A LEGAL AND JURISPRUDENTIAL ANALYSIS OF HOMOSEXUALITY AND SAME SEX MARRIAGES: SUPPORTING THE NIGERIAN POSITIION

TABLE OF CONTENTS

Title Page                                                                                        i

Certification                                                                                    ii

Approval                                                                                         iii

Dedication                                                                                       iv

Acknowledgement                                                                         v

Table of Contents                                                                            vii

CHAPTER ONE: INTRODUCTION

1.1     Definition of Homosexuality                                                         1

1.2     Who is a Homosexual?                                                                   16

1.3     What is Marriage?                                                                18

1.4     Forms of Same-Sex Marriages                                             26

1.5     Same-Sex Marriage in Contradistinction with Purpose

          of Marriage in the Ordinary Sense                                               30

CHAPTER TWO: LAW AND MORALITY IN RELATION TO HOMOSEXUALITY AND SAME MARRIAGES

2.1     The Moral Implication of Homosexuality and Same-Sex

          Marriage                                                                                35

2.2     Moral Implication of Homosexuality in Nigeria               47

CHAPTER THREE

3.1     Anti-Homosexuality and Same-Sex Marriage

Legislations in Nigeria                                                                  56

3.2     Attempts by the Nigerian Legislature and People

to Stopping the Scourge                                                        59

CHAPTER FOUR:  OPINION ACROSS THE WORLD

4.1     Social and Legal View Point of Homosexuality

Around the World History                                                  68

4.2     Social and Legal View Point of Homosexuality

in America                                                                                       72

CHAPTER FIVE:  CONCLUSION AND RECOMMENDATIONS

5.1     Conclusion                                                                            78

5.2     Recommendations                                                              81

Bibliography                                                                                  82

CHAPTER ONE

INTRODUCTION

1.1     DEFINITION OF HOMOSEXUALITY

          Homosexuality is romantic or sexual attraction or behavior between members of the same sex or gender.  As an orientation, homosexuality refers to “an enduring pattern of or disposition to experience sexual, affectionate, or romantic attractions” primarily or exclusively to people of the same sex; “it also refers to an individual’s sense of personal and social identity based on those attractions, behaviours expressing them, and membership in a community of others who share them.” [1]

          Homosexuality is one of the three main categories of sexual orientation, along with bisexuality and heterosexuality, within the heterosexual-homosexual continuum (with sexuