings because of their
very characteristics.221 Because it is as dehumanizing as it is demeaning, the Constitutional Court of South Africa described banning samesex marriage a denial of humanity and an inhuman treatment to
same-sex couples.222
Universally appealing as the idea of dignity may sound, its meaning
is as elusive, if not more than, as that of equality. The UDHR does not
define dignity despite its prominent status in international human
rights discourse. Because of the notions inherent subjectivity, dignity is
said to carry different content for different people.223 It means that
while people can be of one voice on the centrality of human dignity in
the theory of rights, they may not see eye to eye when it comes to what
it actually implies. Therefore, it is argued, dignity is at best a placeholder for a more substantial theory of human rights; at worst, a mere
empty shell the only function of which is to plug a major jurisprudential
gap.224 Considering the preponderance of dignity and its close link with
equality in justifying the right to same-sex marriage, these comments
go to the creditability and viability of the prevailing jurisprudence in
217
Ibid., para 94.

Ibid., para 108.
219
See the NCGLE case (n 104 above), para 54.
220
Nicholas Bamforth, Same-Sex Partnerships and Arguments of Justice in
Wintemute & Andens (n 41 above) 31-54, p 41 [Bamforth II].
221
Ibid., p 43.
222
See Fourie (n 102 above), para 50, per Sachs J.
223
Christopher McCrudden, Human Dignity and Judicial Interpretation of Human
Rights, (2008) 19 European Journal of International Law 655, p 678 [McCrudden].
224
Frank van Dun, Human Dignity: Reason or Desire? Natural Rights versus
Human Rights, (2001) 15 Journal of Libertarian Studies 1, p 14.
218
58
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this contentious area of human rights. Indeed, there is more to say about
human dignity other than the clich of universality and humanity. Its
enormous content and the jurisprudential puzzles it created will be discussed in Chapters 3 and 4 in the context of rights litigation.
Besides equality and dignity, a popular argument in favor of samesex couples is the right to privacy. It takes the view that the state
should leave people alone on matters pertaining to individuals private
lives.225 In the landmark case of Griswold v Connecticut,226 the U.S.
Supreme Court held that the state has no concern with what goes on in
peoples bedrooms and struck down a law banning married couples
from using contraception. On the topic of homosexuality, over the past
decades, the concept of privacy has been largely successful in catalyzing law reforms that have decriminalized private sexual conduct
between consenting adults.227 A prominent example is the majority
judgment in Lawrence v Texas, in which the U.S. Supreme Court overruled its prior decision in Bowers v Hardwick and upheld the constitutional right to privacy in striking down Texass sodomy law.228 Avoiding
a reference to equality, the majority rested its judgment firmly on privacy particularly the private nature of the conduct involved.
While the Lawrence court deliberately declined to address legal recognition of same-sex relationships in its privacy language,229 privacy
has been argued as a ground strong enough to support same-sex marriage. To appreciate this point, one needs to have a transvaluation of
values,230 which means that personal conduct perceived as morally
wrong can be however regarded as an affirmative good and should no
225
The concept of privacy was encapsulated in a 1957 report in which the
Committee on Homosexual Offences and Prostitution in the U.K. stated: there must
remain a realm of private morality and immorality which is, in brief and crude terms,
not the laws business. See Report of the Committee on Homosexual Offences and
Prostitution (Chairman: Sir John Wolfenden) (1957) Cmnd. 247, para 61. This report
is subsequently cited as The Wolfenden Report, its extracts are reproduced in Cretney
(n 89 above), Appendix 2.
226
Griswold v Connecticut (1965) 381 US 479.
227
See Bamforth I (n 210 above), p 33.
228
See Lawrence (n 52 above), in which the majority in the U.S. Supreme Court held
that the plaintiffs right to liberty under the Due Process Clause gave them the full right
to engage in their sexual conduct without the intervention of the government.
229
Kennedy J, writing for the majority, said the case [d]oes not involve whether the
government must give formal recognition to any relationship that homosexual persons
seek to enter. See Lawrence (n 52 above), p 578.
230
David A. J. Richards, Sex, Drugs, Death and the Law: An Essay on Human Rights
and Overcriminalization (New Jersey: Rowman & Littlefield, 1982), p 35 [Richards I].
59
longer be subject to public scrutiny if the pursuit of it does not implicate serious moral questions. Applying this concept to same-sex marriage, it is presumptively unconstitutional to ban gays and lesbians
from marrying as it amounts to an infringement of the basic human
right to intimate life, the right to marriage being an important institutional expression.231 The right to intimate life is essentially a right to
bring to bear on intimate matters of love and care. Whether the relationship is heterosexual or homosexual is thus out of the question. Any
abridgment of this right is unjustly dehumanizing and prima facie
unconstitutional unless there are compelling grounds of public reason
consistent with the argument for tolerance.232
Thus the right to privacy can become a normative argument to justify the moral case of same-sex marriage. One author calls it the doctrine of moral liberalism.233 Looking beyond the narrow scope of
privacy, this argument states that society has a moral obligation not
only to leave individuals alone in their private life, but also create the
social conditions that facilitate their leading a full human life. Contrary
to a privacy discourse which tends to sidestep morality, the idea of
moral liberalism espouses the morality of gay rights. It recognizes that
human beings share basic needs and capabilities, and are tied to one
another by relationships and attachments in the course of fulfilling
these human needs.234 In particular, human beings can be seen as members of small groups who owe each other special loyalty and devotion.
As a member of a particular group, one achieves personal fulfillments
through his communal or associative identification with family,
friends, colleagues, his own country, or other restricted groups.235
As one of the ways by which people are joined together, marriage in
itself does not have much moral significance. Rather, its significance
lies in its being a means through which individuals seek physical and
emotional intimacy as well as reciprocity in long-term commitments.236
According to Alan Gewirths theory of self-fulfillment based on humans
231
David A. J. Richards, Women, Gays, and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law (Chicago: University of Chicago Press, 1998),
p 440 [Richards II].
232
Ibid., pp 441444.
233
Carlos A. Ball, The Morality of Gay Rights: An Exploration in Political Philosophy
(New York: Routledge, 2003) [Ball].
234
Ibid., p 75.
235
p 142 [Gewirth].
236
Ibid., p 143.
60
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freedom and rationality, marriage is a deeply intimate union formed

for the purposes of extensive mutual concern and support for the participants that enhance the partners general ability of agency and thus
contribute to their capacity-fulfillment.237 As marriage and parenting
are the two principal social institutions for human beings to satisfy
their needs and exercise their capabilities, society has a moral duty to
allow or encourage people to participate in them fully. Gays and lesbians deserve no less than others who choose members of the opposite
sex as life partners. When society denies their right to marry, it fails to
recognize and provide for the full humanity of gays and lesbians. Under
moral liberalism, this is immoral.238 Seeing marital relationships as a
way to fulfill human needs and aspirations asks people to look at marriage beyond its procreative function. Instead of being a repository of
societys policy choices which aims at achieving mainly utilitarian
social goals, marriage can be a place where human self-fulfillment gets
worked out.239
If self-fulfillment, rather than meeting societal expectations, is what
marriage is about, the idea that marriage is for having children becomes
irrelevant. The plurality of todays family arrangements childless,
nuclear, single-parenting, or step-parenting, to name a few helps illustrate a liberal view that marriage is not unquestionably linked to procreation. People marry for many reasons. As the Ontario Court of
Appeal in Halpern noted, intimacy, companionship, societal recognitions, economic benefits and the blending of two families, to name a
few, are other reasons that couples choose to marry.240 As couples who
are infertile or well past the child-bearing age can marry, and many
heterosexual couples nowadays choose not to have children, there is no
longer a link between marriage and procreation. For those who aspire
to have children, infertile couples or same-sex couples alike, can make
use of external and technological assistance such as adoption, surrogacy and donor insemination. The emergence of a world trend seems
to support this argument. According to statistics, many places in the
U.S. and Western Europe allow homosexual adults to adopt, and an
increasing percentage of children are being conceived and raised by
237
Ibid.
See Ball (n 233 above), p 111.
239
Vincent J. Samar, Throwing down the International Gauntlet: Same-sex Marriage
as a Human Right, (2007) 6 Cardozo Public Law, Policy & Ethics Journal 1, p 22
[Samar].
240
238
61
same-sex couples.241 This phenomenon appears to resonate with the

best interest of the child argument that granting same-sex couples the
same legal rights and responsibilities benefit the very children they are
already raising.242
According to this argument, not only children stand to benefit from
having their same-sex parents married, but same-sex marriage is also
said to help strengthen the crumbling institution of marriage which is
plagued by an increasing number of divorce. 243 Instead of damaging
the sanctity of marriage, embracing the excluded to make the lifelong
vows is believed to help buttress the ethic of monogamous marriage.
The courts observation in Goodridge is a case in point,
If anything, extending civil marriage to same-sex couples reinforces the
importance of marriage to individuals and communities. That same-sex
couples are willing to embrace marriages solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the
enduring place of marriage in our laws and in the human spirit.244
Supporters of same-sex marriage seek to break from a paradigm of

heterosexual marriage steeped in traditional rhetoric. They ask society
to see marriage as what it is, instead of wrangling over whether it is
deeply rooted in this Nations history and tradition.245 Besides, they
argue that the claim of traditions only brings back the past wounds of
racial segregation. In the American context, they draw attention to the
close resemblance between the ban on same-sex marriage and the prohibition of interracial marriage before the latter was outlawed. The
Hawaii Supreme Court in Baehr v Lewin,246 for example, applied the
241
See M v H (n 36 above).
See Goodridge (n 54 above), pp 963964. See also Mark Strasser, The Alleged
Harms of Recognizing Same-Sex Marriage in Lynn D. Wardle (ed), Whats the Harm?
Does Legalizing Same-Sex Marriage Really Harm Individuals, Families or Society?
(Lanham: University Press of America, 2008) 27-46, pp 3133 [Wardle I].
243
Andrew Sullivan, Virtually normal: an argument about homosexuality (New York:
Vintage Books, 1996), pp 112, 182186 [Sullivan]; David A. J. Richards also argues,
Same-sex marriage is not a threat to marriage, but a recognition of marriages deeper
moral values and the principled elaboration of those values to all persons. See Richards
II (n 231 above), p 451.
244
245
This phrase first appeared in the majority judgment of Bowers v Hardwick as it
denounced a fundamental right to homosexual sodomy, See Bowers (n 51 above),
p 2846. Scalia J in his disserting judgment in Lawrence called this conclusion utterly
unassailable. See Lawrence (n 52 above), p 538.
246
See Baehr (n 60 above).
242
62
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1967 case of Loving v Virginia247 where the U.S. Supreme Court struck
down Virginias anti-miscegenation law. This is the analogy: denying a
same-sex couple the marriage license that is available to any oppositesex couple is discrimination based on sex, in the same way denying a
black-white couple a marriage license that is available to a purely
black or white couple is discrimination on the basis of race.248 As society progresses and interracial marriage is now widely accepted in the
U.S. as elsewhere, the argument that marriage is rooted in a nations
history or cultural traditions is not only obsolete but also discriminatory. Accordingly, in the same way as archaic sodomy laws having been
erased from the books, past prejudices against same-sex couples will
soon vanish.
In a nutshell, arguments for same-sex marriage place the individual
at the center of a marital relationship. Marriage, as a voluntary commitment for two morally equal human persons, is a means to affirm
human dignity.249 The self-fulfillment from each partners being able to
develop his human potentials is no different whether the couple is heterosexual or homosexual.250 In fact, traditional marriage is argued to
have been embedded in a social structure characterized by patriarchy
and gender bias. According to this view, promoting same-sex marriage helps cultivate a democratic social culture because of its less rolemodeling nature and more equal decision-making.251 As same-sex
marriage is said to be beneficial to both the institution of monogamous
marriage and the children already under the care of many same-sex
couples, denying gays and lesbians the liberty to marry reflects only
poor moral wisdom, not to mention a violation of their dignity.252
The opponents case against same-sex marriage
The moral case against same-sex marriage begins upon a totally different premise, where the individual is preceded by societal concerns.
Contrast to a liberal view that marriage has no moral significance in
itself, this conservative view affirms the intrinsic values of marriage.
First of all, marriage stands out as a unique human relationship distinct
247
248
249
250
251
252
See Loving (n 59 above).

See Koppelman (n 133 above), p 145.
See Samar (n 239 above), p 29.
Ibid., p 23.
Ibid., p 24.
Ibid., p 26.
63
from other types of human bonds like friendships or family attachments.253 It is the union through reproductive-type acts between a
man and a woman who are equal in dignity as human persons but
complementary in their respective masculinity and femininity, for the
procreation and education of children, the good of the spouses, and the
common good of society.254 These attributes of marriage follow a natural law tradition which rejects all kinds of extra-marital sex.255
Under natural law, the union of the reproductive organs of husband
and wife unites them biologically as well as spiritually where the spouses
become one reality.256 Their sexual union actualizes and allows them
to experience their common goods being their marriage, parenthood
and friendship. These common goods can only subsist in marriages
between opposite sex partners. Sexual acts between those who can
never have their biological children, such as same-sex couples, merely
provide each other with an individual gratification.257 Therefore, samesex marriage is opposable not only because it is sterile and cannot actualize the mutual devotion some homosexual partners wish to experience
and bring harm to their bodily integrity, but also because it treats
human sexual capacities in a way which is deeply hostile to the selfunderstanding of those members of the community who are willing to
commit themselves to real marriage and believe that sexual joys are
not merely instrumental.258
If heterosexual couples marry for the purpose of sustaining the
future of humankind, one may instinctively ask why the law allows
infertile or elderly couples to marry at all.259 To this the natural lawyers
respond: there is a fundamental difference between the infertility of
some heterosexual couples and the impossibility of all same-sex couples to procreate.260 Whether the moment of conception ever occurs
does not change the very nature of the two-in-one-flesh union a heterosexual couple experiences. It is because marriage is a one-flesh
253
Jane Adolphe, The Case Against Same-Sex Marriage in Canada: Law and Policy
Considerations, (2004) 18 Brigham Young University Journal of Public Law 479,
p 526 [Adolphe].
254
Ibid.
255
John Finnis, Law, Morality, and Sexual Orientation , (1994) 69 Notre Dame
Law Review 1049.
256
Ibid., p 1066.
257
Ibid.
258
Ibid., p 1069.
259
See Sullivan (n 243 above), p 45.
260
See Adolphe (n 253 above), p 530.
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chapter one
(i.e. bodily, as well as emotional, dispositional and spiritual) union of a

male and a female spouse consummated and actualized by sexual acts
that are reproductive in type.261 As long as the union is reproductive in
type even not in fact, it symbolizes and actualizes the good of
marriage.
The public good is what opponents of same-sex marriage have always
emphasized. They point out that procreation is not only a good for the
married couples themselves, but also a common good in which the
state has an interest. From this perspective, marriage law is designed to
reinforce certain norms necessary for the protection of children and
reproduction of society.262 By encouraging couples who parent the
babies to stay together and support each other and be responsible for
the well-being of their children, marriage law serves profound public
purposes of stabilizing the family system for the benefits of the couples,
the new generation and society. It explains why marriage is a normative
part of our social structure.263 It defines and supports a particular kind
of sexual union among other human affectional ties, and shows the
younger generation the preferred relationship and the purpose it serves.
To this end, the domesticating effects of marriage on gay men, argued
as a conservative appeal for same-sex marriage,264 appears to be beside
the point.
Firm on their public-good arguments, the conservatives view
believes that reproductive technologies and the choice of adoption for
same-sex couples cannot unravel the un-severed link between marriage and child rearing. For one, reproductive technologies simply do
not work for same-sex couples in the same way they do for infertile
heterosexual couples, because the former can never conceive a child
without a donated egg or sperm, while for the latter such technologies
can at least assist them to procreate a child who is their genetic offspring.265 As such, the law of marriage does not aim to exclude those
261
Robert P. George, In Defense of Natural Law (Oxford: Clarendon Press, 1999),
p. 215.
262
Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage
Law, (2002) 62 Louisiana Law Review 773, p 788 [Gallagher].
263
To Balkin (n 188 above), this very social structure reinforces the current genderbased social stratifications and represents a countervailing force against gays and
lesbians claims for equality. On this point, proponents and opponents of same-sex
marriage seem to look at the role of social structures in totally different lights.
264
See Sullivan (n 243 above), p 109.
265
Lynn D. Wardle, The Curious Case of the Missing Legal Analysis, (2004) 18
Brigham Young University Journal of Public Law 309, p 339 [Wardle II].
65
who cannot produce or raise a child. Rather, as the state argued in

Baker, its goal is to further the link between procreation and child rearing.266 It does so by conferring the status of marriage and the associated benefits to couples who are capable of doing both, i.e. male-female
couples. Hence, the state interest lies not only in reinforcing the marriage-procreation link, but also in conveying a message that only a heterosexual union is capable of human procreation. Allowing same-sex
couples to marry because they can also find ways to have children has
nothing to do with fulfilling these goals.
Furthermore, the idea of same-sex adoption raises another fundamental question. The rationale behind adoption law is to find alternative homes for children in their best interest, not to find children for
the interest of the adoptive parents.267 Again, allowing same-sex couples to adopt does not further the link between procreation and child
rearing, and it has no bearing on same-sex marriage.
As so many public goods are at stake, marriage is not, as supporters
for same-sex marriage believe, merely an emotional and sexual union
of two willing parties. It is an institution where husbands and wives
carry their commitment through to bringing up their children so the
new generation can be nurtured by their fathers and mothers as complementary role models. The dual gender parenting within heterosexual marriage is said to bring unique benefits to the healthy
development of children.268 Because of their blood links, there is always
a father and a mother whom the child can rely on as legitimate parents.269 The presumption of paternity in family law where the husband of a childs mother is presumably the childs father is said to reflect
this rationale.270
The indispensable role of each of the husband and wife brings
out another desirable aspect of marriage: Equality. Instead of
being denounced as an oppressive and patriarchal institution,271 the
266
Therefore, Wardle believes the court in Baker v State has misunderstood the real
state interest in criticizing as under-inclusive the marriage law excluding same-sex
couples based on their procreative capacity. Ibid., p 340.
267
Ibid., p 342.
268
A. Dean Byrd, Conjugal Marriage Fosters Healthy Human and Societal
Development in Wardle I (n 242 above) 326, pp 56.
269
William C. Duncan, Law and Culture: The State Interest in Marriage, (2004) 2
Ave Maria Law Review 153, p 165 [Duncan I].
270
Ibid., p 168.
271
Paula Ettelbrick, Since When Is Marriage a Path to Liberation? in William B.
Rubenstein (ed), Cases and Materials on Sexual Orientation and the Law (St. Paul,
Minn.: West Publishing Co., 2nd edn, 1997) 721727, p 721.
66
chapter one
conservative view argues that marriage helps enhance equality between

the two sexes. With each of them making unique contributions to raising the family, the husband and the wife are valued equally in marriage.
Hence, by making it the only family arrangement that the law allows,
society sends a powerful message about the importance of each sex in
sustaining a fundamental social unit.272 Therefore, when the law allows
any two persons to marry and have children, it conveys a message
that either husband or wife, father or mother, is dispensable. It is not
just a technical extension of the definition of marriage. It is a radical
change in the way marriage is collectively understood and replaces it
with a personally defined concept which emphasizes individual freedom and self-definition.273 The more reproductive technologies and
adoption are put forward as the best way to get round the infertility of
same-sex couples, the more disarrayed do the meanings of parenthood
and marriage become.
This is why, for conservatives, re-defining marriage sounds a death
knell for a collective morality based on social norms and values which
have served societies well for millennia. To them, marriage is not a
wholly secular institution created and regulated by the state274 or a
licensing system through which the parties enjoy a bundle of stateconferred rights and material benefits.275 Instead, marriage is a natural
entity that affords legal recognition.276 As the state argued in Halpern,
it is a historical and worldwide institution that pre-dates our legal
framework.277 As a collective morality, marriage has unique meanings
to those who hold a strong religious belief. For example, to Christians
under a Jewish tradition, marriage is a God-created institution between
a man and a woman.278 Christian moral teaching not only informs followers of the right context of marriage and sex, it also gives Biblical
support of why homosexuality is morally impugned. Theologians who
uphold this tradition would highlight a number of Biblical passages, in
both the Old and New Testaments, where homosexuality is condemned
272
See Duncan I (n 269 above), pp 171172.

Jason S. Carroll & David C. Dollahite, Whos my Daddy? How the Legalization
of Same-Sex Partnerships Would Further the Rise of Ambiguous Fatherhood in
America in Wardle I (n 242 above) 47-68, pp 5051.
274
275
See Baker (n 64 above), p 221.
276
See Duncan I (n 269 above), p 174.
277
278
See Genesis 2:19-25 on the origin of marriage; Matthew 19:6b on the life-long
vow of marriage.
273
67
as sinful.279 This religious sentiment had influences in some earlier U.S.

judicial decisions concerning same-sex marriage. In one of the earliest
landmark cases, the Minnesota Supreme Court said, [t]he institution
of marriage as a union of man and woman, uniquely involving the procreation and rearing of children, is as old as the book of Genesis.280 Of
course, not every religion raises objection to homosexuality and some
denominations in U.S. Christian Church support same-sex marriage.281
Still, the issue of same-sex marriage remains contentious in societies
like the U.S. when citizens are predominately religious.282
Outside a religious context, opponents of same-sex marriage question the role of the state in unilaterally re-defining marriage. One strong
critic describes the move as an infringement of the states governmental
roles and a violation of core constitutional concepts.283 The position of
the court is equally suspect. As the government argued in Halpern,
marriage is not a product of common law. Rather, the court captured
the definition of marriage by attaching benefits and obligations to the
marital relationships.284 Accordingly, judicial redefinition of marriage
results in transforming the role of the court from recognizing a naturally recurring heterosexual monogamous relationship to creating an
institution where any two persons can participate.285 Such a statesanctioned move, in the words of Richard Posner, amounts to a stamp
of approval of a less desirable state of affairs.286 Posner uses the notion
tolerance to distinguish between repealing sodomy law as a right official move and legalizing same-sex marriage as an inadvisable stamp of
approval for homosexuality. In rejecting natural law, religion and tradition as a proper basis of prohibiting same-sex marriage, this stamp-ofapproval argument takes the view that the states role is to leave people
279
Certain verses in Genesis, Leviticus, 1 Corinthians, 1 Timothy and Romans are
said to reflect this Biblical view on homosexuality. See Richard B. Hays Awaiting the
Redemption of Our Bodies: The Witness of Scripture Concerning Homosexuality in
Jeffrey S. Siker (ed), Homosexuality in the Church (Louisville: Westminster John Knox
Press, 1994) 317, pp 59 [Siker]. Of course, it is not without debates. See Victor Paul
Furnish, The Bible and Homosexuality: Reading the Texts in Context in Siker, 1835.
280
See Baker v Nelson (n 57 above), p 186.
281
See Schuman (n 189 above), pp 21082109.
282
Ibid., pp 2103, 21082109, 2123.
283
William C. Duncan, Redefinition of Marriage and the Rule of Law in Wardle I
(n 242 above) 375388 [Duncan II].
284
285
286
pp 311312.
68
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alone and refrain from propagating homosexuality as good.287 The distinction between non-interference and encouragement can be illustrated by a post-Roe v Wade U.S. Supreme Court decision that state
permission of abortion does not necessarily come with a subsidy for
the procedure.288
The conservative view also refutes an analogy that in banning samesex marriage the law discriminates against gay couples because of sex
in the same way it did to black-white couples because of race. Citing
history, it argues that the comparison between same-sex marriage and
interracial marriage is suspect.289 In the U.S., social perceptions of
black people have dramatically changed over the past decades and
interracial marriages have long been off the social radar. To the contrary, public views on homosexuality remain divided. Most importantly, the respective laws serve completely different purposes. First,
anti-miscegenation laws did not deal with the legal definition of marriage.290 Their focus was on race with the sole purpose of perpetuating racial segregation and oppression of the minority. On the other
hand, marriage laws were not formed for excluding homosexual relationships. They were made primarily for the well-being of the spouses
and their children through encouraging procreation by conferring
spousal and parental benefits. In this sense, marriage laws serve specific functions and the negative impacts on homosexual couples appear
inadvertent.291 In fact, the exclusive nature of marriage means many
other sexual relationships such as polygamy, consanguinity and underaged marriage are prohibited as well. When one thinks of how many
other human sexual relationships are currently excluded by marriage
law, opening marriage to a once excluded category may be taken as an
argument for other prohibited ones to be legalized. In his dissenting
judgment in Lawrence, Scalia J called into question all state laws against
bigamy, same-sex marriage, adult incest, prostitution, masturbation,
adultery, fornication, bestiality, and obscenity once the sodomy law
287
Ibid.
Maher v Roe (1977) 432 US 464, p 474. According to the majority, recognizing a
constitutional right to abortion implies no limitation on the authority of a State to
make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.
289
James Q. Wilson, Against Homosexual Marriage, (1996) 101 (3) Commentary
34, p 37.
290
See Duncan I (n 269 above), p 177.
291
See Adolphe (n 253 above), pp 531532.
288
69
was overturned.292 Many of these acts are morally contested. Therefore,

the conservatives argue that if the government does not draw any distinction regarding who can marry, it would require a redefinition of
marriage much broader than that is being claimed by gay couples.293
Even some gay rights advocates agree. It is probable that successful
challenges for sexual orientation equality could open a floodgate which
requires current restrictions of other deviant sexual relationships to
be re-examined.294 This is the so-called slippery slope that opponents
of same-sex marriage are cautioning: when arguments based on the
unrestrained interpretations of privacy, equality, autonomy and freedom are pushed to their logical ends, not only will traditional marriage
soon be a thing of the past, but also the family values and social norms
which have bound civilized societies to their orderly existence.295
In conclusion, commentators on both sides of the spectrum come
head to head on the natures and functions of marriage. For supporters
of same-sex marriage, marriage is an affectional institution between
two persons who are willing to commit to each other through good or
bad times. It is about human dignity and equal participation, not sexual
orientation. Opponents, on the other hand, are adamant that heterosexual marriage is an embedded social institution for generations
which should not succumb to slogans like equality and dignity. Even
though same-sex couples can make use of technologies and adoption
to raise children amid the surge of childless heterosexual families, they
maintain that traditional family units provide the best environment for
children and families to flourish. For supporters of same-sex marriage,
marriage is personal and private. The opponents disagree. They argue
that by asking society to recognize their relationship and confer marital
benefits and obligations, a couple has publicized their relationship
and assumed the associated social responsibilities.296 While the liberal
view argues that excluding gays and lesbians from marriage is outright
discrimination, the conservative view takes it as an unintended yet
292
See Lawrence (n 52 above), p 533.

Randy Beck, The City of God and the Cities of Men: A Response to Jason Carter,
(2006) 41 Georgia Law Review 113, p 143 [Beck].
294
Bruce MacDougall, The Separation of Church and State: Destabilizing
Traditional Religion-Based Legal Norms on Sexuality, (2003) 36 University of British
Columbia Law Review 1, p 6.
295
George W. Dent Jr., Traditional Marriage: Still Worth Defending, (2004) 18
Brigham Young University Journal of Public Law 419, pp 441442.
296
293
70
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necessary outcome for preserving the time-tested institution of marriage. Both are influential views in society and each represents its own
school. As long as the culture remains at war, the contest between them
continues.
Conclusion
Amid disagreements over what marriage is and who should or should
not marry, some fundamental questions remain unanswered. What is
equality? How do we distinguish between an equal and an unequal
treatment, particularly in the context of sexual orientation equality?
What about dignity? To what extent should public policies reflect and
implement such a value? When one says that same-sex marriage is
about dignity and rights while the other says it is a question of social
harms, and both sides seem to have something to offer, how should
society respond? These moral questions must be addressed before society can look beyond their differences and move forward. As argued
earlier in the chapter, the dispute over same-sex marriage does not necessarily operate upon animus or prejudice. It is fundamentally about
whose moral visions should prevail. Regardless of what the courts
decide as far as the law is concerned, peoples moral disagreements
should be resolved one way or the other.
In the following chapters, I attempt to explore the deeper meanings
and implications of equality and dignity as they are used to justify
the right to same-sex marriage. As we will see, although the concepts
are universally recognized as the fundamental grounds of human
rights, each of them has its own critics. Equality is said to be a mere
tautology297 or a simpliciter298 which can be easily replaced by substantive moral arguments. On the other hand, dignity is said to be
an elusive idea because of its multi-faceted nature. 299 Its duality of
being both subjective and objective tends to pull arguments in contrasting directions.300 Still, courts in upholding same-sex marriage
297
Peter Westen, The Empty Idea of Equality, (1982) 95 Harvard Law Review 537,
p 547.
298
John Stanton-Ife, Should Equality be a Constitutional Principle?, (2000) 11 The
Kings College Law Journal 133, p 138.
299
David Feldman, Human Dignity as a Legal ValuePart II, (2000) Public Law 61,
p 68.
300
Ibid., p 76.
71
continue to rely on these arguments without acknowledging their

limitations.301
The international survey at the beginning of this chapter shows that
the world has made great strides from decriminalizing homosexual
activities, to enacting anti-discrimination laws and legalizing same-sex
unions in the form of partnership or marriage. Multinational experiences reveal the prevalence of a step-by-step pattern in gradually
achieving the goal of same-sex marriage. This incremental success,
however, does not explain how the universal but under-defined concepts of equality and dignity could be expanded from justifying state
non-interference, legislating anti-discrimination laws, granting rights
and benefits to same-sex couples, to finally recognizing their relationships as marriages. Along this path, every step taken to extend the
rights of gays and lesbians represents a more forceful claim of the power
of equality and dignity. This requires explanation.
The rest of this book will be devoted to deconstructing the concepts
of equality and dignity, and considering their relations to same-sex
marriage. There is no denying that they bear profound meanings and
are capable of being invoked in a variety of human rights claims. But it
should not obscure the fact that the ambiguities and tensions inherent in these concepts create problems when they are used to uphold a
right that appears to be fundamental as well as controversial. I argue
that judicial failure to discern the subtleties in equality and dignity
does not measure up to the extent the courts have gone to in endorsing
the strongest claim of equality rights in the case of same-sex marriage.302 It raises a point critics of judicial review often pick. In judicial
reviews over rights issues where same-sex marriage is one, the court is
often more concerned about procedural legitimacy which affects its
judicial authority. Hence, it tends to focus on the rights documents and
consider their interpretations, related laws and precedents rather than
spending time on the more intricate moral reasons.303 The forum of
301
For example, the court in Halpern and Goodridge focused on giving equal treatment to all similarly situated couples whether they are heterosexual or homosexual,
and addressed mainly the subjective aspect of human dignity as being ones perception
of self-respect and self-worth and not being treated as second-class citizen. See
Halpern (n 45 above), para 3; Goodridge (n 54 above), p 948.
302
Nevertheless, it is acknowledged that judges do not often see their legal judgments as theoretical treatises; hence, it may not be necessary for them to engage in
philosophical reflections. See Nicholas Smith, A Critique of Recent Approaches to
Discrimination Law, (2007) New Zealand Law Review 499, p 503.
303
See Waldron I (n 190 above), pp 13811384.
72
chapter one
principle, as Dworkin says of the court,304 may not be the most appropriate place to settle a dispute where moral values and visions weigh as
much as the rights and legal entitlements. The next question is: Which
forum is better? If the question of marriage is ultimately about how we
live our lives together, all sides should learn to talk to each other, fairly
and openly, in a society that we all must live. The idea of deliberative
democracy in creating a democratic culture will be canvassed at the
end of this book to provide readers with some food for thought.
Before we get to that point, it is important to first appreciate the subtleties of the disputed human rights concepts so that we can locate
where the disagreements are. As I mentioned earlier, although society
should focus on finding the right processes to resolve the disagreements on rights as Waldron suggests, we should not dismiss the ideas
of equality and dignity as mere slogans. There is profound collective
wisdom in affirming them as universal pillars of human rights. But one
should distinguish between political consensus and legal principle,
particularly when the two ideas are being relied on to argue for some of
the most contentious human rights same-sex marriage being one of
them. In the next chapter, I will look at the idea of equality and the different visions that it creates. As we will see, equality is not restricted to
the classic meaning of treating similar people similarly. For example,
the Constitutional Court of South Africa believes people should be
treated equally despite their difference. For feminists and liberationists,
equality means restructuring the entire society and relationship pattern. Which vision of equality do we share? In the context of same-sex
marriage, different equality-based arguments can lead us to implement
different legal reforms that can even see the abolition of marriage
itself.
304
Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press,
1985), pp 6971.
CHAPTER TWO
THE CLASSIC CONCEPT OF EQUALITY AND THE CASE

FOR SAME-SEX MARRIAGE
Equality is a protean word. It is one of those political symbols
liberty and fraternity are others into which men have poured the
deepest urgings of their heart. Every strongly held theory or conception
of equality is at once a psychology, an ethic, a theory of
social relations, and a vision of a good society.
John H. Schaar1
The sense of impropriety seeing people being treated unequally seems

to come intuitively.2 When early Americans had had enough of the
British rule and sought to release themselves from her control on 4 July
1776, they audaciously declared it self-evident that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights; that among these are life, liberty, and the pursuit of
happiness.3 The strong egalitarian undertone of the Declaration of
Independence, though not all of its providential nuances, later inspired
the French nationals during their revolutionary years. The Declaration
of the Rights of Man and the Citizen, adopted on 26 August 1789,
which remains one of the founding documents of the Republic of
France, brought an end to feudalism and ushered in an era of social
justice that men are born and remain free and equal in rights.4 The
motto of Liberty, Equality, Fraternity, etched on the minds of many
throughout the French Revolution, has outlived history and become
part of the 1958 Constitution and a national symbol today.
1
John H. Schaar, Equality of Opportunity and Beyond in J. Roland Pennock &
John W. Chapman (eds), Nomos IX: Equality (New York: Atherton Press, 1967) 228
249, p 228. Cited by McIntyre J in Andrews v Law Society of British Columbia [1989]
1 SCR 164.
2
Vriend v Alberta [1998] 1 SCR 493, para 68.
3
The Declaration of Independence: The Unanimous Declaration of the Thirteen
United States of America (In Congress, July 4, 1776). Available at http://www.archives
.gov/exhibits/charters/declaration_transcript.html (visited 13 Mar 08).
4
Article first, the Declaration of the Rights of Man and the Citizen (26 Aug 1789).
Available at http://www.elysee.fr/elysee/elysee.fr/anglais/the_institutions/founding_
texts/the_declaration_of_the_human_rights/the_declaration_of_the_human_rights
.20240.html (visited 25 Aug 06).
74
chapter two
The need to reaffirm the equal rights of men could not be more
urgent after the ruins left by the Second World War, when nations
scrambled to come to terms with the horrendous deprivations of
human lives. The Charter of the United Nations reaffirmation of faith
in equality between men and women as among nations thus struck a
chord with member states big and small.5 It was in this historic moment
that the world community embraced equality as a shared vision of
humankind, as Art 1 of the UDHR declares, All human beings are
born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of
brotherhood. Since then, equality has become a common language as
members of various regional blocs declared their own charters of rights.
When the African states converged in May 1963 searching for common
values, they were of one voice in the belief that freedom, equality, justice, and dignity are essential objectives for the legitimate aspirations of
the African peoples.6 The Cairo Declaration on Human Rights in Islam,
signed by the Organization of the Islamic Conference on 5 August
1990, also declares in Art 1 that all men are equal in terms of basic
human dignity and basic obligations and responsibilities and should
not be subject to any discrimination because of personal and social
attributes.7
As an internationally recognized human rights value, equality
appears in many constitutions, particularly those drafted after the
Second World War. The bitter legacies of post-war Germany and postapartheid South Africa saw equality feature prominently in each of
their new constitutions.8 Since the Fourteenth Amendment, the equality
5
The UDHR was ratified through a proclamation by the United Nations General
Assembly on December 10, 1948 with a count of 48 votes to none with 8 abstentions.
The ratifying states included big nations like the U.S., China and Canada, and smaller
ones including Paraguay, Peru and the Philippines. See http://www.unac.org/rights/
question.html.
6
Preamble to the Charter of the Organization of African Unity (1963) (adopted by
the Conference of the Heads of African and Malagasy States and Governments in
Addis Ababa, Ethiopia on 25 May 1963). Available at http://www.uiowa.edu/ifdebook/
issues/africa/docs/doc15.shtml.
7
The Cairo Declaration on Human Rights in Islam (signed by the member states of
the Organization of the Islamic Conference during the Nineteenth Islamic Conference
of Foreign Ministers (Session of Peace, Interdependence and Development), Cairo,
Egypt, 31 Jul 5 Aug 1990). Available at http://www.oicun.org/articles/54/1/CairoDeclaration-on-Human-Rights-in-Islam/1.html.
8
Article 3 of the Basic Law for the Federal Republic of Germany (1949) (promulgated by the Parliamentary Council on 23 May 1949) (Federal Law Gazette at 1) (BGB1
III 100-1) is titled Equality before the law, where paragraph 1 declares All persons
the classic concept of equality
75
guarantee under the U.S. Constitution has been the backbone of numerous Supreme Court litigations where the oppressed sought to take refuge in equal protection of the law.9 With a colonial history similar to
that of its southern neighbor, the Commonwealth of Canada in its
Charter of Rights and Freedom guarantees equality rights to all
Canadians against discrimination pursuant to a list of enumerated
grounds.10
As a constitutional value upheld by courts, the right to equality has
become the best and last resort when historically disadvantaged minorities sought to air their grievances. Under the spirit of the Fourteenth
Amendment, the U.S. Supreme Court delivered the landmark decision
of Brown v Board of Education in 1954.11 It denounced the separate but
equal doctrine, established by its predecessor in 1896,12 and declared
that racial segregation in public schools deprived minority students
of the equal protection of the law. When a 1992 Colorado state constitutional amendment was challenged as discriminating against people
on the basis of sexual orientation by preventing anti-discrimination
laws protecting gays and lesbians from being passed, the majority of
the Supreme Court said, Guaranty of equal protection of the laws is a
pledge of the protection of equal laws.13 Therefore, a constitutional
amendment which aimed at depriving a certain class of citizens of legal
protection available to others had no place under the Equal Protection
Clause. OConnor J shared this rationale in her concurring opinion in
shall be equal before the law and paragraph 2 Men and women shall have equal
rights. The value of equality is entrenched in the post-apartheid Constitution of the
Republic of South Africa (1996) (no. 108 of 1996, date of promulgation: 18 Dec 1996,
date of commencement: 4 Feb 1997). Art 1 states that equality is one of the founding values of the nation. Besides, it is itself a constitutional right. Art 9(1) says,
Everyone is equal before the law and has the right to equal protection and benefit of
the law.
9
Landmark cases denouncing racial discrimination include Yick Wo v Hopkins
(1886) 118 US 356 and Brown v Board of Education (1954) 347 US 483 [Brown].
10
See Art 15 of the Canadian Charter of Rights and Freedom (Part I of the
Constitution Act 1982).
11
See Brown (n 9 above). See also Loving v Virginia (1967) 388 US 1, where the
Supreme Court, citing Kiyoshi Hirabayashi v U.S. (1943) 320 US 81 which held that
distinguishing citizens solely on their ancestry was odious to a free people whose
institutions are founded upon the doctrine of equality, ruled that Virginias antimiscegenation law banning interracial marriage violated the equality guarantee under the Fourteenth Amendment [Loving].
12
In Plessy v Ferguson (1896) 163 US 537, the U.S. Supreme Court found that equal
treatment was accorded when people of the two races were provided with separate but
equal facilities [Plessy].
13
Romer v Evans (1996) 517 US 620.
76
chapter two
Lawrence v Texas.14 While distancing herself from the majority judgment affirming a privacy right to engage in homosexual sodomy, she
held that moral disapproval of this behavior was an insufficient state
interest to satisfy the rational basis review under the Equal Protection
Clause.15 She believed that the constitutional right to equality points to
essentially a direction that all persons similarly situated should be
treated alike.16 Therefore, the Texas sodomy law failed the courts scrutiny as it treated the same conduct differently based on the sexual orientation of the participants.
Equality and same-sex marriage
The principle of equality eventually found its way to supporting the
right to marriage for gays and lesbians. Under the state constitutions
equal protection clause, the Hawaii Supreme Court decided in Baehr v
Lewin that the state marriage law triggered a strict scrutiny analysis
which required compelling state interests.17 It is because prohibiting
same-sex couples from marrying each other constitutes a denial of
equal protection based on their sex.18
But there is skepticism as to how far the courts would want to go to
get to the bottom of inequality. David Beatty argues that a courts equality analysis does not always lead it to make a rigorous and principled
decision.19 For example, while the United Nations Human Rights
Committee (HRC) agreed in Toonen v Australia20 that the impugned
Tasmanian sodomy law infringed the right against discrimination
under the ground of sexual orientation as it is analogous to the ground
of sex under the ICCPR, it chose to ground its decision solely on
privacy, thus leaving the issue of discrimination open. In other cases,
14
Lawrence v Texas (2003) 539 US 558 [Lawrence].

Ibid., p 528, per OConnor J.
16
Ibid., p 526.
17
Baehr v Lewin (Haw. 1993) 852 P 2d 44 [Baehr].
18
Ibid. The equal protection clause, Art 1(5) of the Hawaii Constitution provides
that, No person shallbe denied the equal protection of the laws, nor be denied the
enjoyment of the persons civil rights or be discriminated against in the exercise thereof
because of race, religion, sex, or ancestry.
19
David M. Beatty, The Ultimate Rule of Law (Oxford: Oxford University Press,
2004), pp 100101 [Beatty].
20
Toonen v Australia (Comm No 488/1992, UN Doc CCPR/C/50/D/488/1992,
4 April 1994) [Toonen]. See also the discussion of this case in Chapter 1 (fn 164).
15
77
even when the court is willing to justify its decision on equality grounds,
it often confines itself to reaching a conclusion that the inequalities
between heterosexual married couples and long-term homosexual
couples can be tackled by giving the latter the rights and privileges that
the former currently enjoy. As a result, the underlying inequality of
excluding same-sex couples from marriage remains unaddressed.21
In the U.S. context, such a judicial sentiment can be observed in the
following case where the court took a narrow approach in interpreting
statutory and constitutional principles regarding the right to same-sex
marriage. In Baker v State, the Vermont Supreme Court stated that the
case does not turn on the religious or moral debate over intimate samesex relationships.22 It therefore focused on the literal meaning of the
Common Benefits Clause of the Vermont Constitution and concluded
that the state was only constitutionally obliged to extend to same-sex
couples the common benefits and protections that flow from marriage
under Vermont law.23 According to the court, the clear language of the
clause reflected the framers intent not only that everyone enjoy equality before the law or have an equal voice in government but also that
everyone have an equal share in the fruits of the common enterprise.24
Having set the parameter of equality, the court found that extending
tangible benefits to same-sex couples was sufficient for the state to remedy the prejudicial exclusion of benefits and protections.25 This allowed
the government to come up with a parallel institution, namely civil
union, to satisfy the requirements of equality for same-sex couples.
Hence Vermont became the first U.S. State to legalize civil unions.
That prudent approach was dwarfed by the more progressive reasoning in the Supreme Court of Massachusetts facing the same question:
Whether, consistent with the constitution, the state may deny the
21
See Beatty (n 19 above).

Baker v State (Vt. 1999) 744 A. 2d 864, p 867 [Baker].
23
Ibid. The pertinent part of the Common Benefits Clause of the Vermont
Constitution reads, That government is, or ought to be, instituted for the common
benefit, protection, and security of the people, nation, or community, and not for the
particular emolument or advantage of any single person, family, or set of persons, who
are a part only of that community
24
Ibid., p 875.
25
Ibid., p 886. Although the court was aware of a plausible argument that the denial
of marriage license to same-sex couples was unconstitutional per se, it emphasized that
the issue in question was the common benefits and protections that flow from marriage under Vermont Law. Therefore, the issue of legalizing same-sex marriage should
be deferred to the legislature.
22
78
chapter two
protections, benefits, and obligations conferred by civil marriage to

two individuals of the same sex who wish to marry?26 According to the
court, the constitutional principles of protecting peoples private life
from unwarranted government intrusion and of protecting their freedom to enjoy state benefits mean that the law must apply equally to
persons in similar situations.27 It believed that the ban on same-sex
marriage served no rational state purpose and only perpetuated discrimination against same-sex couples who were similarly situated as
their heterosexual counterparts. Upholding the constitutional value of
equality, the court announced, Absolute equality before the court is a
fundamental principle of our own constitution.28 Therefore, excluding
gays and lesbians from marriage failed the rationality test under either
the due process or equal protection. Thus the common law definition
of marriage was amended to include any two persons. The judicial
resolve to uphold formal equality was highlighted when the same court
later told the state legislature that only the institution of marriage
could suffice the test of equality for same-sex couples without shaming
them to a second class status under the rhetorical pretence of separate but equal.29 It resulted in the judicial re-definition of marriage to
include gay and lesbian couples for the first time in the U.S.30
The rationale behind equality had been illuminated by the Ontario
Court of Appeal in Halpern v Canada a year before in 2003.31 Despite
the fact that gays and lesbians were already free to exchange vows
through commitment ceremonies and had been granted virtually all
the federal marital benefits under Canadian law, the absence of recognition was said to have separated them from their heterosexual
counterparts. In its analysis, the court put the situation of same-sex
couples on a par with that of heterosexual couples: that the former are
equally capable of forming long, lasting, loving and intimate relationships.32 Excluding them from marriage thus perpetuates a view that
they are not worthy of the same respect and recognition as opposite-sex
26
Goodridge v Department of Public Health (2003) 798 NE 2d 941, 948 [Goodridge].

Ibid., p 959.
28
Ibid.
29
Opinions of the Justices to the Senate (2004) 802 NE 2d 565.
30
The Supreme Court of California gave a similar ruling in 2008. In re Marriage
Cases (Cal. 2008) 183 P 3d 384, it held that reserving marriage to heterosexual couples
constitutes significantly unequal treatment to same-sex couples and relegates them to
a second-class citizenship.
31
32
Ibid., para 94.
27
79
couples.33 As a committed and monogamous same-sex relationship

bears all the hallmarks of a heterosexual marriage, any attempt to create for long-term same-sex couples an alternative institution without
rational justifications was held to have failed the Canadian Charters
equality guarantee. On the premise that people in homosexual or heterosexual relationships are in the same situation, the court redefined
marriage to mean the voluntary union for life of two persons to the
exclusion of all others.34 In justifying same-sex marriage on grounds of
the similarities between homosexual and heterosexual couples, the
Aristotelian principle of equality that things that are alike should be
treated alike is alive and well.35 This idea of equality is often called the
formal principle of equality.36
But equality does not always mean treating similarly-situated people
in the same way. It does not need to be confined to similarity. Hence, in
a liberal and tolerant society, people who are different from others should
also be accorded equal treatment. This inclusive doctrine of equality
based on the notions of difference and diversity was announced by perhaps one of the most liberal benches in the world the Constitutional
Court of South Africa.37 With a constitution that entrenches the values
of equality, dignity, and human rights, the court took the opportunity
to enunciate its equality jurisprudence when the claimants of sexual
orientation discrimination appeared in 1998. In light of the celebrated
multiculturalism in South Africa on the heels of apartheid, the court
sought to think outside the formal equality box by downplaying the
significance of similarity and adopting a more liberal approach of equality. It said, [t]he desire for equality is not a hope for the elimination of
all differences.38 In the course of human interactions where people inevitably distinguish between us and others, equality requires each to
step into the shoes of the others. Hence, the difference of any groups or
33
Ibid.
Ibid., para 148.
35
Aristotle, Ethica Nicomachea, trans. W. D. Ross (London: Oxford University Press,
1925), V.3 II3Ia - II3Ib [Aristotle].
36
Peter Westen, The Empty Idea of Equality, (1982) 95 Harvard Law Review 537,
p 540 (fn 8): On one hand, there are as many substantive versions of equality as there
are substantive notions of right and entitlement by which persons can be said to be
alike or unalike; on the other hand, there is only one formal idea of equality that
likes should be treated alike. [Westen].
37
National Coalition for Gay and Lesbian Equality & Another v Minister of Justice &
Others [1998] (12) BCLR 1517 (CC) [the NCGLE case].
38
Ibid., para 22.
34
80
chapter two
individuals should not make them any less deserving or unworthy of

equal protection of the law and equal respect by other people.
This equality of difference approach does not merely preach tolerance; on a positive note, it symbolizes the vitality that difference brings
to any society.39 In contrast to judicial opinions justifying equal treatment on same-sex couples identicalness with heterosexual couples40
and arguments that gays and lesbians want to live like heterosexual couples,41 the Constitutional Court of South Africa announced that equality
does not entail or necessitate uniformity. As a departure from the traditional liberal philosophy where criteria of equal treatment are justified
on normative grounds, the jurisprudence of equality of difference
acknowledges the evolution of societal norms and endorses the affirmation of self .42 In a nutshell, equality simply finds people as they are.
When it comes to upholding equality for disadvantaged groups, the
court said that mere equal treatments to all are far from desirable.
A remedial form of substantive equality is needed in cases where
marginalized groups have suffered a long history of unfair discrimination as seen in South Africa.43 As the constitution unequivocally
39
Ibid., Sachs Js concurring judgment, para 132.

As aforesaid, the court in Halpern and Goodridge took a similar approach in favor
of same-sex marriage on the premise that same-sex couples are equally capable of fulfilling spousal commitments and responsibilities as heterosexual couples. Accordingly,
forbidding them to marry treats them as second class citizens not being worthy of the
same rights and respect. See Halpern (n 31 above), p 187 and Goodridge (n 26 above),
p 959. In the latter judgment, the court took the view that same-sex couples could assimilate themselves with their heterosexual counterparts as they are willing to embrace marriages solemn obligations of exclusivity, mutual support, and commitment to
one another(Goodridge, p 965).
41
See for examples, arguments from Andrew Sullivan, Virtually Normal (New York:
Vintage Books, 1996), Chs 3 & 5; William N. Eskridge Jr., The Case for Same-Sex
Marriage: From Sexual Liberty to Civilized Commitment (New York: Free Press, 1996),
Ch 4 [Eskridge I]; David A. J. Richards, Women, Gays, and the Constitution: The
Grounds for Feminism and Gay Rights in Culture and Law (Chicago: University of
Chicago Press, 1998), pp 438457.
42
See the NCGLE case (n 37 above). See also Pierre de Vos, Sexual Orientation and
the Right to Equality in the South African Constitution: National Coalition for Gay and
Lesbian Equality & Another v Minister of Justice & Others, (2000) 117 South African
Law Journal 17, for a discussion on the philosophical underpinnings of the courts
equality analysis.
43
See the NCGLE case (n 37 above), paras 6062. See also President of the Republic
of South Africa & Another v Hugo [1997] (6) BCLR 708 (CC), para 41, where the court
said each discrimination claim required a careful and thorough understanding of the
impact of the discriminatory action upon the particular people concerned to determine whether the constitution was honored or not; In Brink v Kitshoff NO [1996] (6)
BCLR 752 (CC), para 40, the court focused on the particular history of South Africa in
relation to the understanding of the concept of equality.
40
81
requires the state to promote equality by concrete measures based on

the full and equal enjoyment of all rights and freedoms,44 the principle of substantive equality demands the state to look into the actual
impact of the discriminatory practices to see whether the constitutional
guarantee is being complied with. Therefore, equal treatment in the
sense of formal equality is no longer adequate. As a substantive yardstick of justice, equality of difference embodies a laudable goal that
people across all cultures and of different characteristics should be
treated with the same respect in practice and effect.
With an equality jurisprudence cogently laid down, it came as no
surprise when the Constitutional Court of South Africa, once and for
all, decided to give equal rights to gays and lesbians by opening the
conjugal door for them in December 2005.45 Not only did the court reaffirm its equality jurisprudence exalting the right to be different, but
it also praised the extra and distinctive thread to the national tapestry
knitted by the diversity that flows from different forms of sexual orientation.46 It held that excluding same-sex couples from marriage and the
benefits taken for granted by heterosexual couples perpetuates the
prejudice against this historically deprived group and makes a mockery
of the founding values of the South African Republic. Such long-time
injustice could neither be mended by a sweeping abolition of marriage
nor by a benign-looking regime offering equal benefits to same-sex
couples under the cloak of the separate but equal rhetoric.47
As established by a line of authorities referred to in the NCGLE case,
the Constitutional Court held that equality should be both substantive
and remedial taking into account the likely impact on the affected
persons dignity and self-esteem.48 Government measures that seek to
address the disparities created by the institution of marriage must
therefore contemplate the impacts both tangible and intangible, and
be sensitive to the dignity of same-sex couples in light of deep-seated
discrimination past and present.49 This decision led the South African
legislature to enact the Civil Unions Act within a year, giving samesex couples the choice of either getting married or registering as civil
44
Article 9 (2), Constitution of the Republic of South Africa (1996).

Minister of Home Affairs & Another v Fourie & Another [2006] (3) BCLR 355 (CC)
[Fourie].
46
Ibid., para 61.
47
Ibid., paras 149150.
48
49
Ibid., paras 151153.
45
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unions, a law that lives up to the national spirit of celebrating diversity

in human relationships.
The meaning of equality
The jurisprudence of the Constitutional Court of South Africa gives
an alternative interpretation of equality: that people do not need to
conform to any norms to be treated equally because treating people
identically can sometimes result in inequality.50 As opposed to formal equality, a substantive notion of equality requires an understanding of the impact of the discriminatory action upon the
particular people concerned to determine whether its overall impact
is one which furthers the constitutional goal of equality or not.51 The
emphasis on substantive equality means that equal concern and
respect does not necessarily translate into identical treatment. In any
event, whether it is in the formal or substantive sense, the reference to
equality, equal concern and the like immediately places any dissident on the defensive.52
Nowadays, the word equality appears in virtually every piece of
international human rights instrument and many domestic constitutions. Few would question the value of this universal goal although one
may ask whether respecting equality will compromise liberty.53 While
the world community has long affirmed that all men are born equal as
human beings, one may ask the question of how. If equality is said to
be transcending difference and treating everyone with the concern
worthy of a human being, the next question is: what is the point of
invoking equality?
Equality is a malleable concept. Different understandings of the
word often result in different justifications for treating people one way
50

Ibid.
52
See Westen (n 36 above), p 593.
53
Will Durant & Ariel Durant, The Lessons of History (New York: Simon & Schuster,
1968), p 20, where the authors write, Nature smiles at the union of freedom and equality in our utopias. For freedom and equality are sworn and everlasting enemies, and
when one prevails the other dies. Leave men free, and their natural inequalities will
multiply almost geometrically But Dworkin disagrees. See Ronald Dworkin,
Sovereign Virtue: The Theory and Practice of Equality (Cambridge: Harvard University
Press, 2000), pp 125134.
51
83
or another.54 Aristotle, of all classical philosophers, believed that human

beings were essentially unequal.55 Nevertheless, the axiom things that
are alike should be treated alike, while things that are unalike should be
treated unalike in proportion to their unalikeness56 still influences, in
nuanced ways, what people think of justice today. According to this line
of thinking, it is not treating people unequally that is unequal, it is
treating equals unequally and unequals equally that create inequalities and injustices. It is perhaps one of the most important points over
the question whether same-sex couples are being treated unequally
under existing marriage law. The bone of contention lies in the fact that
while proponents of same-sex marriage believe same-sex couples are
no different from heterosexual couples in terms of their relationships
and commitments, the opponents contend that homosexual and heterosexual relationships are fundamentally different.
How do we determine whether and to what extent people are the
same or different when people are alike in some ways while unalike in
other ways? As people may differ in one aspect but not another, it can
be argued that equality established in one aspect is inequality in
another.57 South Africas equality of difference approach seems to
solve this dilemma, only to expose another conceptual weakness:
equality is a notion that essentially requires comparisons. Therefore,
posing equality as an overwhelming argument for a rights claim, as
Nicholas Bamforth describes, is question-begging.58 Problems of
using equality as a full-fledged justification for equal treatment for gays
and lesbians not only stem from the lack of comparable objects both
behavior-wise and status-wise, but also the absence of normative justifications as to why people should be treated equally and why equality is
a good in itself.59
54
Rights Law (London: Cassell, 1997), p 236 [Bamforth I].
55
Louis Pojman P., Are Human Rights Based on Equal Human Worth?, (1992)
52 Philosophy and Phenomenological Research 605, p 607.
56
See Aristotle (n 35 above).
57
J. R. Lucas, Against Equality Again, (1977) 52 Philosophy 255, p 261 [Lucas I].
58
Nicholas Bamforth, Same-Sex Partnership and Arguments of Justice [Bamforth
II] in Robert Wintemute & Mads Andens (eds), Legal Recognition of Same-sex
Partnerships: A Study of National, European and International Law (Oxford: Hart
Publishing, 2001) 3154, p 40 [Wintemute & Andens].
59
Ibid.; see also Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press,
1986). In Ch 9, Raz tries to identify some sort of principles of equality having criticized its emptiness [Raz].
84
chapter two
The problem of equality rhetoric
In a famous article, Peter Westen contentiously argues that equality

in the sense that people who are alike should be treated alike is an
idea that should be banished from moral and legal discourse as an
explanatory norm.60 It is because invoking equality in the above sense
makes a circular argument and does not explain why people ought to
be treated alike. To illustrate his point, Westen identifies three possible
ways in which people can be said to be being alike for purposes of
equality: people are alike in every respect, people are alike in some
respects, or people are morally alike in a certain respect.61 Each statement is problematic in its own way. The first proposition does not hold
because no two people are exactly the same. The second proposition is
over-inclusive as it would include all people as being alike. The third
statement is the most problematic as it starts with a normative determination that two people are alike in a morally significant respect and
moves to a normative conclusion that the two should be treated alike.62
However, Westen argues that moral alikeness can be established only
when people define categories which this proposition fails to do. In
other words, to say that people are morally similar is to articulate a
moral standard of treatment according to which those who qualify
under this will be treated alike while those who do not will be treated
differently.63 Therefore, we need some moral rule to tell us why people
are alike.
Under the above logic, Westen argues that invoking equality does
not explain by what standard people are to be treated equally. To say
that people who are morally alike in some ways should be treated
alike means that they should be treated according to the moral standard by which they are found to be alike. In other words, people who
by a rule should be treated alike should because of the rule be treated
alike.64 This proposition is entirely circular because instead of articulating the relevant moral standard that qualifies people for equal treatment, it simply says that people who are morally similar should be
treated similarly. This is a statement that derives an ought from an
60
61
62
63
64
See Westen (n 36 above), pp 539, 542.

Ibid., pp 544545.
Ibid.
Ibid., p 545.
Ibid., p 547.
85
ought.65 In this respect, equality is not only circular, it is also superfluous because the real standard that is relevant in determining why people should be treated the same is the moral standard that determines
who is alike and who is not. Therefore, [w]ithout moral standards,
equality remains meaningless, a formula that can have nothing to say
about how we should act. With moral standards, equality becomes
superfluous because it only repeats what everyone already knows.66
That is why Westen says that equality is an empty vessel with no
substantive moral content of its own.67 It remains a universal moral
truth only because it operates on some external rules which have nothing to do with equality. To say that two persons are alike in a certain
respect is to presuppose a rule that both qualify.68 There is no standard of comparison before such a rule is found. But once it is found,
equality between the two persons is a logical consequence of that
rule. They are equal in respect of the rule because that is what equal
means. The word equally in this sense means according to one and
the same rule.69 The two persons are then accorded equal treatment
under the rule because that is what compliance to the rule logically
entails. Therefore, to conform to a rule is to apply it in all cases which it
applies. To say that two persons are equal and deserve to be treated
equally is to say that they both fully satisfy the criteria of a governing
rule of treatment. Equality says nothing about the content of the rule
and can be discarded altogether in deciding how people should be
treated. Westen gives an example. In determining whether severely
deformed newborns, human embryos or comatose patients were
human beings having the right to be respected, the question need not
be resolved by resorting to equality principles, but by identifying the
traits that entitle anyone to be treated with respect.70
Westens strong critique of equality highlights the philosophical pitfalls associated with the concept when it is used to justify why people
should be treated in the same way. He thinks that what really matters
is the moral rule behind treating people equally and not the fact of
equality itself. However, aside the fact that it lacks moral content,
65
66
67
68
69
70
Ibid., p 545.
Ibid., p 547.
Ibid.
Ibid., p 548.
Ibid.
Ibid., p 549.
86
chapter two
equality embodies the notion of consistency that can be of use in some

circumstances, for example, in the context of public administration.
Why formal equality?
Equality as consistency embodies the rationality principle enshrined
in English common law. It is both a legal principle and a legal rule, as
Lord Hoffmann once described, the fundamental principle of justice
which requires that people should be treated equally and like cases
treated alike.71 Equality as consistency has long been regarded as a
fundamental principle for the rule of law in its blind application from
the top echelon to the rank and file. Hence Diceys proclamation, With
us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.72
Under the insignia of the rule of law, namely, judicial certainty and
predictability, English judges have invariably employed the principle of
equality as a measure of sound public administration.73 For example, in
the realm of urban planning, there is a well-established ground for the
government to refuse granting a permit when it would likely lead to an
impression of unfairness and inconsistency in future applications.74
The same can be said of social welfare allocations, where applicants for
student grants must be treated according to the cardinal principle of
good public administration that all persons in a similar position should
be treated similarly.75 Such may entitle individuals to have legitimate
expectation that they should be treated in one way and not the other
based on past records of government policies,76 or empower the court
to annul an official act when it is found to be grossly unreasonable.77
Regarding the latter issue, a landmark English case which established
71
Arthur JS Hall & Co v Simons [2002] 1 AC 615, p 688 per Lord Hoffmann.
A. V. Dicey, Introduction to the Study of the Law of the Constitution, 10th Edn
(London: MacMillan Press, 1959), p 193.
73
de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th Edn
(London: Sweet & Maxwell, 1995), p 579 [de Smith et al].
74
Ibid., pp 579580.
75
Ibid., p 579.
76
Ibid., p 563.
77
Christopher McCrudden, Equality and Non-Discrimination in David Feldman
(ed), English Public Law (Oxford: Oxford University Press, 2004) 581-668, pp 610611
[McCrudden].
72
87
the standard of unreasonableness for the court to invalidate an

administrative decision in judicial reviews is Associated Provincial
Picture Houses Ltd v Wednesbury Corporation (Wednesbury).78 In this
case, the plaintiff cinema appealed against a ruling concerning its earlier challenge against the local authoritys decision of imposing a condition on its license that no children under fifteen were to be admitted to
the cinema on Sundays. In dismissing the appeal, the English Court of
Appeal said that the court would interfere with an administrative decision if it is so unreasonable that no reasonable authority could ever
have come to it.79 According to Jeffery Jowell, although Wednesbury
was couched in the language of reasonableness, its underlying but
implicit concern was substantially about equal treatment.80 Despite the
lack of articulation of the concept in courts, equality is deeply embedded in English law.81 Not everyone agrees. John Stanton-Ife, on the
other hand, argues the generality of equality principles renders it a
mere simpliciter, which apart from its rhetorical appeal adds nothing
to the substantial argument as to how people should be treated, a view
resonates with Westens.82
Still, it remains good administrative law that official decisions should
be consistent and there should not be unjustifiable or unfair distinctions
between individuals.83 Beneath this canon, nevertheless, lies the indeterminacy of the relevant criteria for judging whether a decision is justified according to the likeness or difference of the circumstances. While
the equality as consistency principle is too ubiquitous to be ignored,
Lord Hoffmann observed that the very banality of the principle must
suggest a doubt as to whether merely to state it can provide an answer
to various problems arising from the corpus of administrative law.84
When it comes to deciding whether a different treatment is acceptable within constitutional bounds, there often entails the trio of how,
why and who which demands much more sophisticated responses
78
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB
223.
79
Ibid., p 234.
Jeffrey Jowell, Is Equality a Constitutional Principle?, (1994) 47 Current Legal
Problems 1, pp 1014 [Jowell].
81
Ibid., p 18.
82
John Stanton-Ife, Should Equality be a Constitutional Principle?, (2000) 11 The
Kings College Law Journal 133, pp138140 [Stanton-Ife].
83
de Smith et al (n 73 above), p 551.
84
Matadeen v Pointu [1999] 1 AC 98, p 109 per Lord Hoffmann.
80
88
chapter two
explaining how similar or different the people/situations are?, why

it matters? and who are to decide?. When the crux is on public
policy considerations, the role of the judiciary remains uncertain. Hence
Lord Hoffmanns cautionary comment, sonorous judicial statements of
uncontroversial principle often conceal the real problem, which is to
mark out the boundary between the powers of the judiciary, the legislature and the executive in deciding how that principle is to be applied.85
Why not formal equality?
What began as a cardinal principle for rational and impartial policy
making seems on closer examination to yield capricious value judgments.86 In retrospect, the arduous course of civil rights development
in the U.S. has seen once-formidable arguments such as separate but
equal in the context of racial segregation,87 women as irrational as
the pretext for male domination,88 and preserving racial lineage
against interracial marriage89 scrapped when social values changed and
equality eventually came to the side of the oppressed. On the other
hand, whether a prohibited ground should be accorded a higher scrutinizing test hinges as much on judicial interpretation as a societys prevailing values.
In one of the U.S. Supreme Courts seminal judgments on due process, Stone J illuminated the courts interpretative role in a famous footnote calling for a correspondingly more searching judicial inquiry
in reviewing statutes which targeted particular religious, national or
racial groups and in deciding whether prejudice against discrete and
insular minorities may be a special condition, which tends seriously
to curtail the operation of those political processes ordinarily to be
relied upon to protect minorities.90 Following decades of wrestling
with the American racial divide, the U.S. courts made race their top
priority. In 1944, Black J in the Supreme Court announced that all
legal restrictions which curtail the civil rights of a single racial group
85
Ibid.
Sandra Fredman, From Deference to Democracy: The Role of Equality Under
the Human Rights Act 1998, (2006) 122 Law Quarterly Review 53, p 64 [Fredman I].
87
See Plessy (n 12 above).
88
Sandra Fredman, Women and the Law (Oxford: Clarendon Press, 1997), p 13
[Fredman II].
89
See Loving (n 11 above).
90
U.S. v Carolene Products Co. (1938) 304 US 144, p154, fn 4 [Carolene Products].
86
89
are immediately suspect, and the courts must subject them to the
most rigid scrutiny.91 This highest judicial scrutiny has since ushered
in the demise of statutes which classified people along racial lines.
In comparison, a sex-based classification fell short of yielding the
same level of concern with a line of authorities fixing the test between
the less stringent rational basis and the strictest scrutiny.92 Thus a sexbased distinction stands to survive as long as it is shown to serve important government objectives with exceedingly persuasive justifications.93
While the three-tier test has been pivotal to the courts efforts in safeguarding Americans constitutional rights, the justification of its very
own hierarchal classification seems obscure especially when we compare their European counterparts which have long made sex the top
of the list, as opposed to race.94 Invidious a differentiation as it may
sound, this seemingly artificial distinction between grounds of discrimination speaks volumes for the presence of a value judgment about
equality, which influences even the court in assessing which characteristics are more relevant than the others. The priority given to a prohibited ground reveals a commensurate priority that a society holds to
combat odious of distinctions among its people. Thus the enduring
paradox surrounding equality that it can be formulated in different
ways according to different conceptions. To make the impartial judges
task even harder, the choice between different conceptions of equality
91
Korematsu v U.S. (1944) 323 US 214, per Black J. In this case, an American citizen
of Japanese descent appealed against his conviction for entering a military area that
was off-limits to all persons of Japanese ancestry. While the U.S. Supreme Court set
down this standard of constitutional scrutiny, it nevertheless dismissed the appeal on
the grounds of pressing public necessity. This decision was later overturned by a
California federal court under a writ of coram nobis, a doctrine for correcting a previous wrong. See Korematsu v U.S. (N.D. Cal. 1984) 584 F. Supp. 1406.
92
Sandra Fredman, Discrimination Law (Oxford: Oxford University Press, 2002),
p 118 [Fredman III]. See Craig v Boren (1976) 429 US190 (striking down a statute that
permitted women but not men between the ages of 18 and 20 to purchase 3.2 beer),
Califano v Goldfarb (1977) 430 US 199 (invaliding conditions set for widowers to claim
survivors benefits otherwise unconditionally provided to widows), Califano v Webster
(1977) 430 US 313 (upholding formal sex discrimination in the benefit formula under
social security law).
93
U. S. v Virginia (1996) 518 US 515; see also Fredman III (n 92 above), p 80.
94
See Fredman III (n 92 above), pp 89,118. The priority given to eradicate sex discrimination can be traced to the European Communitys early effort to abolish pay
discrepancy between men and women albeit the motivation was more about economics than equality for facilitating a common labor market to put all member states
on equal footing. See International Labour Office, Social Aspects of European
Economic Co-operation, (1956) 74 International Labour Review 99, p 107.
90
chapter two
is not one of logic but of values or policy.95 Apart from being dismissed
as tautological or simpliciter by critics like Westen and Stanton-Ife, formal equality in the form of giving identical treatment to similarly situated people gives rise to difficult questions when the only ascertainable
yardstick is value judgment. Like the question of why race should
take precedence over sex, that of when and how two individuals are
similar in a relevant manner can be equally perplexing. To begin with,
the choice of comparator presents the first hurdle when determining
whether different treatments are justified.96
If politics is the mirror of a societys values, the post-2001 global
fight against terrorism probably has made the value judgment more
challenging. Such was the dilemma facing the House of Lords as the
British Government had allegedly backpedaled from its human rights
commitments to detain without trial non-U.K. nationals suspected of
terrorism.97 Locking non-national suspects in jail while allowing U.K.
nationals in the same circumstances to post bail apparently subjected
two analogous groups to very different treatments on grounds of
nationality. Although the Court of Appeal had endorsed the governments plausible distinction based on the detainees right of abode, the
majority of their Lordships disagreed on grounds that for the aim of
the anti-terrorist legislation, it was the same status of being terrorist
suspects not immigration status that put the two groups in an
analogous situation.98 Still, Lord Walker in dissenting questioned overreliance on the meaning of analogous: Further analysis of the issue,
and the competing interests at stake, has to be undertaken in order to
answer the question whether the suggested comparators are in a relevantly analogous situation.99
Because the term analogous is ambiguous, even rational and fairminded people might disagree as to its meanings. Laws LJ in the Court
of Appeal in R (on the application of Carson) v Secretary of State for
95
Ibid., Fredman III, p 2. At p 79, Fredman also questions the exclusion of other
possible grounds: why does a history of past disadvantages not apply to poverty or
social class?
96
See McCrudden (n 77 above), p 623. In Stubbings & Others v U.K. [1997] 23 EHRR
213, the applicant, allegedly sexually abused in her early childhood, claimed under Art
14 of the ECHR. To succeed in the claim of discrimination in that particular case, the
court said that the applicant must be in an analogous situation to the victims of unintentionally inflicted injury.
97
A v Secretary of State for the Home Department [2005] 2 AC 68.
98
Ibid., paras 54, 171.
99
Ibid., para 211.
91
Work and Pensions100 refined Brooke LJs famous four-pronged test for
locating a comparator in Wandsworth London BC v Michalak.101 The
test comprises four questions:
(i) Do the facts fall within the ambit of one or more of the substantive
Convention provisions? (ii) If so, was there different treatment as
respects that right between the complainant on the one hand and other
persons put forward for comparison (the chosen comparators) on the
other? (iii) Were the chosen comparators in an analogous situation to the
complainants situation? (iv) If so, did the difference in treatment have an
objective and reasonable justification: in other words, did it pursue a
legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?
Instead of the third question above, Laws LJ suggested putting in

place, Are the circumstances of X and Y so similar as to call (in the
mind of a rational and fair-minded person) for a positive justification
for the less favourable treatment of Y in comparison with X?.102 This
broad question seemed to have created more difficulties however, as
Lord Hoffmann suggested that invoking the test of a rational and fairminded person meant it was the judges who had the final say, when
the decision of whether the differences are sufficient to justify a different treatment might in some cases be a matter for the parliament or the
executive.103 Again, Lord Nicholls had earlier acknowledged in Ghaidan
v Godin-Mendoza,104 where the House of Lords upheld the right of a
surviving same-sex partner to succeed the deceaseds protected tenancy, that the circumstances which justify two cases being regarded as
unlike, and therefore requiring or susceptible of different treatment,
are infinite. In many circumstances opinions can differ on whether a
suggested ground of distinction justifies a difference in legal treatment.105 In the same judgment, Baroness Hale suggested looking at
other objective justifications than relying on a rigidly formulaic
approach of finding analogousness.106
100
R (on the application of Carson) v Secretary of State for Work and Pensions [2003]
All ER 577 [Carson (CA)].
101
Wandsworth London BC v Michalak [2003] WLR 617, para 20, per Brooke LJ
[Michalak].
102
See Carson (CA) (n 100 above), para 61, per Laws LJ.
103
R (on the application of Carson) v Secretary of State for Work and Pensions [2005]
2 WLR 1369, para 31, per Lord Hoffmann [Carson (HL)].
104
Ghaidan v Godin-Mendoza [2004] 2 AC 557.
105
Ibid., para 9, per Lord Nicholls.
106
Ibid., para 134, per Baroness Hale.
92
chapter two
Even seemingly objective justifications may involve some kinds of

value judgment. What constitutes a justification to prefer one value or
criterion over another is not always clear. Having acknowledged that
there were numerous situations which could justify unlike treatment
for unlike people amid different opinions, Lord Nicholls went on to say,
[b]ut there are certain grounds of factual difference which by common accord are not acceptable, without more, as a basis for different
legal treatment. Differences of race or sex or religion are obvious examples. Sexual orientation is another.107 But how obvious are these
examples? Is the obviousness of any one ground a matter of what public
opinion or a rational and fair-minded person holds at any one time?
In Michalak,108 the Court of Appeal held that the distant relative living
with the deceased at his death was not analogously situated as a family
member and had no right to inherit the deceaseds secured tenancy.
Reasonable a judgment as it might be, it probably raised other questions for future cases, for example, whether a consanguinity test can
truly reflect the relationship of family members in todays increasingly
fragmented and pluralistic family settings, and to what extent the subtle facts of each case may influence the evaluation of an apparently
analogous situation.109
Following Fitzpatrick v Sterling Housing Association Ltd,110 in which
the House of Lords took the view that same-sex partners in a loving
relationship amounted to family members, the familial line has
become more elusive, which seems to attest to a growing trend that the
concept of a family is a moving one.111 It is not sure whether Brooke
LJ was aware of these potential conundrums when he concluded in
Michalak, this is pre-eminently a field in which the courts should defer
to the decisions taken by a democratically elected Parliament.112
By affirming judicial deference to the parliamentary intent for adopting a rigid definition of family member to preserve legal certainty,
the court in effect avoided engaging in a methodical comparison to
investigate how the two individuals were analogous in the situation.
107
Ibid., para 9, per Lord Nicholls.

See Michalak (n 101 above), paras 2632, per Brooke LJ.
109
See the critique of the House of Lords decision in Fitzpatrick v Sterling Housing
Association Ltd [2001] 1 AC 27 in S.M. Cretney & F.M.B. Reynolds, Limits of the
Judicial Function, (2000) 116 Law Quarterly Review 181, p 183.
110
Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27.
111
See Michalak (n 101 above), para 29, per Brooke LJ.
112
Ibid., para 41, per Brooke LJ.
108
93
Lord Hoffmanns opinion perhaps highlighted the difficulty that the

court had, as he said in Carson (HL),113 where a British national living
abroad was held as being not analogous to a British national living at
home and thus unqualified to be granted pension increments otherwise available, Whether cases are sufficiently different is partly a matter of values and partly a question of rationality.114
At the end, the seemingly unbiased comparator is arguably the construct of a value judgment. Treating similarly situated people similarly
as a principle of consistency may turn out to be a myth, when its rationality in fact depends on how far a society sympathizes with a given situation or group at any one time. Whether a case is in the mainstream
or at the periphery is thus largely determined by the prevalent public
policy or shifts in peoples values, for example, for the grounds of sex and
race in the past and more recently sexual orientation and old age.115
The vulnerability to being driven by the winds of values or exigencies sometimes renders the identification of relevant grounds and the
appropriate equal treatment rather arbitrary. To its credit, the European
Union (EU) has been pivotal in fostering an incremental approach
towards equality by gradually expanding the grounds of protection
since 2000, following years of neglect by individual member states.116
The early development of equality legislations shows that the vigorous
policies to enforce equal pay between the two genders under the Treaty
of Rome 1957 reflected a predominately functional concern to foster
economic integration.117 Hence, equality is hardly a stand-alone concept whose application is associated with the wider social context and
the states priorities. In the incipient years of the European Community
(EC), probably it was economic imperatives that galvanized the force
of equality, as Takis Tridimas put it, Equality therefore is not only a
113
See Carson (HL) (n 103 above).

Ibid., para 15, per Lord Hoffmann.
115
According to Lord Hoffmann, discrimination on grounds of old age may be a
contemporary example of a borderline case, while sexual orientation is now in the
mainstream. Ibid., para 17. See also Fredman I (n 86 above), pp 7576.
116
A number of Directives have since been issued following the Treaty of Amsterdam
in 1999, for example, a Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin was adopted in June 2000 (Council
Directive 2000/43/EC/ of June 29, 2000 [2000] OJ L180/22), followed by another five
months later, which widened equality protection to include the grounds of age, disability, religion and sexual orientation(Council Directive 2000/78/EC of November 27,
2000[2000] OJ L303/16 [Council Directives].
117
See McCrudden (n 77 above), pp 631632.
114
94
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constitutional necessity but also a keystone of integration.118 The pursuit of social equality was perhaps more on the sidelines than being the
main focus as the EC was busy creating a level-playing field in the common market.119
In the U.K., the European initiatives coupled with the U.K. Governments resolve have seen the enactment of the Human Rights Act 1998
incorporating the ECHR. The result was a non-exhaustive list of prohibited grounds of discrimination including sex, race, colour, language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth, or other status as
far as convention rights are concerned.120 But this beaming array of
protected grounds cannot conceal the glaring discrepancies when it
comes to enforcing equal rights. While the EUs Directive on race
stipulates a comprehensive coverage including employment, social
protection, education and housing, its Directive on religion, disability,
age and sexual orientation only concerns employment-related matters.121 Besides, both Directives categorically exclude the ground of
nationality regarding treatment for non-member state nationals.122 The
incoherent approaches concerning different vulnerable groups all
are supposed to deserve protection which was the reason why the
Directives were issued in the first place not only mirror the different
sex/race hierarchies that exist in Europe and the U.S., but also resonate
with the Orwellian sarcasm that some are more equal than others.
The paradox of formal equality: leveling up or down?
There is one aspect of the equality as consistency principle that lives
up to its consistency rationale. But when it does, treatments may in
118
Takis Tridimas, The General Principles of EU Law, 2nd Edn (Oxford: Oxford
University Press, 2006), p 76.
119
See Fredman III (n 92 above), p103.
120
See the Preamble, Art 1 & Sch 1, Human Rights Act 1998; see also Fredman III
(n 92 above), p 69.
121
See Council Directives (n 116 above). Article 3(1) of Council Directive 2000/43/
EC, implementing the principle of equal treatment between persons irrespective of
racial or ethnic origin covers a wide range of activities; while Art 3(1) of Council
Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation concerns employment matters only.
122
Ibid. See Art 3(2) of Council Directive 2000/43/EC & Art 3(2) of Council
Directive 2000/78/EC.
95
some cases turn out to be equally bad for everyone. It is what Derek
Parfit describes as the leveling down objection of formal equality.123
In his hypothetical example of a divided world in which each half of the
worlds population was unaware of the others existence, Parfit believes
that those who hold a strong view of egalitarianism would oppose any
move that makes life for half of the population worse than the other,
while those who believe that other moral reasons may justify inequality
sometimes do not see unequal treatment as necessarily bad.124 For the
former type of egalitarians, removing inequality is always a change for
the better no matter what. It follows that equality is achieved if, for
example, a natural disaster struck and everyone, rich or poor, is made
penniless.125 Even though there is no good to speak of having everyone
live in destitution, because of equality and equality alone it is a better
outcome. For those who think other moral considerations may sometimes override equality, inequality may not be as abhorrent if it can
benefit those who are worse off.126
Both positions are said to be untenable as the basis for equality,
because even if one chooses to give up the strong view to avoid leveling
down, he will then need to resort to other justifications to sustain a
belief in equality.127 If there are other reasons to justify why and how
people should be treated apart from achieving conformity, then it is
doubtful whether equality per se is a relevant argument to enhance
peoples quality of life especially in the case of resources distribution.
Hence, Parfit suggests shifting to a priority view: from worrying about
how people fare compared with the similarly situated others to focusing on improving peoples well-being in general especially for those
who are currently disadvantaged.128 If one holds this view, there is no
need to subscribe to equality at all. As another equality critic would
say, the principles of nonegalitarian justice are what is needed.129
123
Derek Parfit, Equality and Priority in Andrew Mason (ed), Ideals of Equality
(Oxford: Blackwell Publishers Ltd, 1998) 120, p 10.
124
Ibid., p 5.
125
Ibid., pp 910.
126
Ibid., p 10.
127
Ibid.
128
Ibid., pp 1215.
129
Christopher J. Peters, Equality Revisited, (1997) 110 Harvard Law Review 1210,
pp 12281229. Peters defined nonegalitarian justice as the treatment of a person in
accordance with the net effect of all the relevant criteria and only the relevant criteria,
provided that considerations of nontautological equality cannot be relevant criteria.
[Peters].
96
chapter two
The absurdity of following through a strict equality analysis can be

observed in a number of practical situations. For one, equality is arguably achieved by treating neither patient when two equally needy
patients compete for the same and only dosage of medication in a state
of scarcity.130 It is one example of leveling down justified by the concept of treating like alike.131 On the other hand, in a condition of infinite supply, the temptation towards leveling up may produce an
equally bizarre situation. Christopher Peters hypothetical lottery
example illustrates this point. In the story, a Mr. Unlucky and a
Ms. Lucky have respectively won a lottery prize of an equal sum.
Ms. Lucky is awarded, by mistake, a higher prize than she deserved
whilst poor Mr. Unlucky who went to claim his prize after Ms. Lucky
is given the correct but less valuable prize compared to hers. Supposing
for a moment equality is the only operative concept, a strict adherence of treating like alike in a situation of unlimited resources may
immediately demand that Mr. Unlucky be awarded the same amount
as Ms. Lucky on grounds that the difference in treatment is an inherent wrong in itself. The bare fact of similarity of their situations is
itself a reason for treating them the same.132 This conclusion, according to Peters, is self-contradictory as a substantive norm for it will lead
to another scenario of inequality between Mr. Unlucky who should
not have got the extra benefit but for Ms. Luckys unjust award, and
all the other lottery winners who are similarly situated but unfortunately have been awarded appropriately in absence of a prior unjust
award.133 If operated this way, equality necessarily violates what Peters
calls nonegalitarian justice because it treats a person according to the
same incorrect application of criteria already used to treat an identically situated person.134
In situations like this lottery blunder, Peters argues that any negative
reaction against Ms. Luckys excessive award does not necessarily come
from a concern for equality. The mere fact that Ms. Lucky has been
unjustly enriched at the expense of both Mr. Unlucky and all other
lottery winners reeks of injustice. Hence, it is the effects of the different
130
John F. Kilner, Who Lives, Who Dies?: Ethical Criteria in Patient Selection (New
Haven: Yale University Press, 1990), pp 2024.
131
For more examples of the leveling-down objection, see Stanton-Ife (n 82 above),
pp 140142.
132
See Peters (n 129 above), pp 12461247.
133
Ibid., pp 12491254.
134
Ibid., p 1252.
97
treatment rather than the bare fact of it that arouses resentment.135 In

this sense, equality is a symptom rather than the problem. As Joseph
Raz points out the rhetorical use of equality in the poverty
discourse,
Poverty may be no worse in a society where it afflicts only some than in
a society where all are poor. It is bad or regrettable in both to the same
degree and for the same reasons. The charge of inequality which can be
levelled against only one of these societies is used here rhetorically. The
wrong is poverty and its attendant suffering and degradation, not the
inequality. But the inequality is an indication that there may be resources
which can be used to remedy the situation. It is relevant to an argument
about what can be done, as well as to arguments about responsibility for
not doing enough to reduce the poverty.136
Anne Phillips seems to have a similar reflection in her treatise on economic poverty. To her, the scene of abject poverty in the midst of glaring wealth speaks volumes for the various underlying societal evils, for
example, abuse of power, in which inequality may only be one of the
diagnoses. Perhaps it is better to start with the question: Whether everyone in society has enough?137
The leveling down effect of strict equality can in some cases bring
more detriments to the disadvantaged group apart from bringing the
dominant group down. A notorious example is Palmer v Thompson,138
a 1971 decision of the U.S. Supreme Court which epitomized the weaknesses of the consistency principle at its extreme. Having been found
by the district court that the segregation policy of operating white-only
public swimming pools violated equal protection, the city of Jackson in
Mississippi responded by closing such pools altogether. This radical
measure had filled the rage of the black litigants all the more, who sued
all the way to the Supreme Court arguing that this facially equal measure denied their rights to access to public pools and failed to address
the constitutional wrong. Judging under a streak of formal equality, the
majority disagreed, distinguishing this case from previous policies
of blatant segregation where blacks had been kept out from public
135
Ibid., p 1248.
See Raz (n 59 above), p 229. Not everyone agrees. See Avishai Margalit, Decent
Equality and Freedom: A Postscipt, (1997) 64 Social Research 147, p 149.
137
Anne Phillips, Which Equalities Matter? (Cambridge: Polity Press, 1999), p 63;
See also Harry Frankfurt, Equality as a Moral Ideal, (1987) 98 Ethics 21.
138
Palmer v Thompson (1971) 403 US 217.
136
98
chapter two
facilities catering to whites.139 Accordingly, there was no denial of the

equal protection of the laws when the swimming pools were off-limits
to all the citys citizens both black and white.140
This judgment revealed the very pitfall produced by leveling-down
equality according to the dissenters, who instead focused on the
effect of the laws rather than the phenomenon of equality. Far from
being a neutral policy, the closure was deemed an invidious device to
perpetuate the inferiority of the black population and hence racial segregation.141 The chilling effects it sent out were enough to gag further
grievances from the black citizens lest they should risk losing more
public facilities and inviting deeper animosity from whites.142 Should
the majority have taken issue with the question how human beings
should be treated instead of how equal they should be treated, the
conclusion reached might have been different and this decision would
not have been remembered as one which produced equality to go down
together.143
Same-sex marriage: leveling up or down?
In the context of same-sex marriage, the leveling down effect of equality has drawn attention from both the conservative and progressive
opponents.144 On the whole, the debate over same-sex marriage can be
said to be triangular, with its defenders responding to critics coming
from both of the conservative and progressive sides.145 While same-sex
marriage advocates use formal equality to argue that gays and lesbians should be treated the same as heterosexuals,146 opponents from the
above two sides oppose the idea on the grounds that it will normalize
gays and lesbians and their relationships in undesirable ways. To the
conservatives, such normalization will level down the superior status
139
Ibid., p 220, per Black J. For examples, Watson v City of Memphis (1963) 373 US
526; Brown v Board of Education (1954) 347 US 483.
140
Ibid., p 226, per Black J.
141
Ibid., p 239, per Douglas J; p 266, per White J, Brennan J and Marshall J
concurring.
142
Ibid., p 235, per Douglas J; p 269, per White J, Brennan J and Marshall J
concurring.
143
See Westen (n 36 above), pp 590592.
144
William N. Eskridge Jr., Equality Practice: Civil Unions and the Future of Gay
Rights (New York: Routledge, 2002), pp 197230 [Eskridge II].
145
Ibid., p 198.
146
See Eskridge I (n 41 above), pp 123182.
99
of heterosexual relationships as enshrined in traditional marriage. To

the progressives, it amounts to assimilating gays and lesbians into the
heterosexual mainstream at the expense of the uniqueness of their
identity and relationships.
Although the latter view does not sound mainstream in the gay community, it points to an important aspect of equality in relation to the
current social structure. According to the progressive camp, the liberal ideal of formal equality is a false hope as far as marriage equality
is concerned.147 On the surface, equal treatment in the form of samesex marriage comes as an improvement of the status of gays and lesbians. In substance, it is a concession of the sexual minority to conform
to the norms of the majority which in turn reinforces the superiority of
heterosexuality. The result is that while those who are already living
like their heterosexual counterparts find the elevation desirable, those
who resist assimilation will be alienated and marginalized.148
The above represents a paradox which the notion of formal equality
may create in the same-sex marriage debate. It may even be a lose-lose
situation for both conservatives and progressives. The so-called leveling up of gays and lesbians under same-sex marriage, while objected
to by defenders of traditional marriage, is nevertheless deemed to be
too conservative and regressive for the more radical members of the
gay and lesbian community.149 In this respect, conservatives and progressives are at least united on one single front: the use of formal equality is bad in justifying the right to same-sex marriage.
Therefore, formal equality is not to be taken for granted. As we have
seen, the vaunted equality as consistency as a means of rational and
fair policy making can lead to arbitrary legal distinctions due to different ideas of who are alike and who are unalike, not to mention its propensity to lower everyones welfare with the force of leveling-down, or
to level up when resources are profuse according to an incoherent conception of equal treatment. As Stanton-Ife argues, formal equality is
both underinclusive and overinclusive.150 Although formal equality is
deeply embedded in the English rule of law,151 it does not provide
147

Ibid., pp 205206.
149
Paula L. Ettelbrick, Since When Is Marriage a Path to Liberation? in William B.
Rubenstein (ed), Cases and Materials on Sexual Orientation and the Law, 2nd Edn (St.
Paul: West Publishing Co., 1997) 721727, p 721 [Ettelbrick].
150
See Stanton-Ife (n 82 above), p 151.
151
See Jowell (n 80 above), p 18.
148
100
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enough guidance on which sorts of equality are more important than

others or give legitimate reason for drawing the line of inclusion and
exclusion.152 Accordingly, formal equality is at best an inaccurate
means of expressing the idea that all are entitled to respect an ideal
that can be subsumed under the notion of reasonableness without all
the baggage that equality carries.153 In fact, the principle of treating
like alike with no regard to what is right and wrong, as McIntyre J
observes, could be used to justify the Nuremberg laws of Adolf Hitler.
Similar treatment was contemplated for all Jews.154 Therefore, the idea
of formal equality should be treated with caution. It may fare better as
a mandate for administrative consistency but not to be taken as a constitutional principle.
Formal equality and equal rights for gays and lesbians
However insufficient formal equality may be in determining how
people should be treated, and whatever doubt its critics have cast on
the notion, the idea of treating like alike remains predominant as far
as equality jurisprudence is concerned. From decriminalizing sodomy
to legalizing same-sex marriage, the mainstream equality-based argument is that people who are in similar situations should be treated
equally. It follows that adults engaging in consensual sexual intercourse
of any form should be dealt with under the same law. In the same way,
monogamous couples should be granted the same right to marriage
regardless of their sexual orientation. Therefore, the similarity of people and their situations becomes the crux of equality. The next questions will be: how similar are these people, and how similar are their
situations?
Earlier we noted what Bamforth suggests: Different interpretations
of equality give rise to differently structured justifications for laws.155
The word equality implies much more than simply giving everyone
equal treatment in all circumstances. As people are different in many
ways while similar in others, a generalized notion of equality is prone
152
Kent Greenawalt, How Empty is the Idea of Equality?, (1983) 83 Columbia Law
Review 1167, pp 11761177.
153
See Stanton-Ife (n 82 above), p 151.
154
Andrews v Law Society of British Columbia [1989] 1 SCR 143, p 166, per
McIntyre J.
155
See Bamforth II (n 54 above), p 236.
101
to create ambiguities. Therefore, the first question to ask when making

an enquiry about equality is probably, equality in respect of what?156
Bamforth asks a similar question in his critique of using equality arguments to support whatever law reforms are aimed at enhancing civil
rights for gays and lesbians.157 According to him, the initial appeal of
equality will dissipate as soon as people raise questions as to what aspect
of equality is at stake. For example, arguments for the equal rights of
homosexuals generally focus on either the conduct they engage in (in
the form of sodomy for males) or the status they are associated with
(gays and lesbians as a sexual minority). While a conduct-based analysis can be used to argue that singling out males for prosecution for
their private and consensual sexual activities constitutes an intrusion of
privacy and discrimination against gay men because of their sexual orientation158, using equality (instead of privacy) as justification for the
right requires further explanation. Using the premise that where there
is an equality argument there is a comparison to decide whether a sodomy law fails the constitutional scrutiny under equal protection entails
a comparison of the conduct in question.
While many courts have sought to avoid equality and opted for privacy in striking down sodomy legislation,159 OConnor J in concurring
with the majority in Lawrence relied solely on equality grounds.
According to her, the inequality of the impugned Texas law stemmed
from treating the same conduct sodomy as opposed to vaginal penetration differently based only on the participants sexual orientation
by singling out homosexual men for prosecution. It therefore renders
homosexual males, who because of their sexual orientation participate
in this activity, unequal in the eyes of the law.160 According to
OConnor J, apart from being prohibited from engaging in the conduct, homosexuals as a class were subject to discrimination under
the sodomy law. Objecting to the states argument that sodomy law only
156
J. R. Lucas, The Principles of Politics (Oxford: Clarendon Press, 1967), p 244
[Lucas II].
157
158
See Dudgeon v U.K. [1981] ECHR 7525/76, ECt HR [Dudgeon]; Norris v Ireland
[1988] ECHR 10581/83, ECt HR; Toonen (n 20 above); Sutherland v U. K. [1997] ECHR
25186/94 (ECommHR); Lawrence (n 14 above) (but note OConnor Js concurring
judgment); Leung TC William Roy v Secretary for Justice [2005] (HCAL 160/2004)
[Leung (HC)].
159
Ibid., particularly the majorities in Lawrence, Dudgeon, and Toonen.
160
See Lawrence (n 14 above), p 527, per OConnor J.
102
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punishes homosexual conduct, she believed the law set its eyes ultimately on the class of people by criminalizing the very conduct that
defines it. It was therefore doomed to fail as the Equal Protection Clause
does not allow legal classifications be drawn for the purpose of disadvantaging the group burdened by the law.161 As a result, a law that targets for prosecution homosexual sodomy and the group who practice
it without legitimate government interests must fail on equality
grounds.
Although OConnor J sought to base her judgment on the formal
principle that persons situated similarly should be treated alike, she
did not take her equality analysis to its conclusion by identifying the
aspects in which the two conducts, i.e. homosexual sodomy and heterosexual intercourse, or the two classes who engage in these conducts, were alike. It appears that her equality analysis was simply based
on an uncritical assumption that the two conducts or the two classes
are the same and therefore should be treated equally. By not making
any substantive comparisons or explaining the reasons why the conducts or the parties are to be regarded the same, her reasoning did not
go very far in advancing the arguments for why people should be treated
equally. If that is the case, what should our equality analysis focus on?
What is being compared?
Conduct-based equality
In his robust critique on equality, J. R. Lucas regarded equality as such
an emotionally-charged concept as to obstruct clear thinking.162 This
seems to be the situation in the recent cases. OConnor Js futile attempt
to put forward a concrete equality analysis in Lawrence reveals the two
dimensions where comparisons could have been possibly made. While
it is plausible to argue that similar sexual conducts should receive the
same treatment under the law, so far the courts have yet to come up
with a substantive comparison beyond a sweeping generalization which
treats all forms of penetrative sexual intercourse as the same. In
upholding the High Courts ruling in Leung TC William Roy v Secretary
for Justice, the Hong Kong Court of Appeal endorsed the view that
161
162
Ibid., pp 528529.
See Lucas I (n 57 above).
103
buggery and sexual intercourse between a man and a woman are to be

regarded as being similar.163 It is because buggery, like sexual intercourse between heterosexuals, is an expression of love, intimacy and
perhaps the main form of sexual gratification for homosexual men.164
In supporting this view, the court noted the judicial trend overseas of
treating buggery as a form of sexual intercourse comparable with sex
between a man and a woman. One may argue that instead of drawing a
comparison between the two conducts, the court has subtly endorsed a
liberal and inclusive interpretation of sexual intercourse as long as it
fits the description of love, intimacy and sexual gratification.
That liberal undertone had first appeared in the lower court decision, where Hartmann J ruled that the unequal age of consent between
male and female under the age of twenty-one based on his view that
anal intercourse is the only form of sexual intercourse for gay men
constituted indirect discrimination against gay men because of their
sexual orientation. According to Hartmann J, it was an unsustainable
situation because under-aged gay couples were prohibited not only
from expressing sexual intimacy with each other while heterosexual
and lesbian couples are free to do so, but also from practicing their
only form of sexual intercourse while heterosexual couples were free
to have intercourse deemed natural to them.165
The subtle reference to liberty followed that of an earlier Ontario
Court of Appeal decision which struck down an Ontario criminal provision proscribing anal intercourse for those under the age of eighteen
except for married couples.166 Also holding the view that anal sex
was the only available form of intercourse for gay men, the court found
that the law infringed the constitutional guarantee of equality by denying those under-aged gay men a choice available at the age of fourteen
to those who are not gay, namely, their choice of sexual expression with
a consenting partner to whom they are not married.167
Although both the Hong Kong and Ontario judgments sought to
uphold equality, their respective reasoning has an air of sexual
liberalization imbued with the language of choice and freedom.
163
Leung TC William Roy v Secretary for Justice [2006] (CACV 317/2005), para 47
[Leung (CA)].
164
Ibid.
165
See Leung (HC) (n 158 above), para 135.
166
R. v M.(C.) [1995] 98 CCC (3d) 481.
167
Ibid.
104
chapter two
Hartmann Js comment is perhaps an indication. He quoted with

approval OConnor Js comment in Lawrence: so long as the Equal
Protection Clause requires a sodomy law to apply equally to the private
consensual conduct of homosexuals and heterosexuals alike, such a law
would not long stand in our democratic society.168 The main point,
after all, seems to be not so much about comparing the similar conducts between similarly situated people but giving everyone the same
amount of freedom to choose what they want to do. Seen in this light,
a conduct-based analysis of equal treatment looks more like a justification for individual liberty in disguise. As the above cases show, once
the courts decided that anal sex is a form of sexual intercourse, they
would, without drawing any parallel between the two sexual acts in
question, conclude that people of the same statutory age range should
be free to engage in consensual sexual activities. The underlying message seems to be: So long as any form of sexual act is legal for a heterosexual couple, equality demands the same apply to a couple who
happens to be homosexual. But as far as formal equality is concerned,
this position is not sustainable.
First of all, this equality claim speaks for nearly the whole adult population, not just the two groups in question. Besides, it may amount to
a general endorsement of sexual freedom for all adults instead of a
comparison between distinct groups according to the spirit of equality.169 As Bamforth argues, where the well-being of nearly all members
of a society is at issue, it is more likely to be a matter of liberty rather
than equality. It raises question as to whether equalizing the treatment
between heterosexual and homosexual couples on the basis of
conduct-based analysis is in fact liberalism claimed as equality.170
Without normative justifications to explain why two groups are comparable, the assertion of equality is at best a placeholder for liberalism;
at worst, a mere tautology.
Class-based equality
Alternatively, a class-based analysis of equality appears to have overcome the over-generalization of a conduct-based one. OConnor J suggested that the sodomy law aimed at targeting a class as much as the
168
169
170

Ibid.
105
associated sexual conduct. But the state can escape such an allegation
by claiming that it aims at protecting people from discrimination on
the basis of their status rather than their behavior. Under the socalled Dont Ask, Dont Tell personnel policy of the U.S. Armed
Forces,171 behavior and status are distinguished as two different
issues when it comes to discharging soldiers. It gives an impression that
homosexual military officers as a special class are protected from discrimination provided they do not manifest their sexual orientation.
This policy, which the government boasts treats people not for who
they are but only for what they do, has been criticized as being deceptive and more anti-gay than the previous policy.172 In terms of the
equality analysis, the artificial distinction between behavior and status
makes it difficult to make comparisons between homosexuals and heterosexuals in justifying equal treatments.
Unlike sex and race, sexual orientation is not as conspicuous for the
purpose of comparison. The position is complicated by some courts
classifying sexual orientation under sex as a prohibited ground of discrimination,173 as well as the comparison between interracial couples
and same-sex couples in the analogy drawn between anti-miscegenation
law and the ban on same-sex marriage.174 As Steven Epstein observed,
during the U.S. gay rights movement in the 1970s, gays and lesbians
tended to conceptualize themselves as a social minority akin to an
171
This policy was derived from a U.S. Captain, Captain S.H. Crittendens report in
1957, recommending that homosexuals could serve in the army as long as they did not
invade third-party rights and were exceedingly discreet dont ask, dont tell. See
William N. Eskridge Jr., Gaylaw: Challenging the Apartheid of the Closet (Massachusetts:
Harvard University Press, 1999), p 86.
172
Janet E. Halley, Dont: A Readers Guide to the Militarys Anti-Gay Policy (Durham:
Duke University Press, 1999), pp 2, 5765 [Halley]. See also Paisley Currah, Searching
for Immutability: Homosexuality, Race and Rights Discourse [Currah] in Angelia
R. Wilson (ed), A Simple Matter of Justice? Theorizing Lesbian and Gay Politics (London:
Cassell, 1995) 6368.
173
In Toonen (n 20 above), the U.N. Human Rights Committee observed that
sexual orientation is included in the definition of sex under Art 2(1) & Art 26 of
the ICCPR; In Baehr (n 17 above), it was held that discrimination against gays and
lesbians was sex discrimination. Andrew Koppelman endorses this view. See Andrew
Koppelman, The Miscegenation Analogy: Sodomy Laws as Sex Discrimination,
(1988) 98 Yale Law journal 145. But see Edward Stein, Law, Sexual Orientation,
And Gender in Jules Coleman & Scott Shapiro (eds), The Oxford Handbook of
Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002) 990-1040,
pp 10221029.
174
See the majority judgment in Halpern (n 31 above) and Goodridge (n 26 above),
and Thomas Js dissenting judgment in Quilter v Attorney General (1996) NZFLR 481.
106
chapter two
ethnic minority.175 This self-identification provided powerful justifications for arguing that they deserved the same level of protection against
discrimination as did other vulnerable groups in society.176 To argue
that the law should treat people of a particular status equally as every
other, one must first ascertain who and what make up the status. In this
connection, without the conspicuity of outward characteristics like
skin color, ones status arising from sexual orientation can only be
expressed in terms of the so-called gay identity.
While an essentialist view generally describes gay identity as an
ascertainable and inherent self-consciousness of having erotic inclination towards people of ones own sex, for many constructionists,
sexual identity is socially, culturally and historically constructed.177 As
Bamforth observes, a homosexual identity is better seen as a recent
social phenomenon in so far as this concept was alien to ancient
Greeks who were said to have commonly engaged in same-sex sexual
acts. Moreover, homosexuals as an organized community only
began to attract social and political concerns in the U.K. around the
time the Wolfenden Report was released in the late 1950s.178 According
to this observation, peoples sexual attraction to members of the samesex alone does not necessarily entail their perceiving themselves as
gay. In short, the perception of a gay identity is fluid, hence the difficulty in making any comparison with that of a heterosexual in this
regard.
175
Steven Epstein, Gay Politics, Ethnic Identity: The Limits of Social Constructionism in Edward Stein (ed) Forms of Desires: sexual orientation and the social constructionist controversy (New York: Routledge, 1992) 239-294, pp 243258 [Epstein];
Steven Seidman, Identity and Politics in a Postmodern Gay Culture: Some Historical
and Conceptual Notes in Michael Warner (ed), Fear of a Queer Planet: Queer Politics
and Social Theory (Minneapolis: University of Minnesota Press, 1993) 105-142,
pp 110117 [Seidman].
176
Ibid., Epstein, p 243.
177
See Bamforth I (n 54 above), p 79; In his controversial findings from a study of
the early history of homosexuality and Christianity, John Boswell appeared to hold an
essentialist view of a gay identity. See John Boswell, Christianity, Social Tolerance, and
Homosexuality: Gay People in Western Europe from the Beginning of the Christian Era to
the Fourteenth Century (Chicago: University of Chicago Press, 1980), p 44; John
Boswell, The Marriage of Likeness: Same-sex Unions in Pre-modern Europe (London:
Harper Collins Publishers, 1994).
178
For the Wolfenden Report, see Chapter 1 (fn 225). It has been argued that the
terms heterosexual and homosexual only came into being in the nineteenth century. See Michel Foucault, The History of Sexuality, Volume 1: An Introduction, Trans.
Robert Hurley (New York: Vintage Books, 1980), p 101.
107
Who is being compared?

The difficulty of making meaningful comparisons for purpose of equal
treatment partly lies in the fact that the notion of a gay identity is not
easily ascertainable. Nevertheless, in order to mobilize fellow gay citizens and to emerge from their oblivion in the U.S. political scene, gay
activists in the 1970s charted an essentialist course in the civil rights
movement by emphasizing their gayness similar to the blackness of
black people.179 Emphasizing the immutability of homosexuality probably helped bolster the equality claims of gays and lesbians like that of
race for the ethnic minority, at a time when Bowers v Hardwick was
still the law of the land.180 However, to emphasize that it was their status
as homosexuals that subjected them to discrimination, gays and lesbians were required to articulate a unitary gay identity comparable to a
heterosexual identity for purpose of equal treatment. This strategy had
helped both the gay and lesbian communities gain much headway in
their consolidated civil rights campaign in the 1980s, based on the
assumption that sexual object choice defines sexual orientation.181
In fact, a gay identity is not as clear-cut. A general homosexual/
heterosexual division prevalent in mainstream culture has been criticized as eroding the experiences of those whose sexual orientation is
not mutually exclusive or whose sexual object choice does not adequately describe their sexual and intimate lives.182 While group-determined identity is a useful tactic for under-privileged groups to present
themselves in politics, not all of them are able to articulate who they
are.183 Under the banner of sexual minority which depicts gays, lesbians and bisexuals as one united community often subsists a gamut of
ways of life.184 As Jeffrey Weeks observed, having maintained a strong
sense of affinity in the 1980s at the peak of their civil rights campaign the gay and lesbian communities showed increasing signs of a rift,
179
See Epstein (n 175 above), p 254.

Bowers v Hardwick (1986) 478 US 186. The majority negated any constitutional
right to engage in sodomy while leaving open the subject matter of homosexuality
[Bowers]. See also Currah (n 172 above), pp 5760.
181
See Seidman (n 175 above), p 121.
182
Ibid.
183
Angelia R. Wilson, Which Equality? Toleration, Difference or Respect [Wilson]
in Joseph Bristow & Angelia R. Wilson (eds), Activating Theory: Lesbian, Gay, Bisexual
Politics (London: Lawrence & Wishart, 1993) 171189, pp 180181.
184
Ibid.
180
108
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where differences in political aspirations, sexual needs and lifestyles

strained the relationships of the former alliances.185
Without a coherent idea of what it really is, a homosexual identity
that is used to justify equality for gays and lesbians treads on increasingly shaky grounds. One way to halt this crumbling state of affairs
may be to come up with an equality discourse based on the status of
gays and lesbians that levels all their differences at the expense of
those less powerful and non-mainstream members so that they can
present a united identity for the purpose of comparison. Alternatively,
if they take South Africas equality of difference approach to accommodate difference and diversity, the group as a whole risks diluting
what gays and lesbians have in common that used to hold them together,
making the comparing exercise even more difficult.186
The above concerns are what outsiders would perceive as a gay identity in assessing the claim of equal treatment. How gays and lesbians
perceive their own identity also has a bearing on the status-based
equality analysis. In this respect, the generalized formula sexual object
choice equals sexual orientation failed not only to accurately reflect
the life of many gays and lesbians, but failed also to recognize that
there is no necessary connection between sexual behavior and sexual
identity.187 The failure in this second aspect may shed light on the U.S.
Armys policy not to discharge officers who were found to have committed same-sex activities but turned out to be heterosexuals. What is
more, it gives more weight to the assertion that identity is not a destiny but a choice.188 For people who, for whatever reason, consciously
engage in same-sex activities but reject a gay identity, a status-based
argument which brings them under the homosexuality category,
along with those who cling to their homosexual identity, can be either
artificial or over-inclusive. If equality law is aimed at protecting the
perceived victims, in this case gays and lesbians, it is necessary for them
to acknowledge their gay identity and associate it with the experience
of discrimination arising from such an identity.189 In other words,
185
Jeffrey Weeks, Coming Out: Homosexual Politics in Britain from the Nineteenth
Century to the Present (London: Quartet Book, 1990), p 233.
186
Ibid., p 237.
187
Jeffrey Weeks, Against Nature: Essays on History, Sexuality and Identity (London:
Rivers Oram Press, 1991), p 79.
188
Jeffrey Weeks, Sexuality and Its Discontents: Meanings, Myths & Modern
Sexualities (London: Routledge, 1985), p 209.
189
109
a person could not legitimately secure legal protection until they

accepted an identity or had it thrust upon them.190
The malleability of a homosexual identity due to the groups internal differences and the incongruous relationship between behaviors
and identity speaks volumes about the difficulty of developing a
coherent status-based equality analysis. Indeed, people assume different social roles simultaneously while placing different significances to
a series of personal identities depending on the role they are fulfilling
at any given time. Therefore, the requirement that a particular identity
must always be present for the purpose of comparison under an
equality-based justification can be unrealistic.191 A proper basis on
which to justify equal treatment for gays and lesbians may lie elsewhere,
as Janet Halley observed, The essence of the class that needs protection is not, then, in its members: It is in the interactions among class
members and between them and others about the meaning and value
of same-sex erotic desire.192
Why equal?
Halleys comment points to another aspect in which the equality argument per se appears to be inadequate. It is the inadequacy of normative
arguments to explain why the law should treat same-sex couples no
differently from opposite-sex couples. As illustrated above, the courts
which ruled in favor of same-sex marriage predominately emphasized
either the similarity of same-sex couples behavior with that of heterosexuals or the aspiration and capability of the former to participate
in monogamous marriage. Although such reasoning may touch an
empathetic chord with those who sympathize with the predicaments
facing gay and lesbian couples, it does not provide a moral argument to
justify why their relationships should be treated as marriages.
Raz argues that egalitarian principles often overlook the importance
of public goods. He writes, Morality (or political morality) is not
based just on one or more principles of equality.193 Hence, it requires
other principles which concern peoples well-being and the degree of
190
Ibid., p 247.
Ibid.
192
Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the
Argument from Immutability, (1994) 46 Stanford Law Review 503, p 563.
193
See Raz (n 59 above), p 234.
191
110
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responsibility between one another. In this connection, he points to

the problem of leveling-down equality that we have discussed earlier.
Because egalitarian principles are intrinsically relational, they would
not concern about the happiness of a person as long as everyone is
either equally happy or equally unhappy.194 To Raz, this is absurd as
we only have reason to care about inequalities in the distributions of
goods and ills, that is of what is of value or disvalue for independent
reasons. There is no reason to care about inequalities in the distribution
of grains of sand, unless there is some other reason to wish to have or to
avoid sand.195
Therefore, without qualitative theories to distinguish between different

situations, equality is claimed to be fulfilled as long as everyone is
treated the same and no one is worse off. To Raz, this is not a satisfactory outcome because the people and society will not be better off
though theoretically being treated equally.196
Although some writers have tried to argue for the inherent good of
same-sex relationships,197 the morality of homosexuality is not something gay rights activists have been emphasizing. In the context of
legalizing same-sex marriage, the advocates tend to focus on how similar the situations between homosexuals and heterosexuals are in order
to justify equal treatment under the law.198 The central question as to
why the two relationships are morally equal and should receive equal
recognition has been ignored. Not surprisingly, the assimilationist
nature of formal equality has been seen as getting in the way of achieving full affirmation of gay and lesbian identity and validation of other
forms of relationships for the liberation of all.199 As will be discussed
later, the marriage critics are demanding the abolition of the institution
of marriage altogether.
194
Ibid., pp 234235. The pitfall of the notion of formal equality was best illustrated in the case of Palmer v Thompson (n 138 above).
195
Ibid., p 235.
196
Ibid.
197
As discussed earlier, Carlos Ball used the term moral liberalism to inject a sense
of morality into homosexual relationships. See Chapter 1 (fn 233).
198
This strategy was also used by the liberal feminists fighting for sexual equality
since the days of Mary Wollstonecraft (17591797) to the later feminist campaign in
the U.S., where women were valorized as equally rational as men and thus should be
given equal opportunities. See Mary Wollstonecraft (1759-1797), A Vindication of the
Rights of Woman (New York: Alfred A. Knopf, 1992); see also Patricia A. Cain,
Feminism and the Limits of Equality, (1990) 24 Georgia Law Review 803, p 829
[Cain].
199
See Ettelbrick (n 149 above), p 721.
111
The focus on similarity, on the one hand, helps create a seamless

portrayal of heterosexuals and homosexuals living the same kind of
family life. On the other hand, the emphasis on their identicalness
effectively marginalizes any alternative lifestyles present in the homosexual community and threatens to alienate the experiences of those
who do not conform to this harmonized paradigm. To the antiassimilationists, the more gay and lesbian rights activists push for
equality using the current strategy, the more entrenched conventional
marriage and family norms will be, and the less likely gays and lesbians
and their true life stories will be accepted as they are.200
But without normative arguments to justify why same-sex marriage
is good in itself, sidestepping the moral issues seems to be the best
strategy for now. The powerfulness of formal equality has, for long,
allowed gay and lesbian activists to avoid talking about morality in their
advocacy for civil rights from decriminalization, anti-discrimination
law to legalizing same-sex marriage. In much the same way that
privacy has helped the pro-choice group in favor of abortion,201 focusing on equality allows the same-sex marriage advocates to avoid distractions stemming from the moral questions. However, when
normative justifications of their case are called into questions, equality
alone is simply not the answer. It is because equality per se provides little clue as to why people or groups should be treated in one way but not
the other.
That reminds us of Westens strong criticism of equality. To him,
treating like people alike simply means that people should be treated
in the same way according to some moral rules.202 In other words, people who are alike in the relevant aspect should be treated alike.203 It says
nothing about the content or wisdom of the rule itself. For example,
while it seems perfectly fair to say all children have equal rights to
education, it can be argued that a childs right to go to school does not
have much to do with equality but rather the fundamental right to be
educated as a member of a civilized society.204 In that case, the entitlement to education as a human being is the underlying reason beneath
200
Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and
Lesbian Marriage Will Not Dismantle The Legal Structure Of Gender In Every
Marriage, (1993) 79 Virginia Law Review 1535, pp 1535, 15401541.
201
Ibid., pp 15411542.
202
See Westen (n 36 above), p 549.
203
Ibid., p 548 (fn 36).
204
See Raz (n 59 above), pp 219220.
112
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the equality-based justification of equal rights to education. Hence,

moral standards remain the guiding light in situations like this. With
substantive principles, equality serves to bolster other primary values
at work; without substantive principles, equality is a mere empty vessel providing no justification as to how human should act.205
In a similar vein, Alf Ross commented that the ideal of formal equality simply means the correct application of a general rule.206 Where
the concepts within the rule define a certain class of persons or situations that requires certain treatment, the equal treatment of all those
within this class is then simply the necessary consequence of the correct application of the rule.207 Hence, justice in the sense of finding the
right rule to fulfill the demand for equality can be understood as a
demand for rationality in the sense that the treatment accorded to a
person shall be predeterminable by objective criteria, established in
given rules.208
At the end, there is no escape from finding the moral principles
involved. According to Joel Feinberg, treating like alike and unlike
unalike is merely a formal principle of justice that requires more
than that difference in treatment be based on differences in characteristics to fulfill the requirement of justice.209 It is because any two persons will differ in some respects and we can always find some differences
between them to justify their different treatment. Therefore, the differences between them which justify different treatment must be relevant differences, and the similarities between them which justify
similar treatment must be relevant similarities. Injustice occurs only
when people who are alike in every relevant respect are treated differently or when people who are different in some relevant respect are
treated equally. Feinberg calls the criteria that are used to identify the
relevance of differences or similarities the material principles of justice.210 These principles are of a different order from that of the formal
205
See Westen (n 36 above), p 547. Laurence Tribe also raised the innate circularity
of equality arguments. He said equality makes non-circular commands and imposes
non-empty constraints only to the degree that we are willing to posit substantive ideals
to guide collective choice. See Laurence H. Tribe, American Constitutional Law, 2nd
Edn (Mineola: Foundation Press, 1988), p 1436.
206
Alf Ross, On Law and Justice (London: Stevens & Sons Limited, 1958), p 273.
207
Ibid.
208
Ibid.
209
Joel Feinberg, Social Philosophy (New Jersey: Prentice Hall, 1973), pp 99100
[Feinberg].
210
Ibid., p 100.
113
principle of justice. Deciding which material principles are to be

adopted requires us to enter the moral arena where various interests
are in competition. In this respect, Feinberg shares Westens view about
the emptiness of the formal principle of justice as he says, [w]e shall
have to bring in normative principles from the outside so that justice
can have substance and provide direction.211
Does treatment as equals live up to the commitment to equality?
The contention that certain normative principles are antecedents to
equality seems to differ squarely from Dworkins theory of liberal
equality. According to Dworkin, a citizens right to equality stems from
the states twofold duty.212 First, the government must treat all people
as equals who are entitled to equal concern and respect.213 Second,
the government must treat all people equally in the distribution of
some resources and opportunities, so as to ensure that they are more or
less equal in that regard.214 According to this egalitarian principle, a
governments political decisions must be made independent of any
particular conception of a good life, or of what gives value to life.215 In
so far as the right to treatment as an equal is taken to be fundamental
under the liberal conception of equality,216 the government must remain
neutral over what constitutes a good life when making political decisions which affect people who may have different conceptions as to
what is good for them.
Treating each citizen with equal concern and respect means the
government should refrain from imposing its own value judgments
and prevent the more powerful groups from claiming moral superiority over others. In a society which subscribes to this liberal sense of
equality, everyone has a sense of his own worth and none will be forced
to sacrifice their desired ways of life however despised by others. It is
because no self-respecting person who believes that a particular way
of life is most valuable for him can accept that this way of life is base or
211
Ibid., p 102.
1985), p 190 [Dworkin I].
213
Ibid.
214
Ibid.
215
Ibid., p 191.
216
Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), p 273
[Dworkin II].
212
114
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degrading.217 From the perspective of a self-respecting homosexual

person, neither will he agree that the eradication of homosexuality
makes the community purer.
The second strand of Dworkins equality theory, treating people
equally, is based on his resource-based liberal political ideas.218 But it
is not the idea that yields much influence. The egalitarian doctrine that
Dworkin has developed at length and remains influential is treating
people as equals. This approach has greater relevance to the equality
claims of gays and lesbians, because under this the state should treat
everyone with equal concern and respect regardless of peoples conception of a good life. While Dworkin called this a liberal conception
of equality, the comparative element is considered to be too loose to
actually say anything about why any two groups should be treated the
same.219 It is because this approach does not compare people with a
view to evaluating whether they are similar or different. Instead, the
focus is whether the state gives individuals equal concern and respect
in light of their characteristics and circumstances.
Contrary to treating people equally, Dworkin said treatment as
equals does not always require equal treatment, using the example of
a flood to illustrate his point that the more devastated area deserves
more aid. Arguably, what concerned Dworkin most was not giving
equal treatment, but an equivalent amount of consideration of peoples
well-being according to their situations. This helps explain his political
theory that government must not be seen as promoting a particular
vision of good life. But it seems to have more to do with liberalism than
equality, according to which the state can only constrain liberty upon
very restricted grounds.220 Therefore, it casts doubt on whether
Dworkins treatment as an equal arguments are in fact liberty driven,
when he equated the notion treating citizens as equals with treating
all citizens as free, or as independent, or with equal dignity.221 In this
connection, Raz thinks that Dworkins conception of equality is influenced by a definitive belief of political liberalism than that of
egalitarianism.222
217
See Dworkin I (n 212 above), p 206.

Ronald Dworkin, What is equality? Part 2: Equality of resources, (1981) 10
Philosophy & Public Affairs 283.
219
220
See Dworkin II (n 216 above), p 274.
221
See Dworkin I (n 212 above), p 191.
222
218
115
According to Raz, all general principles of entitlement are in some

sense egalitarian because all who are qualified under the criteria have
an equal right. But this coincidence does not make every entitlement
claim an equality issue.223 To be truly egalitarian a principle must be
related to equality in a way absent in all other principles and capable
of accounting for the egalitarian character of egalitarian theories.224
This echoes Westen and others view that merely repeating what is
already known in other principles makes equality arguments tautological. Let us go back to the all children have equal rights to education example discussed earlier. In a sense, the word equal does not
add extra meaning to the already complete principle of all children
have rights to education. In the same way, Raz argues, Dworkins fundamental equality principle treating everyone with equal concern
and respect is the same as saying treating every person with concern
and respect. If this is to bear any further meaning at all, it may seem
more of an affirmation of humanism than anything about equality.225
Stephen Guest, who has defended Dworkins conception of equality,
could do no more than agree with Raz on that point. According to
Guest, it is common humanity which guides a government decision
to treat people as equals in matters of resources distributions so that
people could be put in a position equal with others in order to be free
to conduct their lives in a way they wish.226 This observation suggests
that instead of equality, perhaps it is notions like common humanity
and common liberty which were really at the back of Dworkins mind
when he considered how citizens were to be treated.
However, the presence of equality language does serve some purpose. Arguments invoking equality but not relying on strictly egalitarian grounds in fact do not promote equality; but they may help enhance
the appeal of egalitarian principles in disguise of other substantive
albeit less attractive justifications. There is a consequence though. As
mentioned, notions like treatment as equals often suggest an underlying concern of humanism rather than equality. The rhetorical purpose they serve is at the price of intellectual confusion because their
egalitarian formulation does not reveal their true grounds as some
223
Ibid., p 228.
Ibid., p 218.
225
Ibid., p 220.
226
Stephen Guest, Ronald Dworkin (Edinburgh: Edinburgh University Press, 1997),
p 223.
224
116
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non-egalitarian formulations do.227 For example, Raz thinks that the

statement being human is in itself sufficient ground for respect is
much clearer than all humans are entitled to equal respect.228 Derek
Browne concurs. While he believes that there may be other egalitarian
principles which justify equal distributions, these principles rest on so
utterly mysterious a ground as the intrinsic values of equality that the
same result could have been achieved by referring to nonegalitarian
principles which have the considerable advantage of resting on nonmysterious and morally transparent base.229
Analysis: does formal equality sustain the claim for same-sex marriage?
In this chapter, I argue that judges who sealed their decisions with the
stamp of equality did so without elaborating on the fundamentals of
formal equality: that it requires comparison between two groups who
are similarly situated. In the context of a higher age of consent for
homosexual sodomy as opposed to heterosexual intercourse, the powerful claim of equality seems to have overridden the need to engage in
meticulous comparisons between the groups involved; hence the decisions to equalize the age of consent for both groups as long as the conducts are consensual. What appears to be an egalitarian victory is
crowned with a libertarian glory. On the other hand, a status-based
comparison has its own problems. The indeterminacy of a gay identity,
the uncertain relationship between conduct and status, the tendency to
treat sexual orientation discrimination as sex discrimination, and
the diversities within the gay community all make a coherent comparison difficult to achieve.
However, the so-called intellectual confusion does not get in the
way of judicial reasoning which continues to see formal equality as the
cardinal reason of rendering equal treatment. As the case law on samesex marriage shows, the Aristotelian notion, treating like alike, still
holds much sway in deciding why same-sex couples should be treated
the same when their conjugal aspiration so demands. According to
Robert Wintemute, the claims of same-sex couples to partnership
227

Ibid.
229
Derek Browne, Nonegalitarian Justice, (1978) 56 Australasian Journal of
Philosophy 48, p 49.
228
117
rights are primarily claims to (formal) equality or to freedom from

(direct) discrimination.230 Therefore, there is no need to argue further
for an independent right to marry. Once gay and lesbian couples can
show that some rights or benefits are currently made available to married or unmarried different-sex couples, and that the institution of civil
marriage exists and is open only to different-sex couples, both the case
of discrimination against gays and lesbians and their rights to same-sex
marriage are established. It seems that Wintemute sees the argument as
predominantly about formal equality, being fully aware of the pitfalls of
leveling down. He predicts that the heterosexual majority would not
easily give up the marital privileges they currently enjoy in order to
prevent them from being extended to same-sex couples. Thus, it is
extremely unlikely that civil marriage would be abolished so as to
maintain the exclusion of same-sex couples.231
There is no doubt that formal equality has been a valuable starting
point in the civil rights claims for gays and lesbians the world over. The
idea similarly situated same-sex couples should be treated as heterosexual married couples has captured the center stage ever since
Denmark pioneered the registered partnership law. Thomas Stoddard,
then executive director of the Lambda Legal Defense and Education
Fund (Lambda Legal) in the U.S.,232 made his point as he praised samesex marriage for achieving equality and liberation for gays and lesbians
(albeit ignited subsequent debates within the gay community). Framing
marriage as essentially a political issue, Stoddard argued this institution most fully tests the dedication of people who are not gay to full
equality for gay people and most likely to lead ultimately to a world
free from discrimination against lesbians and gay men.233
The concept of simple equality with an emphasis on state neutrality was successful as an early strategy of the Marriage Project of
Lambda Legal. According to its Marriage Resolution of 2001 which
230
Robert Wintemute, From Sex Rights to Love Rights: Partnership Rights as
Human Rights in Nicholas Bamforth (ed), Sex Rights: The Oxford Amnesty Lectures
2002 (Oxford: Oxford University Press, 2005) 186224, p 211.
231
Ibid.
232
Lambda Legal Defense and Education Fund is a U.S.-based national organization
pursuing litigation, public education and advocacy on behalf of equality and civil rights
for lesbians, gay men, bisexuals, transgender people and people with HIV. See its website: http://www.lambdalegal.org.
233
Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry in
William N. Eskridge Jr. & Nan D. Hunter (eds), Sexuality, Gender, and the Law
(Westbury: Foundation Press, 1997) 818820.
118
chapter two
was endorsed by various individuals and groups community-wide, it

states:
Because marriage is a basic human right and an individual personal
choice, RESOLVED, the State should not interfere with same-gender
couples who choose to marry and share fully and equally in the rights,
responsibilities, and commitment of civil marriage.234
By playing the human rights and equality trump cards, same-sex

marriage proponents could, for the start, spare the baggage of the question whether gay and lesbian relationships are as normatively good as
heterosexual ones. Evan Wolfson, founding director of the Marriage
Project who co-counseled in the Hawaii case of Baehr v Lewin, hailed
the Hawaii Supreme Courts decision for its grasping what many within
the gay community have not: the fundamental issues in these cases are
choice and equality, not the pros and cons of a way of life, or even the
right choice.235 In particular, under Hawaiis constitution, Wolfson
argued the state has no business dictating an orthodoxy or ideology of
superiority or subordination, whether in creed, religion, sexual orientation, gender or race.236 As far as an individuals decision to exercise
the right to marry is concerned, the states role is all the more dubious
in stigmatizing a group and relegating it to a second-class status because
of sexual orientation.237
This argument resonates with Eskridges dissent to Posners opinion
that permitting same-sex marriage represents a stamp of approval of
homosexuality which is bad.238 In Eskridges view, even though a churchs
blessing to a same-sex couple may give rise to an impression of moral
approbation, the states issuing a marriage certificate does not because
people of all moral characters usually have no difficulty getting one.239
234
Lambda Legal Defense and Education Fund, Marriage Resolution. Available
at http://www.lambdalegal.org/cgi-bin/pages/documents/record?record=142 (visited
7 Nov 06).
235
Evan Wolfson, Crossing the Threshold: Equal Marriage Rights for Lesbians and
Gay Men and the Intra-community Critique, (1994) 21 New York University Review of
Law & Social Change 567, p 580 [Wolfson]. See also Evan Wolfson, Why Marriage
Matters: America, Equality, and Gay Peoples Right to Marry (New York: Simon
& Schuster, 2004).
236
Ibid., Wolfson, p 577 (fn 45).
237
Ibid.
238
pp 311312.
239
See Eskridge I (n 41 above), pp 106107. However evil, perverted, or incompetent you might be, the clerk will still give you the marriage license, because the clerk
and the state do not care about your character, morality, or competence.
119
Therefore, no matter how strongly some people may disapprove of their

homosexual neighbors choice, the state should without bias treat everyone with equality and should not tolerate one groups intrusion into
anothers liberties.240 In October 2006, the majority in the Supreme Court
of New Jersey shared this sentiment in its decision that state denial to
same-sex couples of the financial and social benefits given to heterosexual married couples violated the equal protection guarantee under the
state constitution, while stopping at saying marriage was the only remedy.241 In a judgment teeming with pronouncements of equality and
comparisons of the similar lifestyles and family values between heterosexual and homosexual couples, the majority downplayed the issue of
transforming the definition of marriage, only to fix its mind on the unequal dispensation of benefits and privileges to one of the two similarly
situated classes of people.242 As such, the court did not consider whether
there are any moral justifications to equalize the status of both groups
apart from giving same-sex couples equal entitlements as far as tangible
benefits are concerned.
The similarities both in reasoning and result with that of Baker in
Vermont243 give a subtle message: The court does not care much about
the normativeness of same-sex relationships as long as it is not asked to
decide whether gays and lesbians should be allowed to marry. It shows
that sidestepping the moral issue is a successful strategy to advance the
cause of same-sex couples, but only as far as material benefits go. At a
deeper level, it resonates with my earlier argument that the right to
same-sex marriage presents a claim different from the right to civil
union or partnership, the former being the strongest in support of
equality for gays and lesbians. In terms of Dworkinian egalitarianism,
formal equality may help secure equal treatment in resource distributions, but its role is far from being certain when it comes to giving
same-sex couples equal concern and respect as married spouses.
The courts in Halpern and Goodridge, however, believed formal
equality could achieve more than that. And they referred to the fact
that same-sex couples are similarly situated as heterosexual couples to
240
Ibid., p 190.
Lewis v Harris (N.J. 2006) 908 A. 2d 196 [Harris]. The Court gave the legislature
180 days to either amend the marriage statutes or enact an appropriate statutory structure to conform to the ruling. At the end, the legislature took the route to enact a civil
union law.
242
Ibid., p 217.
243
See Baker (n 22 above).
241
120
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deserve the right to marry. But the comparisons, if they were indeed,
are too loose to explain how the two groups are similar according to
Bamforths analysis. In Halpern, the court took a long, lasting, loving
and intimate relationship as the model of heterosexual marriage that
many same-sex couples find themselves in and are capable of forming.244 Also, same-sex couples could be just as capable as their heterosexual counterparts to be parents by making use of adoption or
reproductive technologies. In Goodridge, the court proclaimed, central to personal freedom and security is the assurance that the laws will
apply equally to persons in similar situations.245 No specific comparison was made. In fact, the court spent more time in espousing the good
of liberty. Citing Loving v Virginia, it said, the right to marry means
little if it does not include the right to marry the person of ones choice,
subject to appropriate government restrictions in the interests of public
health, safety, and welfare.246 Even when it did mention equality as
one of the constitutional safeguards, the focus was on liberty. It said,
the individual liberty and equality safeguards of the Massachusetts
Constitution protect both freedom from unwarranted government
intrusion into protected spheres of life and freedom to partake in benefits created by the State for the common good.247
The above reasoning has several implications. It shows that the court
either felt it unnecessary to engage in a careful comparison between
same-sex and opposite-sex couples as formal equality would have
required, or simply glossed over it due to the lack of precise information for making it possible. Either way, it failed to live up to its egalitarian
spirit in the otherwise robust judgment. As Bamforth has argued,
equality-based arguments are question-begging unless there are comparisons made in a coherent manner. To do this, one must address the
what and why questions. In terms of the first element, the age of
consent cases cited earlier show that the courts in fact are more interested in defending the liberty of all to engage in consensual sex than
explaining the similarity of sexual acts between heterosexuals and
homosexuals. Alternatively, turning to the status does not make a
comparison any easier. It is because not everyone who engages in
homosexual conduct assumes the same sexual orientation. And there
244
245
246
247

Ibid., p 958.
Ibid., p 959.
121
is too much diversity within the gay and lesbian community to make a
unified identity for the purpose of making comparisons with their heterosexual counterparts.
Of course, same-sex marriage has a different emphasis than that of
decriminalization of sodomy. Therefore, even Bamforth concedes that
the case of partnership right is more amenable to answering the what
question, in that the relevant comparison in this context is plainly
between same-sex and opposite-sex couples.248 But taking this line will
inevitably magnify the weakness of equality arguments in a holistic
sense. It is because the same argument will not be equally available to
justify legal protections for individual gays and lesbians outside the
partnership context. At the end, one cannot have it both ways. Using
one set of justification for partnership rights and another for individual
protection, though plausible, risks producing discontinuity between
two related contexts, and consequent intellectual incoherence.249 It
comes full circle to the question-begging problem that Bamforth has
argued all along. One may ask whether the underlying difficulty is the
lack of coherent arguments to follow through the justifications of equality for gays and lesbians in all aspects of life.
And there is the more intractable why question. Feinberg has
observed that in deciding which criteria are relevant, the mere assertion of equality makes no sense unless one enters the moral arena where
normative arguments can be found.250 It is the area in which justifications for same-sex marriage are found to be weak. This may be the
reason why some courts have chosen to eschew it and take the less
onerous task of extending equal benefits only for same-sex partners.
For the courts that did resolve to uphold same-sex marriage, rather
than using equality-based justifications at full strength, they often
emphasized the good of liberty to make up for any potential weakness
of the former.
Bamforth, however, gives a note of caution, both to those wellintentioned judges and the enthusiastic supporters of equality: If
same-sex marriage advocates want to make a sound case, they must
get their arguments right.251 It is not to disparage the equality-based
248
See Bamforth II (n 58 above), p 40 (fn 49).

Ibid.
250
See Feinberg (n 209 above), p 102.
251
Nicholas Bamforth, The Role of Philosophical and Constitutional Arguments in
the Same-sex Marriage Debate: a Response to John Murphy, (2005) 17 Child and
Family Law Quarterly 165, p 183.
249
122
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justifications for same-sex marriage altogether. Rather, it is to ask for

more explanations as to why the law has a moral imperative to protect
such a right. But even Eskridge, who supports same-sex marriage as a
long-term goal, risked agitating gay and lesbian couples by arguing
that when even convicted rapists, child molesters or deadbeat dads are
able to get a marriage certificate from a disinterested government official, state approval of same-sex marriage has nothing to do with
morality.252
By framing the issue entirely as an equal marriage right matter
being agnostic of the goodness of same-sex marriage, it allows the proponents to avoid touching the nerves of the conservative majority and
ask fellow citizens to live and let live. But whether it is a viable strategy
to convince a wide audience remains to be seen. Couching its judgment strictly in privacy, the majority in Lawrence categorically denied
that decriminalizing consensual sodomy involves whether the government must give formal recognition to any relationship that homosexual persons seek to enter.253 Even OConnor J, the only justice
writing a concurring opinion in terms of equality, remained just as cautious. Although she believed moral disapproval was not a legitimate
state interest under the Equal Protection Clause to criminalize consensual sodomy, it does not mean that other laws distinguishing between
heterosexuals and homosexuals would similarly fail under rational
basis review.254 She did not hide what she had in mind, as she went on,
[u]nlike the moral disapproval of same-sex relations the state
asserted interest in this case other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded
group.255 While she stopped short of saying what such other reasons
might be, it is clear that a deeper search for the normative goodness of
marriage and stronger philosophical arguments for why it should be
extended to same-sex couples is necessary.
Again, the heightening claims from decriminalization, partnership
rights to same-sex marriage represent changing interests and implications. It is increasingly doubtful whether the liberal principle of equality can be a one-size-fits-all formula. The advocates for each of the
claims should know exactly what they are arguing and the limits of
252
253
254
255
See Eskridge I (n 41 above), p 107.

Ibid., p 585.
Ibid.
123
their arguments so as to avoid fighting the wrong battle. In any event,

the why question needs addressing. To argue that the government
can comfortably sit on the moral fence by approving same-sex marriage
is unpersuasive.256 For as long as societys negative views about homosexuality remain unchallenged, even a court ruling in gays and lesbians
favor is unlikely to win for homosexuals more than a thin and fragile
toleration.257 And when the matter gets debated in the law-making
arena, legislators and other governmental actors will need something
more than blind-folded equality to be convinced, too.258 The equal
concern and respect to be realized through extending marriage to
same-sex couples requires some sort of appreciation of their relationships to start with. Such appreciation, however, is unlikely to be cultivated by a legal and political discourse conducted in terms of autonomy
rights alone.259 The same thing can be said of equality. The wholehearted endorsement of equality in justifying same-sex marriage leaves
many questions unanswered. No matter how effective it has been as a
popular rhetoric to mobilize public support, equality alone remains a
less-than-satisfactory justification to fully explain the equality enquiries on legalizing same-sex marriage. Hence, however determined the
Supreme Court of New Jersey was to do justice to same-sex couples
who aspire for marriage, it nevertheless confessed, [a]lthough courts
can ensure equal treatment, they cannot guarantee social acceptance,
which must come through the evolving ethos of a maturing society.260
The judge appears to have borrowed the famous line of Warren CJ
in Trop v Dulles 261 as he was interpreting the wording of the Eighth
256
Chai R. Feldblum, The Limitations of Liberal Neutrality Arguments in Favour of
Same-Sex Marriage in Wintemute & Andens (n 58 above) 5574, p 72 [Feldblum].
257
Michael J. Sandel, Moral Argument and Liberal Toleration: Abortion and
Homosexuality, (1989) 77 California Law Review 521, p 537 [Sandel]. Linda McClain
warns of the consequence of overemphasizing moral. According to her, Sandels call to
justify the rights of gays and lesbians based on the moral worth of their relationships
rather than the value of choice may lead to unresolvable moral conflict rather than a
more secure foundation for, say, same-sex marriage. And in the face of social resistance to extending toleration to gays and lesbians, suggesting that their rights be rested
upon societys acceptance of the morality of their relationships even risks leaving them
without such rights. See Linda C. McClain, Toleration, Autonomy, and Governmental
Promotion of Good Lives: Beyond Empty Toleration to Toleration as Respect, (1998)
59 Ohio State Law Journal 19, pp 119, 123.
258
See Feldblum (n 256 above), p 73.
259
See Sandel (n 257 above).
260
See Harris (n 241 above), p 223.
261
Trop v Dulles (1958) 356 US 86.
124
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Amendment in denouncing capital punishment. The Chief Justice

wrote, [t]he Amendment must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society.262
Of course, the New Jersey court faced a very different issue on legalization of same-sex marriage. In alluding to the evolving social ethos,
the court was probably referring to the significance of public consensus when members of society are being called upon to give recognition
as the state is giving out marriage certificates. An equality analysis
however sophisticated cannot address this profound issue by itself.
It is not to suggest that human rights are subordinate to the prejudice
of the majority. It probably indicates that the proponents, opponents
or those who are indecisive about the matter must come to terms with
the arguments and the justifications of one another to find out a
solution.
True equality: deconstructing marriage?
There is a need for all parties to appreciate the view of each other,
particularly when the disagreement on same-sex marriage is not simply about a group of liberals fighting against another group of conservatives. Along the spectrum of opinions, there is a sharp albeit
minority voice calling for the end of marriage once and for all. This
view sees that our current social structures which were built according to the sameness/difference paradigm are structurally unequal and
should be replaced.263 This analysis starts with a feminist critique of
equality. For one, it argues that gender equality based on the dichotomy of sameness and difference continues to conceal the reality of
gender which is a system of social hierarchy.264 This feminist view
acknowledges that there can never be equality between men and
women in the way the current legal system strives to achieve for
they are inherently different biologically as socially.265 An associated
question is whether they can ever be similarly situated under the
present circumstances. It is because social realities produce distinctive
262
Ibid., per Warren CJ.

Catharine A. MacKinnon, Legal Perspectives on Sexual Difference [MacKinnon]
in Deborah L. Rhode (ed), Theoretical Perspectives on Sexual Difference (New Haven:
Yale University Press, 1990) 213225, p 220 [Rhode].
264
Ibid., p 213.
265
Ibid.
263
125
interests, hence perceptions, meanings and definitions of principle.266 Therefore, feminism challenges whether equality as gender
neutrality is adequate to change the non-neutral social reality that
women face.267 As long as the existing power structures keep reproducing inequalities in the name of difference and reinforcing the
accompanying legal structures which operate under the same assumptions, many fundamental questions remain unasked, for example,
Why should you have to be the same as a man to get what a man gets
simply because he is one?268
No wonder the feminists are among the most fervent skeptics of the
liberal idea of equality.269 Under a socio-legal regime with an embedded male-oriented culture, they believe the abstract equality of liberalism permits most women little more than does the substantive
inequality of conservatism.270 Therefore, a structural change at all levels is the only way to reform an unjust society.271 Only then can excessive individualism be replaced by a re-emphasis of interpersonalrelationships, rationality re-inspired by the feeling of emotionality and
responsibility for others, and procedural neutrality modified by a
dynamic set of power redistributions.272
An anti-assimilationist objection to same-sex marriage takes a similar line of argument against equality, under which their first question
might be: Why should gay and lesbian couples have to be like heterosexual ones to get equal treatment? To the liberationists dissatisfaction, the inherent values in same-sex relationships are being thrust aside
when gay and lesbian couples scramble to jump on the heterosexualstyle marriage bandwagon. Just as liberal feminists have been criticized
by radical feminists for having adopted an assimilationist approach in
their fight for sexual equality which elevates the status of women to
the extent they act like men to help entrench male dominance,273 liberationist and feminist critics of same-sex marriage warn that same-sex
266
Ibid., p 224.
Ibid.
268
Ibid., pp 220221.
269
Alison M. Jaggar, Sexual Difference and Sexual Equality in Rhode (n 263
above) 239254; MacKinnon (n 263 above); see also Fredman II (n 88 above).
270
Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law
(Cambridge: Harvard University Press, 1987), p 16.
271
See Fredman II (n 88 above), pp 3637.
272
Ibid.
273
Ibid.; see also Cain (n 198 above), p 830.
267
126
chapter two
marriage has the propensity to strip gays and lesbians of the luster of
their very relationships.274
To these critics, genuine equality lies in transforming the current
society under a reconstructed concept of sexual and gender equality.
The doctrine of equality as acceptance claims to go beyond merely
accommodating differences.275 It provides that the identity, nature and
uniqueness of gay and lesbian relationships should be presented in
normative debates. Central to this argument is a belief that only when
society stops measuring the homosexual community with a heterosexual scale, and when being homosexuals no longer exerts additional
cost on themselves and society will equality arguments genuinely succeed.276 In this case, the dominating social structures including marriage (and the associated power relations) and traditional family norms
should be eliminated. Only then can individuals be genuinely liberalized and free to decide for themselves what to make for their intimate
life, single or coupled.
This argument, however, sits uncomfortably with the persistent
efforts of the same-sex marriage advocates to bring homosexual and
heterosexual couples onto the same footing for the same conjugal
rights. If this anti-assimilationist perspective has its way, it will entail
massive changes in the configuration of social power at every level.277
This will be an intricate project for any radical reformer. First, it requires
an understanding of the complex social networks of power, of which
law is merely one expression, before any attempt to abolish the legal
means used to sustain existing inequalities.278 Second, it is uncertain in
which direction society would head even if we successfully fixed all
unjust elements of the legal system. In terms of power domination, the
demise of one might spell the dawn of another. As Davina Cooper provocatively asks:
Does spousal recognition keep lesbians and gay men in their place or
allow them to enter the place of the dominant other? Does it create new
forms of exclusion and impropriety? And what impacts does it have on
the balance between public and private norms? Do same-sex marriages
274

Christine A. Littleton, Reconstructing Sexual Equality, (1987) 75 California
Law Review 1279.
276
See Cain (n 198 above), p 833.
277
Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory
(Oxford: Hart Publishing, 1998), p 248 [Lacey].
278
Ibid.
275
127
facilitate relations between strangers or simply reinforce private norms

of familiarity?279
Cooper acknowledges the progressive aspect of legalizing same-sex

marriage. At the same time, she suggests that gays and lesbians should
stop framing their equality claims according to a group-based paradigm, and focus instead on the social relations which they are part of.280
Otherwise, equality merely means being moved up from their basement to heterosexuals exclusive penthouse, and sharing the benefits
the latter have always had. For Cooper, it is passive equality, to say
the least. To make a substantial shift towards greater social equality,
she challenges the progressive and radical forces to propose expanding
the category of recognized intimate patterns in terms of other forms of
privatization and other global shifts.281
Such a project will require an overhauling of existing social
relations and our thinking. It will call for the participation of more
social players and will involve more than the power of law and state.
There is only so much that legal means can change under the vast social
apparatuses in society. Hence, the viability of such a profound change
lies in soul-searching at an institutional level how legal and other practices interact and sustain each other.282 Exploring the role of law is a
start. Much work awaits critical legal scholars working in the practical,
theoretical, analytical and imaginative aspects of rights and equality,
so that society can be reconstructed in a way which promises the genuine accommodation of different forms of life, different subjectivities.283 When that happens, the institution of marriage, which governs
a particular way of sexual and family relationships, may no longer be
relevant.
Reforms of such a magnitude would change the questions people ask
as well as the answers. A society which strives to accommodate all
forms of lifestyle would gradually move towards a participatory model.
But participation means that no one will be allowed to get his way
without considering the voices of others. Those who hold dear the ideal
279
Davina Cooper, Like Counting Stars? Re-Structuring Equality and the SocioLegal Space of Same-Sex Marriage in Wintemute & Andens (n 58 above) 75-96,
p 87.
280
Ibid., p 86.
281
Ibid., p 96.
282
See Lacey (n 277), p 218.
283
Ibid., p 219.
128
chapter two
of monogamous marriage, be they heterosexuals or homosexuals, may

ask whether a complete deconstruction of relational structures will
produce the kind of just society that people are now after. A vision of
equality which prides itself as treating everyone with equal respect is
perhaps the way forward, but it requires deeper pondering on the very
idea of equality and how society can make a level-playing field for those
who disagree about what counts as equality.
Is equality possible?
So what is the value of equality in our democratic ideals? Thomas
Jefferson in his First Inaugural Address on 4th March 1801 said, All,
too, will bear in mind this sacred principle, that though the will of the
majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must
protect, and to violate would be oppression.284 Yet, it took one and a
half centuries for the U.S. Supreme Court to strike down the separate
but equal doctrine in 1954,285 and another thirty years to lift discrimination against women.286 As Baroness Hale opined in Ghaidan v GodinMendoza, Democracy is founded on the principle that each individual
has equal value.287 It follows that any human rights instrument featuring equality will be nothing but rhetoric if it allows member states to
respect the human rights of some but deny them to others.288 It is
because human rights instruments serve to secure the protection of
the minimum essential rights of all individuals, including members of
minority groups who are unpopular with the majority. The crux is:
Democracy values everyone equally even if the majority do not.289
At this juncture, Dworkins notion of equality treating everyone
with equal concern and respect may shed some light on the way
284
Thomas Jeffersons First Inaugural Address (4 March 1801). Available at http://
www.yale.edu/lawweb/avalon/presiden/inaug/jefinau1.htm (visited 19 Mar 08).
285
See Brown (n 9 above), where the U.S. Supreme Court reversed its decision in
Plessy (n 12 above).
286
Reed v Reed (1971) 404 US 71. The U.S. Supreme Court struck down a law
prohibiting women from administering their deceased childrens estates.
287
Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 132, per Baroness Hale of
Richmond.
288
The Rt Hon. Baroness Hale of Richmond, The Quest for Equal Treatment,
(2005) Public Law 571, p 578.
289
Ibid.
129
forward.290 Despite being criticized as liberty-driven and humanistic,

this principle may take us back to the basics of equality that everyone is
equal and deserves equal consideration. But difficulties remain because
equal concern and respect is an abstract idea, especially when it is
made a constraint of public policy goals.291 Besides distinguishing
equal treatment as a principle of resources distribution and treatment as an equal as a principle of political morality, Dworkin has said
very little about the nature and grounding of the latter.292 Therefore, it
is argued that Dworkins work remains unfinished,
He has devoted very little energy to the task of considering what that
principle amounts to in itself, what (if anything) evokes it in the nature of
the beings it proposes to treat as equals, and above all, what its denial
would involve and what precisely would have to be refuted if this foundational assumption of equality had to be sustained against real-life philosophical opponents.293
To Waldron, Dworkins reticence on both the essence of treatment

as an equal and the possible arguments to disprove any philosophical
denial of this principle partly lies in the unpleasantness or offensiveness of views associated with the latter, like sexism or racism.294 That
one needs to take such views seriously and not to disregard them outright if one is to examine these matters in depth. Here Waldron made
an interesting observation of the difference between philosophy and
political philosophy. For one, philosophers sometimes need to assume,
however impossible, that the sun will not rise tomorrow in order to
address philosophical problems like induction, causation and the law
of nature.295 On the other hand, thinkers of political philosophy are
relatively unfamiliar with such delicate tasks. It may be to do with the
nature of political philosophy. People often come to political discourse
taking sides. When they do, they may easily find opinions of an opposite
side wrong and offensive, thus allowing little room for a reasoned and
serious debate. To them, an easy solution is to avoid delving into any
290
See Dworkin I (n 212 above).

Nicholas Smith, Why Do We Speak of Equality?, (2005) 11 Otago Law Review
53, p 57.
292
Jeremy Waldron, God, Locke, and Equality: Christian Foundations in Lockes
Political Thought (New York: Cambridge University Press, 2002), p 3.
293
Ibid.
294
Ibid, p 4.
295
Ibid.
291
130
chapter two
difficult questions and adopt politically popular ideas like equality.296

Shaping the issue as an all-or-nothing debate on equality vitiates possible discussions that both sides may otherwise healthily engage.
This difficulty finds its way into public discourses concerning controversial issues like same-sex marriage, where parties in disagreement
often come with a set of internalized beliefs and each believes it is on
the right side. The notion of treating people with equal concern and
respect brings home the message that we should at least try to understand and consider the views of others, however undesirable they may
sound, for the simple fact that we humans are, fundamentally, one
anothers equals.297 This however does not make settling peoples disagreements any easier. As Balkins model of group conflicts argues, people have conflicting views over society and morality.298 They compete
over social status and social esteem against a backdrop of social hierarchies. Often, these hierarchies contain unjust elements that go against
an ideal of democracy based on equal concern and respect. A society
committed to weed out injustices, therefore, needs to keep reflecting on
the status quo and cultivate a democratic culture. It is an on-going
project which requires much more than arguing over what is equality
and who should get equal benefits.
Conclusion
In this chapter, we have seen there are different visions of equality.
The classic tone of equality remains powerful in our political discourse on same-sex marriage. Be that as it may, I have argued that
equality-based arguments for same-sex marriage require improvement to avoid being arbitrary and inauthentic. I have also argued that
these arguments do not represent the vision of equality for those who
have a different, albeit non-mainstream, view of what is true equality
for gays and lesbians and for all. Theirs is a liberationist belief that
advocates ending all formal relational arrangements including marriage. It sounds radical but it seems to make some sense under a group
conflict analysis. Still, it is not certain whether people would want to
296
Ibid.
Ibid., p 2.
298
J. M. Balkin, The Constitution of Status, (1997) 106 Yale Law Journal 2313,
p 2314. See Chapter 1 (fn 188).
297
131
go down this road of equality. We may want to ask ourselves what

kind of society we wish for; what kind of life we want to live; and how
we live it. Like democracy, the equality project is an on-going reflective exercise for all of us.
Reflecting on equality inevitably leads one to its closest alliance:
human dignity. Its appeal to common humanity underlies the egalitarian
ideal of treating every human being as an equal.299 Unlike equality, people need no comparison to qualify for equal treatment commensurate
with their dignity. Therefore, dignity provides a universal benchmark
for equal protection without relying on specific grounds like sex and
race. These qualities seem to make dignity an invincible justification to
treat all people equally well. So much so it has become one of the twin
light-houses guiding the direction of human rights jurisprudence as
well as constitutional norm-setting. The Canadian Supreme Court
holds dear the idea of human dignity in affirming peoples constitutional rights. In Miron v Trudel, it declared that the overarching purpose of the Canadian Charters equality guarantee is to prevent the
violation of human dignity and freedom by imposing limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics rather than on the basis of individual
merit, capacity, or circumstance.300 The entrenchment of human dignity as a constitutional value in countries like South Africa and
Germany also makes it a cardinal concern for state policies as well as
judicial law-making.
As for all the difficulties around equality we have examined thus far,
the portrait of an all-powerful concept justifying equal rights for all
deserves a closer look. The true colors of human dignity can be as
obscure as that of equality, if not more so. It is double the intricacies to
try to make sense out of it when the two ideas are used to support each
other. It is to this challenge that we now turn.
299
Although Dworkins treatment as equals theory has been criticized as being
liberty-driven and humanistic and not really egalitarian, this idea illuminates the basic
tenet of equality that each is anothers equal and deserves equal consideration.
300
Miron v Trudel [1995] 2 SCR 418, pp 486487, per McLachlin J.
CHAPTER THREE
HUMAN DIGNITY AND SAME-SEX MARRIAGE

What might appear to be a simple affirmation of individual value or
worth is instead a symbol of a growing demand for a new complexity, a
complexity still to be perceived adequately and implemented. Human
dignity, it seems, is a symbol of demand not merely for individual value
and freedom, but for an equality of dignity and worth a symbol
that, if broadly realized, would stand in defiance of selfish nihilism,
depressive apathy and an egregious indistinction in much of our
politico-legal-ideologic thinking between authority and raw power.
Jordan J. Paust1
The expression human dignity is both old and new. It is a concept

that has appeared in the writings of Stoic philosophers and natural law
theorists since Classical times.2 Its historical, anthropological and religious roots date back many centuries. But its history as one of the universal values of human rights is relatively recent. Despite its prominent
status in international law and many domestic constitutions, it does
not have a concrete meaning or a consistent way of being defined. This
lack of precision often leads judges to weigh in their own moral standards amid competing claims of rights each of which has a plausible case
of human dignity violation.
Human dignity in international law and constitutional law
The term human dignity first appeared in international law through
the Philadelphia Declaration of the International Labour Organization
made in 1944.3 It soon became a defining phrase for the Charter of the
1
2
Hubert Cancik, Dignity of Man and Persona in Stoic Anthropology: Some
Remarks on Cicero, De Officiis I 105107 [Cancik] in David Kretzmer & Eckart Klein
(eds), The Concept of Human Dignity in Human Rights Discourse (The Hague: Kluwer
Law International, 2002) 1939, p 19 [Kretzmer & Klein].
3
The so-called Declaration of Philadelphia is Annex to the Constitution of the
International Labour Organization, namely Declaration concerning the aims and
purposes of the International Labour Organization (adopted in the General Conference
human dignity and same-sex marriage
133
United Nations (the Charter), when members of the United Nations

met in June 1945. The vision of a lasting peace affirmed the international communitys faith in fundamental human rights, in the dignity
and worth of the human person, in the equal rights of men and women
and of nations large and small.4 As peace settled three years into the
post-war era, dignity became essential to international human rights,
with Art 1 of the Universal Declaration of Human Rights (UDHR),
proclaiming: All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood.5 It features prominently in the sequels comprising the International Covenant on Civil
and Political Rights (ICCPR) and the International Covenant on
Economic, Social, and Cultural Rights (ICESCR) which were later
called the International Bill of Rights.6
Ever since, dignity has become a common language as nations
from different continents defined their ideal visions of human rights.
When the African states converged in May 1963 searching for common
values, they were of one voice in the belief that freedom, equality, justice, and dignity are essential objectives for the legitimate aspirations of
the African peoples.7 Later the African Charter on Human and Peoples
Rights declared, Every individual shall have the right to the respect of
the dignity inherent in a human being and to the recognition of his
legal status.8 The European Convention on Human Rights (ECHR)
of International Labour Organization Meeting in its 26th Session in Philadelphia on

10 May 1944). Part II (a) of the Annex refers to dignity: all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and
their spiritual development in conditions of freedom and dignity, of economic security
and equal opportunity.
4
Preamble, Charter of the United Nations, 26 June 1945, Can TS 1945 No 7.
5
The word dignity appears five times in the Universal Declaration of Human
Rights [UDHR], GA Res 217(III), UN GAOR, 3d Sess, Supp No 13, UN Doc A/810
(1948). Not only is it mentioned twice in the Preamble and in Art 1, but it is also
referred to as the UDHR affirms the right to social security in Art 22 and the right to
work in Art 23.
6
Both the ICCPR (19 December 1966, 999 UNTS 171, arts 914) and the ICESCR
(adopted by General Assembly resolution 2200A (XXI) of 16 December 1966)
re-affirm the values of inherent dignity of people twice in the Preamble.
7
Preamble to the Charter of the Organization of African Unity (1963) (adopted by
the Conference of the Heads of African and Malagasy States and Governments in
Addis Ababa, Ethiopia on 25 May 1963).
8
Article 5, African [Banjul] Charter on Human and Peoples Rights (adopted on
27 June 1981, entered into force on 21 Oct 1986, O.A.U. Doc. CAB/LEG/67/3 Rev.5
(1981)).
134
chapter three
does not mention human dignity, yet the notion was later employed in
the Charter of Fundamental Rights of the European Union in 2000, in
the Preamble as well as Arts 1, 25 and 31.9
The special attention given to dignity was more than a spur-of-themoment decision for a fatigued post-war international community. It
was seen as a guiding vision for nations in search of a brotherhood and
subsequently found its place in the constitutional thinking of modern
times. Dignity has become a distinguishing feature in many domestic
constitutions, in particular for nations that have experienced systemic
human rights violations in the past. The concept of dignity is enshrined
in many recently adopted or revised constitutions of the current members of the European Union (EU). The German Constitution, written
after the Second World War, regards dignity as sacrosanct with ramifications throughout the whole of its constitutional structure. Art 1(1) of
the Basic Law for the Federal Republic of Germany (1949) provides:
The dignity of man shall be inviolable. To respect and protect it shall
be the duty of all state authority.10 The inviolability of dignity has since
become a beacon for German judges interpreting fundamental rights
in light of the constitution. The Hungarian Constitution, drawn up at
around the same time, contains this: In the Republic of Hungary everyone has the inherent right to life and to human dignity. No one shall
be arbitrarily denied of these rights.11 A similar emphasis is also present
in Israel. Amid an array of its piecemeal-style constitutional documents, the amended Israel Basic Law: Human Dignity and Liberty
(Basic Law), passed in 1994, was explicitly aimed at protecting human
dignity and promoting both negative and positive rights for this end.12
Across the globe, after state oppression under South Africas policy of
apartheid formally ended in the early 1990s, dignity became one of the
9
The Preamble refers to human dignity along with freedom, equality and
liberty as one of the indivisible and universal values upon which the European Union
was founded. Art 1 declares that human dignity is inviolable; Art 25 refers to the
dignity of the elderly; Art 31 protects peoples dignity at work. See Charter of
Fundamental Rights of the European Union (2000/C 364/01), Official Journal of the
European Communities. Available online at http://ec.europa.eu/external_relations/
human_rights/doc/charter_364_01en.pdf.
10
The Basic Law for the Federal Republic of Germany (promulgated by the
Parliamentary Council on 23 May 1949) (Federal Law Gazette at 1) (BGB1 III 100-1).
11
Section 54(1), Constitution of the Republic of Hungary (Act XX of 1949).
Available at http://net.jogtar.hu/jr/gen/getdoc.cgi?docid=94900020.tv&dbnum=62.
12
Israels Basic Law: Human Dignity and Liberty, passed by the Knesset on 17 March
1992 and amended on 9 March 1994, has protecting human dignity as its main purpose. Art 1a, translated from the Hebrew, states: The purpose of this Basic Law is to
135
founding values upon which the democratic state of South Africa was
established.13
The meaning of human dignity
As recognized by peoples of diverse backgrounds, human dignity
appears to have been taken as a self-explanatory justification for human
rights protection. While the Preambles to the UDHR, the ICCPR and
the ICESCR explicitly mention that the rights of all humankind derive
from the inherent dignity of the human person,14 nothing is said about
the definition or origin of the term human dignity. No wonder Mary
Glendon once asked, Is the universal rights idea merely based on a
kind of existential leap of faith?15 While defending dignity for all
sounds a laudable goal in political debates,16 there are open questions
as to what the right to equal dignity means, and it is not clear how far
dignity could be counted on as an anchor for rights amid competing
visions of dignity in the pursuit of a good life.17
The historical and philosophical roots of human dignity
One must start somewhere to search for meanings behind dignity,
when international law continues to treat it as a notion the source of
protect human dignity and liberty, in order to establish in a Basic Law the values of the
State of Israel as a Jewish and democratic state. Arts 2 and 4 denounce violation of the
life, body or dignity and guarantee a positive right to be so protected. Available at
http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm.
13
In Art 1(a) of the Constitution of the Republic of South Africa Act 1996, (no. 108
of 1996, date of promulgation: 18 Dec 1996, date of commencement: 4 Feb 1997),
human dignity is proclaimed as one of the founding values underlying the state of
South Africa.
14
See ICCPR, ICESCR, Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (adopted by General Assembly resolution 39/46
of 10 December 1984).
15
Mary Ann Glendon, Foundations of Human Rights: The Unfinished Business,
(1999) 44 American Journal of Jurisprudence 1, p 3.
16
Professor Errol P. Mendes suggests that wherever affronts to equal human dignity
are found, the Canadian government should employ public policies to eradicate existing systemic injustices. See Errol P. Mendes, Taking Equality into the 21st Century:
Establishing the Concept of Equal Human Dignity, (2000) 12 National Journal of
Constitutional Law 3, pp 1012.
17
See the response to Professor Mendes arguments from Dr. Roger Gibbins, How
in the World Can You Contest Equal Human Dignity?: A Response to Professor Errol
Mendes Taking Equality into the 21st Century: Establishing the Concept of Equal
Human Dignity , (2000) 12 National Journal of Constitutional Law 25, p 29.
136
chapter three
which needs no explanation. As a noun derived from old French and

Latin, the modern day English word dignity has no direct English
analogue.18 Thus, its meaning is drawn from other English words which
are not connected with dignity.19 For example, the ninth edition of
the Concise Oxford Dictionary of Current English defines dignity in
a number of ways including the state of being worthy of honor or
respect, worthiness, excellence, a high or honorable rank or position, and high regard or estimation.20 The Merriam-Webster Online
Dictionary adds an additional aspect to the state of being esteemed.21
It seems that what people make of dignity today is associated with
the state of being treated with respect or honor, with a sense of selfworthiness and self-esteem.
Although still very much a terra incognita in international jurisprudence,22 human dignity is an ancient philosophical concept possibly
traceable to Stoic Anthropology.23 The original Latin term dignitas
hominis, meaning dignity of man, denotes worthiness due to ones
social role and embodies the esteem that comes from possessing a specific office, rank or personality.24 The natural law tradition under the
influence of Greek philosophy, particularly Stoicism holds that dignity resides in human nature.25 Stoic natural law regards Nature as
rational, universal and unchanging.26 As creatures under the law of
nature, every human being is held to be born free, rational, and endowed
with dignity.27 Human reason (ratio) marks the fundamental difference
18
Aurel Kolnai, Dignity [Kolnai] in Robin S. Dillon (ed), Dignity, Character, and
Self-Respect (New York: Routledge, 1995) 5375, p 53 [Dillon].
19
Ibid.
20
The Concise Oxford Dictionary of Current English, 9th edn (Oxford: Oxford
University Press, 1998).
21
Available online at http://www.merriam-webster.com.
22
The development is in a state of flux, as more legal scholars are exploring the
meaning of human dignity as it has been increasingly employed in transnational constitutional adjudications. See Christopher McCrudden, Human Dignity and Judicial
Interpretation of Human Rights, (2008) 19 European Journal of International Law 655
[McCrudden]; Erin Daly, Constitutional Dignity: Lessons from Home and Abroad,
(Social Science Research Network Jun 2007). Available at http://papers.ssrn.com/so13/
papers.cfm?abstract_id=991608 [Daly].
23
See Cancik (n 2 above), pp 2627.
24
Thomas D. William, Who is My Neighbor? Personalism and the Foundation of
Human Rights (Washington D.C.: The Catholic University of America Press, 2005),
p 150 [William]; See also Kolnai (n 18 above), pp 5354.
25
26
A. P. dEntrves, Natural Law: An Introduction to Legal Philosophy (London:
Hutchinson & Co (Publishers) Ltd, 1967), pp 2023 [dEntrves].
27
See Cancik (n 2 above), p 24.
137
between men and animals thus providing the basis of the special role
(persona) of human species in ruling over the rest of the creatures.28
The term dignity of man, as coined by Stoic philosopher Marcus
Tullius Cicero, was originally a philosophical expression based on
mans reason, his capacity for free moral decisions and his rule over all
other creatures.29 According to Izak Englard, Cicero was the first to go
beyond the traditional link between dignity and social status and
use dignity to describe mens unique rational capacity.30 Dignitys root
in metaphysics emerged as St. Thomas Aquinas natural law theory
drew on the divine order as the force behind the eternal law of nature.31
Hence natural law became the expression of the dignity and power of
man under Divine Providence.
Aquinas theory which links reason with faith and philosophy
with Christianity can be regarded as an early formula of Christian
humanism. At the heart of Judeo-Christian creationist theology is the
idea that man is created in the image and likeness of God.32 Therefore,
the dignity of man and the rights associated with this status derive from
and attest to the fact that human beings bear the image of God (imago
Dei).33 Natural law is considered unintelligible unless its close link with
the Divine order upon which the whole creation ultimately rests is
realized. As a Catholic theologian wrote, Philosophy does not have the
final word on natural rights.34 Reason alone is considered inadequate.
It is the divine revelation that bridges the gulf between reason and
truth. As the late Pope John Paul II once pointed out, human dignity
finds its full confirmation in the very fact of revelation, for this signifies the establishment of contact between God and the human being.35
Therefore, in the Biblical tradition, the dignity of men does not derive
from their rationality and moral freedom but is imparted by God as
part of Creation.36
28
Ibid., p 21.
Ibid., pp 2627.
30
Izak Englard, Human Dignity: from Antiquity to Modern Israels Constitutional
Framework, (2000) 21 Cardozo Law Review 1903, p 1904.
31
See dEntrves (n 26 above), pp 3941.
32
Dietrich Ritschl, Can Ethical Maxims be Derived from Theological Concepts of
Human Dignity? [Ritschl] in Kretzmer & Klein (n 2 above) 8798, pp 9596.
33
Ibid.
34
See William (n 24 above), p 204.
35
Ibid., p 215.
36
See Ritschl (n 32 above), p 95.
29
138
chapter three
The concept of dignity as an imparted quality finds a subtle parallel

in the thoughts of some 17th Century English philosophers, who
regarded dignity as not being inherent in humans but being shaped by
the state and society. According to the utilitarian social contract theories, human dignity must be realized through deliberate state actions
and sustained by an array of political and social institutions.37 As
Thomas Hobbes wrote, The Value, or Worth of a man, is as of all other
things, his Price.38 Instead of being a God-bestowed innate quality,
dignity was understood to be a state-regulated value commensurate
with the function a person fulfills at any given point of time. Human
dignity depends on the judgment of others and as such, is not absolute.
For John Locke, a social contract based on trust and social obligation
suffices to protect the dignity of men along with their other natural
rights.39 This tradition of reciprocity might have to some extent formed
the philosophical underpinning of the UDHR under which the state is
held responsible for safeguarding the dignity of its people.
In defiance of the utilitarian view, German philosopher Immanuel
Kants maxim, that each rational man should treat himself and all others never merely as means but in every case also as an end in himself,40
later formed the bedrock of modern human dignity discourse.41 Kant
attempted to rise above a utilitarian ethic by emphasizing mens selflegislating ability thanks to their inborn freedom, rationality and a
sense of duty towards humanity. While price is a measure of ones relative value and replaceable by anything equivalent, dignity is an irreplaceable intrinsic worth above all price. Under an apparent influence
of Stoicism, Kant attributed universal dignity to human beings possessing reason and freedom to follow moral imperatives, thus giving a more
secular version of dignity.42
37
Ibid., p 96.
Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University
Press, 1991), p 63.
39
John Locke, Two Treaties of Government, ed. Peter Laslett (Cambridge: Cambridge
University Press, 1994), pp 330333.
40
Immanuel Kant, Foundations of the Metaphysics of Morals with Critical Essays,
trans. Lewis White Beck, ed. Robert Paul Wolff (Indianapolis: Bobbs-Merrill Educational Publishing, 1969), p 59 [Kant].
41
Ibid., p 54; For more discussion on Kants moral and legal philosophy on human
dignity, see G. P. Fletcher, Human Dignity as a Constitutional Value, (1984) 22
University of Western Ontario Law Review 171, pp 174175.
42
38
139
The philosophical sketch thus far shows that dignity is a concept

closely related to an anthropological or religious creed. In arguing for
the idea of moral individualism to be substituted for that of human
dignity, Darwinian scholar James Rachels addressed one of the conventional views: the idea of dignity is a moral doctrine that affirms the
moral supremacy of human beings and the corresponding subordination of animals.43 Underneath this doctrine are two traditional schools.
The first, image of God thesis, says human beings are sacred as being
made in Gods image; the second, rationality thesis, underscores
humans special status as uniquely rational beings. The emergence of
Darwinism, he argued, brought about a drastic mental shift and shook
these two foundations of human dignity. According to evolution,
human beings are special no more.
On the other hand, Indian political philosopher Bhikhu Parekh
endorsed the rationality strand of the traditional doctrine.44 In his
view, dignity is a hierarchal concept which makes sense only when a
superior object is being compared with an inferior one. Because rationality is a unique human characteristic, dignity can only be attached to
human beings and not animals. It is not to say that dignity is an inherent quality. Rather, it is a status human beings confer on themselves by
virtue of their special features. It is not a natural property but a moral
practice concerning peoples relations. According to this view, dignity
is a collective status for the human species as a result of their having
species-specific capacities.45
Therefore, what dignity means and how it influences the way people
deal with one another largely depend on which worldview one holds. It
begs the question as to how universal the concept of dignity is, when
agnostic, theistic and secular view-holders all have something different
to say about what it means. A theological explanation or the Kantian
notion of dignity does not necessarily resolve all the questions. Many
human beings are born with mental or physical disabilities. To religious believers, they remain the precious creatures of God and have
dignity. However, under the rationality-based view, those who are
infants or mentally retarded may not possess enough rationality to be
43
James Rachels, Created From Animals: The Moral Implications of Darwinism
(Oxford: Oxford University Press, 1990), pp 79, 8691.
44
Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political
Theory, 2nd Edn (Hampshire: Palgrave MacMillan, 2006), pp 130131 [Parekh].
45
Ibid.
140
chapter three
qualified for having dignity. Still, society does not regard them as lacking dignity and undeserving of fundamental rights.46 At the end, it
comes down to a question as to whether dignity is a descriptive or normative concept.
Dignity: descriptive or normative?
From a descriptive point of view, dignity and the superiority of human
beings over other living species derive from their shared uniquely
human features and capacities. Dignity is therefore an intrinsic quality
that permanently resides in every human being and that is not contingent upon any special abilities or external factors. Alan Gewirth called
it the inherent concept of dignity, akin to the Kantian notion that a
mans dignity has no price.47 This understanding resonates with the
prevailing international human rights discourse as affirmed by the
UDHR that all human beings are born free and equal in dignity and
rights.48 This basic premise is the source of other derivative rights
including civil and political rights as well as economic, social and cultural rights. All these rights are believed to be derived from the dignity
of human beings. For examples, under the UDHR, the right to social
security, and the economic, social and cultural rights are indispensable for a persons dignity (Art 22). The right to work and the right to a
just and favorable remuneration are taken to be the means to ensure
an existence worthy of human dignity (Art 23). Such description of
rights and dignity can be understood in two ways. First, it can be said
that human beings have rights because of their having inherent dignity.
Second, their rights are the necessary elements to maintain their intrinsic dignity. Either way, it is the characteristics of humans as the subjects of rights that justify the claims of human rights.49
46
Daniel Statman, Humiliation, Dignity and Self-respect [Statman] in Kretzmer &
Klein (n 2 above), 209229, p 211. Parekh believes that even though some human
beings, such as the mentally handicapped, lack some of the distinctively human capacities, they are not devoid of them altogether. Because they are handicapped in a way
that only humans are, there is no way to deny them human worth and dignity. Ibid.,
p 131.
47
pp 162163 [Gewirth I].
48
See the Preamble to and Art 1 of the UDHR (n 5 above).
49
Alan Gewirth, Human Rights: Essays on Justifications and Applications (Chicago:
University of Chicago Press, 1982), p 27 [Gewirth II].
141
Dignity becomes a normative concept when it is used to decide

how human beings should be treated. Feinberg illustrated this point
by using the idea of a claim to explain the idea of a right. In his hypothetical community of Nowheresville, people were total strangers
to the concept of having rights.50 They did not have a concept of claiming as there was no right for them to assert. Although having rights is
the antecedent of claiming, Feinberg said it is the act of claiming that
gives rights their special moral significance.51 To claim that one has
rights is to assert that one has them and to demand that they be recognized. The moral propositions upon which people make such claims
are figuratively the grounds they stand upon. The ability to make
claims gives meaning to what it is to be a human being. It enables a
person to stand up and look others in the eye, and to feel in some fundamental way the equal of anyone.52 Being a holder of rights instills in
the person a sense of self-respect that he is worthy of the love and
esteem of others.53 Then what is the meaning of respect? According to
Feinberg, to respect a person is to respect his rights. As to the notion of
human worth, what is called human dignity may simply be the recognizable capacity to assert claims.54 The relationships between rights,
the act of claiming, and human dignity can be summarized as: To
respect a person or to think of him as possessed of human dignity, is to
see him as a potential maker of claims.55 Human dignity in this sense
is contingent upon first the existence of rights, and second the ability to
make claims on appropriate grounds. The dignity to be achieved in this
case is only achievable when the normative requirements imposed
upon both parties are met: one of claiming rights, the other of respecting rights.56 In this sense, dignity is merely a parasitic concept in relation to rights.
Regardless of whether dignity is descriptive or normative, Gewirth
argued that seeing human rights as being derived from inherent human
50
Joel Feinberg, The Nature and Value of Rights, (1970) 4 Journal of Value Inquiry
243 [Feinberg].
51
Ibid., p 252.
52
Ibid.
53
Ibid.
54
Ibid.
55
Ibid.
56
A. I. Melden, Dignity, Worth and Rights [Melden] in Michael J. Meyer &
William A. Parent (eds), The Constitution of Rights: Human Dignity and American
Values (Ithaca: Cornell University Press, 1992) 2946, p 41 [Meyer & Parent]; see also
Gewirth I (n 47 above), p 162.
142
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dignity is problematic. It is because to say that one has human rights

because one has inherent dignity is a circular proposition.57 It is because
the inherent relationship between human rights and human dignity
can be linked by two expressions: One has human rights because one
has human dignity, the latter simply replicates the former. So has
Jacques Maritain argued, The dignity of the human person? The
expression means nothing if it does not signify that by virtue of natural
law, the human person has the right to be respected, is the subject of
rights, possesses rights.58 In other words, unless dignity is substantiated with some deeper meaning, it provides no attributes to human
rights except being a mere tautology. To explain how dignity is the
justificatory ground of rights and not merely something equivalent or
consequential to it, Gewirth said efforts must be made to make sense of
the statement that human beings have human rights because they
have inherent human dignity.59
Two concepts of rights
According to Gewirth, one can start by identifying the two concepts of
rights as there are two concepts of dignity.60 Under the empirical or
positivist concept of rights, to say that someone has a right means he
can go out exercising it with all the social recognitions and legal protections as far as the right allows.61 On the other hand, if a right is normative by virtue of universalist morality, a right-holder is always morally
justified to acknowledge or enforce his right no matter what the circumstances are.62 So, while a right no longer exists in the empirical
sense once the favorable social or legal sanctions vanished, a normative
right stands amid the collapse of everything. In the same way, under
the inherent view of dignity, ones dignity does not wither even in the
face of a humiliating situation or demeaning treatment. Just as the universal grounds of rights are not compromised by the fact that some
people have their human rights violated, the existence of inherent
57
See Gewirth II (n 49 above), p 28.

Jacques Maritain, The Rights of Man And Natural Law (London: Geoffrey Bles:
The Centenary Press, 1944), p 37.
59
See Gewirth I (n 47 above), p 163; Gewirth II (n 49 above), p 28.
60
Ibid., Gewirth I, p 163.
61
Ibid.
62
Ibid., pp 163164.
58
143
dignity should not depend on the claiming of positive legal rights, as

Feinberg suggested.63
On the other hand, the noble value accorded to inherent human dignity seems to sit uncomfortably with it being, in an empirical sense, an
equal attribute for all human beings regardless of their moral worth.
While it is empirically possible to assess whether a person has public
dignity or socially recognizable rights, it is virtually impossible to
ascertain to what extent everyone has inherent dignity as a universal
attribute.64 If inherent dignity as the grounds of universal rights does
reside equally in every human being, it can be said that there is no distinction between the dignity possessed by either Adolf Hitler or Mother
Teresa, the wicked or the saints, the ingenious or the gullible and so
forth.65 In this case, the attribution of dignity does not have any strings
attached. To Gewirth, there is a tension between the equal attribute of
universal dignity and the huge discrepancies in how people conduct
their lives.
On the other hand, if being human means one is endowed with dignity and hence rights, it seems rather impossible to see anyone lose one
or the other. According to this line of thinking, it is futile to argue that
a violation of human rights is an assault on or a denial of human dignity, because dignity in this sense does not depend on the possession of
ones human rights. A rights violation, therefore, should not affect the
having of dignity. According to A. I. Melden, even people of depraved
characters who act unscrupulously in the most undignified way do not
seem to lose an iota of their basic rights.66 Similarly, those who are subject to incarceration do not necessarily lose their dignity. The laws concern over the rights of prisoners, prohibitions against torture and
unreasonable detention, show that people who lose freedom are entitled to have their dignity respected. On a positive note, many prominent individuals have displayed their utmost dignity even in the
most deprived conditions of human rights. One needs only to look at
Nobel Peace Prize laureates Nelson Mandela and Aung San Suu Kyi,
whose stories tell of their unblemished dignity in the face of continued
63
Ibid., p 164.
Ibid.
65
See Gewirth I (n 47 above), pp 164165; Melden (n 56 above), p 45. For the constitutional justifications for respecting human dignity of minors, see Charles Robert
Tremper, Respect for the Human Dignity of Minors: What the Constitution Requires,
(1988) 39 Syracuse Law Review 1293.
66
See Melden (n 56 above), p 45.
64
144
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oppression and incarceration.67 In Meldens view, dignity is not an

all-or-nothing, but a moral desideratum, something that varies in
degree even when there is no issue of human rights.68 Still, it is not easy
to evaluate the degree of dignity that a person has.
For a philosophical account of inherent dignity which exists without
the prerequisite of rights, one may again look to Kant. In his idealistic
realm of ends, rational beings were free to govern themselves and subject only to free will and reciprocal duties. Because reason allows
rational beings to take only those actions that are in accord with universal laws, everyone is required to treat oneself and all others not
merely as a means but an end. Dignity in this Kantian sense is not so
much about having rights. Instead, dignity is derived from the autonomy of each rational being who obeys no law except that which he
himself also gives.69 Although the absence of rights may elude the
right-dignity circularity, this doctrine does not provide a full justification of the relationship between universal rights and inherent dignity.70
Kants doctrine seems to apply only to a rational being who must
regard himself always as legislative in the realm of ends possible through
the freedom of the will.71 It is not certain whether those who are irrational and less autonomous in the Kantian sense such as infants and the
mentally retarded should be rendered the same respect.
Dignity and intrinsic worth
Alternatively, it has been argued that supplementing inherent dignity
with the notion of intrinsic worth could address the above philosophical enquiry. In a famous U.S. Supreme Court decision on capital
punishment, Brennan J wrote, The State, even as it punishes, must
treat its members with respect for their intrinsic worth as human
beings. A punishment is cruel and unusual, therefore, if it does not
comport with human dignity.72 However, using intrinsic human
worth to explain human dignity does not add much to its meaning
67
Ibid.
Ibid.
69
See Kant (n 40 above), pp 5861.
70
William A. Parent, Constitutional Values and Human Dignity [Parent] in
Meyer & Parent (n 56 above) 4772, p 53.
71
See Kant (n 40 above), p 59.
72
Furman v Georgia (1972) 408 US 238, p 270.
68
145
and only adds to the pool of convoluted expressions such as our common humanity and humanity as an end in itself .73 In any event,
renaming is not explaining.74 To solve the conundrum, Feinberg suggested avoiding all metaphysical vocabularies and treating human
worth as an attitude, not something in form:
Human worth itself is best understood to name no property in the way
that strength names strength and redness redness. In attributing
human worth to everyone we may be ascribing no property or set of
qualities, but rather expressing an attitude the attitude of respect
toward the humanity in each mans person. That attitude follows naturally from regarding everyone from the human point of view, but it is
not grounded on anything more ultimate than itself, and it is not demonstrably justifiable.75
Such a general definition makes the term human worth look even
vaguer. First, this explanation lacks the normativeness to be a credible
ground of human rights. The human point of view, a term borrowed
from Bernard Williams,76 was originally about what it is for a person to
live a life and act according to his personal character.77 Idealistically,
taking a human point of view means people are motivated to step into
one anothers shoes and treat each other from that perspective so that
everyones worth is respected. In real life, attitudes vary among individuals and groups and so is the level of respect one pays to another.
Relying on peoples attitudes risks throwing into disarray the universality of human rights based on inherent human dignity. Besides, Feinbergs
approach has yet to tackle the question as to what justify equal human
worth, apart from simply claiming a self-evident attitude of respect
which requires no justifications.
Dignity and respect
Despite its inadequacies, Feinbergs argument at least points to the subtle connection between dignity and respect. In The Decent Society,
73
See Parent (n 70 above).

Joel Feinberg, Social Philosophy (New Jersey: Prentice Hall, 1973), p 92
[Feinberg].
75
Ibid., p 94.
76
Bernard Williams, The Idea of Equality in Peter Laslett & W. G. Runciman
(eds), Philosophy, Politics and Society, 2nd Series (Oxford: Basil Blackwell, 1967)
110131, p 115.
77
74
146
chapter three
Avishai Margalit considers dignity and self-respect as two sides of the

same coin the former being the external aspect of the latter.78 In this
respect, dignity is ones inclination to behave in a dignified manner
which attests to ones self-respect, the attitude one has in relation to
being human. Self-respect is manifested when one faces humiliation,
where it is the time a person with dignity would demonstrate his selfrespect by reacting positively towards any uninvited provocations.79
Using self-respect to illuminate the internal sense of dignity appears to
be more informative, but this notion can be equally ambiguous. Stephen
Massey addressed this issue by asking whether self-respect is a psychological (subjective) or moral (objective) notion.80 From a subjective
perspective, someone who respects himself believes that he behaves
according to his conception of worthy behavior and tends to continue
to behave in this way. His self-respect features a favorable attitude
towards himself that is of a psychological nature. Because of the subjectivity involved, that persons self-perception need not have any
particular content, nor must his actions meet any independent standards of worthiness or appropriateness.81 By contrast, an objective concept of self-respect entails a normative evaluation of ones self-perception
which requires that his attitudes and behaviors must satisfy independent standards of worthiness.82 So a self-respecting person is one who
values himself properly, the criteria of which are subject to different
objective accounts.83
These two conceptions present two different portrayals of selfrespect. This can be illustrated by Thomas Hills imaginative examples
of Uncle Tom and the Deferential Wife in his discussion on servility and
self-respect.84 The first protagonist Uncle Tom is a deferential black
servant of a white master who believes that he is rightfully subordinate
78
Avishai Margalit, The Decent Society, trans. Naomi Goldblum (Cambridge:

Harvard University Press, 1996) pp 5152.
79
Ibid.
80
Stephen J. Massey, Is Self-Respect a Moral or a Psychological Concept?, (1983)
93 Ethics 246, pp 247249 [Massey].
81
Ibid., p 249.
82
Ibid., p 251.
83
Ibid. Self-respect as an objective concept has different interpretations. Elizabeth
Telfer attributes it to a persons qualities of independence, tenacity and self-control.
See Elizabeth Telfer, Self-Respect, (1968) 18 Philosophical Quarterly 114, p 118; For an
account of self-respect based on the importance of moral quality, see Richard Keshen,
Reasonable Self-Esteem (Montreal: McGill-Queens University Press, 1996) Ch 6.
84
Thomas E. Hill Jr., Servility and Self-Respect [Hill] in Dillon (n 18 above) 7692.
147
as black. The second is the Deferential Wife, an extremely submissive

woman who regards serving her husband as her utmost duty and pays
little attention on her own needs. Under a subjective account of selfrespect, both of them do not necessarily respect themselves any less if
they believe they are acting in accordance with their own perceptions
of worthy behaviors.85 In terms of the objective account, both are said
to have no or little self-respect because they do not have the correct
views about their worth and behave as objectively worthy.
In addition, Gewirth observed that there are two concepts of respect
that need to be distinguished. The first is contingent respect which
means that respect is attributed to some positive appraisals of a person.
Because it is circumstantial, it can be accorded in some cases and withheld in others. The second is necessary respect where respect is
affirmatively accorded to all people due to their being human.86
The above analyses suggest that self-respect is itself a multi-faceted
concept that can provide little help in shedding light on the notion of
dignity. In this light, Feinbergs arguments that respect for persons
(this is an intriguing idea) may simply be respect for their rights, and
to respect a person or to regard him as possessed of human dignity,
simply is to think of him as potential maker of claims87 seem all the
more confusing. On the one hand, they are caught in circularity by
explaining the significance of rights on the basis of a notion of selfrespect that itself relies on them.88 Even circularity aside, the different
conceptions of self-respect potentially give rise to varying definitions
of dignity as argued by Feinberg.89 Therefore Gewirth concluded, The
existence and nature of dignity cannot be constituted by respect; on the
contrary, it is because humans have inherent dignity that respect is
demanded or required of other persons as the recognition of an antecedently existing worth.90
To avoid the theoretical pitfalls associated with the concept of inherent dignity, Gewirth preferred grounding human rights on the necessary conditions of human action, i.e. those conditions that must be
fulfilled if human action is to be possible either at all or with general
85
Ibid., pp 7779.
See Gewirth I (n 47 above), pp 166167; see also Stephen L. Darwall, Two Kinds
of Respect in Dillon (n 18 above) 181197, pp 183184.
87
88
See Massey (n 80 above), p 256.
89
See Feinberg (n 74 above).
90
See Gewirth I (n 47 above), p 167.
86
148
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chances of success in achieving the purposes for which humans act.91

It follows that concepts like purposiveness and free will are regarded
as more reliable grounds to justify human rights than inherent dignity,
because the necessary conditions of actions have more specific and
less disputable contents than may be attributed to concept like dignity
and flourishing. 92
Dignity as a multi-layered concept
The indeterminacies surrounding the notion of dignity, including its
subtle relationship with human rights, present a special challenge in light
of the status it is accorded in international human rights law and domestic constitutional regimes. As David Feldman argues, the meaning of
dignity is difficult to pin down and its relationship with fundamental
rights is unclear. The notion that dignity can itself be a fundamental
right is superficially appealing but ultimately unconvincing.93
According to Feldman, dignity has profound content.94 It can be
attributed to different groups and each of them concerns a different
aspect of human beings. In this sense, dignity can be understood in
terms of three levels. First, the dignity of the whole human species
concerns the well-being of the entire human race which is pertinent to
the debate over cloning and dignity. Second, the dignity of groups
concerns inter-group relations within the human species. Legal sanctions against inciting racial hatred and religious intolerance are relevant in this context. Third, the dignity of individuals focuses on
inter-personal relations that have implications for, for example, the law
of defamation. On the other hand, dignity can be understood either
subjectively or objectively depending on the perspective that a person
or a group holds. As a concept capable of accommodating different
interpretations from various perspectives, the significant role played
by dignity in rights jurisprudence highlights its vagueness when it is
used to justify potentially conflicting policy decisions. Like the saying,
beauty is in the eyes of the beholder, what dignity means to a group
or a person varies depending on the aspect from which it is being
91
See Gewirth II (n 49 above), p 3.

Ibid., p 5.
93
David Feldman, Human Dignity as a Legal Value Part I, (1999) Public Law 682
[Feldman I].
94
Ibid., pp 684685.
92
149
considered. Subjectively, dignity reflects a persons sense of selfworth, usually associated with the forms of behavior through which an
individual relates with others. The starting point is either an individuals or a groups own perception as opposed to that of an outsider.
On the contrary, dignity in the objective sense invites assessment on
a macro scale. It includes looking at how the state and society respond
to individuals or groups under the prevalent social norms or moral
expectations.95
The subjective/objective dichotomy in defining dignity reveals the
difficulty of making it a coherent justification of fundamental rights.
The decision to administer life-supporting treatment to a terminally
ill patient provides a classic example of the dilemmas involved.
Controversies arise as to what ensuing legal obligations human dignity
requires of the attending doctors in light of the expressed wish of a
competent patient to live or not to live. The objective view of dignity
may justify continued treatment of the patient for the sake of preserving the sanctity of life and dignity of the human species. At the same
time, it can be forcefully argued that dignity, viewed subjectively, may
support withholding artificial treatment so as to end the agony of a
dying patient under conditions of dignity.
These potential conflicts were behind the separate tiers of judgments
of a landmark English case in 2006. In deciding whether life-sustaining
treatment should be rendered to a patient,96 the different approaches
adopted by three courts reveal just how diverse judicial opinions can be
concerning the best interest of patient. In the first instance, the High
Court had to decide upon an application by a patient, suffering from a
degenerative disease, who wanted to continue to receive artificial nutrition and hydration until his last days. As perhaps the first English court
to use dignity as a central legal argument,97 the High Court stressed the
importance of dignity and self-determination in deciding where the
best interest of a patient lies. According to Munby J, apart from
the sanctity of life, there are other important ethical principles the court
95
Ibid., pp 685686.
Burke v U. K. (ECtHR, Fourth Section, Application no 19807/06) (Declared inadmissible on 11 July 2006) [Burke]; R. (on the application of Burke) v General Medical
Council [2006] QB 273 (CA (Civ Div)) [General Medical Council (CA)]; [2005] QB 424
[General Medical Council].
97
Catherine Dupre, Human Dignity and the Withdrawal of Medical Treatment:
A Missed Opportunity, (2006) 6 European Human Rights Law Review 678, p 678
[Dupre].
96
150
chapter three
should consider. They include the right to self-determination and the

dignity of an individual human being, in particular, his right not to be
humiliated or treated without respect for his value as a person.98 The
patients best interest hinges so much on these substantial rights that
they are found to override even professional medical advice.99 The
applicants claim was upheld in the High Court.
The Court of Appeal reversed this decision. The court applied the
common laws best interest approach to focus on the objective duty of
medical practitioners rather than on patients subjective rights. It found
that a patients involvement in the determination of his own best interest is not as fundamental as it was seen to be by the High Court. In
response to the ethical principles endorsed in the lower court, the
Court of Appeal said, Autonomy and the right of self-determination
do not entitle the patient to insist on receiving a particular medical
treatment regardless of the nature of the treatment.100 It emphasized
that a competent patients expressed wish to be kept alive will merely
underscore the objective duty of the medical team.101 At the end, the
European Court of Human Rights (ECtHR) capped the dispute by
endorsing the Court of Appeals view.102 Rejecting the applicants claims
pursuant to Arts 2, 3 or 8 under the ECHR, the ECtHR said, In the
present case, the Court notes that neither a competent nor an incompetent patient can require that a doctor give treatment which that
doctor considers is not clinically justified and thus no difference of
treatment arises in that regard.103
The novelty of invoking dignity in common law and its conspicuous
absence in the ECHR might have directed the Court of Appeal and
ECtHR to pay less attention to the arguments of dignity than had been
accepted in the High Court.104 Nevertheless, had dignity been seriously
considered, it would still have been difficult for judges to come up with
an indisputable decision. The co-existence of human-species-level
dignity and individual-level dignity means that each can pull in different directions even in the same scenario. For example, when medical
treatment prolongs a patients life for an indeterminate period but
98
99
100
101
102
103
104
See General Medical Council (n 96 above), p 450.

Ibid., p 464.
See General Medical Council (CA) (n 96 above), p 296.
Ibid., p 297.
See Burke (n 96 above).
Ibid., p 9.
See Dupre (n 97 above), pp 686687.
151
brings the conscious patient huge suffering.105 Or, when such treatment
helps delay death but results in the patient being hospitalized in his last
days rather than being placed in the love and care of his family.106
Judging from a subjective or objective angle inevitably leads one to take
contrasting views on how dignity is served between living and dying.
At the end, the direction in which dignity is pulled and how far it leads
depends, to a large extent, on how one sees the nature of a good life and
its underlying values. When such value-laden questions are asked, it is
uncertain whether dignity can be relied on to resolve socially and morally controversial problems.107
Given the ambiguities involved in assessing dignity, even a benevolent interpretation runs the risk of exposing the court to the criticism
of judicial paternalism.108 Having assumed the duty to safeguard dignity, the court then becomes the umpire of what people can or cannot
do according to the rules of the game. In the name of dignity, the sanctity of life can be an unimpeachable reason to override a conscious
patients refusal to be subjected to invasive medical treatment on religious grounds.109 In the same way, the collective sense of dignity may
require the court to outlaw all demeaning practices however voluntarily engaged in by individuals. In the latter case, for example, both
French and German courts have outlawed dwarf-throwing contests to
protect the dignity of dwarfs as a distinctive group as well as members
of the human species.110
105
Like the situation in Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam
33 (CA) where the court decided that it would be better to relieve the incompetent
patient from the suffering caused by aggressive treatment in the event the medical
condition reached a crisis.
106
See General Medical Council (CA) (n 96 above), p 302.
107
See Feldman I (n 93 above), p 688.
108
Ibid., p 697.
109
Cases of different scenarios have arisen from the patients refusal to have a blood
transfusion in critical condition. In 1998, a French court held that medically appropriate treatment for preserving life did not violate the Jehovahs Witness patients freedom
under the ECHR. See Feldman I (n 93 above), pp 700701. In Cruzan v Director,
Missouri Department of Health (1990) 497 US 261, the majority of the U.S. Supreme
Court denied the request made by the parents of a vegetative patient to withdraw
life-sustaining treatment without clear and convincing evidence. Even though the majority decided on due process, dignity was briefly mentioned in Rehnquist CJs judgment. Brennan J, in his dissenting judgment joined by Marshall and Blackmun JJ, wrote
that the patient, whose life was being sustained by artificial nutrition and hydration,
was entitled to choose to die with dignity.
110
A French court in 1995 endorsed the ban on dwarf-throwing competitions in the
cities of Versailles and Marseilles despite the dwarfs keenness to take part for financial
gain and the safety measures taken by their employers, because human dignity
152
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The United Nations Human Rights Committee (HRC) agreed. In

Wackenheim v France, the HRC banned the practice on the grounds of
dignity.111 In this case, dignity in its strongest objective sense was found
to have trumped the freedom to choose whether and how to exploit
ones own body for pecuniary gain or sheer enjoyment. The underlying
message is: being human carries with it responsibilities not to subject
ourselves to situations that are detrimental to our dignity in an objective
sense. Sometimes, personal preference needs to make way for considerations pertaining to humanity as a whole. But one may ask why the
court should preside over the individual on decisions that are so intimate to ones life.112 As long as dignity remains an indeterminate concept in legal reasoning, judicial interpretations, however well-meaning,
can be in some cases criticized as arbitrary in liberal societies.
The versatility of the notion of dignity seems to leave room for
interpretations based on individual perceptions. And it is arguably
not fitting for the court to allow for such subjective assessment. In
the Massachusetts Supreme Courts same-sex marriage decision in
Goodridge, Cordy J in dissenting raised doubt on this unclear mandate.
In response to Marshall CJs opinion that permitting same-sex couples
to marry will not diminish the validity or dignity of opposite-sex
marriage and marriage will continue to be a vibrant and revered
institution,113 Cordy J wrote, it is not the business of the courts to
demanded that no one should be exposed to exploitation in such a way by reason of the
physical handicap they suffered. See Feldman I (n 93 above), p 701; Courts in Germany
have reached a similar conclusion. See Eskart Klein, Human Dignity in German Law
[Klein] in Kretzmer & Klein (n 2 above) 145159, p 158.
111
Wackenheim v France (CCPR/C/75/D/854/1999) (Comm No: 854/1999) (15 July
2002).
112
The mainstream judicial sentiment against some eccentric sexual practices in
English law provides an example. In R v Brown [1994] 1 AC 212 (HL), the House of
Lords ruled that the voluntary and enthusiastic acts participated by the sado-masochists
did not constitute good reason to exempt them from the offences of inflicting bodily
harm. Other considerations including the humiliation and degradation involved
outweighed even privacy. When a challenge under Art 8 of the ECHR went to the
ECtHR, it was of the view that the significant nature of injuries caused by those
extreme acts justified a margin of appreciation for the state to rein in the activities for
protection of public safety. See Laskey, Jaggard & Brown v U. K. (decided on 19 February
1997) 24 EHRR 39. While the violent and abusive features of sado-masochism make
this activity exceptionally contentious, an analysis of human dignity may in such case
distinguish the perspectives between the protagonists, who may regard the particular
behaviors sexually satisfying and in no way demeaning to their integrity, and that of an
observer or society at large who may see such activities humanly undignified.
113
Goodridge v Department of Public Health (2003) 798 N.E. 2d 941, per Marshall
C. J., p 965 [Goodridge].
153
make such a prediction.114 Such should be the job of a rational legislature, which with evidence could at least pay heed to other rational
concerns about the possible unintended consequences of a dramatic
redefinition of the law. A proper balance of relationship between an
independent judiciary and a popularly elected legislature in issues like
this remains a concern.115
Amidst conflicting views over what dignity means and who should
decide, one may ask whether it is possible to achieve a civic order amenable to embracing pluralism with a standard of respect for diversity.116
While dignity is deemed to be inviolable and irreconcilable by the
German judiciary, the Israeli court has shown a readiness to accommodate other values and interests within the shrine of human dignity
under the limitation clause in the Basic Law.117 According to Justice
Barak, former president of the Israeli Supreme Court, human dignity
like the abstractions of liberty and privacy is not absolute, and may be
limited in order to protect the social framework. Therefore, in some
circumstances, violating dignity (in the subjective sense) is seen as necessary in order to maintain the social framework that protects dignity
(in the objective sense).118 This comment again reflects the tension
between the subjective and objective aspects of the notion. Some commentators have suggested that the ideas of proportionality and balancing can in extraordinary situations provide justifications for group
114
Ibid., p 1003, per Cordy J.

David Feldman, Human Dignity as a Legal Value Part II, (2000) Public Law,
p 76 [Feldman II]; In his dissenting judgment which held that New Zealand marriage
law unjustifiably discriminated against gays and lesbians, Thomas J however, acknowledged that under a system of parliamentary sovereignty, it is up to the parliament, not
the court, to decide whether and in what form the law should be changed to accommodate the interests of the same-sex couples. See Quilter v Attorney General (1998)
1 NZLR 523, p 542. Dupre also suggested that to avoid misusing human dignity because of the capricious definitions made by judges, further attempt to define this concept would be better undertaken through legislation. See Dupre (n 97 above), p 694.
For an analysis about who should make the decision whether to legalize same-sex marriage, see Kevin J. Worthen, Who Decides and What Difference Does it Make?:
Defining Marriage in Our Democratic, Federal Republic, (2004) 18 Brigham Young
University Journal of Public Law 273.
116
David N. Weisstub, Honor, Dignity, and the Framing of Multiculturalist Values
[Weisstub] in Kretzmer & Klein (n 2 above) 263296, pp 288289.
117
Section 8 of the 1994 version of Israels Basic Law (n 12 above) reads, There shall
be no violation of rights under this Basic Law except by a law befitting the values of the
State of Israel, enacted for a proper purpose, and to an extent no greater than is
required or by regulation enacted by virtue of express authorization in such law.
118
David Kretzmer, Human Dignity in Israeli Jurisprudence [Kretzmer] in
Kretzmer & Klein (see n 2 above) 161178, p 170.
115
154
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interests to take precedence over individual rights.119 Nevertheless, it

must be noted that once dignity is judged to be relative, its transcendent status may easily disappear every time the state asserts that public
interests trump individual dignity.
Moreover, it is not always easy to point out which interest has the
upper end of the moral high ground. It is what happens in the on-going
debate in the U.S. between the so-called pro-life and pro-right
groups on abortion. The fetus right to life is often set against a womans right to self-determination in the competition of dignity. The
German case provides an example. Abortion is sparingly permissible in
Germany as the law pays paramount attention to the dignity of the
fetus the right to live as human than the womans right to selfdetermination which often results in the loss of a human life.120 There is
another gloomier example. Under the shadow of global terrorism, the
practice of torturing a terrorist suspect to compel evidence in order to
prevent an imminent attack against thousands of civilians may trigger
a fierce, even ugly, contest between the two conceptions of human
dignity.121
Dignity in context
The different visions of dignity may prompt one to reflect on the contextual significance of human rights and dignity. Peoples views over
what constitutes a good life differ across cultures as much as within the
same society. In their controversial article arguing that only a liberal
regime can implement internationally recognized human rights, Rhoda
Howard and Jack Donnelly observe that the conceptions of dignity
119
See Weisstub (n 116 above), pp 275277. On the dignity for those who lack the
minimal human capacity to act, Gewirth put forward the Principle of Proportionality.
As a fundamental feature of the traditional doctrine of distributive justice, this principle states that the possessing of rights is proportional to the degree to which human
beings and other entities have the ability to act. See Alan Gewirth, Reason and Morality
(Chicago: University of Chicago Press, 1978), pp 120128 [Gewirth III].
120
See Daly (n 22 above), fn 288; see also a 2007 case on abortion methods in the
U.S. Supreme Court: Gonzales v Carhart (2007) 550 US 124, where the court twice
referred to dignity, one by the majority and the other by the minority. The majority
cited the relevant laws reference to dignity of human life to support banning certain
abortion methods.
121
See Klein (n 110 above), p 159. The same question was put to the students of a
human rights course (Master-level) at the Law Faculty of the University of Hong Kong
in 2004. As one of the students, I recall that there was no consensus in the class as to
whether torture should be used on one terrorist suspect to save the whole town.
155
vary dramatically across societies, and most of these variations are

incompatible with the values of equality and autonomy that underlie
human rights.122 Regardless of whether this assertion is valid,123 the
extraordinary constitutional weight given to dignity across regimes in
post-war Europe as well as post-apartheid South Africa may illustrate
the contextual significance underlying the concept. As another former
Israeli Chief Justice put it, human dignity, in the constitutional context, is a legal concept, but its practical expression lies in the daily
human experience and in the relationship towards the individual of the
state and society, including the courts, in which he lives.124 This comment resonates with Howard and Donnellys view that conceptions of
human dignity, in their social and political aspects, express particular
understandings of the inner (moral) nature and worth of the human
person and his or her proper (political) relations with society.125 On
this premise, how human rights are to be realized depends on the conception of dignity to which a society subscribes.
As history shows, the prominent place of dignity in many constitutions represents those nations will to turn over a new leaf from past
human rights abuses. It is therefore understandable for the Germans to
entrench dignity as an uncompromised constitutional value. The same
can be said of the Constitutional Court of South Africa in safeguarding
dignity as the touchstone of the new political order and fundamental
to the new Constitution.126 The courts emphasis on the self and the
right to be different in South African society perhaps should be read
in this light.127 Accordingly, the search for a constitutional and legal
basis of dignity should not lose sight of the historical, social and political contexts in every society. Howard and Donnellys observation is
insightful as far as how peoples differ in their intuitions on dignity. As
David Weisstub noted, what is interesting about human dignity is how
122
Rhoda E. Howard & Jack Donnelly, Human Dignity, Human Rights, and Political
Regimes, (1986) 80 American Political Science Review 801, p 802 [Howard &
Donnelly].
123
Michael Barr criticized Howard and Donnellys claim as exceptionally cavalier
in their blunt assumption that human rights are synonymous with liberal values of
equality and autonomy. See Michael D. Barr, Cultural Politics and Asian Values: The
Tepid War (London: Routledge, 2002), p 88 [Barr].
124
See Kretzmer (n 118 above), p 167 (per Justice Shamgar).
125
See Howard & Donnelly (n 122 above).
126
S v Makwanyane & Another [1995] 6 BCLR 778 (CC), para 329.
127
(CC), para 60 [Fourie].
156
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it colours differently, depending upon the social needs in question. Its

centrality and attractiveness for global ethics may be, thereby, its malleability rather than the tightness of its logic.128
This is probably why Germany and the U.S. make good comparisons of how dignity is understood in two different societies. In his
interesting article, James Whitman gives a detailed account of how
the Americans and the Continental Europeans differ in their views
on dignity, thanks to their different understandings of the notions
of liberty and privacy.129 For example, while Americans in general
derive their sense of personal dignity from liberty against the state,
Europeans tend to build their sense of dignity upon personal integrity
and honor. Therefore, many Europeans may be baffled by how undignified ordinary Americans appear in easily divulging their personal
data including salary and credit history. This perception may arise
because, for Europeans, privacy in personal life is part and parcel of
their dignity. On the other hand, Americans may consider the fact that
Europeans allow state officials to frequent their doorsteps and tap their
telephone wires as violating dignity because of their deeply ingrained
conviction in the right to be left alone.130 These two tales of dignity
illustrate how different perceptions to the idea inevitably entail different beliefs in how and against whom individual dignity should be
protected.
As the earlier examples of artificial life-support treatment and dwarfthrowing contests show, what constitutes a degrading treatment or
humiliation varies not only across cultures, but also according to what
position one holds. According to Parekh, while arranged marriage
may be unfathomable in liberal societies, parents in some cultures consider marriage as the most important life decision they need to make
for their children.131 To these parents, finding their son or daughter a
matching spouse is a matter of preserving their good life and dignity.
This practice no doubt flies in the face of dignity in the liberal sense.
Nevertheless, it reveals how an alternative understanding of a dignified
life be it good or bad objectively speaking may lead to a peculiar
custom which is believed by its practitioners to be in pursuit of the best
128
See Weisstub (n 116 above), p 265.

James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus
Liberty, (2004) 113 Yale Law Journal 1151.
130
Ibid., pp 11551161.
131
See Parekh (n 44 above), p 135.
129
157
ideals of dignity. Therefore, one should not discount the wider contexts
and cultural nuances when evaluating any vision of dignity.
Some reflections on dignity
What can we make of dignity? Although its rise to becoming a universal human rights value is relatively recent, the notion of human dignity is not new. It is a concept that has appeared in the writings of Stoic
philosophers and natural law theorists since Classical times. Its historical, anthropological and religious roots date back many centuries.
Beneath a general conviction that dignity is a uniquely human feature
are different underlying beliefs ranging from religious creeds, cultural
practices, and secular worldviews. Its apparent universality becomes
obscure upon a closer study. Despite its prominent status in international law and domestic constitutions, dignity does not have a concrete
meaning or a consistent definition. The attempt to supplement its
meaning with notions like intrinsic human worth or respect does
not go very far, unless some background questions are resolved, including what constitutes a life worthy of human beings to live.
Edward Eberles opening words for his meticulous work on dignity
and liberty in German and American constitutional laws have this apt
observation: Difficult to define and difficult to realize, personally or
socially, dignity nevertheless remains a defining trait of human character, and a preeminent ideal of any civilized society.132 Human dignity is
a concept of considerable value. Its universal nature unites a diverse
world community to strive for a common goal. This notion helps not
only judges in interpreting the visions of a constitution but also common people in thinking about how we should respect one another
despite all the differences. However, the multi-faceted nature of dignity
and its internal tensions require the law to recognize both its strengths
and limits, and the court to apply it with caution.
In the developing jurisprudence on human rights, it is therefore
advisable to treat dignity as one of the values or guiding principles.133
Of course, one should be mindful of not relegating dignity to a common denominator or an excuse to limit the scope of rights. But we
132
Edward J. Eberle, Dignity and Liberty: Constitutional Visions in Germany and the
United States (Connecticut: Praeger, 2002), p 1.
133
See Feldman II (n 115 above), p 76.
158
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should at least acknowledge that what constitutes dignity and how far
it should go in justifying human rights especially those rights that are
not explicitly provided under the constitution remains open to
debates. It is also important to consider how the balance between legislation by democratic process and judicial interpretation of the law can
be properly maintained, especially on many rights issues where a consensus is lacking. As Feldman concluded his essay, Giving weight to
dignity adds a new value to the legal system which changes the way in
which questions are asked and answered, allowing a wider range of
interests to be taken into account, but not thereby making intractable
moral and legal issues any easier.134
Having dissected the concept and explored its role in constitutional adjudications, Feldman cautioned against uncritically applying dignity to justify decision making on human rights. And its
strength in human rights law should be evaluated in light of the lack of
clarity of its core content. People disagree on what a good life is about
and who should decide, as much as argue over whose dignity should
take precedence when different ideas of dignity seem to compete.
Sometimes, individual or group dignity deserves respect for the sake of
culture and identity; at other times, the dignity of the human species
seems to yield a higher moral ground when bioethical issues are
involved. Similarly, as it has been argued, dignity derived from respect
for peoples sexual choices and orientations may not always be sufficient to override what is regarded as the inherent dignity (in terms of
the human race as a whole or of individuals within it) of some sexual
practices.135
Feldmans comment can be viewed in light of the preponderance of
dignity in equality jurisprudence in both the Canadian Supreme Court
and the Constitutional Court of South Africa, where the concept played
a decisive role in the courts upholding the right to same-sex marriage.
This followed a judicial trend defining inequality in terms of dignity
violation. While this development will be critically examined in the
next chapter, the following account highlights this judicial orientation
leading to the two seminal cases where the right to same-sex marriage
was upheld on the basis of equality and dignity.
134
135
Ibid.
Ibid., p 75; see also n 112 above.
159
Dignity and same-sex marriage

Although the Canadian Charter of Rights and Freedoms (the Canadian
Charter) does not explicitly refer to dignity, its precursor, a federal statute called the Canadian Bill of Rights of 1960 mentions it. Its Preamble
reads, The Parliament of Canada, affirming that the Canadian Nation
is founded upon principles that acknowledge the supremacy of God,
the dignity and worth of the human person and the position of the
family in a society of free men and free institutions.136 Hence, the
idea of dignity is not alien to the nations human rights discourse.
The Supreme Court of Canada acknowledged the centrality of dignity
in upholding constitutional rights before the line of same-sex marriage decisions beginning 2002.137 In Vriend v Alberta, the concept of
equal dignity for all underlined the courts decision to read sexual
orientation into an Albertas anti-discrimination legislation in 1998,
which had been challenged by the complainant as under-inclusive.138
The court did not elaborate on the meanings of equality and dignity.
Instead, it highlighted the synergy between them in the following
words:
In order to achieve equality the intrinsic worthiness and importance of
every individual must be recognized regardless of the age, sex, colour,
origins, or other characteristics of the person. This in turn should lead to
a sense of dignity and worthiness for every Canadian139
Here, equality was considered to be the cornerstone of dignity

because it is the recognition of equality which will foster the dignity of
every individual.140 The idea that equality and dignity are two sides of
the same coin seems to have permeated the courts equality jurisprudence despite the opposition of strong critics.141 Another important
judicial observation in Vriend was the psychological aspect of dignity.
In the courts opinion, the impugned legislation was originally aimed at
protecting individuals from discrimination in various aspects of social
life. Therefore, excluding sexual orientation from the list of enumerated
grounds sent a sinister message that gays and lesbians did not deserve
136
137
138
139
140
141
See Preamble to the Canadian Bill of Rights, S.C. 1960, c. 44.

Eldridge v British Columbia [1997] 3 SCR 624.
Vriend v Alberta [1998] 1 SCR 493 [Vriend].
Ibid., para 67.
Ibid., para 69.
That will be discussed in Chapter 4.
160
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the same protection as others. The resulting psychological harm

inflicted upon this minority was regarded as an affront to dignity.142
Law v Canada was the first and the most-cited authority where the
Supreme Court of Canada expounded on the concept of dignity and its
place in equality discourse.143 In that case, a widow claimed that the
deduction of her survivors benefit due to her not attaining the eligible
age constituted age discrimination in violation of the equality guarantee under s 15(1) of the Canadian Charter. The courts main question
was whether there was a violation of dignity to justify the finding of
inequality. Having acknowledged that there can be different conceptions of what human dignity means, Iacobucci J shed light on its comprehensive definition:
Human dignity means that an individual or group feels self-respect and
self-worth. It is concerned with physical and psychological integrity and
empowerment. Human dignity is harmed by unfair treatment premised
upon personal traits or circumstances which do not relate to individual
needs, capacities, or merits. It is enhanced by laws which are sensitive to
the needs, capacities, and merits of different individuals, taking into
account the context underlying their differences. Human dignity is
harmed when individuals and groups are marginalized, ignored, or
devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the
meaning of the equality guarantee does not relate to the status or position
of an individual in society per se, but rather concerns the manner in
which a person legitimately feels when confronted with a particular law.
Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the
law?144
While the above appears to emphasize the perceptions from the

receiving end of differential treatments, Iacobucci J said that whether
the claimants dignity was demeaned should be determined by what the
judge called a subjective-objective test. Being aware that even a reasonable person can be influenced by community prejudice, the judge
adopted a heightened test of reasonable person. Such is an objective
assessment of the situations, including the individual or groups traits
and history from a reasonable person in circumstances similar to
those of the claimant, who is informed of and rationally takes into
142
143
144
See Vriend (n 138 above), para 102.

Law v Canada [1999] 1 SCR 497 [Law].
Ibid., p 530.
161
account the various contextual factors.145 In Law, the scenario of a

young widow claiming benefits which were designed to protect the
long-term financial needs of surviving spouses did not convince the
court to find a violation of dignity. The significance of this case, nevertheless, lies in its extensive definition of dignity as the essence of
equality.
With a dignity-centered equality jurisprudence laid down, the
Ontario Superior Court in Halpern v Canada advanced into the
uncharted waters in a decision which had far-reaching effects.146 For
the first time in Canada, the court held that withholding the marriage
rights from same-sex couples constituted discrimination under s 15(1)
of the Canadian Charter and it was unjustified. Upholding this decision, the Ontario Court of Appeal began its judgment saying, this case
is ultimately about the recognition and protection of human dignity
and equality in the context of the social structures available to conjugal
couples in Canada.147 In light of the definition of human dignity set
down in Law, the court went on to evaluate whether the claimants dignity was demeaned by the purpose or effect of the marriage law using
Iacobucci Js four-contextual-factor approach.148 The findings were all
in the affirmative. First, the pre-existing disadvantages experienced by
gays and lesbians were strongly indicative of discrimination that went
against the Canadian Charters values. Secondly, the law failed to
accommodate the needs, capacities, and circumstances of same-sex
couples in prohibiting same-sex marriage. Thirdly, the denial of marriage benefits was the result of an underinclusive ameliorative legislation that excludes from its scope the members of a historically
disadvantaged group.149 Lastly, excluding gays and lesbians from joining a fundamental social institution perpetuated the view that they are
less worthy of recognition. The finding of impairment of dignity for
gays and lesbians meant that the common law definition of marriage
violated equality. What followed was a redefinition of marriage to
include any two persons and the legalization of same-sex marriage in
the commonwealth of Canada.
145
146
147
148
149
Ibid., pp 533534.
Halpern v Canada [2002] 60 OR (3d) 321 (Div.Ct.).
Halpern v Canada [2003] 65 OR (3d) 161 (CA), para 2.
See Law (n 143 above), para 78.
Ibid., para 99.
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The Constitutional Court of South Africa followed closely after the

Canadian model in placing dignity at the center of equality. South
Africa is a world leader in stipulating sexual orientation as one of the
protected grounds against discrimination under its 1996 constitution.150 In a 1998 case in which the constitutionality of sodomy law was
challenged (the NCGLE case), the court ruled that the common law
crime of sodomy infringes peoples constitutional right to dignity.151
The court acknowledged that dignity is a difficult concept to capture
in precise terms.152 Nevertheless, it declared that the value and worth
of all individuals in South Africa is paramount under the constitution.
The stigma which sodomy law inflicted on gay men because of the sexual activities they engaged in is an affront to their human worth and
therefore must be struck down.
In a later case, the Constitutional Court held that the presence of
immigration barriers against homosexual citizens overseas partners
was discriminatory.153 Following the NCGLE case, the court emphasized how ingrained discrimination affected gays and lesbians at
a deeply intimate level of human existence and relationality.154 In the
circumstances where the same-sex partners were denied immigration
privileges enjoyed by the spouses of heterosexual citizens, the court
found it was against both equality and dignity. It not only injured the
same-sex couples inherent worth and dignity as human beings, but
also amounted to a denial of humanity and inhuman treatment by
the rest of the society.155 In Fourie,156 the question of same-sex marriage
finally came to the Constitutional Court. Following the rationale of the
NCGLE and Immigration cases, the court brought the equality jurisprudence to its logical conclusion: Excluding gays and lesbians from marriage violated both their constitutional rights to equality and dignity.
150
Section 9(3), Constitution of the Republic of South Africa (n 13 above) reads,

The state may not unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth.
151
152
Ibid., para 28.
153
National Coalition for Gay and Lesbian Equality & Others v Minister of Home
Affairs & Others [2000] (1) BCLR 39 (CC) [the Immigration case].
154
Ibid., para 42.
155
Ibid.
156
See Fourie (n 127 above), para 50.
163
Conclusion
For all the intricacies that come with the concept of human dignity, the
Canadian Supreme Court followed by the Constitutional Court of
South Africa continue to place it at the center of their respective equality jurisprudence. The extent that dignity is relied on in finding discrimination and inequality is widely argued as eroding the essence of
equality, as well as inviting judicial intrusion of public policy making.
The above cases were decided under this judicial trend which saw some
people dignity violated, some not. As it will be shown in the next chapter, even seasoned judges do not necessarily agree on one version of
dignity and its status in equality discourse.
Such a divergence of views is no surprise if one goes back to
Iacobucci Js extensive definition of dignity. Although Iacobucci J tried
to emphasize the objectivity of the dignity violation test using the
standard of a rational and reasonable person, the meaning of dignity
under his formula remains largely subjective. As the preceding discussion has shown, dignity is both personal and social. It concerns how
someone or a group perceives himself or itself, as much as how every
member of society conceives about humanity. It is both subjective and
objective. A terminally-ill patient can be just as adamant about having
the right to die with dignity as the medical profession or the wider
community about the sanctity and dignity of every human life. Even a
community of reasonable people can be in sincere disagreement about
how best dignity is served in some situations. And there is no exception
for judges as they face an even more complicated challenge of finding
discrimination in indignity.
The courts in the above same-sex marriage decisions did not elaborate on dignity albeit placing it at the center of their equality judgments.
Perhaps they have found Iacobucci Js definition in Law comprehensive enough. Perhaps sexuality and marriage are something so intimately personal as to render unnecessary any objective or social
considerations. Probably; but Feldmans comment about the possible
tension between the personal dignity of making ones own sexual
choices and the inherent dignity of human beings on a macro scale
still deserves some thought. A sign of this possible tension may be seen
in the Massachusetts courts decision whose judges did not rely so
much on dignity. In Goodridge, the majority of the Massachusetts
Supreme Court struck a conservative chord as a marriage defender. It
believed that same-sex couples were ready to embrace heterosexual
164
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marriages solemn obligations of exclusivity and commitment. It

also assured that same-sex marriage will not lead to the abolition of
this enduring institution. Above all, it will not diminish the validity or
dignity of opposite-sex marriage.157 Cordy J, in dissent, challenged
the basis of this assertion. However confident the majority was in the
continued vibrancy of marriage and no matter whether this assumption was correct, Cordy J said, it is not the business of the courts.
A rational Legislature, given the evidence, could conceivably come to
a different conclusion, or could at least harbor rational concerns
about possible unintended consequences of a dramatic redefinition of
marriage.158
The Goodridge majority believed that there is dignity in the institution of marriage which same-sex marriage will not destroy. It is not
certain from which of the personal or group or human-species level of
dignity this observation derived. In any case, marriage is a social institution that has both personal and societal values. And it is why social
recognition is so important to many same-sex couples that granting
full marital benefits alone does not suffice. Cordy Js doubt about the
courts authority to prophesize on the future of marriage highlights
Feldmans concern. Of course, a perfect forum in which everyone
agrees with one another is hard to find. But when a rights issue has
huge social implications and views are diverse, one may ask whether
the court is the right place to let the disagreements speak for themselves. This touches yet another delicate matter of maintaining the right
balance between the democratic and judicial processes. In Lewis v
Harris, a decision that led New Jersey to follow Vermonts footsteps in
legalizing civil unions, the majority chose to exercise what it called
judicial forbearance.159 It said, when a profound change in the law is
not compelled by a constitutional imperative, it must come about
through civil dialogue and reasoned discourse, and the considered
judgment of the people.160 It is not to say that the collective wisdom of
the judiciary can be outstripped by that of the public. But as the majority in Baker, the New Jersey courts counterpart earlier said, the court is
certainly not the only repository of wisdom.161
157
158
159
160
161

Ibid., p 1003.
Lewis v Harris (N.J. 2006) 908 A. 2d 196, p 223.
Ibid.
Baker v State (Vt. 1999) 744 A. 2d 864, p 888.
165
Espousing the virtue of a minimalist court on constitutional debates

over, among other things, same-sex marriage, Cass Sunstein said,
Constitutional law is not only for the courts; it is for all public officials.162 Therefore, by making narrow rulings and avoiding broad principles, the courts can maximize space for democratic deliberation and
facilitate the reaching of consensus amidst pluralism. To Sunstein, there
are times when the court must acknowledge its inferior factfinding
ability and policymaking competence.163 By not closing the door on
public deliberation, the court in fact exercises an important constitutional function of democracy forcing, where judicial decisions receive
political legitimacy through public reason and collective accountability.164 Is it possible for the public and their elected representatives to
reason over the justifications of human rights through the democracy
forcing decisions of the court? Some say it is possible. As will be seen
in the next chapter and further discussed in the concluding chapter, it
is something worth exploring.
Inviting opinions from the public to determine the substance of
human rights may seem, to some, a denigration of the fundamental
values of dignity. But it is, indeed, a test of its enduring strength and
universality, particularly in a liberal society where pluralistic views are
treasured. The judicial disagreements over the meaning of dignity violation and whether it should be part of the equality formula, as will be
discussed shortly, show that the universal content of any idea is subject
to reasoned debates. Debates nurture understanding, reflection, and
hopefully, consensus.
The fundamental premise that every person possesses dignity regardless of our inherent differences is not to be questioned. Dignity is more
than empty slogans. There is profound collective wisdom in affirming
it as one of the universal pillars of human rights. But one should distinguish between political consensus and legal principle, particularly
when the idea is being relied on to argue for some of the most contentious human rights. The difficulty lies in the fact that dignity can be
interpreted differently by different people whether they are legally or
philosophically trained. Its rationale and the way it is applied in upholding discrimination in various circumstances as we will see in the next
162
Cass R. Sunstein, The Supreme Court 1995 Term Foreword: Leaving Things
Undecided, (1996) 110 Harvard Law Review 4, p 98.
163
Ibid.
164
Ibid., p 100.
166
chapter three
chapter raise questions about its content and clarity. Unraveling the
mysteries around dignity does not resolve the disagreements on rights.
But appreciating the elastic nature of dignity may get us thinking
whether it is possible for a liberal and democratic society to achieve
consensus over some of the most contentious issues of human rights, in
particular, same-sex marriage.
CHAPTER FOUR
HUMAN DIGNITY AND ITS ROLE IN THE EQUALITY

JURISPRUDENCE
The fact that human rights and human dignity precepts
have been implemented and interrelated by Supreme Court decisionmakers, however, does not exhaust inquiry into jurisprudentially
based approaches to implementation. This is especially true when
theories of implementation normally remain unarticulated in the
opinions of the justices who utilize human right standards.
Jordan J. Paust1
In the last chapter, we saw that the concept of dignity carries profound
content. The idea itself is both historical and philosophical whose interpretation is closely related to ones worldview. To what extent dignity is
possessed by all human beings and whether it can be lost or diminished
depends on whether it is a descriptive or normative concept. Because
dignity is associated with an individual, a group or the human species
as a whole, it can be viewed subjectively or objectively. Applying dignity potentially pulls a decision-making in different directions depending on from which perspective it is evaluated, hence its universal appeal
should be evaluated in light of its fluid nature. Terms like intrinsic
worth and self-respect cannot satisfactorily help clarify its meaning
but only illuminate the fact that the beauty of dignity lies in its beholder.
Therefore, as much as it inspires and affirms our commitment to human
rights, Feldman suggests that dignity should be treated as one of the
guiding principles rather than an unquestionable ground of fundamental rights.2
Case law on same-sex marriage, as discussed in the last chapter,
however, shows that the jurisprudential trend is moving in the opposite direction. Following a line of decisions in which the Canadian
Supreme Court used dignity impairment as proof of inequality, the
Ontario Court of Appeal held that excluding same-sex couples from
1
2
David Feldman, Human Dignity as a Legal Value Part II, (2000) Public Law,
p 76 [Feldman I].
168
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marriage impairs their dignity and violates equality.3 This approach

was followed by the Constitutional Court of South Africa in its decisions concerning equality rights, in particular, the right to same-sex
marriage. For all we have seen about the indeterminacies of dignity
and in light of Feldmans remarks, this development raises questions on
the jurisprudential basis of using dignity to justify equality and whether
it risks diluting the distinctiveness of the two concepts.
This chapter does three things. First, it traces the developments of
equality jurisprudence in Canada and South Africa through a series of
landmark cases decided under the dignity-based approach. It attempts
to highlight the extent to which judges disagreed among themselves
over whether the claimant in each case had indeed suffered dignity
impairment thus deserved vindication under equality. Secondly, in
view of the haphazard way in which dignity is interpreted and the
opposition from critics of the Canadian approach, I question the basis
upon which the courts relied on in declaring that excluding same-sex
couples from marriage violates equality because of the impairment to
their dignity. Lastly, despite various criticisms, I observe that the
dignity-based equality doctrine retains its appeal particularly in the
South African context. While acknowledging its limitations, its proponents believe the dignity-based approach still holds great promise.
No matter how people interpret dignity and equality; and no matter
how they disagree with each other on their meanings, the debate over
whether there is a right to same-sex marriage pertaining to equality and
dignity will not go away. When arguing over who gets the interpretation
right seems to get us nowhere, I ask whether deliberative democracy may
provide hope for people to move forward in settling their disagreements.
The Canadian way: human dignity and substantive equality
In Halpern v Canada, the Ontario Court of Appeal considered whether
the common law definition of marriage violated equality under s 15(1)
of the Canadian Charter. The section provides 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.
3
human dignity
169
On the question whether withholding marriage right from same-sex

couples constitutes discrimination, the court said the focus should be
on substantive equality not formal equality, and [t]he emphasis is
on human dignity.4 This followed a jurisprudential trend set by the
Canadian Supreme Court in a series of decisions in which it deemed
dignity as the essence of equality. We will look at them one by one.
In the formative years of its equality jurisprudence, the Canadian
Supreme Court in Andrews v Law Society of British Columbia5 took the
initial move as it faced citizenship as the alleged discriminatory
ground one forbidding a foreign national from practicing as a barrister. While affirming that not every distinction transgresses the equality guarantee, McIntyre J for the court wrote:
I would say then that discrimination may be described as a distinction,
whether intentional or not but based on grounds relating to personal
characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group
not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.
Distinctions based on personal characteristics attributed to an individual
solely on the basis of association with a group will rarely escape the
charge of discrimination, while those based on an individuals merits and
capacities will rarely be so classed.6
The focus on the laws impact on those affected signified the first
signpost to a substantive path of equality, albeit invoking the next
inquiry as to what distinguishes justifiable impacts from unjustifiable
ones.7 McIntyre J would think the requirement of personal characteristics already pointed to a certain kind of impact, and he tried to
be more specific by proffering the notions of stereotyping, historical disadvantage and prejudice.8 According to this analysis, the
enumerated grounds of unconstitutional discrimination are not
exhaustive.9 Yet a complainant of unequal treatment must show that
the legislative impact is discriminatory.10 This in turn begged the
Ibid., para 78.

Andrews v Law Society of British Columbia [1989] 1 SCR 143 [Andrews].
6
Ibid., pp 174175, per McIntyre J.
7
Denise G. Raume, Discrimination and Dignity, (2003) 63 Louisiana Law
Review 645, p 651[Raume].
8
See Andrews (n 5 above), p 180.
9
Ibid., p 175.
10
Ibid., p 182.
5
170
chapter four
question as to what constitutes discriminatory treatment, which

prompted the search of a substantive foundation to explain when a
new ground is found to be analogous to those enumerated in s 15(1)
of the Canadian Charter. The enquiries of which personal characteristics are illegitimate bases for legislative distinctions and what
kinds of deprivations or disadvantaging impacts constitute discrimination11 seemed to suggest that a substantive equality analysis was in
the making. In Andrews, discrimination was found on the basis of a
distinction made on an analogous ground which conferred disadvantages and was unfair. Yet McIntyre J hinted at a more sophisticated
approach when he said it is not enough to focus only on the alleged
ground of discrimination to decide whether or not it is an enumerated or analogous ground.12 It only took a few more cases for a
dignity-based analysis to emerge.
In 1995, the Canadian Supreme Court considered two concurrent
cases which set the tone of a dignity-based analysis of equality.
Coincidentally both involved a split court deciding a challenge to the
law which respectively excluded two groups of unmarried partners
heterosexual and homosexual from benefits available to heterosexual
married couples. In Miron v Trudel,13 where unmarried partners were
denied spousal accident benefits, the majority judgment elevated
human dignity to a constitutional high ground. As McLachlin J
wrote, the overarching purpose of the equality guarantee is to prevent
the violation of human dignity and freedom through the stereotypical
application of presumed group characteristics.14 McLachlin J suggested that it is the kind of stereotype based on presumed but not actual
characteristics that impinges on human dignity.15 She identified four
conditions that reflect such a stereotype: historical disadvantage of the
group, its minority status, personal characteristics attributed by the
state, and immutability.16 Instead of applying these four criteria to the
prohibited ground in question, i.e. marital status, however, she then
went on to justify a finding of discrimination by proffering three characteristics she believed are inherent in marriage. First, marriage is a
11
12
13
14
15
16
See Raume (n 7 above), p 654.

See Andrews (n 5 above), p 182.
Miron v Trudel [1995] 2 SCR 418 [Miron].
Ibid., pp 486, 488, per McLachlin J.
Ibid., p 487.
Ibid., p 496.
human dignity
171
matter of individual freedom. Secondly, unmarried partners constitute

a historically disadvantaged group associated with some sort of religious disapproval. Finally, although marriage is about personal freedom, it may sometimes be beyond ones control thus making it an
immutable status.17
The judge did not make a direct analysis of how the four criteria
were related to the stereotyping in this case or why the exclusion of
unmarried couples was a result of stereotype.18 And it seems that the
three characteristics associated with marriage were irrelevant when
she concluded that it is probably religion-driven moral prejudice
which led to discrimination on the basis of marital status.19 It remains
unclear how this conclusion and the preceding analysis could support
her initial assertion that a stereotype based on presumptions violates
the dignity of unmarried couples. The attribution of immorality, as
the conclusion suggested, was at best an oblique reference to prejudicial stereotype. No wonder it is suspected that stereotype was not
really the issue, and therefore the alleged link between stereotype and
violation of dignity looked rather tenuous.20 The dignity-based analysis in this case seems artificial and incomplete. In any event, the crux
of the decision might have had little to do with dignity. Perhaps, it was
the current social values or realities21 which distinguished cohabiting couples from married couples, and in McLachlin Js view, was
discriminatory.
In Egan v Canada22 where the majority upheld the legislation conferring spousal allowance only to heterosexual spouses, it was mainly the
dissenting LHeureux-Dub J who expounded on the dignity analysis.
In a similar vein with McLachlin Js judgment, LHeureux-Dub J
started by revisiting the fundamental purpose of the equality guarantee, which in her words, is a commitment to recognizing each persons
equal worth as a human being, regardless of individual differences.23
17
Ibid., pp 497498. Peter Hogg does not agree with this analysis. See Peter W. Hogg,
What is Equality? The Winding Course of Judicial Interpretation, (2005) 29 Supreme
Court Law Review 39, p 48 [Hogg I].
18
19
See Miron (n 13 above), pp 498499.
20
21
See Miron (n 13 above), p 499.
22
Egan v Canada [1995] 2 SCR 513 [Egan].
23
Ibid., p 543.
172
chapter four
At the heart of it are legislative distinctions that offend inherent human

dignity.24 Set in such a tone, the equality analysis then revolved around
the circumstances that members of a group feel they are less capable
or less worthy of recognition by virtue of the impugned legislative distinctions.25 In that case, the nature of the interest affected in respect of
the disadvantaged group was held to be more than economic. Beneath
the economic loss arising from the exclusion of same-sex couples from
spousal allowance was the perpetuated view that this group is less
capable or less worthy of recognition or value as human beings or as
members of Canadian society, equally deserving of concern, respect,
and consideration.26 This distinction was found to have infringed the
fundamental interest of the right to equal dignity that the equality
guarantee protects. Such a conclusion raised no surprises where dignity was at the center of the constitutional query. In fact, this equality
analysis sounds more consistent than McLachlin Js in Miron. Yet
D. M. Davis, who believes that equality has a distinct meaning independent of dignity, does not find LHeureux-Dub Js approach agreeable. To Davis, the Constitutional Court of South Africa has missed the
opportunity to develop a substantive concept of equality by uncritically borrowing LHeureux-Dub Js judgment to its jurisprudence.27
As equality lies at the centre of the South African constitutional
idea,28 Davis believes that the Constitutional Court has an obligation
to develop a substantive concept of equality which gives clear content
to this foundational value. On the contrary, the court followed the
Canadian approach that does not define nor explain equality; instead,
treating the concept as a means to protect human dignity.29 As we will
see shortly, the manner in which dignity was regarded as a fundamental aspect of equality by the court exposes not only the elusive nature of
the concept of equality, but also the poverty of the ordinary-language
approach to constitutionalism.30 The following cases may shed light on
the aptness of this observation.
24
Ibid., p 544.
Ibid., p 545.
26
Ibid., p 566.
27
D. M. Davis, Equality: The Majesty of Legoland Jurisprudence, (1999) 116 South
African Law Journal 398, p 404 [Davis].
28
Ibid., p 400. According to s 1 of the South African Constitution, the Republic of
South Africa is founded on a number of values which include human dignity, the
achievement of equality and the advancement of human rights and freedoms.
29
Ibid., p 404.
30
Ibid., p 399.
25
human dignity
173
Law v Canada: the norm-setting case

LHeureux-Dub Js approach in Egan was further expounded by the
Canadian Supreme Court in 1999, when a widow claimant alleged that
denying her survivors benefits under a national pension plan because
she was below the age of thirty-five was discrimination on grounds of
age.31 This time, the court was united in putting human dignity at the
center of its equality jurisprudence. By then, a line of cases had already
begun shifting dignity gradually towards the center of the equality
guarantee.32 It was thus more of a finishing touch when Iacobucci J
reaffirmed the purpose of the right to equality as:
to prevent the violation of essential human dignity and freedom through
the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally
capable and deserving of concern, respect and consideration.33
According to Iacobucci J, dignity means:

an individual or group feels self-respect and self-worth. It is concerned
with physical and psychological integrity and empowerment. Human
dignity is harmed by unfair treatment premised upon personal traits or
circumstances which do not relate to individual needs, capacities, or
merits. It is enhanced by laws which are sensitive to the needs, capacities,
and merits of different individuals, taking into account the context
underlying their differences. Human dignity is harmed when individuals
and groups are marginalized, ignored, or devalued, and is enhanced
when laws recognize the full place of all individuals and groups within
Canadian society.34
In sum, dignity was defined as an individuals feeling of self-respect

and self-worth in response to a treatment, which concerns his physical
and psychological integrity and empowerment. Grant Huscroft asked
whether this judicial interpretation of equality has taken the court
beyond the sphere where it is reasonably expected to have expertise.35
It is because notions like self-respect, self-worth and psychological
31
Law v Canada [1999] 1 SCR 497 [Law].

See Miron (n 13 above); Egan (n 22 above); Eldridge v British Columbia [1997]
3 SCR 624; Vriend v Alberta [1998] 1 SCR 493.
33
See Law (n 31 above), p 529.
34
Ibid., p 530.
35
Grant Huscroft, Discrimination, Dignity, and the Limits of Equality, (2000)
9 Otago Law Review 697, p 705 [Huscroft I].
32
174
chapter four
integrity are not the sort of things that judges are accustomed to in
constitutional adjudication nor are they amenable to the judicial process.36 On the other hand, alongside dignity, the concept of fairness
adopted in Andrews that had been neglected in the preceding authorities seemed to have revived.37 As Iacobucci J asked, Does the law treat
him or her unfairly, taking into account all of the circumstances
regarding the individuals affected and excluded by the law?38 While
recalling the concept of fairness seemed to have steered the analysis
back on the equality track,39 all eyes were on the all-important dignity. Throughout the judgment, dignity remained the overriding concern of the discrimination analysis. The role of equality was oblivion,
so to speak. With Law, the doctrine where discrimination is believed
to be caused by distinctions on enumerated or analogous grounds
under s 15(1) of the Canadian Charter which demean dignity is firmly
in place. It has since been followed by every equality decision in the
Canadian Supreme Court, unfortunate as it might be.40 The Constitutional Court of South Africa in developing its equality jurisprudence
under the new constitution has largely followed suit. To its critics
though, this approach causes as many problems as it solves.41
The problems might not have surfaced in Law due to its particular
facts. It is because the court simply did not sympathize with Mrs. Laws
situation in relation to the national pension regime. The plan provided
survivors benefits to people aged forty-five or above as well as those
who were disabled or had dependent children. It also provided a
reduced benefit to those able-bodied surviving spouses without
dependent children who were aged between thirty-five and forty-five.
In effect, those who were below thirty-five had no entitlement at all.42
According to the court, the age restrictions reflected that the scheme
was not designed to remedy the immediate financial needs experienced
by all citizens who have recently lost their spouses, but rather to enable
36
Ibid.
Grant Huscroft, Freedom from Discrimination in Rishworth, Huscroft &
Optican, The New Zealand Bill of Rights (South Melbourne: Oxford University Press,
2003) 366397, p 385 [Huscroft II].
38
39
To Hogg, it is a much better approach. See Hogg I (n 17 above).
40
Peter W. Hogg, Constitutional Law of Canada, Fifth Edn Supplemented, Vol 2
(Ontario: Carswell, 2007), p 5528 [Hogg II].
41
See Huscroft I (n 35 above), p 704.
42
37
human dignity
175
older widows and widowers to meet their basic needs during the longer
term.43 It was assumed that young persons face fewer barriers in the
labor market and are generally in a better position than older persons
to take the place of their deceased spouses over the long run as working
members of society. Therefore, a childless, able-bodied thirty-year-old
Mrs. Law would not have evoked much sympathy otherwise accorded
to a destitute elderly widow. In deciding whether determining benefits
eligibility according to age infringed equal protection, the court asked,
whether the provisions, in purpose or effect, violate essential human
dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice?44 With a legislation which targeted the long-term financial needs of older surviving spouses and did
not stigmatize on account of age or any stereotype, the court was unable to find any prejudicial stigmatization or historical or social disadvantages that affect the dignity of a young and capable citizen.
Mrs. Laws undeserving situations made the conclusion fairly reasonable while the analysis itself can be disturbing. As Huscroft argued,
a dignity-centered approach may limit equality protection in other scenarios. For example, it will be difficult for the so-called dominant
groups in society like males or a racial majority to establish an impairment of human dignity.45 If all potential claimants must go through the
screening test of social, historical and political disadvantages, discrimination protection may end up extending only to those whom the court
thinks are in need and leaving out other deserving parties. In Law,
Iacobucci J seemed to be aware of that risk and tried to assure that
[a] member of any of the more advantaged groups in society is clearly
entitled to bring a s.15(1) claim which, in appropriate cases, will be
successful.46 But Huscroft was not that optimistic, as he noted what
Iacobucci J continued to say: I do not wish to imply the existence of a
strict dichotomy of advantaged and disadvantaged groups, within
which each claimant must be classified. I mean to identify simply the
social reality that a member of a group which historically has been
more disadvantaged in Canadian society is less likely to have difficulty
in demonstrating discrimination.47 Therefore, Huscroft warned that
43
44
45
46
47
Ibid., p 559.
Ibid., p 557.
See Huscroft I (n 35 above), pp 705706.
See Huscroft I (n 33 above), p 706 (fn 37); Ibid., Law, p 537.
176
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the dignity-centered approach might substantially reduce the protection that the right to equality might otherwise afford.48
Dignity and its critics
Huscroft is not alone in his critique. The virtually unanimous criticisms
among commentators contrast the Canadian Supreme Courts fondness of the dignity-based analysis.49 Seeing the lead of Law as unfortunate, Canadian constitutional law expert Peter Hogg describes the
dignity requirement as vague, confusing and burdensome to equality
claimants.50 Considering the centrality of dignity in determining
whether there is discrimination, Hoggs allegations are serious and
deserve some attention.
Why is human dignity vague? In view of its multi-level meanings
and the implications of associating it with notions like intrinsic worth
or self respect as discussed in the preceding chapter, one should be
more specific when using it to justify a claim. Yet it is no easy task, for
even judges have difficulties agreeing among themselves.51 To Nicholas
Smith, Iacobucci Js linking the purpose of the Canadian Charters
equality guarantee with violation of human dignity in Law is problematic. It is also misleading, if it makes one believe that a perceived
attack on an individuals sense of his own importance is a necessary or
sufficient condition for a claim of discrimination.52 As Smith argued, if
dignity is here to stay in the equality formula, its role should be no
more than explaining the commitment to equality in its objective
sense, a view that echoes Feldmans.53
To recall Feldmans categorization, dignity has two aspects. Subjectively, it has to do with ones sense of self-worth in relation to others;
objectively, it is about the state and societys attitude to its people, all of
48
Ibid., Huscroft I, p 707.

To name a few, Beverley Baines, Law v Canada: Formatting Equality, (2000) 11
Constitutional Forum 65; Debra M. McAllister, Section 15 the Unpredictability of
the Law Test, (2003) 15 National Journal of Constitutional Law 35 [McAllister]; Hogg I
(n 17 above).
50
See Hogg II (n 40 above), pp 5528, 29.
51
See Hogg I (n 17 above), p 56.
52
Nicholas Smith, A Critique of Recent Approaches to Discrimination Law, (2007)
New Zealand Law Review 499, p 516 [Smith].
53
Ibid., p 513. See also Feldman I (n 2 above).
49
human dignity
177
them being fellow creatures inhabiting a common moral universe.54

Taking Feldmans view, Smith observed that for all of our individual
differences, human beings are considered to be equals who deserve
equal consideration, because it is our capacity for moral decisionmaking that counts.55 It tells us why everyone should be treated as
equals despite our inherent differences. In this objective sense, dignity
can be ignored or denied but can never be impaired or violated.
Because dignity is a fact and not a diminishable substance, to say that
one is being discriminated against whenever his dignity is hurt thus
misses the mark both in the essence of the discrimination and the
objective sense of dignity.56
One may argue that the damage to dignity in its subjective aspect
is what discrimination is about. But this argument does not hold
much ground. It is because while it is generally uncontroversial to
attribute a persons self-worth to the dignity of humankind, it is not
so certain when an individuals perception of being honored or dishonored is said to be the basis of his dignity. On this Smith and
Feldman seem to have made a similar point.57 For example, however
much the sense of self-importance of a hired killer or a film actor is
lowered when the former is being described as heartless and the latter hideously ugly, it does not touch the conscience of most people.
It is, however, a very different story when people are told how black
South Africans were being treated under the apartheid regime. The
indignity they suffered is the kind that evokes most peoples sense of
sympathy and indignation. In comparison, dignity in terms of a persons estimation of his own worth is not always morally interesting.58 When the dignity in question is about someones sense of
self-importance or aversion to being ridiculed, often the dignity it
commands lacks the moral force capable of supporting a fundamental constitutional right.59 Therefore, Smith suggested that dignity in
54
David Feldman, Human Dignity as a Legal Value Part I, (1999) Public Law,
682, p 686 [Feldman II].
55
See Smith (n 52 above), p 513. As John Rawls puts it, it is the range properties
attached to the human species that bind every single person under a common dignity.
See John Rawls, A Theory of Justice: Revised Edition (Cambridge: The Belknap Press of
Harvard University Press, 1999), pp 441449 [Rawls].
56
Ibid., Smith, p 516.
57
Ibid., pp 516517; Feldman II (n 54 above), p 687.
58
Ibid.
59
Ibid., Feldman II.
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the objective not subjective sense is more capable of explaining

our commitment to equality.60
The reasonable person test
Of course, in many cases, it is natural for people to feel offended or
even undignified when encountering treatment perceived as unequal.
Nevertheless, what the law is interested in is whether the treatment is
wrong, not how people feel.61 In this respect, Iacobucci Js reasonable
person test in finding discrimination in Law is commendable only if
the court is careful enough not to construct the test in terms of feelings.62 Citing LHeureux-Dub J in Egan, Iacobucci J said that the focus
of the discrimination inquiry is both subjective and objective.63 It is
subjective because the right to equality is an individual right specific to
each claimants circumstances. It is also objective because the question
whether the claimants equality rights have been infringed must be
considered in light of the larger context including societys past and
present treatment of the claimant and of other persons or groups with
similar circumstances according to the perspective of a reasonable person. While this approach requires more than a mere assertion of dignity violation and stresses the importance of context, its subjective
aspect has potential to lead the court to a psychological inquiry. For
example, although Iacobucci J said that the claimants assertion must
be supported by an objective assessment, he stressed that the inquiry
into whether legislation demeans the claimants dignity must be undertaken from the perspective of the claimant and from no other perspective.64 LHeureux-Dub Js opinion in Egan also suggests that it is easy
for the court to err on the subjective side, as the judge spelt out the core
elements of discrimination as: A person or group of persons has been
discriminated against within the meaning of s. 15 of the Charter when
members of that group have been made to feel, by virtue of the
impugned legislative distinction, that they are less capable, or less worthy of recognition or value as human beings or as members of Canadian
society, equally deserving of concern, respect, and consideration.65
60
61
62
63
64
65
See Smith (n 52 above), pp 517518.

Ibid., p 519.
See Law (n 31 above), pp 533534.
Ibid., p 533.
See Egan (n 22 above), p 545.
human dignity
179
In any event, it is doubtful whether the subjective-objective approach

comprising both empathy and neutrality can actually work when it
requires the point of view of someone who is a reasonable person,
dispassionate and fully apprised of the circumstances, possessed of
similar attributes to, and under similar circumstances as, the claimant.66 One may ask: Is it always possible for someone who is on the
same boat as an aggrieved plaintiff to put away bias and form a dispassionate opinion? A persons judgment is inevitably influenced in
whatever degree by personal history and situation. Hence, it is uncertain how the reasonable person can avoid focusing on his personal
feelings in forming an objective assessment under the test.
Most importantly, as far as the right to equality is concerned, the
focus is always whether someone has been discriminated against. It is
about whether the law has treated an individual or a group in a manner
that denies people the equal consideration that a commitment to
equality requires.67 To start a discrimination inquiry by asking how the
complainant feels is far off the mark, as it is like examining the sense of
loss of the victims family to find out whether a murder has taken place.68
Besides, making injured feelings or dignity impairment as the sign of
inequality can be either over-inclusive or under-inclusive. It is because
a breach of equality does not always entail a loss of dignity. A person
may be upset by an unequal treatment but not feel in any way undignified. Sometimes, a sense of being discriminated against may be the
unfortunate result of false consciousness while in some cases discrimination can occur in a subtle way without leaving any psychological
effects on the victim.69 Therefore, Smith concluded that the protection
of a persons own sense of dignity is not what equality is about.
A divided court: many tales of dignity
M v H: impairing vs enhancing dignity
Despite all the difficulties that come with finding inequality in indignity, the Canadian Supreme Court continued this psychological
inquiry in subsequent cases of alleged discrimination. Since Law, the
66
67
68
69

See Smith (n 52 above), p 519.
Ibid.
Ibid.
180
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vagueness of dignity seems to have become vaguer as judges started to

disagree among themselves on whether the law impaired peoples dignity.70 In M v H,71 the application of the same dignity test brought two
contrasting conclusions. This case arose as a lesbian relationship turned
sour, resulting in one party seeking spousal benefits under the Family
Law Act only to find her application rejected. Whether excluding samesex partners from the definition of spouse was unconstitutional
became the first question of the equality examination. The majority
opinion routinely revolved around the center-piece of human dignity
alongside Laws four contextual indicators. Taking into account the
pre-existing disadvantages of gays and lesbians, the impugned legislations failure in attending to their needs in this particular circumstance,
its lack of ameliorative effects, and the fundamental nature of the interest affected, the majority found that the law which excluded same-sex
couples from spousal support treated them as less worthy of recognition and protection and was a violation of dignity.72
The sole dissenting judge, Gonthier J affirmed human dignity as the
lifeblood of the equality guarantee,73 but came to a different conclusion: denying spousal benefits to same-sex couples reflected a reasonable distinction which in no way affected their dignity. In terms of the
equality analysis he did not depart from his learned friends. He followed through Laws contextual inquiries and went to great length to
examine the existence of stereotypes and pre-existing disadvantages.
His dignity-oriented analysis convinced him that there was no discrimination. According to Gonthier J, the different social roles samesex partners play and the absence of the burdens and inequalities
accompanying a heterosexual marriage made the charge of dignity violation out of the question. He believed the law has a legitimate aim to
redress the dynamic of dependence historically attached to heterosexual relationships absent among same-sex couples.74 Not only did he
think recognizing such difference is not a denial of human dignity, he
turned it around saying, acknowledging individual personal traits is a
means of fostering human dignity.75 Therefore, a reasonable person in
70
71
72
73
74
75
See Hogg I (n 17 above), p 56.

M v H [1999] 2 SCR 3.
Ibid., pp 5458, per Cory & Iacobucci JJ.
Ibid., p 147, per Gonthier J.
Ibid., p 135.
Ibid., p 148.
human dignity
181
the position of the claimant, having taken into account all of the contextual factors relevant to the claim, would not find their human dignity violated by a provision which appropriately takes into account
their actual needs, capacity, and circumstances as compared to those of
opposite-sex couples subject to the legislation.76
While judges are generally expected to dissent on points of legal
arguments, the disagreement on whether a dignity violation occurred
may not simply be a matter of different judicial approaches or a result
of conservatism versus liberalism. In M v H, it is not sure which sense
of human dignity each of the majority and minority had in mind. One
may argue that each was contemplating its own version of dignity for
two disadvantaged groups: same-sex couples and women in heterosexual relationships. That was probably why when the majority
found that the Family Law Act showed no ameliorative purpose to
ease same-sex couples plight, Gonthier J on the other hand believed it
served ameliorative effects for the dignity of women in heterosexual
relationships a group he deemed more disadvantaged than the former.
With dignity being a malleable idea and open to interpretations based
on an individuals sense of self-worth, it seems hard to say for sure
whether it is the majority or the dissent that got it wrong in M v H. It is
because each side had its own explanation of dignity to justify its conclusion and both versions seem to be plausible. If we pay attention to
the adverse impacts inflicting the lesbian claimant due to the nonrecognition of her spousal status, we may think that her dignity is at
stake. On the other hand, if we focus on how the law was aimed at
addressing the inequalities prevalent within many heterosexual marriages which are generally absent in homosexual relationships, we may
conclude that her dignity is not compromised. The abstract nature of
dignity allows for the above different articulations. As Donna Greschner
argued, asking whether a law violates dignity offers little guidance to
lawyers and judges; and conclusions about dignity become masks for
the exercise of judicial discretion.77 So, at the end, perhaps it is discretion rather than reasonableness or an objective test that decides
whether someone is being discriminated against. In any event, how can
we argue against someones personal feelings?78
76
Ibid., p 155.
Donna Greschner, Does Law Advance the Cause of Equality?, (2001) 27 Queens
Law Journal 299, p 313 [Greschner].
78
Ibid.
77
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Lavoie v Canada: the court split four ways

The extent of disagreement among the judges in Lavoie v Canada79 is
illustrative of the level of such a judicial discretion. In this case, the
court split four ways in ascertaining whether dignity was violated and
saw the challenged law upheld by a narrow margin. The scenario was
reminiscent to that of Andrews.80 The foreign national appellants alleged
that a federal law which favored Canadian citizens in the public service
employments applicant-screening process infringed their equality
rights. McLachlin CJ and LHeureux-Dub J found the law discriminatory and could not be justified under s 1 of the Canadian Charter. They
believed this case was indistinguishable from Andrews, for a law which
bars an entire class of persons from certain forms of employment, solely
on the grounds of a lack of citizenship status and without consideration
of the qualifications or merits of individuals in the group, violates
human dignity.81 This discrimination could not be justified in a free
and democratic society because there was not enough rational connection between the government objectives and the discriminatory act.82
The majority, with Gonthier, Iacobucci, Major and Bastarache JJ,
found that the law infringed equality but was justified as a reasonable
limit on equality. The three inquiries in Law were in the affirmative.
First, the impugned law distinguished between citizens and noncitizens. Second, citizenship constituted an analogous ground to those
enumerated in s 15(1) of the Canadian Charter. Lastly, the claimants
subjective experience in light of the contextual factors showed there
was discrimination. As such, the majority found there were stereotypes
associated with immigrants about their commitment to their adopted
home. As a group having pre-existing disadvantages they were deprived
of employment opportunity which goes to ones livelihood and selfworth. Altogether, the law without any ameliorative effects paid no
attention to their needs and the claimants were legitimately made to
feel that they were less deserving of concern, respect and consideration that ran afoul of the equality guarantee.83 Nevertheless, the law
was constitutional because it advanced two important objectives: to
79
80
81
82
83
Lavoie v Canada [2002] 1 SCR 769 [Lavoie].

See Andrews (n 5 above).
See Lavoie (n 79 above), p 780, per McLachlin CJ & LHeureux-Dub J.
Ibid., p 783.
Ibid., p 813, per Bastarache J.
human dignity
183
enhance the meaning of citizenship and to encourage naturalization of

permanent residents.84 These objectives are enough to survive the balancing exercise under s 1 of the Canadian Charter.
Arbour J gave the third opinion. She upheld the laws constitutionality and found no dignity violation. She started by pointing out the
absurdity of the majority judgment, which practically acknowledged
that the general objective of encouraging immigrants to acquire citizenship was pressing enough to be legitimately pursued by discriminatory means. As a caveat, the judge warned against trivializing the
equality guarantee by making too easy findings of discrimination from
a subjective perspective, of which the majority seemed to have taken.85
The worrying result will be a test devoid of substance which in turn
triggers the s 1 justificatory mechanism so often as to make the court
defer to governmental policies.86 While dignity remained the heart of
equality, the context of the case could not prove its impairment. First, it
was doubtful whether the claimants as citizens of two other countries,
having entitlements to the accrued benefits those citizenships offered,
suffered any pre-existing disadvantages, stereotypes and vulnerabilities.87 Secondly, citizenship is relevant to the public distribution of benefits to an extent that it is unavoidable and appropriate to be used as a
criterion which corresponds to the needs of individuals. Finally, the
nature of the interest affected was, in contrary to the majority findings,
not sufficiently vital as was in Andrews.88 Arbour Js opinion was shared
by LeBel J, who held there was no infringement of equality.
The fundamental disagreements in Lavoie not only revealed the difficulties in getting a handle on the concept of dignity, but also the
ensuing disruption to the relationship between the equality guarantee
and the proportionality test. When human dignity is to pull the strings
of the entire discrimination assessment, the balancing test under s 1 of
the Canadian Charter is stripped of much importance. Different understandings of how dignity is violated lead to dramatically different
results. In light of the insightful opinions from judges of all sides, the
court remained divided on the correct approach to equality. This disagreement continued.
84
85
86
87
88
Ibid., pp 816818.
Ibid., p 834, per Arbour J.
Ibid.
Ibid., p 844.
Ibid., p 852.
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Gosselin v Quebec: who is more disadvantaged?

If the ground of citizenship was not controversial enough, age could
probably qualify.89 In Gosselin v Quebec, the court demonstrated how
conflicting the opinions can be as to whether youth is an advantage
or disadvantage in respect of ones dignity. A young welfare recipient
was complaining about the unemployment benefits regime which
required people under thirty to take part in training programs lest their
entitlement be reduced to one-third of the base amount payable to
those thirty and over. Again the court was split five to four. This time
the division was rather neat, where the majority upheld the law and the
minority denounced it with opposing views. The contrasting tales of
dignity were telling as the majority represented by McLachlin CJ and
the dissenting judge Bastarache J applied the same Law criteria only to
vigorously disagree on the result.
Before assessing the discriminatory effects of the law, McLachlin CJ
considered the legislative purposes a task that belongs to the proportionality inquiry. In her opinion, a law which was designed to promote
long-term autonomy and self-sufficiency would unlikely violate dignity.90 She applied a contextual analysis taking into account the legislative intent and concluded that there was no denial of dignity. She
analyzed the four contextual factors as follows. First, age as a common ground for making social distinctions, does not trigger an automatic alarm of discrimination. In particular, young people as a group
suffer no pre-existing disadvantage as opposed to older people who are
generally presumed to lack abilities.91 In fact, a law which was premised
on the long-term employability of those below thirty values young people instead of demeaning them. Secondly, the purpose of the distinction corresponded with the actual circumstances of the group at a time
when the economic recession was tough on young job-seekers and
pushed many of them on the dole for an extended period of time. The
law sought to encourage them to get training with the long-term purpose of enhancing their employability and autonomy. Far from denying young peoples dignity, it was an affirmation of their potential.92
McLachlin CJ also opined that older people seemed to encounter more
89
90
91
92
Gosselin v Quebec [2002] 4 SCR 429, pp 551 552 [Gosselin].

Ibid., p 456, per McLachlin CJ.
Ibid., p 468.
Ibid., p 473.
human dignity
185
difficulties finding jobs, implying that the different amounts of welfare

payments reflected their different levels of need.93 Most importantly,
she emphasized that the legislative intent was to promote the sense of
self-sufficiency of young welfare recipients, being central to the values
of self-determination, personal autonomy, self-respect, feelings of selfworth and empowerment.94 Therefore, the interest affected by the differential treatment was intimately and inextricably linked to the
essential human dignity as contemplated by the equality guarantee.95
In a way, the majority opinion appeared to be defending the governments scheme. Not only did the law exert no adverse impact on human
dignity, but it actually enhanced it.
Bastarache Js opinion the most extensively written among dissenters turned this majority view around by disagreeing to nearly all
of its contextual reasoning. Having set the record straight that age is
an enumerated ground and an immutable characteristic, the judge
engaged the contextual probe bearing in mind that no balancing exercise was required for finding discrimination.96 First, he noted that welfare recipients constituted a group of disadvantaged people, and it was
not any easier for young people to find jobs than those who were over
thirty. The assumption that young beneficiaries suffered less economic
disadvantages was thus a stereotype. Their vulnerable position was
made more precarious by the negative effects of the law which would
potentially harm their dignity.97 Secondly, the law overlooked the specific needs of young welfare recipients when assuming they had their
families to look to. As a result, it forced them to endure a substandard
living on the basis of their age without having regard to their value as
individual human beings.98 Finally, the judge believed that having
enough money to assure ones own survival is an obvious and important interest.99 Under a scheme where there were not enough training
programs to go around, many beneficiaries were made to receive an
income far below a basic survival line just because they were under
thirty. The distinction, solely based on age and nothing else, went
directly against their dignity and full participation as equally valued
93
94
95
96
97
98
99
Ibid., p 481.
Ibid., p 484.
Ibid.
Ibid., p 558.
Ibid., p 564.
Ibid., p 568.
186
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members of society.100 To Bastarache J, the court did not need to weigh

the law against any social interests to conclude that it was discriminatory.101 The impugned legislation could not survive the proportionality
test.
The fundamental judicial disagreements in Gosselin again highlighted the difficulties in placing human dignity at the center of equality jurisprudence. Even apparently substantive concepts like stereotype
and disadvantage, which used to aid judges in finding inequalities,102
proved to be unhelpful in tackling the dignity question. Although all
judges put their faith in Laws objective-subjective test in ascertaining
dignity impairment, their own subjective views inevitably led them to
find the objective circumstances they deemed influential. In fact,
Gosselin can be argued forcefully both ways. When one looks at their
youthful energy, young people are more advantaged than their seniors.
Thus a law which aims at encouraging them to seek work should affirm
rather than demean their dignity. On the other hand, when the focus is
on the distinguishing ground of age and the destitution suffered by jobless young welfare recipients, one may find stereotypes and an impairment of basic dignity. In the end, dignity is not only in the eye of the
beholder,103 it is also in the eye of the court.104
Indeed, the circumstances that are deemed to be infringing dignity
vary capriciously not only from case to case, but also from judge to
judge. It can be illustrated by comparing Andrews and Lavoie. Although
both cases concerned citizenship as the only ground of imposing
employment barriers, the results were different when judges in each
case insisted on the relevant context of their choice. In Andrews, the
court simply focused on the laws impact on the claimant who could
not practice as a barrister because of his non-citizen status. The distinction based on this personal characteristic was held to be a discrimination that violated dignity.105 The majority in Lavoie agreed that it was
100
Ibid., p 570.
Ibid., p 571.
102
See Andrews (n 5 above), per McIntyre J.
103
See McAllister (n 49 above), p 91.
104
This is acknowledged even among its proponents. In defending human dignitys
place in South Africas equality jurisprudence, Susie Cowen is aware of the problem
that a dignity analysis can support conflicting outcomes. See Susie Cowen, Can
Dignity Guide South Africas Equality Jurisprudence?, (2001) 17 South African
Journal on Human Rights 34, p 55 (fn 100)[Cowen].
105
See Andrews (n 5 above).
101
human dignity
187
so, yet the restriction was justified when they reviewed the particular
context of immigration law in which the policy was meant to strengthen
the sense of citizenship among immigrants.106 But if the court turned to
another aspect of the case, it might instead conclude that the law did
not offend dignity at all. It was Arbour Js view, as she looked at the
wider context of the case and found that not only the claimants were
better-off having citizenship benefits granted by other countries, but
also that citizenship was a valid criterion for distributing public
resources.107 However inconsistent these conceptions of dignity may
seem, Andrews and Lavoie are not the exceptions.
Nova Scotia v Walsh: the capriciousness of dignity impairment
The vagueness in assessing a dignity violation makes it difficult to follow through the precedents for developing a coherent doctrine.
Sometimes, the court departs from its previous decisions and starts
anew with a judgment difficult to reconcile in a similar situation. When
we look back on the established authorities and see what happened in
Nova Scotia v Walsh,108 we may feel the capriciousness that has gradually eroded the consistency of judicial reasoning. Following Miron and
M v H in which the majority respectively upheld the rights of unmarried couples to benefit entitlements exclusively for legally married
spouses, the decision in Walsh can be perplexing. In many ways this
case looked pretty much familiar, where the status of a long-time
unmarried couple was at the center of the claim to a right. This time, it
was their entitlement to a property distribution regime available to
legal spouses. What made the discrepancy loom large was the claimants success all the way up to the appellant court, which resulted in a
provincial legislation amendment, only to have it overturned by a
majority of eight in the Supreme Court.
Bastarache J, who had erred on the subjective aspect of dignity in
Lavoie and on the side of the downtrodden Miss Gosselin for her
demeaning treatment, wrote for the majority upholding a law which
excluded common law couples from protection under the matrimonial
property regime. He took the parties intention to commit to a conjugal
relationship as an important marker to distinguish them from those
106
107
108
See Lavoie (n 79 above), pp 816818.

Ibid., pp 844, 852.
Nova Scotia v Walsh [2002] 4 SCR 325 [Walsh].
188
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who have chosen not to marry and thus are spared all the legal rights
and responsibilities that might have otherwise entailed.109 While
unmarried couples might have endured some pre-existing disadvantages, it was the result of their choosing to avoid marriage and its legal
obligations.110 The individuals freedom to make for their own family
arrangements should be respected. By recognizing the mutual consensus people have, in that case exempting unmarried partners from the
regime, the law enhanced rather than diminished respect for their
autonomy.111 Bastarache J distinguished Miron with an intriguing reason: the rights of an unmarried couple as a unit against a third party
insurer were of a different nature than the relationships between themselves.112 In conclusion, he held that the law took into account the actual
needs of unmarried couples, did not operate on any stereotype, and
therefore did not demean their dignity.113
LHeureux-Dub J came to a very different conclusion. She started
with a fundamental question: whether a distinction made on an analogous ground reflects a stereotype and perpetuates the view that the
claimant is less capable or less worthy of recognition.114 According to
the first substantive inquiry in Law, unmarried couples as a group
being excluded by matrimonial law protection endure pre-existing
disadvantages and suffer dignity impairment. Such legislative oversight
neglects the needs of a couple when their long-time relationship ends
and that the law provides no ameliorative effects by excluding a class so
historically disadvantaged.115 As in M v H, the interest of having the
rights to spousal support is fundamental to ones basic financial security when a once-intimate relationship breaks down.116 Taking into
account the above factors, the laws refusal to recognize the partners
contributions to their relationship conveys a message that it is less worthy of respect, recognition and value because they were not married.117 According to LHeureux-Dub J, a dignity violation to such an
extent could not be justified under s 1.
109
110
111
112
113
114
115
116
117

Ibid., p 355.
Ibid., p 359.
Ibid., p 360.
Ibid., p 364.
Ibid., p 374, per LHeureux-Dub J.
Ibid., p 379.
Ibid., p 380.
Ibid., p 411.
human dignity
189
What is left for human dignity?

The Walsh decision might not raise a question had it not been for the
courts generosity to the claimants in previous cases. When an unmarried
couple was held to be entitled to insurance benefits as well as matrimonial spousal support as if they were legally married, extending family
property protection to long-time unmarried partners in similar situations would seem to be a natural development in the course of common
law jurisprudence. Yet, different understandings of what ones dignity
hinges on led to contrasting judgments and fates. Even when judges have
invariably subscribed to a reasonable standard of finding discrimination, their diverse opinions on the point of dignity show it is not simply
a case of reasonable people disagreeing on the application of a test, but
a question of a legal test having very little substance.118 No matter how
hard judges have tried to tread on the tightrope of the objective-subjective
test, the fluid concept of human dignity makes it a trying endeavor.
As a result, it is judicial discretion rather than objective evaluation over
dignity that blows the wind of judgment one way or the other.119
Was dignity really not in peril in the eyes of all those claimants?
A recently bereaved Mrs. Law was asking for a share of pension contributions her late husband had made. A unanimous court told her she
was too young and able to live on her own. Ms. Walshs relationship
ended after ten years. The law made no provision for her or her dependent children for a share of the family property to which she had contributed because she was not married. The financial hardship and emotional
turbulence that struck could have justified her feeling of indignity. Yet
eight of nine judges did not agree that her dignity was harmed. Miss
Gosselin was unemployed and cash-strapped. When others were unconditionally given the full subsistence-level welfare payment hers was cut
by two-thirds because she was below thirty. Hence she was forced to
survive on a fraction of the meager sum while waiting for training
opportunities to come by. Five judges believed the law was good for her
autonomy. In each of these cases, the court rejected a discrimination
claim founded on an enumerated or analogous ground solely because
the claimant suffered no dignity impairment. For all the agonies those
people had endured to seek justice, the judicial rhetoric about human
118
119

See Greschner (n 77 above), p 313.
190
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dignity made them look like a group of fools moaning about their unjustified self-pity. Hogg thought it would have been more compassionate
and dignified for the court to explain that a disadvantage imposed on
the alleged ground was indeed discrimination, but it must uphold the
law because it served a rational purpose with proportionate means. In
this way, at least, the defeated claimants would not have walked away,
having been told that their feeling of indignity was just not right.120
It also becomes clearer as to why dignity is burdensome to equality
claimants. As Hogg argued, making dignity impairment the prerequisite of discrimination under s 15 of the Canadian Charter substantially shifts the burden of proof to the complainants detriment.121 In
Andrews, where the Canadian Supreme Court set down the equality
test for the first time, it was prima facie discrimination as soon as a
distinction based on an enumerated or analogous ground under s 15(1)
could be established. The onus was then on the state to prove the challenged law to be demonstrably justified in a free and democratic society under s 1. The Law approach altered this clear-cut judicial process.
Now, the onus is on the claimant to prove a dignity violation in order
to establish an infringement of equality rights. To play down the significance of this new burden, the court in Law assured that claimants
are not always required to adduce evidence of dignity violation because
it would be evident on the basis of judicial notice and logical reasoning that the distinction is discriminatory within the meaning of the
provision.122 After all that we have seen in those post-Law decisions,
however, it is doubtful whether judicial notice and logical reasoning alone are helpful at all, where judges do come to completely different results based on their varying understandings of dignity. All in all,
dignity is very much in the eye of the beholder; as the Canadian equality jurisprudence now stands, so, is discrimination.123
Jurisprudential transplant: dignity and equality in South Africa
That perhaps is the jurisprudential Legoland which Davis was referring to, as he criticized transplanting the Canadian doctrine unreservedly onto the South African soil. To him, applying the amorphous idea
120
121
122
123
See Hogg I (n 17 above), p 61; Raume (n 7 above), p 684.

Ibid., Hogg I, p 57.
human dignity
191
of dignity in this way is analogous to playing with the versatile Lego

pieces. But equality is too central a concept to be replaced by dignity
which can be used in whatever form and shape is [sic = as?. are?]
required by the demands of the judicial designer.124 Similar critical
views have been advanced by others following the trio of the
Constitutional Courts decisions on equality that will be discussed
below.125 Anton Fagan argues that dignity in no way lies at the heart of
unfair discrimination and must be seen as a mere rhetoric.126 To Cathi
Albertyn and Beth Goldblatt, moving dignity to the center of equality
shifts the emphasis away from transformative equality jurisprudence
which aims at reconstructing the state and society to one based on
liberal individualism.127 Its defenders, on the other hand, believe dignity does a marvelous job in fulfilling the goals of equality despite its
present inadequacies.128 Being two of the entrenched constitutional
rights and values South Africans hold dear to heart,129 the tie between
human dignity and equality is likely to stay as much as the debate.
Unlike the Canadian scene, the critiques of human dignity come from
a rather different perspective in South Africa. It is not so much about
the subjectivity and indeterminacies of the concept but whether it
should be associated at all with the distinct issue of equality and discrimination. In any event, the concerns over equality and dignity and
their intertwined relationships can be said to be peculiar to the historical context and constitutional architecture of post-apartheid South
Africa.130
124
See Davis (n 27 above), p 413.

Prinsloo v Van der Linde & Another [1997] (6) BCLR 759 (CC) [Prinsloo];
President of the Republic of South Africa & Another v Hugo [1997] (6) BCLR 708 (CC)
[Hugo]; Harksen v Lane NO & Others [1997] (11) BCLR 1489 (CC)[Harksen].
126
Anton Fagan, Dignity and Unfair Discrimination: A Value Misplaced and a
Right Misunderstood, (1998) 14 South African Journal on Human Rights 220, pp 227
228 [Fagan].
127
Cathi Albertyn & Beth Goldblatt, Facing the Challenge of Transformation:
Difficulties in the Development of an Indigenous Jurisprudence of Equality, (1998) 14
South African Journal on Human Rights 248, p 272 [Albertyn & Goldblatt].
128
See Cowen (n 104 above); Laurie W H Ackermann, Equality and NonDiscrimination: Some Analytical Thoughts, (2006) 22 South African Journal on Human
Rights 597 [Ackermann I].
129
The Constitution of the Republic of South Africa enshrines human dignity,
equality and freedom as the nations fundamental values under s 7 (1). Sections 9 and
10 respectively protect the rights to equality and dignity.
130
Arthur Chaskalson, The Third Bram Fischer Lecture: Human Dignity as a
Foundational Value of our Constitutional Order, (2000) 16 South African Journal on
Human Rights 193, p 204.
125
192
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The fact that dignity is such an important idea does not mean everyone grasps what it means, however.131 Even its defenders agree that
the Constitutional Court of South Africa has shied away from articulating a definition of dignity.132 ORegan Js statements in the early case
of S v Makwanyane & Another,133 in which the court pondered the
constitutionality of capital punishment, could be seen as a starting
point:
The importance of dignity as a founding value of the new Constitution
cannot be overemphasised. Recognising a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern.134
In Prinsloo v Van der Linde & Another, the court invoked dignity to
give content to unfair discrimination. But it barely scratched the surface when it described discrimination as treating persons differently
in a way which impairs their fundamental dignity as human beings,
who are inherently equal in dignity.135 Later in National Coalition for
Gay and Lesbian Equality & Another v Minister of Justice & Others (the
NCGLE case),136 a case about criminalization of sodomy between consenting adults, Ackermann J acknowledged the difficulty to capture
dignity in precise terms.137 Apart from adopting ORegan Js general
definition of the value and worth of all individuals, Ackermann J
stated that the impugned law affected a gay mans ability to achieve
self-identification and self-fulfillment.138 This seemed to have given
some substance to the concept of dignity but the focus on self only
reinforced its inherently individualistic character.139
131
Iain Currie & Johan de Waal, The Bill of Rights Handbook, 5th Edn (South Africa:
Juta & Co Ltd, 2006), p 273.
132
See Cowen (n 104 above), p 42.
133
S v Makwanyane & Another [1995] (6) BCLR 665 (CC).
134
Ibid., p 777.
135
See Prinsloo (n 125 above), p 773.
136
137
Ibid., p 1536, per Ackermann J.
138
Ibid., p 1539.
139
See Davis (n 27 above), p 412; Albertyn & Goldblatt (n 127 above), p 272; Emily
Grabham, Law v Canada: New Directions for Equality under the Canadian Charter?,
(2002) 22 Oxford Journal of Legal Studies 641, p 654 [Grabham]; Sheilah Martin,
Balancing Individual Rights to Equality and Social Goals, (2001) 80 Canadian Bar
Review 299, pp 329230 [Martin].
human dignity
193
President of the Republic of South Africa & Another v Hugo: where

it all begins
In 1996, the Constitutional Court of South Africa made its first decision on equality under the new constitutional regime after the end of
apartheid.140 In Brink v Kitshoff NO, the question was whether an insurance law violated s 8 of the Constitution, in so far as it discriminated
against married women by depriving them, in certain circumstances,
of the benefits of life insurance policies accorded to them by their husbands. In particular, s 8(1) of the Constitution provides that: Every
person shall have the right to equality before the law and to equal protection of the law.141 In approaching the question, ORegan J began by
highlighting the countrys historical scars. Under the new democratic
government, the equality clause was aimed at addressing past ills; and
the fact that discrimination against people who are members of disfavoured groups can lead to patterns of group disadvantage and harm.
Such discrimination is unfair: it builds and entrenches inequality
amongst different groups in our society.142 The emphasis on groupbased disadvantage and systemic discrimination, according to
Albertyn and Goldblatt, represented the right direction for developing
a substantive approach of equality in the transformative era of South
Africa.143
All was changed, they argued, when the court in President of the
Republic of South Africa & Another v Hugo144 shifted to human dignity in considering the right to equality. Hence, critics of equality
jurisprudence in South Africa tend to point their finger at the decision
in Hugo for first placing dignity where it does not belong.145 That part
of jurisprudential history is perhaps reminiscent of its Canadian parallels since Andrews, where the Constitutional Court of South Africa
embarked on a substantive equality approach in a debut case, i.e. Brink,
only to later move away from it. Under the apparent influence of its
Canadian counterparts decisions in Egan and Miron, the court said,
140
Brink v Kitshoff NO [1996] (6) BCLR 752 (CC) [Brink].

Section 8, Constitution of the Republic of South Africa Act, 200 of 1993.
142
See Brink (n 140 above), p 769, per Regan J.
143
See Albertyn & Goldblatt (n 127 above), p 257.
144
See Hugo (n 125 above).
145
See Fagan (n 126 above), p 220; Albertyn & Goldblatt (n 127 above), p 257; Davis
(n 27 above), p 404.
141
194
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The prohibition on unfair discrimination in the interim Constitution
seeks not only to avoid discrimination against people who are members
of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of
our new constitutional and democratic order is the establishment of a
society in which all human beings will be accorded equal dignity and
respect regardless of their membership of particular groups.146
This watering down of the significance of group disadvantage arguably turned the clock back to an individualized conception of rights
which critical theorists had taken great pain to avoid. In particular,
critical feminist scholars challenge the ideas of individualism and neutrality that underlie liberalism.147 They argue that these abstract liberal
notions mask an existing social structure that perpetuates inequalities
among groups like women and racial minorities. Therefore, only when
attention is turned back on peoples difference and disadvantage can
the interdependence between individuals and groups as well as the
intersectional nature of inequalities be identified.148 What happened in
Hugo illustrates this concern. The President exercised his constitutional
discretion to pardon female prisoners of less serious offences who had
children under the age of twelve. A male inmate with a child below
twelve claimed the act was discriminatory against men.
By putting the spotlight on human dignity, the court seemed to have
lost sight of a group who was the most disadvantaged in question:
male prisoners with young dependent children. Instead, the majority
focused on the plight of another disadvantaged group in society:
women. The court looked at how women had been historically burdened by child-rearing responsibilities without adequate support from
their husbands.149 Although the court noted the different treatments to
female and male inmates, it did not believe that the latter were seriously disadvantaged. In any event, the policy merely deprived them of
an early release to which they had no legal entitlement.150 While male
prisoners were denied an opportunity available to women, the presidential act did not fundamentally impair their rights of dignity or
146
See Hugo (n 125 above), pp 728729.

Sandra Fredman, Discrimination in Peter Cane & Mark Tushnet (eds), The
Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003) 202225;
Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University
Press, 1990).
148
149
See Hugo (n 125 above), pp 727728.
150
Ibid., p 732.
147
human dignity
195
sense of equal worth.151 However, the court did not explain what
amounted to dignity impairment when it used this idea to justify its
decision that no discrimination occurred. According to Albertyn and
Goldblatt, this reasoning was flawed because the court failed to locate
the complainant in his particular context and realize the overlapping
disadvantages he faced as a single-father and a prisoner.152
Harksen v Lane NO & Others: a jurisprudential Legoland?
While the court in Hugo had not explained what dignity means,
judges in Harksen v Lane NO & Others were divided over the meaning
of dignity for the parties involved.153 Here, an insolvency law subjected
the solvent spouse of an insolvent deceased to creditors interrogations
for the purpose of releasing the surviving spouses properties. The
complainants said the law discriminated against solvent spouses on
grounds of marital status. Dignity finally got a bit of elaboration as the
court disagreed over what constituted an unfair discrimination.
According to the majority, the relevant contexts, including the complainants social status, the nature of the provision, and the effect on
the solvent spouses were important factors in deciding whether dignity was impaired. Without really looking into each of them though, it
concluded that the law might have brought inconvenience but it was
incidental to all litigation proceedings and did not lead to an impairment of fundamental dignity or constitute an impairment of a comparably serious nature.154 This raised questions. Most importantly, the
inequality issue was completely thrown out of sight as the court
focused narrowly on how the burden imposed affected the claimants
dignity. The contextual approach so vigorously formulated was rendered redundant. Moreover, speaking of fundamental dignity as well
as something of a comparably serious nature begged the question as
to whether there is a distinction between fundamental and non-fundamental dignity and what amounts to being comparably serious.155
151
Ibid.
153
See Harksen (n 125 above).
154
Ibid., p 1516.
155
See also Martin (n 139 above), p 329. Ackermann J, in retrospect, acknowledged
that the use of the qualifying term comparably serious might have been obfuscatory.
See Ackermann I (n 128 above), p 599.
152
196
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Perhaps ORegan J was closer to the discrimination issue by following through the majoritys contextual approach and giving a more reasoned judgment without resorting to dignity. As a starting point,
ORegan J found it compelling to point out the historical patterns of
discrimination in the context of marital status in South Africa.156 In
light of this, the effect of the insolvency law on spouses of the deceased
insolvents was substantial. Their interests were so adversely affected
that the impairment amounted to unfair discrimination.157
The third opinion, delivered by Sachs J, gave a sharp twist. Instead of
marital status, his historical perspective derived from the patriarchal
nature of marriage and the assumption of union in everything
between the spouses. The insolvency law, based on this assumption,
reinforces a stereotypical view of the marriage relationship that is
demeaning to both spouses.158 By singling out a group based on marital
relationship, the law inhibited the spouses capacity for self-realization
and affected the quality of their relationship with each other as independent persons. Hence Sachs J concluded, If this is not a direct invasion of fundamental dignity it is clearly of comparable impact and
seriousness.159 His view and that of the fellow judges over what constitutes an impairment of dignity, again, suggest how dignity is in the eye
of the beholder. As Davis argues, it requires some elasticity in the concept of dignity to sustain a conclusion that it is actually the dignity of
the solvent spouse that has been affected, rather than his or her own
pocket.160
Albertyn and Goldblatt have another interesting observation. Of the
nine judges, a minority comprising women judges and two of the three
black judges found there was dignity impairment.161 The previous commercial experiences of some judges might have also prompted concerns
over the difficulties facing the creditors instead of the solvent spouses.
Considering the multiple facets of the concept, it is not surprising to
see judges arriving at their own view of dignity according to their personal experience and sense of fairness.162 The above Canadian and
South African decisions already illustrated that it is judicial discretion
156
157
158
159
160
161
162
See Harksen (n 125 above), p 1525, per ORegan J.

Ibid., p 1527.
Ibid., p 1533, per Sachs J.
Ibid., p 1535.
See Albertyn and Goldblatt (n 127 above), p 262.
Ibid.; see also Huscroft I (n 35 above), p 711.
human dignity
197
rather than legal analysis that determines whether a persons equality

right is infringed.163 An equality jurisprudence that depends upon the
abstract notion of dignity seems to make it an inevitable result. Hence,
Davis calls for a deconstruction of dignity to make some sense out of
the jurisprudential Legoland.164
Is dignity still worth defending?
Ackermann, now Emeritus Justice of the Constitutional Court of South
Africa who has presided over all the above cases, believes the dignity
critiques merely reflect the confusion and uncertainty among many
lawyers regarding the concepts of equality and non-discrimination.165
He argues, in relation to an individuals right not to be unfairly discriminated against, an appropriate use of dignity is vital and inescapable.166 In so arguing, Ackermann relies on Kants ethical theory, in
particular, that human beings should treat one another as an end and
never as a means. To Kant, while price is a measure of ones relative
value and can be replaced by anything equivalent, dignity is an irreplaceable intrinsic worth above all price.167 Ackermann points out that
this dignity is what Louis Henkin described as being inherent in
the human personhood of every human being.168 According to
Ackermann, the moral imperatives arising from this understanding of
dignity inspired Rawls equality theory169 and Dworkins treating everyone as equals.170 In political terms, it necessitates treating every person as a moral subject with absolute and inherent worth and as morally
163
See Greschner (n 77 above).

165
166
Lourens W H Ackermann, The Legal Nature of the South African Constitutional
Revolution, (2004) New Zealand Law Review 633, p 665 [Ackermann II].
167
Immanuel Kant, Foundations of the Metaphysics of Morals with Critical Essays,
trans. Lewis White Beck, ed. Robert Paul Wolff (Indianapolis: Bobbs-Merrill
Educational Publishing, 1969), pp 5861.
168
Louis Henkin, Human Dignity and Constitutional Rights in Michael J. Meyer
& William A. Parent (eds), The Constitution of Rights: Human Dignity and American
Values (Ithaca: Cornell University Press, 1992), 210228, p 210.
169
See Rawls (n 55 above), pp 153160.
170
1985), p 190 [Dworkin I]. On the basis of Rawls theory, Dworkin believes the entitlement of everyone to equal respect is owed to human beings as moral persons, and
follows from the moral personality that distinguishes humans from animals. See
Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), p 181.
164
198
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equal.171 Believing that Kants idea is rationally most compelling,172

Ackermann has full faith in the superiority which dignity commands
in the reformist Constitution of South Africa and its place in the equality and substantive jurisprudence.173
Ackermann takes dignity to mean human worth or inherent
human worth in the context of the Constitution.174 In particular, it is
the capacity for and the right to respect as a human being, and arises
from all those aspects of the human personality that flow from human
intellectual and moral capacity that allows people to fulfill their life.175
With this understanding of dignity, Ackermann addresses the critiques
of equality especially that from Westen. In Chapter 2, we saw that
Westen famously contended that equality in the form of treating like
alike means nothing and is tautological.176 To Ackermann, Westens
arguments lack an important analytical step in considering both the
philosophical and legal meaning of equality.177 He points out that
Westens observation that being alike means being alike in every
respect and that no two persons are exactly alike in every respect
except for morally irrelevant symbols like geometric figures is logically
unassailable, only if his undisclosed and unsubstantiated major
premise is granted, namely that the only characteristics of humans
which are relevant to a comparative equality enquiry are their biological ones.178 Westens logic will fail if one accepts that a fundamental
characteristic of all human beings is their dignity, that they are endowed
with equal dignity, and that dignity is the only relevant comparator.179
Therefore, the weakness of Westens arguments lies in the fact that he
did not deal with an alternative argument where alike referred alike
with respect to their innate human dignity and that like treatment
referred to like treatment with respect to such innate dignity .180
The above explanation helps illuminate Ackermanns dissatisfaction
with the dignity critics, particularly in relation to allegations that the
171
172
173
174
175
176
177
178
179
180
See Ackermann II (n 166 above), p 650.

Ibid.
Ibid., p 648.
Ibid., p 602.
Peter Westen, The Empty Idea of Equality, (1982) 95 Harvard Law Review 537.
Ibid.
Ibid.
Ibid., p 603.
human dignity
199
Constitutional Court of South Africa has conflated dignity with equality and has used dignity to conceptualize and interpret equality. To
Ackermann, dignity is not being put in the wrong place. Instead, its
role in explaining equality is essential. It is because equality cannot
exist on its own. In this connection, Ackermann believes Susie Cowen
has got it (substantially) right181 in posing a famous question in this
context: To value equality without saying more does not explain what
outcome it is that we value. In Amartya Sens language, it does not
answer the question, equality of what? 182 It follows that substantive
equality as an approach to tackle systemic discriminations is insufficient
when it comes to explaining what is to be rescued or achieved. In the
NCGLE case, the Constitutional Court of South Africa announced that
the Constitution actually ponders remedial or restitutionary equality.183 It is the dignity of people that the court seeks to rescue.184
Therefore, the root of confusions among lawyers, according to
Ackermann, is the lack of appreciation of the nuances that come with
the word equality. To be meaningful, equality and its variants need to
be treated as attributive and not predicative.185 To understand what
equality means, one should refer to something so that the appropriateness of the attributive term (equal or equality) can be judged.186 To
Ackermann, that something is dignity. For example, talking of good
or bad per se is meaningless unless it refers to a specific object. In the
same way, something must be added to the term equality to make it
meaningful. Here, the attribute to make of the concept equality is
human dignity which means human worth. To say that people are
equal before the law and that they enjoy the equal protection of the
law means that the law must protect all people equally with respect
to their human dignity.187 In this regard equality and dignity are
inseparable. By understanding equality in this attributive sense, the
question with respect to what are humans equal should come close
to being with respect to their human worth.188 Hence, Ackermann
submits that the attribute in respect of which all humans are equal,
181
182
183
184
185
186
187
188
Ibid., p 608.
See the NCGLE case (n 136 above), pp 15461547, per Ackermann J.
See Cowen (n 104 above).
Ibid., pp 597598.
Ibid., p 609.
Ibid., p 610.
200
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must be treated equally and may not be discriminated against, is

their common and immeasurable human worth (dignity).189 While
acknowledging that this assertion needs full exploration and elaboration, as does the meaning and import of the concept of human worth
in light of contemporary politics, Ackermann challenges those who
disparage using dignity to understand equality to come up with an
alternative.190
Dignity: promises and limitations
The task of deconstructing dignity remains unfinished. Its relationship
with equality granted, the term dignity is still suspiciously shrouded
under layers of multi-faceted meanings completed with an individualistic cover. Nevertheless, Cowen believes the notion of human dignity still
holds great promise. First of all, dignity is not an inward and individualistic idea as the critics would like to make people believe.191 It is
groundless to suggest that the dignity-based approach draws attention
away from a substantive towards a formal analysis of equality. In this
respect, Cowen considers the wider context of international human
rights law in which dignity is a central idea. For example, some fundamental rights covenants proclaim that dignity is a value from which
other rights derive.192 Besides, dignity as a foundational value also features in many other international treaties in specific aspects of human
rights, such as the prohibition of capital punishment, human trafficking,
and indigenous peoples right to self-determination.193 This shows that
the concept is capable of safeguarding both individual and collective
189
Ibid., p 611.
Ibid., pp 611612.
191
See Cowen (n 104 above), pp 4849.
192
See the Preambles to the International Covenant on Civil and Political Rights
(ICCPR) (19 December 1966, 999 UNTS 171) and the International Covenant on
Economic, Social, and Cultural Rights (ICESCR) (adopted by General Assembly resolution 2200A (XXI) of 16 December 1966) that recognize that the equal and inalienable
rights of all human beings derive from the inherent dignity of the human person.
193
See the Second Optional Protocol to the International Covenant on Civil and
Political Rights on the Abolition of the Death Penalty (adopted by the UN General
Assembly resolution 44/128 of 15 December 1989); the Convention for the Suppression
of the Traffic in Persons and of the Exploitation of the Prostitution of Others (approved
by the UN General Assembly Resolution 317(IV) of 2 December 1949); the Declaration
on the Granting of Independence to the Colonial Countries and Peoples (adopted by
the UN General Assembly Resolution 1514 (XV) of 14 December 1960).
190
human dignity
201
interests. What is more, human dignity is arguably a value versatile

enough to confer rights on almost all aspects of human activities. The
ideal of free human beings each endowed with inherent dignity, as the
Preambles to both the ICCPR and the ICESCR envisage, can be materialized only when everyone enjoys economic, social and cultural rights
as well as civil and political rights.
Cowen submits that dignity focuses not only on individual but also
on collective concerns.194 Human beings are social creatures. The way
in which they interact with one another as individuals or groups affects
their dignity. Therefore, it makes little sense to speak of the worth of
human beings in isolation.195 In fact, academic critiques of dignity
acknowledge both its individual and collective aspects. According to
Bhikhu Parekh, dignity is not an individual but a collective status. As
human beings do not live alone but are bonded with one another in
numerous ways, it is in vain to speak of an individualistic sense of dignity.196 In a similar vein, Rhoda Howard argues in most societies, dignity is not private, individual or autonomous but public, collective,
and prescribed by social norms.197 It is a highly relational concept
embedded in a particular culture. To claim human dignity is not asserting an inherent human worth but ones political relations with the
society.198
In this connection, Cowen recalls Feldmans analysis of dignity particularly the point that protecting dignity can sometimes limit liberty
and autonomy.199 Because dignity can be understood either subjectively
or objectively, invoking the concept may in some cases limit individual
freedom. It was demonstrated by court decisions which banned dwarfthrowing contests to protect the dignity of dwarfs as human beings,
194

Ibid.
196
Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political
Theory, 2nd Edn (Hampshire: Palgrave MacMillan, 2006), p 131.
197
Rhoda Howard, Dignity, Community, and Human Rights in Abdullahi Ahmed
An-Naim (ed), Human Rights in Cross-Cultural Perspectives: A Quest for Consensus
(Philadelphia: University of Pennsylvania Press, 1992) 81102, p 84.
198
There are others who defend the individual aspect of human dignity, and caution that defining it in terms of a collective need or interest denies an individuals capacity to choose and the autonomy to act an important part of human rights. See
Oscar Schachter, Human Dignity as a Normative Concept, (1983) 77 American
Journal of International Law 848, p 850; Basak Cali, Balancing Human Rights?
Methodological Problems with Weights, Scales and Proportions, (2007) 29 Human
Rights Quarterly 251, p 260.
199
See Feldman II (n 54 above), pp 684685.
195
202
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albeit at the same time it forbade them from earning a livelihood of

their own which might enhance their dignity.200 The fact that dignity
can be argued both ways made Feldman conclude that it should not be
viewed as a legal right.201 While Cowen does not dispute Feldmans thesis, she cautions that his arguments need to be seen in their context, in
which some English legal thinking has a historical and philosophical
aversion to acts that compromise personal liberty.202 In the South
African context, Cowen believes that dignity is capable of not only protecting individual and collective autonomy, but also justifying state
intervention that facilitates advancement and transformation of society. This seems to be acknowledged by the court. In the context of
decriminalization of consensual sodomy, the Constitutional Court
opined that individuals are not isolated and socially disconnected holders of rights; they live in their bodies, their communities, their cultures, their places and their times.203 Hence, the correct focus of dignity
should be placed simultaneously on context, impact and the point of
view of the affected persons.204
Defenders of the human dignity discourse also refute a criticism that
the dignity-centered equality jurisprudence has displaced the transformative nature of the right to equality.205 Far from being inwardlooking and individualistic, Cowen argues that focusing on dignity
allows people to look back as well as to look forward.206 This is particularly pertinent to a country like South Africa that aims to forge a new
future while healing past wounds. ORegan J also sought to emphasize
dignitys retrospective and prospective visions in a trio of cases challenging the unfavorable immigration rules against the foreign spouses
of South African citizens. In a decision centered on constitutional dignity, ORegan J said, The Constitution asserts dignity to contradict our
past in which human dignity for black South Africans was routinely
and cruelly denied. It asserts it too to inform the future, to invest in our
democracy respect for the intrinsic worth of all human beings.207
200
Ibid., pp 701702.
Ibid., p 682; see also Feldman I (n 52 above), p 76.
202
203
See the NCGLE case (n 136 above), p 1569, per Sachs J.
204
Ibid., p 1572.
205
206
207
Dawood & Another v Minister of Home Affairs & Others; Shalabi & Another v
Minister of Home Affairs & Others; Thomas & Another v Minister of Home Affairs &
Others [2000] (8) BCLR 837 (CC), p 860.
201
human dignity
203
According to Cowen, viewing dignity through the lens of history and

the humanity that was denied people in the past helps us grasp its
meaning more fully.208
In this historical sense, Cowen argues that dignity has a determinable meaning at a general level. For example, in the South African context, while there may be different explanations of the impact of apartheid
on different people, this does not take away from the knowledge that
South Africans have about the ways in which apartheid caused massive
indignity.209 In this sense, dignity has some determinable and universal
content. Yet, the fact that it may justify bolstering or restraining personal autonomy at the same time shows that the concept itself contains
an inherent tension.210 As Cowen acknowledges, to say that dignity as
a concept has a determinate or determinable meaning at these levels is
not the same as saying that the implications of its use as a legal value in
a given context can be predetermined in any objective sense.211 Dignity
in a general sense does not settle differences in peoples views as to
whether the constraint on liberty is excessive or whether more state
intervention is required for achieving equality.212 The concept alone is
not capable of elaborating the vision of a transformed society or the
means through which this goal can be achieved. In this respect, critics
like Davis perhaps make a point when they caution against leaving
individual judges to follow their subjective views and banish the sublime notion of dignity to a jurisprudential wilderness up for grabs.213
To address this critique, Cowen suggests that the court be more
articulate when it invokes dignity impairment to justify a right.214 At
the same time, it should be mindful of its interpretive jurisdiction.
According to Cowen, the courts role in upholding equality in constitutional adjudication needs to be treated with extreme caution.215 In
the NCGLE case, Sachs J cautioned the danger of excessive judicial
intrusion upon social policy-making and stressed the courts affirmative role in protecting fundamental rights.216 It tells of a limited and
208
209
210
211
212
213
214
215
216

Ibid., p 45.
Ibid., p 55.
Ibid., p 45.
Ibid., p 55.
Ibid., p 56.
See the NCGLE case (n 136 above), pp 15711572.
204
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specialized judicial mandate in overseeing the constitutional guarantees. Above all, it is the government that serves as the primary architect of the equality design.217 Where the court holds sway in its own
sphere of influence, it should justify its decisions with sufficient clarity
and reason so that reasonable people having different views about
equality in theory or practice can still put their faith in the constitutional gatekeeper.218
Nurturing a culture of reason in a deliberative society
This is what Davis called the culture of reason, which is crucial to
building up a viable human rights discourse. It requires not only a
conceptually understandable exposition by the Constitutional Court
of the fundamental values of dignity, equality and freedom,219 but also
the establishment of a culture of justification. Because people differ on
what dignity entails, therefore, the focus is not making all citizens
agree with a particular justification for a government policy or to the
weight to be given by the court to a constitutional right. Instead, a culture of reason concerns the inclusivity of debate about the meaning of
those foundational constitutional commitments that lie at the heart of
society.220 Hence, one conception of the constitution can override
another only by reasoned argument. In essence, this culture seeks to
challenge peoples self-enclosing tendency to assume their own moral
perfection and explore the plurality upon which humans capacity for
transformative self-renewal depends.221 In this respect, Davis culture
of reason requires society to set up the potential for democratic deliberation of a kind that demands justification rather than singularity of
content.222
This kind of political engagement signifies the jurisgenerative
politics that Frank Michelman suggests as the way forward for
American constitutionalism.223 The term jurisgenesis, coined by
217

219
Ibid., pp 399400.
220
Ibid., p 399.
221
Ibid., quoting Frank Michelman, Laws Republic, (1988) 97 Yale Law Journal
1493, p 1532 [Michelman].
222
Ibid.
223
Ibid., p 1502.
218
human dignity
205
another American constitutional scholar Robert Cover, means the

creation of legal meaning which always takes place through an
essentially cultural medium.224 According to Cover, [a]lthough the
state is not necessarily the creator of legal meaning, the creative process is collective or social.225 On this basis, Michelman argues for a
political process which embodies citizen participation as an equal in
public affairs in pursuit of a common good and not merely selfinterests.226 People may come to the process with a set of pre-political
self-understandings and social perspectives. But what makes the
political engagement jurisgenerative is first, when such participation results in some shift or adjustment in relevant understandings
on the parts of some (or all) participants;227 and second, when it
allows an individual to exercise his capacity for reflexively critical
reconsideration, which tests his current understandings against that
from beyond his own pre-critical experience, by reaching for the
perspectives of other and different persons.228 The law or policy that
came out from this process gets its validity when participants, rather
than abandoning their commitments, come to hold the same commitments in a new way .229
To fully realize political freedom of all citizens, this criticaltransformative politics must go beyond the precincts of the legislative
process. It is because most of the normatively consequential dialogue
occurs elsewhere other than the legislative chamber: in government
offices, schools, local organizations and workplaces places where citizens conduct their public lives.230 They are the arenas where people
directly engage in potentially transformative and self-revisionary dialogue on a daily basis. This kind of engagement represents the meaning
of citizenship in a broad sense which encompasses not just formal
participation in affairs of state but respected and self-respecting presence distinct and audible voice in public and social life at large.231
It is what Davis wishes to see in the constitutional dialogue about the
224
Robert M. Cover, The Supreme Court 1982 Term Foreword: Nomos and
Narrative, (1983) 97 Harvard Law Review 4, p 1.
225
Ibid.
226
See Michelman (n 221 above), p 1503.
227
Ibid., p 1526.
228
Ibid., p 1528.
229
Ibid., p 1527.
230
Ibid., p 1531.
231
Ibid.
206
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meaning of dignity, equality and freedom. It is what a culture of reason

seeks to promote a spirit of inclusivity in debate about the values that
society holds dear because of the respect that is due to every citizen.
Deliberative democracy in resolving disagreements
on equality and dignity
As reiterated throughout this book, even reasonable people, judges and
academics disagree on what equality, dignity, and their implications
mean. The conflicts of values behind the disagreements, therefore, cannot be easily swept aside as merely the results of hatred or selfishness.
A deliberative perspective, being consistent with the UDHR and the
idea that everyone counts, sees that people often pursue reasonably different goods of life however incommensurable or incompatible.232 It is
why people in moral or political disputes have reasons not to treat the
other as mere adversaries, but should instead regard each citizens
good or interest as intrinsically equal to that of any other.233 To do otherwise is to deny their standing as equal members of the citizenry, and
to treat them as obstacles rather than as fellow participants in a common political enterprise.234
It may take us back to the Dworkinian notion of treating everyone
with equal concern and respect.235 Whether it is just a lofty ideal or an
achievable goal will depend on how the people in disagreement deal
with one another. The suggestion for forming a culture of reason for a
society in moral flux has re-kindled the idea of deliberative democracy. Its tradition being traceable to the direct democracy of Aristotles
time, deliberative democracy espouses the idea that equal citizens
should reason together to reach mutually acceptable decisions amid
moral or political disagreements.236 This theory is said to be built upon
the two moral pillars of democracy intrinsic equality and personal
autonomy, with a core belief that those who are bound by a decision
232
Richard Bellamy, Liberalism and Pluralism: Towards a Politics of Compromise
(London: Routledge, 1999), p 103.
233
Ian OFlynn, Deliberative Democracy and Divided Societies (Edinburgh:
Edinburgh University Press, 2006), p 51 [OFlynn].
234
Ibid.
235
See Dworkin I (n 170 above).
236
Amy Gutmann & Dennis Thompson, Democracy and Disagreement (Cambridge:
The Belknap Press of Harvard University Press, 1996), p 1.
human dignity
207
should have an equal say in its making.237 There is, of course, no guarantee that open deliberation can settle differences and bring happiness
to all. In fact, discussions are likely to reveal the fundamental differences. Yet, in the context of the legalization of same-sex marriage, it
may provide the very starting point for reasonable persons on either
side of the debate to think of each other less as rivals than as equal
participants in public deliberation.
It is never easy for those in deep disagreement to treat the opposing
view as equally worthy. However, according to the ideal of deliberative
democracy, it may be just what equality and equal dignity are about in
the simplest sense. How to turn this vision into practice in the samesex marriage debate demands more thoughts from the concerning
theorists; and ultimately, the determination of the people to whom the
legal reform means to affect and benefit. It will be a long and arduous
process. But if we think human rights are important enough; if we take
our fellow citizens seriously; if we genuinely believe in equality and
equal dignity, perhaps the reflection on how we resolve our differences
together with respect and reciprocity should start in no time. At this
juncture, Cowens concluding words are perceptive:
When we are dealing with a value such as dignity, and its place in the
equality jurisprudence, we should not reject its power because it raises
complex and contested questions or because it has multifaceted meanings that require judicial deconstruction. Rather, we must explore its
meaning and legal power and its ability to point to a way out of the past,
and into a future to which South Africans commonly aspire.238
Dignity in same-sex marriage jurisprudence

At the moment, the courts seem to be grappling with the interpretation
of dignity when using it to justify the finding of inequality. Sometimes,
they need to enlist other ideas to help bolster a right claimed to be
grounded on dignity. This tendency can be seen in both the Canadian
and South African courts under their dignity-centered jurisprudence.
The case law that I have discussed shows how different perceptions to
dignity among judges could produce incoherent decisions on the right
to equality. For example, Law set down a subjective-objective test to see
237
238
See OFlynn (n 233 above), p 48.

208
chapter four
whether the claimants circumstances justify a claim of discrimination.

In both Miron239 and M v H 240, the court decided that the claimants
dignity was impaired having been excluded from spousal benefits available only to married couples. Yet, in the similar scenario of Walsh,241
the same court opined that the dignity of the unmarried claimant was
not hurt because the disadvantage arising from the law was the result
of the claimants choosing to avoid marriage in the first place. It went
on to say that recognizing peoples freedom and mutual agreement
hence excluding them from the property sharing regime designed for
married couples, enhances rather than diminishes the dignity of
unmarried couples. In that case, the notion of liberty was used to
describe the interest of dignity.
I have argued that the lack of core content makes it difficult to define
and apply dignity in a coherent manner. Often, the court needs to use
other equally abstract notions like self-worth to explain dignity. But the
reference to liberty in explaining dignity is reminiscent of OConnor Js
approach in Lawrence v Texas242 which seems to have conflated equality
and liberty. OConner Js opinion was endorsed by a Hong Kong court
in striking down a sodomy legislation.243 In both cases, the judges used
an equality language but expressed an underlying liberty concern: inequality arises because the claimants are not given the same freedom to
choose the kind of sexual act they want to engage in as do other heterosexual couples.244
This line of thinking can be seen in Halpern v Canada245 which held
that denying same-sex couples the right to marriage is discriminatory
because it affects their dignity. In determining the existence of discrimination, the Ontario Court of Appeal said that the test is whether the
differential treatment imposes a burden on the claimant that reflects
a stereotype based on presumed personal or group characteristics.246
239
See Miron (n 13 above).

See M v H (n 71 above).
241
See Walsh (n 108 above).
242
Lawrence v Texas (2003) 539 US 558 [Lawrence].
243
Leung TC William Roy v Secretary for Justice [2005] (HCAL 160/2004)
[Leung(HC)].
244
Ibid., para 140. Hartmann J cited with approval O Connor Js opinion in Lawrence
that so long as the Equal Protection Clause requires a sodomy law to apply equally to
the private consensual conduct of homosexuals and heterosexuals alike, such a law
would not long stand in our democratic society.
245
246
Ibid., para 77.
240
human dignity
209
This concerns substantive equality and the focus is on human dignity.247

Nevertheless, after observing gays and lesbians historical disadvantages because of their sexual orientation, the court made a conclusion
based on the reasoning of Walsh. It cited Bastarache J in explaining
why the impugned legislation was not discriminatory in Walsh:
Finally, it is important to note that the discriminatory aspect of the legislative distinction must be determined in light of Charter values. One of
those essential values is liberty, basically defined as the absence of coercion and the ability to make fundamental choices with regard to ones
life... Limitations imposed by this Court that serve to restrict this freedom of choice among persons in conjugal relationships would be contrary to our notions of liberty.248
Based on Bastarache Js reasoning, the court in Halpern said that the

common law requirement that persons who marry be of the opposite
sex denies persons in same-sex relationships a fundamental choice
whether or not to marry their partner.249 This proposition is problematic for two reasons. First, the court did not satisfy the test it had set
earlier for finding discrimination, i.e. whether the differential treatment
imposes a burden on the claimant based on a stereotype. More importantly, by referring to the value of liberty in explaining why the common law definition of marriage is discriminatory, the court in fact used
liberty to justify a claim of inequality. The court might have forgotten
that earlier in the judgment, it said that it was concerned about substantive equality with dignity being the focus. But at the end, it referred to
neither in concluding there was indeed a case of discrimination.
There is further evidence that the Halpern court linked the concept
of liberty with dignity. It endorsed Bastarache Js opinion in Lavoie that
the discrimination inquiry requires the claimant to show that her
human dignity and/or freedom is adversely affected. The concepts of
dignity and freedom are not amorphous and, in my view, do not invite
the kind of balancing of individual against state interest that is required
under s. 1 of the Charter.250 There is no explanation that why dignity,
which is the focus of equality according to the courts jurisprudence,
needs the idea of liberty. Bastarache J said dignity and freedom are not
amorphous but his juxtaposing them in deciding whether someone has
247
248
249
250
Ibid., para 78.

Ibid., para 87.
Ibid.
Ibid., para 92.
210
chapter four
been discriminated against seems only to show that the opposite may
be the case. It is not to say that liberty is not an issue as far as the right
to marry is concerned. But using liberty to support the finding of dignity impairment seems to confirm the criticism that dignity has little
content of its own to justify a right, not to mention equality. It also begs
the question as to whether the court was indeed defending liberty
when it said it was protecting the dignity of same-sex couples by
approving same-sex marriage.
The Constitutional Court of South Africa demonstrated a similar
tendency in its decision to uphold the right to same-sex marriage.251
In Minister of Home Affairs & Another v Fourie & Another, dignity is
referred to throughout the whole judgment as one of the fundamental
values under the Constitution. In particular, the court highlighted the
significance for its equality jurisprudence of the concept and value of
dignity alongside equality and freedom.252 Having declared that equality in a pluralistic society means the right to be different, the court
said that [t]he strength of the nation envisaged by the Constitution
comes from its capacity to embrace all its members with dignity and
respect.253 It went on to discuss the social and legal significance of
marriage and the impacts of the existing marriage law upon same-sex
couples. The court observed that same-sex couples are deprived of a
wide range of socio-economic benefits exclusively reserved for married
couples. But the intangible damage to same-sex couples is as severe as
the material deprivation. Despite the fact that not all of them want to
marry, the court said that what is in issue is not the decision to be
taken, but the choice that is available. If heterosexual couples have the
option of deciding whether to marry or not, so should same-sex couples have the choice as whether to seek a status on a par with that of
heterosexual couples.254 Hence, the court concluded that denying samesex couples a choice to participate in the institution of marriage negates
their right to self-definition in a most profound way.255 Again, while
it is undisputable that liberty is a concern regarding the right to marry,
it is better to state it as it is rather than make it an element of dignity.
251
(CC)[Fourie].
252
Ibid., para 48.
253
Ibid., para 61.
254
Ibid., para 72.
255
Ibid.
human dignity
211
Perhaps liberty does not sound as appealing as dignity to capture peoples emotion. But using it to justify an impairment of dignity would
only do a disservice in clarifying the fundamental value that is really at
stake.
Perhaps it is because the court was still grappling with the profound
idea of dignity despite its fundamental status in South African society.
It is shown by its extensive quote of National Coalition for Gay and
Lesbian Equality & Others v Minister of Home Affairs & Others [the
Immigration case].256 In that case, the issue was the discriminatory
impact of a provision of immigration law that gave privileges to the
foreign spouses of South African citizens while excluding same-sex life
partners in the same situation. The court in that case opined that past
and continuing discrimination against gays and lesbians sent a message
that they did not have inherent dignity and were not worthy of human
respect as accorded to other heterosexual couples.257 The references to
inherent dignity and respect remind us of the definitional problems raised in Chapter 3. First, if dignity is an inherent concept as seen
by Gewirth, it presides in every human being and cannot be taken
away;258 but if it is a normative concept as according to Feinberg, people need to claim it with moral grounds.259 The same happens to
respect where the concept can be viewed objectively or subjectively
and each view produces a different definition of respect.260 It is understandable that judges do not think of themselves as writing philosophical treatises particularly on concepts like dignity. But the kind of
circularity we see in the courts explanation of dignity only highlights
the lack of understanding among judges. Having stated that gays and
lesbians face past and continuing discrimination, the court in the
Immigration case said,
It denied to gays and lesbians that which was foundational to our
Constitution and the concepts of equality and dignity, which at that
point were closely intertwined, namely that all persons have the same
256
National Coalition for Gay and Lesbian Equality & Others v Minister of Home
Affairs & Others [2000] (1) BCLR 39 (CC) [the Immigration case].
257
Ibid., para 42.
258
pp 162163.
259
Joel Feinberg, The Nature and Value of Rights, (1970) 4 Journal of Value Inquiry
243.
260
Stephen J. Massey, Is Self-Respect a Moral or a Psychological Concept?, (1983)
93 Ethics 246.
212
chapter four
inherent worth and dignity as human beings, whatever their other differences may be.261
Just as one has human rights because one has human dignity is a
circular statement,262 couching the concepts of equality and dignity in
the phrase that all people have the same inherent worth and dignity
does not go very far in explaining them. As Smith argues, [t]he law
will not be made any clearer by attempts to give content to the right
not to be discriminated against by explaining that upholding equality
means respecting our dignity .263 While it is possible to argue that
treating people with less than equal concern and respect ignores their
dignity, one still has to explain when the law does or does not treat a
person with equal consideration. It is not always easy because equality is a moral concept and moral arguments apply. Hence, the important task is to work out the best understanding of equal concern for
people. Rephrasing that as a duty (or an element of a duty) to respect
each persons inherent worth does not make equalitys meaning any
more concrete or give it the content it was lacking.264
The use of dignity in equality jurisprudence reveals that more thinking is needed before we can clarify exactly the value that discrimination
law is intended to uphold. The above case law on same-sex marriage
shows that liberty may be one of the values that the law is interested to
protect. If that is the case, the court should spell it out clearly and not
mix it with dignity. Smiths argument also highlights the importance of
making a moral case of equality. It is particularly relevant to the legalization of same-sex marriage where both the proponents and opponents
are making a moral case in support of their stance as we saw in Chapter
1. To treat each other with equal concerns and respect, perhaps they
should start justifying with each other in a way that all can accept.
Conclusion
For all the discord human dignity has brought to the courts, its place
in international equality jurisprudence tells us something about where
leading bills of rights jurisdictions are heading. It shows how far our
261
See the Immigration case (n 256 above), para 42.

Alan Gewirth, Human Rights: Essays on Justifications and Applications (Chicago:
University of Chicago Press, 1982), p 27.
263
See Smith (n 52 above), p 523.
264
Ibid.
262
human dignity
213
world has come after turning its back on the prejudices of the past.
Nowadays, very few would argue against respecting human dignity.
Very few would say equality is obnoxious. Human rights are indeed
something to be celebrated. But not many people fully understand what
it means when they talk about dignity. Yet fewer grasp how it has come
to be aligned with the fundamental human rights that the court is
guarding. The conflicting opinions among judges in the highest courts
of Canada and South Africa reveal that confusions are not restricted to
legal practitioners alone.
As much as the judges are trying to keep an objective stance, dignity
is personal and elusive. The above case law reveals the difficulty of
explaining it in terms of other concepts. Equating inequality with dignity impairment sometimes makes the threshold too high for equality
claimants ignoring the fact that it is the unfair treatment that matters.
On the other hand, using liberty to explain the harm done to dignity
only dilutes its very meaning. At other times, the serious concept of
dignity descends into rhetoric when an assertion of a subjective sense
of self-worth makes a discrimination claim. While its collective nature
is firmly defended, there remains an unshakable air of individualism in
the concept that makes it a suspicious bedfellow of substantive equality.
Its strong affinity to the person arguably leads the court to lose sight
of the social context in which any analysis of discrimination should be
conducted.265 It begs the question as to whether the idea of dignity is
really empty to render it having no substantial significance on its own.
Above all, we are dealing with a concept of dual connotations. Dignity
is as objective as about the survival of humankind and as subjective as
the eye of a beholder.
A mere slogan however popular and soothing to the ears cannot
quell inquiring minds when it comes to explaining fundamental rights
such as equality. If there are really unplugged holes in the equality arguments, things will not add up simply by putting dignity as a placeholder.266 Dignity should not be just a slogan. If the dignity-focused
analysis is as good as the current equality jurisprudence gets, it is high
time those who cling to this idea to start being more articulate. We are
only at the beginning of what should be a continuing debate about the
meaning of dignity in respect of our understanding of human rights.
265
266
See Grabham (n 139 above), p 655.

See Smith (n 52 above), p 523; Raume (n 7 above), p 646.
214
chapter four
A word of caution is that a government should think twice before stepping up its equality-oriented measures by legislation until there is a
clear justification for it.267
Of all the challenges the courts face in our age of rights, the right to
equality is probably the greatest. The law for the most part invites a host
of moral abstractions for individual judges to express their own sense
of fairness. It does not mean we can lay blames on judges. One must
not forget that equality is a moral concept and moral arguments and
intuitions apply.268 When the elusive idea of dignity is added to the
equation, objective considerations inevitably compete with the subjectivity of the individuals. It is multiplying the difficulties when hard
moral issues like the right to same-sex marriage are involved. The arguments from both sides of the debate as explored in Chapter 1 would
get us nowhere as long as the moral disagreements that people have on
the issue, especially about how far equality can go to justify a right,
remain unresolved.
The future is not entirely hopeless. Human beings are essentially
moral agents and are capable of making reflective judgment. Perhaps
one may say that making people with polarized views to come to an
agreement is unfathomable. But what society needs now is a common
will to come to terms with our disagreements and to see how we go
from there. Otherwise we will just keep arguing forever, with endless
court battles, referendums and constitutional amendments which, as
we see in the U.S., often come full circle. On an optimistic note, the
spirit of equal dignity may be at its best when people hold each other in
respect and are willing to try to reach some consensus. To conclude this
book, the next chapter will look back on what we have discussed and
look forward as to how we can move on.
267
268
Ibid., Smith, p 525.

Ibid., p 523.
LOOKING BACK AND LOOKING FORWARD

Looking back: the progress, moral disagreement and philosophy
Our world has come a long way since the ravages of the Second World
War. The UDHR turned a new chapter in world history. For the first
time, peoples across continents share a common goal in charting their
separate courses of nation building. Sixty years after its adoption the
brainchild of human rights has begun to come of age. The consensus
may sound elusive. The rights seem unattainable. Human tragedies
abound. The voices to make for a better world with better respect of
humankind have never been louder. While many in scattered parts of
the world continue their daily struggles to get by, others have championed over human rights causes. For nations that have shaken off the
specter of past prejudices, the claims of human rights have moved
beyond the realm of negative liberties and onto a more assertive path.
It is an age where people reflectively ask for the rights to decide for
themselves their ideal ways of life, their desired modes of family, even
the time when life should end.
From the wealth of international covenants to national constitutions
and bills of rights, the notions of equality and dignity run through
various visions of human rights for the pursuit of freedom, justice and
peace.1 Hardly an international human rights declaration would get
passed without the two magic words. From protecting womens rights,
eliminating racial discrimination to prohibiting torture and degrading
treatment, equality and dignity provide the moral imperatives to
explain why human beings should be treated in one way and not
another. The rights to equality and freedom from discrimination are
ubiquitous in constitutions and human rights legislation across the
world. Human dignity is an entrenched value having primacy over
other rights in many constitutions. It is so fundamental a value that it
forms the bedrock of Germanys constitutional regime,2 one of the
See the Preambles to the UDHR, ICCPR and ICESCR.

The Basic Law for the Federal Republic of Germany (promulgated by the
Parliamentary Council on 23 May 1949) (Federal Law Gazette at 1) (BGB1 III 1001).
2
216
looking back and looking forward
founding values of the Republic of South Africa,3 and an essential

ingredient of the Canadian equality jurisprudence.4
Thomas Jefferson once said a bill of rights is what the people are
entitled to against every government on earth.5 Two centuries on, the
plethora of human rights laws around the world are what the multitude hang on hoping to keep their governments in check. The expansive line-up of rights nowadays means that human rights are much
more than being able to put food on the table or speak as we wish.
A holistic look at the International Bill of Rights6 reveals how human
rights permeate an individuals or a groups cultural, social, economic,
civil and political life. It depicts how equal members of the human species should live in a world of scarce resources and divides of all kinds.
Hence, equality and dignity serve as constant reminders the fundamental reason for treating one another in ways worthy of a common
human family.
The grounds of protection from unequal treatment have also
expanded over the years. While sex and race remain the prime concern of discrimination laws in many societies, age, disability and
sexual orientation have eventually joined the swelling ranks of the
protectorate alongside the more conventional grounds.7 If the right
to freedom from discrimination does pose the greatest challenge for a
judiciary under the bill of rights jurisprudence,8 the ground of sexual
orientation is one of the most divisive for society. Of all the issues
surrounding sexual orientation discrimination nowadays, same-sex
marriage is the most intractable. It is a frontier where emotions and
3
Article 1(a) of the Constitution of the Republic of South Africa Act 1996, (no. 108
of 1996, date of promulgation: 18 Dec 1996, date of commencement: 4 Feb 1997).
4
See the discussion in Chapter 4.
5
Quoted in Philip Alston, A Framework for the Comparative Analysis of Bills of
Rights in Philip Alston (ed), Promoting Human Rights Through Bills of Rights:
Comparative Perspectives (Oxford: Oxford University Press, 1997) 114, p 1.
6
UDHR, ICCPR and ICESCR.
7
For example, the New Zealand Bill of Rights 1990 stipulated the grounds of colour, race, ethnic or national origin, sex, marital status and religious or ethical belief . It
was not until the 1993 amendment that new grounds such as age (for those aged
sixteen or above), disability and sexual orientation were added. Section 15 of the
Canadian Charter of Rights and Freedom (the Canadian Charter), on the other hand,
excludes sexual orientation as one of the prohibited grounds of discrimination.
Nevertheless, the Supreme Court read it into the Canadian Charter as a ground analogous to those enumerated under it in Egan v Canada [1995] 2 SCR 513.
8
Grant Huscroft, Discrimination, Dignity, and the Limits of Equality, (2000) 9
Otago Law Review 697, p 711.
217
convictions, autonomy and community, legal principles and moral

strictures cross swords. The previous chapters revealed that whenever
the courts found discrimination in making marriage an exclusively
heterosexual affair, it was invariably the all-important notions of equality and dignity that sealed their approval to the right to same-sex
marriage. While each decision can be hailed as a victory for equality
and dignity, one may not be too sure of what lies beneath. As of late,
the courts have not got very far in elaborating the two concepts before
re-defining marriage to be between any two persons. In giving their
support to legalizing same-sex marriage, the courts might have simply
put their faith in equality and dignity as did the drafters of the
International Bill of Rights.
The world survey
But this has not got in the way of the sprawling movement. As Chapter 1
discussed, legal and moral tussles surrounding same-sex marriage have
been sweeping across the world since 1989. Denmark got it all started
when the government enacted the unprecedented Registered
Partnership Act, triggering a wave of gay marriage activism across its
Nordic neighbors. While it was a far cry from granting marriage certificates, the alignment of same-sex relationships with the rights and
duties formerly exclusive to husbands and wives was symbolic. Since
then, nations of Scandinavia and the European sub-continent have followed one after the other. This enthusiasm has sparked imaginations
among the lawmakers. After Denmark, laws creating a variety of
marriage-like institutions sprouted across the European legislatures.
From Hungarys Common Law Marriage Act, Frances Civil Solidarity
Pact to Germanys Life Partnership law, the new legal terminologies
not only represent tremendous political compromises but also the
evolving concept of marriage.9
It came, therefore, as no surprise that the Netherlands legalized samesex marriage in 2001, followed by Belgium. Like that of the groundbreaking partnership law, replications immediately got underway. This
time, it spread further. Having achieved success in Spain in 2005, the
winds of change spread across the Atlantic and made their first landfall
9
The Dutch model of registered partnerships is more inclusive than the Danish
prototype in applying also to heterosexual co-habiting partners.
218
in Canada in the same year. As early as 1999, the Canadian Supreme

Court widened the term spouse to embrace long-term same-sex partners for purpose of receiving government benefits.10 This auspicious
start for the countrys gay marriage movement also signaled a different
path for the North American activists: changes originated in court
instead of the law-making chamber. It was only a matter of three years
before the first Canadian court re-defined the common law definition of
marriage to mean a two-person union instead of a man and a woman.11
The commonwealth-wide judicial echoes and a deferent federal government made a perfect recipe for the most progressive legal reforms. The
center-piece Civil Marriage Act of 2005 not only inspired committed
same-sex couples to tie the knot in Canada, but also boosted the morale
of those fighting for the same right across the southern border.
Advocates in the U.S. had earlier been gripped by a losing battle.
In 1993, an over-zealous Hawaii Supreme Court approving same-sex
marriage at one stroke resulted in a backlash powerful enough to trigger a state constitutional amendment as well as a federal law entrenching heterosexual marriage. The Supreme Court in Vermont later
ventured to calm the storm by hinting at something lighter than marriage. Since Baker v State, civil union has become a compromised
model for many states not yet ready for a full-fledged law reform. But
an increasing number of states are heading towards same-sex marriage.
Since Massachusetts in 2004, five more states (Connecticut, Vermont,
Iowa, Maine and New Hampshire) have legalized same-sex marriage
either by court ruling or legislation.
The stalemates in the U.S. contrast with the continued but gradual
progress on the world stage. Other western countries like New Zealand12
and the U.K.13 put their partnership laws in place in subsequent years.
When a few same-sex couples petitioned the Constitutional Court of
South Africa in 2005 for the very right their western counterparts had
long won, it was finally Africas turn. As probably the worlds most progressive in human rights adjudication, the Constitutional Court unanimously struck down the existing marriage law and catalyzed the birth
of the Civil Union Act a year after.14 South Africa thus became the first
10
11
12
13
14
M v H [1999] 2 SCR 3.
Civil Union Act 2004 (2004 No. 102, Date of assent 13 Dec 2004).
Civil Partnership Act 2004 (2004 Chapter 33).
Civil Union Act 2006 (Art No. 17.2006) (Assented to 29 November 2006).
219
and only non-western country to join the exclusive league of jurisdictions in legalizing same-sex marriages. In 2009, Norway and Sweden
joined the flow. Worldwide, however, the development remains modest. Despite breakthroughs made here and there, they are largely toneddown replicas scattered among individual states within nations. For
some, it may be a matter of when the right case comes to court; for
others, the idea of marriage between people of the same sex is simply a
non-starter. Unlike, for example, the right not to be subject to torture,
which receives virtually universal support from the international community, the right to same-sex marriage sparks controversies. Courts at
the international level remain non-committal. So far, the judicial consensus is largely that ones sexual orientation is ones privacy. Sexual
activities between consenting adults are off-limits to the state as far as
criminal prosecution is concerned. The focus on privacy has rendered
discrimination a moot point.15 Even when the right case did come,
judges were reluctant to touch the meaning of marriage under international treaties.16 Once the interest of children is implicated, the court
would be extra cautious even though the ECtHR has recently hinted at
a more inclusive and circumstantial approach.17
The arguments: liberal vs conservative
If there is a lack of consensus among the international community, it
is indeed disagreement on a grand scale when it comes to the debate
between proponents and opponents. While a liberal/conservative
dichotomy may represent an oversimplified view of things, it more or
less captures the essence of the dispute: liberalize or stay put. For the
liberal camp, same-sex marriage is a civil rights issue. As equality
continues to move societies forward, gay couples who were once targets of the now defunct sodomy laws will one day, if not yet, achieve
marriage rights. Just as the state has no business in peoples bedrooms, the decision to marry is a private matter. It is so intimate an
aspect of life that ones dignity and autonomy depend on it. Hence,
15
Dudgeon v U.K. (1981) 4 EHRR 149; Toonen v Australia (Comm No 488/1992,

UN Doc CCPR/C/50/D/488/1992, 4 April 1994).
16
Joslin v New Zealand (Comm No 902/1999, UN Doc CCPR/C/75/D/902/1999,
30 July 2002).
17
The case of E.B. v France, [2008] ECHR 43546/02.
220
the Constitutional Court of South Africa said denying same-sex couples the right to marry is inhuman.18
Some took one step further saying it is immoral to disallow people
to get married just because of their sex. As it is the fulfillment of personal needs and capacities that matters, society has a moral obligation
to see to it that all loving couples can freely tie the knot. It was exactly
this reason that anti-miscegenation laws were morally wrong. If they
could be abolished in civilized societies, the discriminatory element of
marriage should go as well. Besides, the changing family patterns and
the advent of reproductive technologies make the link between marriage and procreation increasingly obsolete. Baby-making aside, marriage is said to be a vow of life-long togetherness. On a positive note,
embracing same-sex partners to this already shaking institution helps
sustain the sanctity of marriage by having more committed couples
stay together. From a liberal point of view, same-sex marriage has everything to do with equality and dignity. More than one and a half decades into the same-sex union excursion, straight Scandinavians are still
marrying. In the words of Eskridge and Spedale, having observed the
conjugal transitions in Massachusetts, The sky did not fall.19
Compared to the liberal view, the conservative opinion sounds more
apocalyptic. It starts with a premise that marriage has intrinsic values.
Any meddling means a distortion to the significant public functions
that it serves. First of all, this view argues that marriage and procreation are un-severable. Only heterosexual couples can reproduce. That
not all of them do so does not change the reality that it is the one-flesh
sexual union between a man and a woman which is capable of producing biological offspring. By encouraging married couples to support
each other and their children, marriage law stabilizes families and societies. The fact that same-sex couples can be parents through alternative
arrangements nowadays does not displace the assumption that the best
interest of children lies in being nurtured by their biological families.
Adoption is to find homes for those who are already deprived of this
optimal upbringing environment not for satisfying adults urge to be
parents.
18
(CC), p 374, per Sachs J.
19
Worse? What Weve Learned from the Evidence (Oxford: Oxford University Press, 2006),
p 241 [Eskridge & Spedale].
221
Because it takes two to give birth, marriage is a union of two equals

each playing significant roles to bring up future generations. It is not an
oppressive institution. Neither is it purely secular. Although religions
like Christianity attach divine meanings to it, marriage is said to transcend history, culture and religion. According to the conservative view,
the law is only there to recognize a social institution that predates legal
norms.20 Issuing marriage certificates to same-sex couples not only
changes the role of the state, but also gives a stamp-of-approval to
homosexuality whose moral connotations far exceed the decriminalization of sodomy.21 The comparison between interracial marriage and
same-sex marriage is also far off the mark. The law does not target
homosexual people as it did colored people under racial segregation.
Marriage is a highly exclusive union. Once the demarcation line of who
can marry is redrawn, things will eventually get out of control as the
justifications to ban polygamy, incestuous marriage or other sexual
taboos. To its staunchest opponents, legalizing same-sex marriage will
bring the society down a slippery slope. The unrestrained pursuit of
equality and dignity is thought to be at the expense of the familial
bonds and moral norms that hold people together.
Knowing where each side is coming from helps to put their contentions into context. There is no denying that equality and dignity are
fundamental values that make for a harmonious world. The fact that
the rights to equality and dignity are repeatedly affirmed in international human rights covenants shows that people and society are better
off having them. On the other hand, these notions are broad and indeterminate. While the mere mention of equality and dignity evokes a
universal feeling of respect, people are not necessarily in one mind
when it comes to what amounts to equal treatment or a dignified life.
Their initial appeal may diminish when one starts asking questions
about what they really mean.
Equality, dignity, and same-sex marriage
In rights jurisprudence, equality and dignity have long been associated with gay rights advocacy from ending discrimination to legal recognition of same-sex unions. So far, this approach has proved successful.
20
21
Halpern v Canada [2003] 65 OR (3d) 161, para 66.

See Eskridge & Spedale (n 19 above), p 26.
222
As observed in the previous chapters, the two ideas were used to support the right to same-sex marriage in courts. In some places marriage
has been redefined. However, each step of the legal reforms from
sodomy decriminalization, age-of-consent equalization, civil partnership legislation, to same-sex marriage represents an incremental and
subtle change of claims. Judicial opinions based on the two fundamental notions have yet to explain these nuances. The extent of how equality and dignity can and should be used to support a rights claim remains
a matter of contention.
This book embarked on a journey to find the holy grail of human
rights in the context of same-sex marriage. It started by deconstructing
the closely related yet distinctive notions of equality and human dignity as they have become the essence of arguments for legalizing samesex marriage. Equality is no stranger to the courts. The equal protection
of the law, entrenched in the U.S. Constitution since the Fourteenth
Amendment, has long allowed aggrieved minorities to make their case.
Hence, the Supreme Court condemned the separate but equal doctrine in 1954 ending racial segregation at schools.22 The time of vindication for gays and lesbians came when the Supreme Court in 1996
annulled a state constitutional amendment banning legal protection
for sexual minorities.23 In parallel, some state courts were making
inroads into the marriage frontier. The first taste of success came as the
Vermont Supreme Court granted same-sex couples equal access to the
rights and privileges available to married couples.24 In 2003,
Massachusetts capped the equality feat by following the footsteps of
Ontario in redefining marriage to include any two persons.25
Equality and same-sex marriage
In all these cases, the Aristotelian principle of formal equality like
should be treated alike is very much alive. Except for procreation,
same-sex couples are seen to be as capable as forming long, lasting,
loving and intimate relationships as heterosexual spouses. This common ground means the two groups are comparable in their needs,
22
23
24
25

Romer v Evans (1996) 517 U.S. 620.
Baker v State (Vt. 1999) 744 A. 2d 864.
Goodridge v Department of Public Health (2003) 798 NE 2d 941.
223
capacities and circumstances. By withholding marriage from one, the

law does not treat equally people in similar situations. Same-sex marriage not even civil union is the only way to right the constitutional
wrong. Chapter 2 argued that apart from making generalized opinions,
the courts so far have not clearly demonstrated exactly how the two
groups homosexual couples and heterosexual couples are similar.
The point being that: if equality arguments are to be presented in their
strongest form, we need to be clear about what unit of comparison they
entail.26 When equality-based arguments are being used to justify the
incremental claims of equality for gays and lesbians vis-a-vis the right
against discrimination, hate crimes, the right to same-sex marriage,
and adoption, it is necessary to articulate the logical conclusions of
such arguments. Human beings are both similar and dissimilar.
Therefore it matters which aspect is relevant and which is not. In this
respect, the formal notion of equality alone does not advance the analysis very far.
Before one can say for sure who is similar or who is different, the
first thing to ask is, equality of what? This remains unanswered.
Judges who uphold rights for gays and lesbians in the name of equality
have a propensity to slip into the libertarian rhetoric. Equality is a relational concept. Without a delicate comparison, a holding that because
both groups engage in consensual sexual activities and thus are in a
similar situation and should be so treated sounds libertarian. It is arguably the case at the moment. Often, equality arguments are conveniently used in all situations where gays and lesbians are treated less
favorably than heterosexuals the need to compare is being discarded.
The South African court plays down the importance of comparison
and opts for an equality of difference approach, only to undermine
the essence of equality. On the other hand, as it has been shown, ones
conduct gives an inconclusive clue as to what group membership one
belongs. While conceptualizing gays and lesbians as a legitimate
minority has helped strengthen the case of anti-discrimination, its
lack of coherence surfaces as soon as the question who and what make
up the status is raised. Not only does ones sexual conduct have no
absolute correlation with a gay identity, the internal dynamics within
the minority itself make it impossible to call it a unified group.
26
Rights Law (London: Cassell, 1997), p 238.
224
A meaningful comparison requires a certain level of precision. In

terms of equal treatment, it requires a definable homosexual identity
or status to juxtapose with the heterosexual one. But the amorphous
nature of this identity does not make it a useful justification for equality-based legal reforms.
The assertion it is wrong to single out gays and lesbians from the
heterosexual privileges including marriage needs the word because
to carry on. It has been argued that equality argument per se does not
help in this regard. At its best, stand-alone egalitarianism is said to be
tautological. To be meaningful, equality must enter the moral arena.
So far, the best equality argument same-sex marriage proponents can
offer is that gays and lesbians are living the same life as every other
heterosexual couple. This assimilative model is open to criticisms in at
least two ways. First, it falls foul with the liberationist critique that it
represents a trade-off from the gay community. It is because equality
only goes so far as long as gays and lesbians fit the heterosexual paradigm. It says nothing about the goodness of their relationships, thus
rendering gays and lesbians a forever passive minority in an embedded social structure. This parasitic view of equality is too weak to
justify full legal reforms putting homosexuals on a par with mainstream heterosexuals. On the other hand, a shift from equal treatment to treatment as equals may divert critics attention, only to
expose another flaw. At first glance, treating everyone as equals
avoids the conformist pitfall because it does not rely on external
norms. In this case, equal treatment is merely incidental. The way
people are being treated does not hinge on what life they live or what
moral opinion they hold. Despite this equality facade, its comparative
content is empty and its egalitarian assertion dubious. It is because
treating everyone with equal respect with no strings attached can be
understood as liberalism in disguise or common humanity in action,
which has nothing to do with the classic idea of equality. Therefore, as
long as the normative questions are being avoided, same-sex marriage
advocates cannot make a strong case to show why same-sex relationships are inherently good and why this makes unequal treatment
morally bad.
Chapter 2 also argued, as a classical note of equality, that formal
equality is out of tune with the complexities of real-life situations. Its
rigidity is enough to bring down the well-being of all to achieve artificial egalitarianism. Its purported neutrality and rationality cannot
explain sufficiently why one group is analogous to another. Even jurists
225
admit that reasonable people do disagree and what makes two cases
different or similar is largely a matter of value judgment. Looking back,
the protection extended from race to sex plus many other grounds is a
sign of societies moving towards openness and diversity. It also indicates the shifting priorities facing each society and the changing opinions about who deserve more attention. All in all, the concept of formal
equality is useful in political discourse for its rhetorical power, provided people are aware of the limits.
To its staunchest critics, however, treating like people alike only
perpetuates an unfair social structure at the expense of the marginal
groups. In the context of same-sex marriage, letting gays and lesbians marry like heterosexuals reinforces heterosexual hegemony. To
eliminate all forms of oppression, the only way out is to transform
the current power configurations at all social levels and make difference costless for everyone. However, it is doubtful whether the law
is capable of dealing with a social reform so radical. It is also doubtful whether turning the existing interpersonal relations around will
not bring the society down to another kind of oppression. We do
not know whether overthrowing the infamous majoritarian rule
would spell the demise of other forms of political tyranny.27 In any
event, equality is not something that can be easily rammed down
peoples throat. To quote again the comment from the New Jersey
Supreme Court as it decided to endorse civil unions, Although
courts can ensure equal treatment, they cannot guarantee social
acceptance, which must come through the evolving ethos of a maturing society.28
A maturing society is where everyones view counts. It is where each
person is equally valued to express their concerns on public policies
amid pluralistic views. It does not mean everyone will get his way. It does
not lead to a value-free political process. There is no guarantee of a perfect solution. But in such a democratic state, there is a better promise of
mutual respect and understanding that hopefully brings us closer to the
essence of equality. Before our society is ripe for this, the pursuit of the
democratic ideal especially the way to get to it should continue.
27
Although it is acknowledged that democracy does not necessarily mean majority
rule. See J. M. Balkin, The Constitution of Status, (1997) 106 Yale Law Journal 2313,
p 2368 [Balkin].
28
Lewis v Harris (N.J. 2006) 908 A. 2d 196, p 223.
226

Dignity and same-sex marriage
This effort requires us to keep reflecting on how society values equal

human dignity. But it is perhaps a more arduous task. The idea of dignity, as discussed in Chapter 3, is colored with culture, history, philosophy, and a peoples worldview. The multiple ways in which this concept
operates sometimes make it difficult to decide which aspect of dignity
takes precedence. The crux is: what dignity means is very much in the
eye of the beholder. It is why some courts are adamant to stop people
already physically challenged from exploiting their bodies to make
money, while the stunt-performing dwarfs believe they have good reason to ask for the freedom to do whatever they think is dignified for
them. It is not necessarily that one of them has got dignity wrong. It is
very much the different perspectives they hold which lead them to
come to different opinions as to how people should live.
It is also why changing the definition of marriage to include samesex couples can be a difficult topic even for moderate people who hold
no grudges against their gay and lesbian neighbors. Dignity in most
cases does not require any comparison or power distribution as is characteristic of the idea of equality. It is a more subtle concept. It can be as
personal as about choosing the right partner to marry, and as public as
a societys vision as to how families should function. Marriage, after all,
is both private and public. To some people, it is a sacred religious or
traditional institution predating history; to others, it is a secular union
of two willing parties amenable to change with the times. Opinions are
bound to differ. But the issue of same-sex marriage is one which evokes
intense moral reflections from people on both sides of the spectrum.
For those who believe there is something inherently good about marriage, any tampering is a destruction of an institution that has served
society well for generations. For those who are eager to marry the love
of their life like everyone else, the inability to do so is simply undignified. Amid the disagreements, this book seeks to look at how the
concepts of equality and dignity are used to make the case of same-sex
marriage and ask whether it is a convincing and viable case.
I argued that the formal concept of equality treating like alike
cannot justify why gays and lesbians should be treated the same way as
heterosexuals without a precise comparison. I also argued that an alternative approach which seeks to address the underlying cause of social
inequalities requires caution. Whether overhauling the entire family
and social structures will indeed change peoples life for the better
227
remains uncertain and is beyond the scope of this study. The poignant
claims of inequality and loss of dignity might have evaded the scrutiny
of any well-intentioned judiciary. But it is doubtful whether they can
stand the test of time, as the list of potential human rights claims goes
on with more aggrieved parties believing the court is the right place to
put up a fight. In light of the different interpretations that equality and
dignity are capable of giving, there is a need to acknowledge that even
reasonable people can disagree on how far they should be used to justify the right to same-sex marriage. It is to do justice both for the couples who want it earnestly as well as those who remain unconvinced by
the present human rights advocacy.
The gaps in the equality discourse might have led some judges to
explore another profound idea. Chapter 4 looked at how the Canadian
Supreme Court has eventually found dignity as a pillar for equality.
Widening the scope of equal protection beyond personal characteristics and disadvantages is something to be applauded. Yet equating
inequality with a dignity violation not only brings conceptual confusion but also judicial uncertainties that result in overlooking what the
law seeks to protect in the first place. If it was the racist treatment and
sexist humiliation suffered by black people and women in the past that
ignited the quest for equality, it is indeed the unequal and unjust treatment that matters and should be the focus of the judicial probe.
Turning to dignity to justify equality presents a shift towards personal
territory and away from the objectivity of the court.
While dignity possesses a certain level of universality, it is also an
individualistic concept. That is illustrated by the inclination of some
judges to look to the claimants feeling when finding a dignity violation. One would ask whether it is judicial imagination stretched too far.
The various ways that imagination has played out give rise to inconsistent judicial opinions as to whether dignity is hurt in the particular context of the particular claimant. Sometimes it is a wrong question being
asked. Sometimes, a person suffering from inequality may end up being
diagnosed of having a loss of dignity.
Be that as it may, the forcefulness of the concept cannot be overestimated. Despite criticisms from a circle of prominent legal scholars, the
dignity-centered equality jurisprudence eventually took root in South
Africans top court.29 Today, one of the most prominent members
29
President of the Republic of South Africa & Another v Hugo [1997] (6) BCLR 708
(CC).
228
responsible for the jurisprudential transplant remains faithful to the

cause. Ackermann set out to tackle the defect of formal equality head
on with an assertion that human dignity serves as the only comparator for equal treatment.30 He also argued that as an attributive term
dignity provides the much-needed reference to fill the gap within the
concept of equality. But the statement equal protection with respect to
human dignity needs to have the meaning of human dignity determined first. This important task has probably just begun, if indeed at all.
The inherent tensions within the concept and the lack of an elaborate
theory of dignity make even its defenders sound a note of caution. In
any case, there is always a fine line between judicial intrusion upon
legislative law-making and judicial affirmation of fundamental rights
constitutionally guaranteed. Just what distinguishes a public policy
consideration from a constitutional principle can be a subject of dispute. The same can be said of the difference between judicial restraint
and judicial retreat. When it comes to the issue of legalizing same-sex
marriage, the mix of emotions, convictions, personal expectations,
coupled with the governments obligation to balance diverse interests
and the judicial resolve to safeguard the constitution, do make even the
finest jurist pause for an instinctive answer.
Looking forward: finding common ground?
A more elaborate theory of dignity is to be found in the most abstract
form of philosophical principles, argues Dworkin.31 In the midst of the
relentless disputes over same-sex marriage, among other political controversies, Dworkin asks whether democracy is still possible in
America. He acknowledges that the divide between liberals and conservatives is so deep that many on either side think there is no point
arguing with those on the other side.32 He laments that American politics has become a form of war with no real arguments and respect
between those who are in disagreement.33 He uses the 2004 Presidential
30
Laurie W H Ackermann, Equality and Non-Discrimination: Some Analytical
Thoughts, (2006) 22 South African Journal on Human Rights 597, p 602 [Ackermann I].
31
Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate
(Princeton: Princeton University Press, 2006), p 8 [Dworkin].
32
Ibid., p 8.
33
Ibid., p 1.
229
Election to illuminate the lack of arguments in U.S. politics.34 While

same-sex marriage was deemed to be an important issue for many voters, both candidates agreeing that marriage is between a man and a
woman chose not to engage in arguments about principles; rather,
they argued over whether same-sex marriage should be banned
through constitutional amendment. The incumbent President Bush
endorsed such a measure;35 and political analysts suggested that his
stance appeared to appeal to many voters in states with dense Evangelical
populations which played a role in securing his re-election.36
Dworkin believes that same-sex marriage is representative of the
entirely unargumentative culture of American politics today.37
A polarized society over a polarizing issue seems to suggest that the division is bottomless. But he thinks that America can do better, and that
there can be common ground which saves democracy from descending to a tyranny of numbers if people care to find the shared principles
about the value of human life.38 It requires people to look beyond concrete principles such as press freedom and focus on principles that
express more abstract value about humans which we all share. Dworkin
elaborates two such principles: the principle of intrinsic value and the
principle of personal responsibility.39 The first principle holds that each
human life has a special kind of objective value. Once it begins, it matters both to the person and society as to how it fares. We have reason
to celebrate its success or deplore its failure. The second principle holds
that each person has a special responsibility for realizing the success of
his own life which includes making judgment about what kind of life
would be successful for him. It does not forbid others from advising him
but the decision rests on him alone and no one else. According to
Dworkin, these two deep and general principles of human dignity can
supply common ground for a divided American public. And despite
their depth and generality, they have enough substance to allow people
to argue about their interpretation and implementation.
34
Ibid., pp 56.
See Bush calls for ban on same-sex marriages, (25 Feb 2004). Available at http://
www.cnn.com/2004/ALLPOLITICS/02/24/elec04.prez.bush.marriage/ (visited 1 Sep 09).
36
Daniel A. Smith, Matthew DeSantis & Jason Kassel, Same-Sex Marriage Ballot
Measures and the 2004 Presidential Election, (2006) 38 (2) State and Local Government
Review 78. Available at http://www.clas.ufl.edu/users/dasmith/SLGR2006.pdf (visited
1 Sep 09).
37
Ibid., p 5.
38
Ibid., pp 67.
39
Ibid., pp 911.
35
230
Dworkins two principles of dignity reveal the centrality of liberty in

the concept of dignity. The second principle the principle of personal
responsibility defends an individuals right not to submit to others in
making important decisions about how he should lead his life. Marriage
is one of them. Therefore, denying gays and lesbians the opportunity to
make this decision can only be justified by a compelling and nonjudgmental justification that does not presuppose a theory about what
kinds of lives are intrinsically good or bad for individuals to lead.40 In
this respect, the cultural argument that supports preserving the institution of heterosexual marriage because of history and tradition fails to
honor dignity. It contradicts the personal responsibility that liberty protects under the second principle of dignity.41 It entails subordination
because it allows the government to dictate the choice of marriage partners against the will of some people. Above all, it supposes that the culture that shapes our values belongs to those who yield the most power at
the time. Dworkin thinks it is a serious mistake because in a free society,
the world of ideas and values belongs to no one and to everyone.42
Dworkin is fully aware of the diverse ideas and values that underlie
political controversies like same-sex marriage. He does not think that
society should ask people to put aside their deeply held convictions in
political debates. To do so would have disallowed Martin Luther King Jr.
from invoking his religious faith to condemn racial prejudice or those
outspoken Catholic priests who championed the fight for social justice
in Latin America.43 Instead, Dworkin asks society to have a genuine
debate about those profound convictions. Liberals must convince conservatives who use religious arguments in political debates that they
are wrong; and conservatives must try to prove to liberals that their
view is not right.44 This is no easy task. Not many people are interested
in discussing with those they regard as coming from an entirely alien
religious or political culture.45 They may try to ignore any philosophical challenges to their settled political preferences lest they would be
asked to square those preferences with principles of dignity.46 People
will continue to confront the question as to when our actions show
40
41
42
43
44
45
46
Ibid., p 70.
Ibid., p 88.
Ibid., p 89.
Ibid., p 65.
Ibid.
Ibid., p 22.
Ibid., p 162.
231
contempt for the value of other peoples lives.47 They will continue to
disagree over whether same-sex marriage follows the principle that
people are personally responsible for their own lives. But Dworkin
believes that the situation would improve a great deal if people can start
to see their disagreements as debates about the best interpretation of
fundamental values they all share rather than simply as confrontations
between two divergent worldviews neither of which is comprehensible
to the other.48 They will then need to decide to what extent they would
commit themselves to agreeing that every human life has intrinsic
potential value and that each person has a responsibility to identify and
realize the potential value in his own life for a genuine argument to
begin.49
But a genuine debate needs an accommodating political regime.50 If
we all agree that democracy is an indispensable form of government,
the next question is: what is democracy? Like Balkin,51 Dworkin
believes that democracy is more than the will of the greatest number of
people because this majoritarian conception on its own fails to explain
what is good about democracy.52 A partnership view of democracy,
on the other hand, is substantive as it requires us to identify political
virtues other than majority rule to sustain our belief in democracy.53
Under this view, a majority decision is democratic only when certain
conditions are met that protect the status and interests of each citizen
as a full partner.54 It entails mutual attention and respect between people who disagree with each other. It takes us back to the two principles
of dignity that Dworkin espouses: affirming the intrinsic value of every
human life and respecting peoples personal responsibility for managing their own lives. Perhaps it remains an ideal as long as people
keep treating each other as enemies rather than partners under a common political enterprise. But a longer perspective is what society
needs, as Dworkin suggests, for people to stay hopeful for a better
democracy.55
47
48
49
50
51
52
53
54
55
Ibid., p 17.
Ibid., p 22.
Ibid., p 23.
Ibid., p 127.
See Dworkin (n 31 above), p 143.
Ibid., p 134.
Ibid., p 131.
Ibid., p 163.
232
The partnership ideal of democracy does not mean that people will
agree any time soon over same-sex marriage in the U.S. or elsewhere.
But at least it offers hope for finding common ground through shared
principles to allow an argument to begin. Or else society is divided
forever as proponents and opponents refuse to appreciate each others
deep convictions and continue their fight in courts and ballot boxes,
like what we see in the U.S.
Deliberative democracy and same-sex marriage
Deliberation as the discipline of rights
Dworkins two principles of dignity remain abstract and philosophical.
But his proposal of seeking common ground and partnership mirrors
that of theorists who believe deliberative democracy is what society
needs in addressing our moral controversies today.56 In the context of
same-sex marriage, the case for deliberation is particularly strong when
the dispute is over whether society should recognize same-sex relationships as equally valuable as heterosexual relationships. In a society that
emphasizes equal dignity for its citizens, a refusal to give equal recognition to some can be condemned as oppression or creation of secondclass citizens.57 But this sentiment is not necessarily shared by everyone
in the case of same-sex marriage, because the word marriage evokes
different responses from different people. For those who believe that all
forms of sexuality are equally valuable, denying same-sex couples the
right to marry is plain discrimination. For others who see marriages
special function in continuing the generations, recognizing only heterosexual couples for that purpose is simply a matter of definition.58
When public recognition hinges upon such diverse but equally influential views about marriage, the need for an open discourse cannot be
overestimated. Recognition is a mutual thing. Right is a two-way street.
The call for the right to be recognized can hardly reach the other side
56
Amy Gutmann & Dennis Thompson, Democracy and Disagreement (The Belknap
Press of Harvard University Press: Cambridge, 1996)[Gutmann & Thompson].
57
Charles Taylor, The Politics of Recognition in Amy Gutmann (ed), Multiculturalism and The Politics of Recognition (Princeton: Princeton University Press, 1992)
2574, p 37.
58
David Orgon Coolidge & William C. Duncan, Definition or Discrimination?
State Marriage Recognition Statutes in the Same-sex Marriage Debate, (1998) 32
Creighton Law Review 3, p 22 [Coolidge & Duncan].
233
when it is not presented in an articulate manner by advocates ready to

reciprocate. In particular, it demands the aggrieved party to articulate
the disrespects and violations they experienced.59 By publicly expressing the insults to their dignity due to non-recognition, such participation helps restore the self-respect of individuals or groups who believe
they are being oppressed.60 Although it does not stop people from disagreeing with each other, a frank exchange of their respective moral perspectives encourages them to strive for a morally justified consensus.61
After all, human rights are ethical demands. They require acceptance
of the underlying ethical claims that can survive open and informed
scrutiny.62 According to Amartya Sen, an interactive process of critical
scrutiny, open to information (including that about other societies) as
well as to arguments from far as well as near is a central feature of the
theory of rights.63 In this respect, the recognition of rights entails an
open-ended process that demands continuing debates over, for example,
how the claims of rights should be consolidated with other evaluative
concerns that may also deserve ethical attention.64 Sen believes that this
open public reasoning approach can help settle the disputes over the
content of some clearly sustainable rights while leaving others unsettled
for the time being. In a sense, it reflects Dworkins aspirations in seeking
common ground in a divided society by focusing on the more abstract
principles of the shared ideal of dignity. To Sen, acknowledging the reality
of continued dispute does not compromise the theory of rights. Instead,
it is part of the general discipline of human rights and attests to the
nature of rights as ethical demands that require constant deliberation.65
This view of rights corresponds with Waldrons idea that every
human being is essentially a thinking agent endowed with an ability to
deliberate morally, to see things from others points of view, and to
transcend a preoccupation with his own particular or sectional interests.66 Hence, the attribution of rights is an act of faith in peoples
59
Axel Honneth, The Struggle for Recognition: The Moral Grammar of Social
Conflicts, Trans. Joel Anderson (Cambridge: Polity Press, 1995), p 163.
60
Ibid., p 164.
61
See Gutmann & Thompson (n 56 above), p 42.
62
Amartya Sen, Elements of a Theory of Human Rights, (2004) 32 Philosophy and
Public Affairs 315, pp 319320 [Sen].
63
Ibid., p 321.
64
Ibid., p 322.
65
Ibid., p 323.
66
Jeremy Waldron, Law and Disagreement (Oxford: Clarendon Press, 1999), p 250
[Waldron I].
234
moral thinking capacity in choosing between different options. It does

not mean that they will always make the right decision. There is even a
right to make the wrong choice.67 Yet the attribution of rights to individuals in the first place stems from a conviction that human beings
have the ability to ponder responsibly the moral issues their choice
implies.68
Deliberation and equality
That individuals are rights-bearers capable of moral deliberation makes
them eligible participants in the public scrutiny of ethical claims. To
Sen, the insistence on open discussions, in which no one is excluded
regardless of their ethical stance, embodies an acceptance of equality.69
This conception of equality resonates with the idea of deliberative
democracy that theorists have been advocating. One of the prominent
advocates is Jrgen Habermas, who believes that a deliberative model
is the ultimate goal for the proceduralist paradigm of law.70 To him, the
two once dominant paradigms, modeled on classic liberty and the welfare state, failed to realize the full strength of equality. Against the backdrop of unequal distributions of resources and opportunities, negative
rights focusing on private liberty proved to be hamstrung in ensuring
equal public liberties. This was supposed to be tackled by a refined version of equality, where the state let go of its invisible hand to achieve
distributive justice. However, in the same vein as the feminist and
structural critics, Habermas argues this welfare model exerts normalizing pressure on the vulnerable parties who benefit from redistributions at the expense of their public autonomy.71
According to Habermas, the equality deficit inherent in the above
models can be addressed by a paradigm which is centered on the procedural conditions of democratic process. Free from being at the
mercy of the state and political elites, citizens can then articulate their
needs and defend interests deemed violated, while at the same time
try to clarify and settle the contested standards and criteria according
67
Jeremy Waldron, A Right to Do Wrong, (1981) 92 Ethics 21 [Waldron II].

See Waldron I (n 66 above).
69
See Sen (n 62 above), p 349 (fn 57).
70
Jrgen Habermas, Paradigms of Law, (1996) 17 Cardozo Law Review 771, p 772
[Habermas].
71
Ibid., p 775.
68
235
to which equals are treated equally and unequals unequally.72 This

model corresponds with the fundamental assumption of deliberative
democracy that human beings have abilities to engage in moral
deliberation.73
The idea of deliberative democracy is not new.74 It remains an unfinished business so far as moral disagreement is part of democratic politics. Apart from its procedural emphasis, its basic premises include the
notions of reciprocity, publicity and accountability.75 Together
they provide a theoretical basis upon which citizens maintain a sense of
mutual respect and cooperation amid their moral disagreements.
When people are willing to reciprocate, they tend to be more open to
explain their position publicly and make their reasons accessible to
others. It follows that people who participate in public deliberation are
not just concerned about their own well-being, but are morally accountable to each other. In an ideal deliberative forum, individuals are free
to an extent that they are only bound by the results of their deliberation
and can act upon them at their liberty.76 Besides, individuals are equal
as they are given an equal voice in every stage of the deliberative process unaffected by the existing distributions of power and resources.77
Therefore, no matter what comes out at the end, the participants who
perceive themselves as free and equal should feel more morally obliged
to promote reasonable dialogues and mutual respect as they continue
to find consensus.
From the perspective of deliberative democracy, liberty and equality
cannot be achieved by merely leaving people alone or giving citizens
a share of state benefits. Only when peoples private and public autonomies are both assured can they be truly equal and the authors of the law
to which they are bound.78 The condition comprising both aspects of
72
Ibid., p 776.
Joshua Cohen, Deliberation and Democratic Legitimacy [Cohen] in James
Bohman & William Rehg (eds) Deliberative Democracy: Essays on Reason and Politics
(Cambridge: MIT Press, 1999) 6792, p 73 [Bohman & Rehg].
74
Cass Sunstein adopted the notion of deliberative democracy in a 1985 article to
describe how deliberation between law-makers and their electoral constituents over
public policies was more consistent with American representative politics than mere
interest group politics. See Cass R. Sunstein, Interest Groups in American Public Law,
(1985) 38 Stanford Law Review 29.
75
See Gutmann & Thompson (n 56 above), pp 78.
76
See Cohen (n 73 above), p 74.
77
Ibid., pp 7475.
78
See Habermas (n 70 above), p 776.
73
236
autonomy owes its existence and legitimacy to the forms of communication in which individuals can have impacts on their civic and political environment as political equals. When life experiences direct people
to pursue different policy goals, and inevitably values and expectations
clash, their competing views should be aired and responded to. This
process is vital in sustaining the kind of civic self-respect which underlies Rawls account of democratic politics in a just society. According to
Rawls, self-respect as a primary good requires a publicly affirmed distribution of fundamental rights and liberties.79 In a just society, everyone has a similar status as they join each other in participating in the
common affairs of public life. A mutual sense of respect among them
helps bind society in a good political balance and assures everyones
own worth despite their social and economic differences.80 This has
implications to a society in which people disagree over rights such as
the right to same-sex marriage. No matter whether one supports or
opposes the idea, under the ideal of deliberative democracy he is on the
same footing as every other whose view deserves respect and reasoned
response.
Can this kind of equal citizenship be sustained by the dedicated work
of a supreme court or an elected legislature? It may not. Judges only
listen to those who happen to stand before them. The institutional
framework in which judicial independence is defended does not allow
them to account for the controversies in political life.81 Not only may
the court not have the best or ultimate answers to solve moral puzzles,
it may sometimes be wrong.82 Do the peoples representatives fare any
better? Probably not: because the parliament does not represent everyone.83 To address this criticism, a representative democracy should give
the diverse population unhindered opportunities to discuss the values
to which they collectively aspire.84 As Habermas argues using the example of the feminist movement, it is probably the affected persons who
can best clarify the relevant aspects that define equality and inequality
79
John Rawls, A Theory of Justice: Revised Edition (Cambridge: The Belknap Press of
Harvard University Press, 1999), p 477 [Rawls I].
80
Ibid., pp 477478.
81
82
Cass R. Sunstein, The Supreme Court 1995 Term Foreword: Leaving Things
Undecided, (1996) 110 Harvard Law Review 4, p 101.
83
Alberto Calsamiglia, Constitutionalism and Democracy in Harold Hongju Koh
& Ronald C. Slye (eds), Deliberative Democracy and Human Rights (New Haven: Yale
University Press, 1999) 136142, p 137.
84
Ibid., p 139.
237
in a given matter.85 But even belonging to the same generic group of

affected persons, radical feminists criticized classical feminists for
being assimilationists. Habermas point is: The feminist avant-garde
does not have a monopoly on a definition of equality for women,
either.86
Deliberation and same-sex marriage
We may envisage a similar scenario in the equality debate on legalizing
same-sex unions. The proponents of same-sex marriage certainly have a
point. But it seems far from being the case that they are the only spokespersons on the matter. The anti-assimilationists who oppose to being
mainstreamed by heterosexual sex norms, the liberationists who support abolishing the institution of marriage altogether, along with the
traditionalists, the religious conservatives and those who object the idea
of same-sex marriage for whatever reason are those who are bound by
the final decision and thus should be entitled to an audience.
Despite peoples underlying differences in their moral or religious
convictions, Linda McClain argues that a model of deliberative democracy based on Rawls principles of public reason and reciprocity can
help them decide the permissibility of same-sex marriage.87 According
to public reason, citizens cannot achieve mutual understanding and
consensus on the basis of their irreconcilable moral, religious or philosophical views. Therefore, comprehensive doctrines of truth or
right must be replaced by ideas that are compatible with the essentials of public reason and a democratic polity.88 Underlying public
reason is the concept of reciprocity which demands that the reasons
we offer in justifying our political actions be reasonably accepted by
other citizens.89 Together they form the basis of civic friendship in a
85
See Habermas (n 70 above), p 780.

Ibid., p 783.
87
Linda C. McClain, Deliberative Democracy, Overlapping Consensus, and SameSex Marriage, (1998) 66 Fordham Law Review 1241, pp 12431244 [McClain I].
McClain notes that there are those who insist that because the issue entails deep moral
and metaphysical questions over the nature of marriage and the value of sex within it,
solutions to the disagreement can only be found in the truth or falsity of those competing doctrines. See Robert P. George, Public Reason and Political Conflict: Abortion
and Homosexuality, (1997) 106 Yale Law Journal 2475, pp 24972451.
88
John Rawls, The Idea of Public Reason Revisited, (1997) 64 University of Chicago
Law Review 765, p 766 [Rawls II].
89
Ibid., p 771.
86
238
constitutional democracy. In supporting this doctrine, McClain does

not ask people to give up their moral and religious beliefs in the debate
over same-sex marriage; but that they should support arguments
based on such beliefs by reference to public reasons and political values.90 That includes articulations of exactly how same-sex marriages
threaten the institution of marriage taking into account what Rawls
describes as the civil rights of free and equal democratic citizens.91
According to McClain, a rigorous approach of reciprocity critically
challenges cultural arguments against same-sex marriage that defend
heterosexual marriage based on traditional gender roles.92 A commitment to political values such as equality and liberty, and her so-called
toleration as respect model that embraces liberty of conscience and
respect for citizens moral powers,93 would require the transformation
of the institution of marriage to include same-sex couples.
This conclusion is perhaps subject to debates; but McClains emphasis on building civic friendship on the basis of mutual respect and equal
basic liberties reminds us of the common ground that Dworkin wishes
to build under his two principles of dignity. In the current context of
same-sex marriage in the U.S., McClain does not seem to be optimistic
that a common ground can be found between the proponents and
opponents, when ironically a Democratic President who objects DOMA
(the federal law restricting marriage to a man and a woman) apparently
joins religious conservatives in resisting same-sex marriage.94 In any
90
See McClain I (n 87 above), pp 12491450.

See Rawls II (n 88 above), p 780. But Rawls does not rule out the possibility that
other political values outside public reason, such as the interest of children, may justify
the ban on same-sex marriage. See Rawls II, p 779.
92
See McClain I (n 87 above), p 1251.
93
Linda C. McClain, Toleration, Autonomy, and Governmental Promotion of
Good Lives: Beyond Empty Toleration to Toleration as Respect, (1998) 59 Ohio State
Law Journal 19 [McClain II].
94
Linda C. McClain, Red Versus Blue (and Purple) States and the Same-Sex
Marriage Debate: From Values Polarization to Common Ground?, (2008) 77 UMKC
Law Review 415, pp 452453 [McClain III]. Despite expressing its objection against
DOMA, the Obama Administration is reluctant to act as long as the Congress does not
repeal it. See Carol J. Williams, Obama Lawyers Offer Reluctant Defense of Gay
Marriage Ban, latimes.com (17 Aug 2009). Available at latimes.com/news/nationworld/nation/la-na-gay-marriage18-2009aug18,0,6851543.story (visited 18 Aug 09).
In a speech made in 2006, then Senator Obama stated that, personally, I do believe
that marriage is between a man and a woman. See Floor Statement of Senator Barack
Obama on Federal Marriage Amendment (5 Jun 2006). Available at http://www
.obamaspeeches.com/075-Federal-Marriage-Amendment-Obama-Speech (visited 2
Sep 09) [Obamas 2006 Speech].
91
239
event, the common ground that then Senator Obama envisaged where
same-sex couples should be treated with dignity and have their privacy respected and be able to visit each other in the hospital and share
health care benefits95 seems to fall short of the ideal of reciprocity
and the commitment to political values that Rawls espouses.
In view of the different common grounds, the fundamental question remains: what does it mean by treating someone with dignity?96
I have argued in previous chapters that the answer depends, because
dignity is such a profound idea that evokes different responses from
people of various backgrounds and convictions. Nevertheless, I maintain that dignity is more than an empty slogan. There is profound collective wisdom in affirming it as one of the universal pillars of human
rights. But one should distinguish between political consensus and
legal principle, particularly when dignity is being relied on to argue for
some of the most contentious rights like the right to same-sex marriage. The difficulties in getting people agree on a definition should not
deter us from continuing to identify some common principles that are
shared by both the proponents and opponents. It is to do justice not
only to gays and lesbians who sincerely believe that their claim matters,
but also to those who remain doubtful of uncritically using dignity to
settle the disputes on rights.
We have not yet had an elaborate theory of dignity. Dworkin has
tried to develop one by going back to the basics. He believes that the
gulf between liberals and conservatives in the U.S. is not as bottomless
as people think. There are indeed shared principles if people care to
understand them.97 His two principles of dignity that each human life
has intrinsic value and each person is responsible for his own life remain
abstract and philosophical. They are open to interpretations by people
of all political stripes. Dworkins endorsement of same-sex marriage on
the basis of his own interpretation98 does not mean that others would
come to the same conclusion. But it does not vitiate his modest ambition to persuade people that it is worthwhile to look at the controversies
at a more philosophical level and try to argue from there with mutual
respect.99 Above all, the possibility of debate is part of the discipline of
95
96
97
98
99
Ibid., Obamas 2006 Speech.

See McClain III (n 94 above), p 453.
Ibid., pp 8689.
Ibid., p 8.
240
human rights.100 As Sen argues, a theory of human rights aims to clarify

some core content about rights while leaving room for continued
debates. In particular, he says,
A theory of human rights can, therefore, allow considerable internal variations, without losing the commonality of the agreed principle of attaching substantial importance to human rights (and to the corresponding
freedoms and obligations) and of being committed to considering seriously how that importance should be appropriately reflected.101
If the disagreeing parties can agree on the broad principles offered

by Dworkin, the next step is for each to elaborate its understanding of
these principles including how it affects its judgment on same-sex marriage. There will be much explanation to do for both sides to understand each other. At the same time, we will need to ask ourselves
whether we want to treat each other as enemies in combat or partners
in a democracy. The requirements of reciprocity and mutual respect are
the same for those who support or oppose same-sex marriage. Both
liberals and conservatives who believe they hold the moral high ground
cannot assume they always have the best answer. In a liberal democracy, no political truth can be justified unless those who have something to say and whose lives are affected by whatever decision are given
a chance to deliberate.102 Refusing to listen to the opposite views and
try to propose reasons that others may reasonably accept runs the risk
of forsaking the most defensible moral ground for an uncompromising position.103
Public deliberation in practice
Dworkin says [a]bstract principles are useless without concrete illustrations.104 If we agree on a common ground and to deliberate, the next
question is how to get started. A full-blown deliberative democracy
remains a theoretical model.105 Perhaps experience from the U.K. hints
100
See Sen (n 62 above), p 323.

Ibid.
102
103
Ibid., pp 4445.
104
105
Some scholars proposed creating a Deliberation Day before every national
election, during which all citizens could attend meetings to discuss important voting
issues as they wish. See Bruce Ackerman & James Fishkin, Deliberation Day (New
Haven: Yale University Press, 2004).
101
241
at a direction where public deliberation can eventually take place. The

British Parliament has been credited with its vibrant parliamentary
debates over policy issues.106 Unlike the U.S., it does not often look to
the court in settling political disputes of the day. As Dworkin would
have it, this approach takes the forum of politics at the expense of the
forum of principle, i.e. the court.107 However, by having the subjects
thoroughly debated in the legislature, lawmakers are more able to focus
on the issues in question such as the moral conflicts and the role of
the law regarding private and moral matters.108 These are the things the
court is not concerned with the most as it focuses on making decisions
of principle rather than policy. However, moral disagreements in abortion or same-sex marriage require both principle and policy to make
the decisions legitimate. Because on issues like these people want to
know where the best interest of society lies as much as about what
rights people have under the constitution. No wonder Roe v Wade
remains as highly controversial in the U.S. now as it was in 1973.109
Whether or not the case was correctly decided as a matter of constitutional rights, the U.S. Supreme Court only devoted a few paragraphs
addressing the moral issues in relation to abortion in its 50-page
opinion.110
The debate over liberalizing abortion law in the U.K. happened seven
years earlier in the House of Commons.111 Although the pro-choice
members finally prevailed, the vigorous debates over principles, rights
and moral concerns among all members made everyone leave the
chamber paying tribute to each other.112 The sense of respect arising
from deliberation based on reason and reciprocity helps people to
move on and sustains the legitimacy of decisions made. Even a losing
party who insists the winners side got it all wrong can acknowledge
106
Jeremy Waldron, The Core of the Case Against Judicial Review, (2006) 115 Yale
Law Journal 1346, pp 13841385 [Waldron III].
107
1985), pp 6971.
108
See Waldron III (n 106 above).
109
The controversy remains part of the political and judicial life in the U.S. As soon
as she was nominated by President Obama to sit on the Supreme Court, the personal
view of abortion of Justice Sonia Sotomayor became the focus of both the pro-life and
pro-choice camps. See Charlie Savage, On Sotomayer, Some Abortion Rights Backers
Are Uneasy, International Herald Tribune (27 May 09).
110
See the judgment of Roe v Wade (1973) 410 US 113, pp 153155, 159162.
111
The House of Commons debated the Medical Termination of Pregnancy Bill in
1966, which resulted in the passage of the Abortion Act 1967 (1967 c. 87).
112
See Waldron III (n 106 above).
242
that the latters position is worthy of moral respect.113 Four decades

later, another controversy arose when the British Government attempted
to legislate to give legal recognition to same-sex couples, resulting in
the passage of the Civil Partnership Act 2004.114
In the absence of judicial imperative, the Women and Equality Unit
(WEU) under the Department of Trade and Industry began studying
the policy and cost implications of a civil partnership registration
scheme in November 2001. Not long after, a private members bill, the
Civil Partnership Bill 2002, was introduced in the House of Lords. In
June 2003, the WEU published a consultation paper, Civil Partnership:
A framework for the legal recognition of same-sex couples.115 It stated
clearly the governments intention to create a new status of civil registered partner, without plan to introduce same-sex marriage.116 It contained particulars of the proposal including formalities of its creation
and dissolution, rights and responsibilities as well as the associated
legal incidents. Legalities aside, one of the objectives was to promote
cultural change, because legislation can only take us so far.117 Hence,
the government invited views from the public, as well as a diverse
membership of consultees, ranging from professional bodies, lobby
groups, human rights advocates, gays and lesbians associations, and
religious organizations.118
This exercise has activated the engine of deliberation at an elementary stage. The government, by identifying a list of consultees, acknowledged the presence of different voices in society on this important
policy reform. More than 3000 submissions were received at the end of
the three-month consultation. In response, the government in
November 2003 published a compilation of received views with
analysis.119 It revealed that 83% of the responses supported in principle
a civil partnership scheme. It set out the emerging themes the respondents had raised, including the possibility of gay marriage, the exclusion
113

Civil Partnership Act 2004 (2004 c.33).
115
Civil Partnership: A framework for the legal recognition of same-sex couples
(June 2003), published by the Women and Equality Unit. Available at www.womenandequalityunit.gov.uk/research/civ_par_con.pdf [Consultation Paper].
116
Ibid., para 1.3.
117
Ibid., Foreword.
118
Ibid., Annex C List of Consultees.
119
Response to Civil Partnership: A framework for the legal recognition of samesex couples (November 2003), published by the Women and Equality Unit. Available
at www.womenandequalityunit.gov.uk/publications/CP_responses.doc [the Responses].
114
243
of opposite-sex couples under the proposal and religious concerns. At

the end, the questions put by members of the public were answered.
The process only went so far, however. Bundles of submissions from
the diverse consultees merely formed part of the official response on
paper. Other than the statistics, their views, reasonable or not, never
made it to the scrutiny of the public eye. There was no forum for the
respondents to translate their written submissions into open communications that would allow for exchanges of views, debates or queries.
Their major contribution to the legislative process was more of providing the right figures. Having consulted, the government called the
shots. Of course, the positive response from the majority of consultees
perhaps enhanced the moral grounds of the proposal and strengthened
support from the parliamentarians, leading to the smooth passage of
the Civil Partnership Act in November 2004.
What would be a deliberative theorists response to the Britishs
approach? Would public deliberation on the issue have made any difference? If cultural change is indeed one of the governments important
aims, open discussions involving all concerned parties seems to be the
right direction. For culture is something ingrained; it cannot be transformed overnight. Sometimes it takes a generation to make slight
changes. If no one dares to touch a taboo, it may stay there forever. But
opening up our thoughts allows others to open theirs. Through vigorous
discussions, there is hope that self-reflection, mutual understanding and
accommodation will come. But all does not guarantee that things will
definitely change for the better. Laying bare peoples values may reveal
the deep fault that sets them apart.120 But such revelation at least helps
people identify the opposing values while reaffirming their own through
reasoning with others. Getting to know the aspirations others hold dear
enhances the seriousness of the debate, and the chance of nurturing
mutual respect.121 In this regard, deliberation does make a difference.
A democratic culture, equality, and dignity
Public deliberation is no empty talk. If we believe in everyones equal
standing, we would recognize each persons right to shape the kind of
society he aspires to. If we value the importance of autonomy, we would
120
121

Ibid., p 43.
244
find it hard to deny others access to participate in political communications and articulate what they take to be equality, however disagreeable their views appear. The recognition of such a broad and deep right
of expression and conscience affirms equal dignity. According to
Brennan, it fulfills the constitutional vision of dignity that respects the
right of each individual to form and express political judgments.122 It
does not matter whether one is in the majority, at the periphery, the
powerful, the less powerful, a conservative, or a reformist. It is also the
message professors Harold Lasswell and Myres McDougal sought to
spread, as they told of their aspirations in legal education in the midst
of the Second World War,
The supreme value of democracy is the dignity and worth of the individual; hence a democratic society is a commonwealth of mutual deference a commonwealth where there is full opportunity to mature talent
into socially creative skill, free from discrimination on grounds of religion, culture, or class.123
Although written more than half a century ago, their message remains
pertinent as ever. Their vision in education was grounded, like the
deliberative theorists, on human beings deliberative capability:
The student may be allowed to reject the morals of democracy and
embrace those of despotism; but his education should be such that, if he
does so, he does it by deliberate choice, with awareness of the consequences for himself and others, and not by sluggish self-deception.124
That people are rights-bearers, able to think responsibly about the

moral relation between their interests and the interests of others, is the
core of democratic competence.125 Of course, reasonable and responsible citizens do disagree about what democracy requires and the rights
it entails in a myriad of circumstances.126 This is desirable and understandable in a democratic and free society, because the disagreement
they have on matters of constitutional principles is a sign that people
take rights seriously.127 That includes taking others rights as seriously
122
William J. Brennan Jr., Construing the Constitution, (1985) 19 U.C. Davis Law
Review 2, p 12.
123
Harold D. Lasswell & Myres S. McDougal, Legal Education and Public Policy:
Professional Training in the Public Interest, (1943) 52 Yale Law Journal 203, p 212.
124
Ibid.
125
Ibid., p 282.
126
Ronald Dworkin, Freedoms Law: The Moral Reading of The American Constitution
(Cambridge: Harvard University press, 1996), p 34.
127
245
as ours, no matter how morally wrong we believe the others words and
deeds are.
In his analysis of social group competition, Balkin asks democracy
to live up to its own ideal, where majority rule is not.128 Because democracy is more than a matter of letting majorities or the governing elites
have their way. It is not only about the procedure, but also about the
proper organization of society and the proper mode of social relations.129 Its goal is to cultivate a democratic culture, a vision of democracy that forsakes all unjust social hierarchies and promotes equal
standing for everyone. This egalitarian demand does not hinge on legal
means alone, for law is part of the status quo.130 It demands society to
stop paying lip-service to familiar terms like discrimination, and confront societal structures that perpetuate unjust hierarchies and the
lower status for some groups. According to Balkin, the current status
hierarchy on the basis of sexuality is unjust as it organizes social structure, distributes dignitary and material benefits, and shapes and justifies peoples life chances through systematic privileging of things
associated with masculinity over femininity. Under this system, gays
and lesbians are thought to have transgressed the set gender roles
between men and women and deserve a lower status.131 In this regard,
a democratic process which prides itself as expressing the wish of people in legislating against same-sex marriage on grounds of morality
and traditions seems to let democracy down.132
Balkin believes that Stone Js famous footnote in Carolene Products
contains a message that the democratic process is not always just to
minorities. The third paragraph of the footnote suggests that prejudice
against discrete and insular minorities may be a special condition that
undermines political processes originally meant to protect them;133 and
it is at this point the court must heighten its judicial scrutiny. Balkin
suspects that in formulating this condition, Stone J might be aware of
the potential conflict between democracy and prejudicial treatment of
certain kinds of social groups.134 Therefore, Balkin observes that in a
society embedded with unjust status hierarchies, the formal feature of
128
129
130
131
132
133
134
See Balkin (n 27 above), pp 23672368.

Ibid., p 2368.
Ibid., pp 23142315.
Ibid., p 2361.
Ibid., p 2368. But see Coolidge & Duncan (n 58 above), pp 2627.
U. S. v Carolene Products Co. (1938) 304 US 144, p 154 (fn 4).
246
democracy is insufficient to cure the injustices that a democratic culture aims to eliminate.135
If we think that Balkins arguments are worth a thought, sooner or
later we will need to confront the perceived injustices created by legislative or electoral initiatives which legitimize the ban on same-sex marriage. However reluctant we may be, as society we must make a decision.
If no consensus is possible, we may vote to remove the issue from the
legal domain altogether, or vote for or against to settle it once and for
all.136 But, suppose the majority has its way, they may not be entirely
happy if it is always associated with the word tyranny. Then what are
the alternatives?
The alternative of deliberative democracy is not a panacea for societys moral disagreements. As much as he believes in deliberative politics, Waldron does not share the idealistic assumption that he thinks is
being held by theorists of deliberative democracy that, once we get a
genuine deliberative democracy, the sordid business of counting votes
will be largely unnecessary, at least on serious matters of principle.137 It
is because even after deliberation, people will continue to disagree in
good faith about the common good, and about the issues of policy,
principle, justice, and right which are better left to the deliberative
process of the legislature.138
Perhaps democracy is indeed an unfinished project. It is an ideal we
always strive for but that we never fully grasp. If we want to have a society where people are equal civilly, socially and politically, we may want
to ask whether our democracy is moving in this direction. If we
acknowledge that our current systems contain unjust status hierarchies,
we may need to cultivate a democratic culture and deliberate our way
to bring groups closer together. In the process, we will need to listen,
deliberate and reconsider, at the same time accommodate aspirations
we used to think incompatible with ours.139 Sometimes we may need to
135
Dworkin expresses a similar criticism against the majoritarian conception of democracy that a decision is democratic even if it is very unjust. See Dworkin (n 31
above), p 134. On the other hand, Waldron argues that the idea of the tyranny of the
majority is not always right. See Waldron III (n 106 above), pp 13951401.
136
See Coolidge & Duncan (n 58 above), p 26.
137
138
Ibid., p 93.
139
Michael Walzer writes, In democratic politics, all destinations are temporary.
No citizen can ever claim to have persuaded his fellows once and for all. See Michael
Walzer, Spheres of Justice: A Defence of Pluralism and Equality (Oxford: Martin
Robertson, 1983), p 310.
247
change our views. And we cannot expect to always have our own way.
To live up to democracy and to find our way out of a disagreement like
same-sex marriage, perhaps it is what is required. In a world that moral
controversies and conflicts of rights abound, we can no longer truly say
we are taking rights seriously unless we are willing to go that far. On
this note, Waldrons closing words are most inspiring as I believe, for
advocates on all sides of the same-sex marriage dispute:
To take rights seriously, then, is to respond respectfully to this aspect of
otherness and then to be willing to participate vigorously but as an
equal in the determination of how we are to live together in the circumstances and the society that we share.140
Perhaps that is the essence of equality and equal dignity. When each
member of society: men and women, rich and poor, spiritual and secular, is able to step into the shoes of others and have an equal access to
make their voice heard no more, no less than an equal rights-bearer
deserves, we will have come to the doorstep of fairness at long last. It
strikes us as a utopia. But an aspiration to always make a step closer to
a utopian society is the constant drive for those who still believe there
is a reason to ask and dream for justice.
140
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INDEX
Abortion, 12, 52, 54, 68, 111, 154, 241
Ackerman, Bruce, 240
Ackermann, Laurie (Lourens) W H, 192,
197200, 228
Adolphe, Jane, 63
Adoption, 16, 17, 18, 19, 22, 3334, 35,
47, 4950, 60, 65, 66, 69, 120, 220, 223
African Charter on Human and Peoples
Rights (1981), 133
Age of consent, 8, 33, 37, 41, 103, 116,
222
Alaska, 2728, 29
Albertyn, Cathi, 191193, 195196
Alston, Philip, 216
Anthropology, 13, 136, 139, 157
Apartheid, 21, 74, 79, 134, 155, 177, 191,
193, 203
Aquinas, St. Thomas, 137
Argentina, 38
Aristotle, 6, 11, 79, 83, 116, 206, 222
Arizona, 31
Arranged marriage, 156
Asia-Pacific, 3637
Assimilation (of gays and lesbians), 42,
99, 110, 111, 124126, 224, 237
Aung San, Suu Kyi, 143
Australia, 47
Autonomy (Self-determination), 3,
69, 123, 144, 149150, 155, 184185,
189, 200, 201202, 206, 217, 219,
234236, 243
Baines, Beverley, 176
Balkin, J. M., 10, 5253, 130, 231, 245
Ball, Carlos A., 59
Bamforth, Nicholas, 83, 100101, 104,
106, 120121
Barak, Aharon, 153
Baroness Hale of Richmond, 91, 128
Barr, Michael D., 155
Beatty, David M., 76
Beck, Randy, 69
Belgium, 20, 21, 39, 217
Bellamy, Richard, 206
Best interest of the child, 4950, 61,
65, 220
Bestiality, 68
Bioethics, 158
Blair, D. Marianne, 43
Bonauto, Mary L., 29

Boswell, John, 106
Brandeis, Louis D., 1, 40
Brazil, 38
Brennan Jr., William J., 144, 151, 244
British Columbia, 24, 25
Browne, Derek, 116
Buggery, 8, 33, 41, 103 (see Sodomy)
Buggery Act, U.K. (1533), 33
Bush, George W., 229
Byrd, A. Dean, 65
Cain, Patricia A., 110, 126
Cairo Declaration on Human Rights in
Islam (1990), 74
Cali, Basak, 201
California, 3031, 32
Calsamiglia, Alberto, 236
Canada, 6, 7, 13, 2225, 37, 39, 78, 159,
168190, 207, 213, 216, 218, 227
Canadian Charter of Rights and
Freedoms (1982), 23, 75, 131,
159161, 168, 174176, 182, 190
Cancik, Hubert, 132
Capital punishment, 124, 144, 192, 200
Carroll, Jason S., 66
Charter of Fundamental Rights of the
European Union (2000), 49, 134
Charter of the Organization of African
Unity (1963), 74
Charter of the United Nations, 74,
132133
Chaskalson, Arthur, 191
Christianity, 16, 17, 22, 6667, 137, 221,
229 (see Religion)
Cicero, Marcus Tullius, 137
Civil union, 9, 2729, 36, 38, 4142, 4346,
77, 218 (see Second-class citizenship)
Clapham, Andrew, 18
Classical Age, 13, 132, 157
Cloning, 148
Cohabitation, 20, 47
Cohen, Joshua, 235
Colorado, 75
Common denominator, 157
Common good (Public good), 6364, 65,
109, 120, 205, 246
Common ground, 49, 228232, 233,
238239, 240
260
index
Connecticut, 25, 31, 39, 218

Consensus, 3, 165, 166, 233, 235,
239, 246
Conservatism, 11, 53, 54, 6269, 98,
122, 125, 163, 181, 221, 230, 237, 238,
239, 240
Constitutional amendment, 28,
31, 214
Constitutionalism, 172, 204
Contraception, 58
Coolidge, David Orgon, 232
Cooper, Davina, 126127
Cover, Robert M., 205
Cowen, Susie, 186, 191, 199203, 207
Cretney, Stephen M., 34, 92
Culture, 13, 35, 46, 51, 5254, 62, 70, 72,
81, 106, 107, 130, 156, 157, 158, 202,
204, 221, 226, 229, 230, 238, 242, 243,
245, 246
Culture of reason, 204, 206
Culture war, 51, 70
Currah, Paisley, 105
Currie, Iain, 192
Czech Republic, 38
Daly, Erin, 136
Darwall, Stephen L., 147
Darwinism, 139
Davis, D. M., 172, 190, 196, 203204, 205
dEntrves, A. P., 136
de Smith, Stanley A., 86
de Vos, Pierre, 80
de Waal, Johan, 192
Defense of Marriage Act, U.S. (1996),
2930, 32, 4445, 238
Deliberation, 14, 54, 165, 207, 232243
Deliberation Day, 240
Deliberative democracy, 10, 1415, 46, 72,
168, 206207, 235, 240
Democracy, 9, 43, 128, 130, 131,
165, 202, 206, 228229, 231232, 240,
244245, 247
Denmark, 1617, 20, 33, 217
Dent Jr., George W., 69
DeSantis, Matthew, 229
Dicey, A. V., 86
Dignitas hominis, 136
Dignity, 12, 46, 1213, 39, 54, 5658,
132, 144, 148, 167, 173, 189, 200, 206,
215, 229231, 247
Disagreement, 1, 7, 8, 10, 14, 15, 46,
54, 70, 124, 128, 130, 163, 164, 165,
166, 168, 206, 214, 226, 235, 241, 244,
246, 247
Dollahite, David C., 66

Donnelly, Jack, 154155
Dont Ask, Dont Tell, 105, 108
Due Process Clause, U.S. Constitution,
2627
Duncan, William C., 65, 67, 232
Dupre, Catherine, 149
Durant, Ariel, 82
Durant, Will, 82
Dwarf-throwing competition, 151152,
157, 201, 226
Dworkin, Ronald, 5, 15, 45, 72, 82,
113115, 128129, 197, 206, 228232,
239240, 241
Eastern Europe, 38
Eberle, Edward J., 157
Egalitarianism, 12, 73, 95, 109, 110,
113116, 119, 120, 131, 224, 245
Eighth Amendment, U.S. Constitution,
123124
Englard, Izak, 137
Epstein, Steven, 105
Equal Protection Clause, U.S.
Constitution, 27, 75, 122
Equality, 12, 46, 11, 39, 4344, 54,
5556, 6566, 73, 82100, 113, 123,
128, 168, 203, 206, 215, 222, 223, 234,
247 (see Substantive equality)
Eskridge Jr., William N., 89, 40, 4344,
46, 118, 122, 220
Ettelbrick, Paula L., 65, 99
European Community, 9394
European Convention on Human Rights,
33, 47, 49, 133, 150
European Court of Human Rights, 34, 47,
4851, 150, 219
European Union, 9394, 134
Fagan, Anton, 191
Feinberg, Joel, 112, 141, 143, 145,
147, 211
Feldblum, Chai R., 123
Feldman, David, 148149, 158, 163, 164,
167168, 176, 201202
Feminism, 11, 72, 124125, 194,
234237
Fetus (Human embryo), 85, 154
Finland, 17, 20
Finnis, John, 63
Fishkin, James, 240
Fletcher, G. P., 138
Florida, 31
Forum of principle, 7172, 241
index
Foucault, Michel, 106
Fourteenth Amendment, U.S.
Constitution, 2, 27, 7475, 222
France, 18, 73, 151, 217
Fredman, Sandra, 20, 56, 8890
Furnish, Victor Paul, 67
Gallagher, Maggie, 64
Genesis, 27, 66, 67 (see Christianity)
George, Robert P., 64, 237
Georgia, 26
Germany, 18, 74, 131, 134, 138, 151, 153,
154, 156, 215, 217
Gewirth, Alan, 59, 140142, 147, 211
Gibbins, Roger, 135
Glendon, Mary Ann, 135
Goldblatt, Beth, 191193, 195196
Grabham, Emily, 192
Greeks, 106, 136
Greenawalt, Kent, 100
Greschner, Donna, 181, 189
Guest, Stephen, 115
Gutmann, Amy, 206, 232, 240, 242
Habermas, Jrgen, 234236
Halley, Janet E., 105, 109
Hate crime, 223
Hawaii, 2728, 29, 61, 76, 118, 218
Hays, Richard B., 67
Henkin, Louis, 197
Heterosexuality, 51, 5253, 99, 126,
225, 230
Hill Jr., Thomas E., 146
Hitler, Adolf, 100, 143
Hobbes, Thomas, 138
Hogg, Peter W., 171, 176, 190
Homosexuality, 47, 48, 5153, 58, 67, 68,
105109, 245
Hong Kong, 102103, 208
Honneth, Axel, 42, 233
Howard, Rhoda E., 154155, 201
Humanism, 115, 137
Humanity, 57, 58, 115, 131, 162, 163,
203, 224
Hungary, 134, 217
Huscroft, Grant, 173176
Iceland, 17
Illinois, 26
Imago Dei, 137
Immutability, 107, 170171, 185
India, 39, 40, 139
Individualism, 125, 139, 191, 194,
201202, 213
261
International Bill of Rights, 133,

216, 217
International Covenant on Civil and
Political Rights, 5, 4748, 76, 133,
135, 201
International Covenant on Economic,
Social and Cultural Rights, 5, 133,
135, 201
International Labour Organization, 132
Interracial marriage, 6162, 68,
88, 105
Iowa, 25, 31, 39, 218
Ireland, 20
Israel, 3839, 134, 153, 155
Jaggar, Alison M., 125
Jefferson, Thomas, 128, 216
Jehovahs Witnesses, 151
Jews, 66, 100, 137
John Paul II, Pope, 137
Jowell, Jeffrey, 86, 87
Judicial paternalism, 151
Judicial review, 71, 87
Jurisgenerative politics, 204205
Justice, 2, 4, 7, 14, 83, 95, 96, 112113,
116, 189, 230, 247
Kant, Immanuel, 138, 140, 144,
197198
Kassel, Jason, 229
Keshen, Richard, 146
Kilner, John F., 96
King Jr., Martin Luther, 4, 230
Klein, Eskart, 152
Kolnai, Aurel, 136
Koppelman, Andrew, 42, 105
Kretzmer, David, 153
Kulow, Marianne Delpo, 17
Lacey, Linda J., 43
Lacey, Nicola, 126
Lahey, Kathleen, 24
Lambda Legal Defense and Education
Fund, 117118
Lasswell Harold D., 244
Latin America, 38, 230
Liberalism, 4344, 46, 59, 60, 73, 82, 104,
114, 181, 194, 224
Libertarianism, 1112, 72, 9899, 116,
125126, 130, 223, 224
Liberty, 3, 4, 22, 39, 54, 5562, 103104,
114, 115, 119, 120121, 129, 144, 156,
188, 202, 203, 208212, 215, 226, 230,
234, 238
262
index
Littleton, Christine A., 126

Locke, John, 138
Lucas, J. R., 83, 102
Lutheran Church, 16
Luxembourg, 20
MacDougall, Bruce, 69
MacKinnon, Catharine A., 124125
Maine, 25, 31, 32, 39, 218
Majority rule (Majoritarianism), 225,
231, 245246
Mandela, Nelson, 143
Manitoba, 24
Margalit, Avishai, 146
Maritain, Jacques, 142
Marriage, 1112, 25, 29, 34, 49, 59,
6061, 62, 6368, 99, 164, 217,
221, 226
Martin, Paul Edgar Philippe, 25
Martin, Sheilah, 192
Masculinity, 5253, 63, 245
Massachusetts, 2627, 39, 45, 55, 7778,
152, 163, 218, 220, 222
Massey, Stephen J., 146, 211
Maxwell, Nancy G., 19
McAllister, Debra M., 176, 189
McClain, Linda C., 123, 237239
McCrudden, Christopher, 12, 57,
86, 136
McDougal, Myres S., 244
McLeod, Donald W., 23
Melden, A. I., 141, 143144
Mendes, Errol P., 135
Metaphysics, 137, 145
Mexico, 38
Michelman, Frank, 204
Minnesota, 27, 67
Mississippi, 97
Moral arguments (Normative
arguments), 11, 53, 59, 70,
109111, 113, 119, 121, 122,
212, 214, 241
Moral liberalism, 5960
Morality, 52, 53, 59, 66, 109, 110, 122,
129, 130, 142, 143, 151, 245
Mother Teresa, 143
Multiculturalism, 79
Natural law, 6364, 132, 136137
Netherlands, 8, 1819, 20, 21, 33, 39,
51, 217
New Hampshire, 25, 31, 32, 39, 218
New Jersey, 119, 123124, 164, 225
New Zealand, 37, 48, 218
Norway, 17, 20, 38, 39, 219

Nuremberg, 100
Obama, Barack H., 238239
OConnor, Sandra Day, 75, 101102,
104, 122, 208
OFlynn, Ian, 206
Ontario, 6, 24, 55, 60, 78, 103, 208, 222
Orwell, George, 94
Parekh, Bhikhu, 139140, 156, 201
Parent, William A., 144
Parfit, Derek, 95
Patriarchy (Male dominance), 62, 65, 88,
125, 196
Paust, Jordan J., 1, 132, 167
Persona, 137
Peters, Christopher J., 9596
Philadelphia Declaration, 132
Phillips, Anne, 97
Philosophy, 13, 14, 80, 83, 85, 122,
129, 135, 138139, 144, 147, 165,
167, 198, 202, 211, 226, 230,
237, 239
Pichardo Galn, Jos Ignacio, 21
Pluralism, 153, 165
Pojman, Louis P., 83
Polikoff, Nancy D., 11, 111
Politics of recognition, 42, 45, 232
Polygamy, 68, 221
Posner, Richard A., 67, 118 (see Stamp of
approval argument)
Presumption of paternity, 65
Privacy, 1, 8, 28, 40, 41, 47, 49, 54,
5859, 76, 122, 156, 219 (see Right
to be left alone)
Proportionality, 49, 153, 186
Psychology, 146, 159160, 173, 179
Public reason, 59, 165, 234, 237238
Quebec, 24
Race, 4, 35, 42, 6162, 68, 75, 8889, 94,
9798, 105, 107, 118, 129, 148, 194,
216, 222, 227
Rachels, James, 139
Ratio, 136
Rawls, John, 139, 177, 197, 236, 237
Raz, Joseph, 97, 109110, 114116
Reasonableness, 49, 87, 100, 160, 163,
178179, 181, 189
Raume, Denise G., 169
Reciprocity, 46, 138, 144, 235, 237238,
239240, 241
index
Registered partnership, 9, 16, 34, 38,
4142, 117, 217
Religion, 3, 13, 17, 22, 25, 35, 52, 6667,
88, 94, 118, 137, 138, 139, 148, 151,
171, 221, 226, 229, 230, 237, 238, 242,
243 (see Theology)
Reproductive technologies, 60, 64, 66,
69, 120, 220
Reynolds, F. M. B., 92
Richards, David A., 58
Right to be different, 7981, 83, 108,
155, 210, 223
Right to be left alone, 1, 8, 40, 58, 6768,
71, 111, 156, 219, 235
Ritschl, Dietrich, 137
Roman Catholic Church, 22, 137, 230
Ross, Alf, 112
Sado-masochism, 152
Samar, Vincent J., 60
Same-sex marriage, 3, 7, 9, 11, 19,
24, 30, 39, 42, 51, 5470, 98, 122,
207, 212, 217, 226, 229, 230,
232, 247
San Francisco, 30
Sandel, Michael J., 123
Saskatchewan, 24
Scalia, Gregory Antonin, 51, 68
Scandinavia, 10, 16, 217, 220
Schaar, John H., 73
Schachter, Oscar, 201
Schuman, Ben, 52
Second-class citizenship, 9, 27, 42, 45,
55, 71, 78, 118, 232
Second World War, 74, 134, 215, 244
Seidman, Steven, 106
Sen, Amartya, 199, 233, 240
Separate but equal, 42, 44, 75, 78, 81,
88, 128, 222
Sex, 27, 35, 49, 62, 66, 76, 89, 103, 105,
106, 129, 159, 216, 227
Sexual intercourse, 6364, 100104, 108
Sexual orientation, 5, 16, 21, 23, 35,
37, 41, 4748, 4950, 56, 57, 69, 75,
76, 92, 93, 94, 100, 101, 105, 106,
118, 159, 162, 209, 216, 219
Shamgar, Meir, 155
Slippery slope, 69, 221
Smith, Daniel A., 229
Smith, Nicholas, 176179, 212
Social contract, 138
Sodomy, 5, 2526, 33, 35, 40, 42, 55, 58,
67, 68, 76, 100, 101, 121, 122, 162, 192,
202, 208, 219
263
South Africa, 6, 7, 13, 3436, 39, 55,

57, 72, 74, 79, 108, 131, 134, 155, 162,
190199, 207, 210211, 213, 216,
218, 223, 227
Spain, 20, 2122, 39, 217
Spedale, Darren R., 8, 40, 220
Stamp of approval argument, 42, 67,
118, 221
Stanton-Ife, John, 87, 90, 99
Statman, Daniel, 140
Stein, Edward, 105
Step-by-step (Incremental) development,
45, 8, 9, 33, 36, 4043, 46, 55, 71, 222
Stoddard, Thomas B., 117
Stoicism, 132, 136, 138, 157
Stone, Harlan F., 88, 245
Strasser, Mark, 61
Substantive equality, 56, 8082, 169170,
172, 193
Sullivan, Andrew, 61, 64
Sunstein, Cass R., 165, 235
Sweden, 17, 20, 38, 39, 219
Tautology, 11, 70, 90, 104, 142, 198
Taylor, Charles, 7, 42, 232
Telfer, Elizabeth, 146
Terminal patient, 149151, 156, 163
Terrorism, 90, 154
Texas, 26, 58, 76, 101
Theology, 137, 139, 224
Thompson, Dennis, 206, 232, 240, 242
Tolerance, 9, 46, 59, 67, 123, 148, 238
Tradition, 25, 34, 51, 53, 54, 61, 63,
67, 69, 99, 126, 136, 139, 226, 230,
237, 245
Transsexualism, 49
Treaty of Rome (1957), 93
Tremper, Charles Robert, 143
Tribe, Laurence H., 29, 112
Tridimas, Takis, 93
Trudeau, Pierre, 22
Trump, 5, 118, 154
Uncle Tom, 146147
United Kingdom, 3234, 37, 9094, 106,
149150, 218, 240243
United Nations Human Rights
Committee, 4748, 51, 76, 152
United States, 8, 2532, 39, 40, 44, 51,
55, 60, 62, 67, 78, 88, 105, 108, 144,
154, 156, 214, 218, 222, 229,
232, 238
U.S. Presidential Elections (2004, 2008),
228229, 31
264
index
Universal Declaration of Human Rights,

1, 4, 5, 12, 56, 74, 133, 140, 215
Universality, 3, 4, 12, 14, 58, 142, 143,
157, 165, 227, 239
Utilitarianism, 60, 138
Values, 14, 52, 56, 58, 66, 69, 90, 92,
93, 113, 125, 151, 157, 171, 225, 229,
230, 243
van Dun, Frank, 12, 57
Vermont, 28, 29, 31, 39, 44, 77, 119, 164,
218, 222
Virginia, 62
Waaldijk, Kees, 8, 40, 55
Waldron, Jeremy, 13, 7, 14, 129, 233,
246247
Walzer, Michael, 246
Wardle, Lynn D., 64
Warren, Samuel D., 1, 123124
Weber, Max, 10, 52

Weeks, Jeffrey, 107108
Weisstub, David N., 153, 155
Westen, Peter, 84, 87, 90, 111, 198
Whitman, James Q., 156
Williams, Bernard, 145
Williams, Thomas D., 136137
Wilson, Angelia R., 107
Wilson, James Q., 68
Wintemute, Robert, 116117
Wojcik, Mark E., 28
Wolfenden Report, 58, 106
Wolfson, Evan, 118
Wollstonecraft, Mary, 110
Woolf, Harry, 86
Worthen, Kevin J., 153
Young, Iris Marion, 194
Zapatero, Jos Luis Rodrguez, 22

Equality, Dignity and Same-Sex Marriage

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Equality, Dignity and Same-Sex Marriage

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Equality, Dignity, and Same-Sex Marriage

Man Yee Karen Lee

This book is printed on acid-free paper.

ISBN 978 90 04 17926 4

A normative inquiry into same-sex marriage ..................................54

Dignity and same-sex marriage .......................................................159

Stubbings & Others v UK [1997] 23 EHRR 213.

Toonen v Australia (Comm No 488/1992, UN Doc CCPR/C/50/D/488/

Rights and disagreements

decision whether or not to terminate her pregnancy?7 Does the right

Roe v Wade (1973) 410 US 113, p 153.

have yet to be elaborated in a fully convincing theory. But it is, I think,

conscience or to put on the very symbol they deem integral to their

See UDHR (n 3 above).

Nevertheless, this prominent role in the international human rights

According to this line of thinking, dignity is held to be violated when

book is to interrogate the different views pertaining to the notions of

becomes questionable as to why same-sex couples do not enjoy the

See Goodridge (n 25 above), p 948.

society should stop treating such disagreements as mere political feuds

See Waldron I (n 2 above), pp 12, 311312.

See Westen (n 19 above).

oppression, they argue that overhauling the entire societal structure is

Christopher McCrudden, Human Dignity and Judicial Interpretation of

See Fourie (n 17 above), para 72.

SAME-SEX MARRIAGE: HISTORY, LAW,

same-sex marriage: history, law, and disagreements

same-sex marriage: history, law, and disagreements

link between marriage and procreation was unquestioned, both the

Belgium joins the Netherlands

same-sex marriage: history, law, and disagreements

See Pichardo Galn (n 24 above), pp 163164.

same-sex marriage: history, law, and disagreements

same-sex marriage: history, law, and disagreements

British Columbia Court of Appeal delivered a unanimous decision

Barbeau v British Columbia [2003] BCCA 251.

Rights in 1791.49 It remained a crime in all of the 50 states until 1961,

No Author, Survey on the Constitutional Right to Privacy In the Context of

same-sex marriage: history, law, and disagreements

same-sex marriage: history, law, and disagreements

their constitutions to entrench marriage as between a man and a

See map of Statewide Marriage Prohibitions (updated 4 Jun 2009). Available

same-sex marriage: history, law, and disagreements

same-sex marriage: history, law, and disagreements

Civil Partnership Act on 18 November 2004.88 This historic move came

Government had opened up registered partnerships. Following

same-sex marriage: history, law, and disagreements

See Fourie (n 102 above).

same-sex marriage: history, law, and disagreements

In Asia-Pacific, while no national court has ever ruled in favor of

all unmarried heterosexual and homosexual couples, once registered

same-sex marriage: history, law, and disagreements

favor of the claimants by ordering the government to register their

See Waaldijk I (n 6 above).

same-sex marriage: history, law, and disagreements

same-sex marriage: history, law, and disagreements

same-sex marriage: history, law, and disagreements

twofold.151 First, the federal government does not recognize same-sex

See DOMA (n 68 above).

heterosexuals?159 Perhaps because marriage has a unique spiritual or

same-sex marriage: history, law, and disagreements

at the level of non-discrimination which focuses on the material

same-sex marriage: history, law, and disagreements

Ibid., paras 97104.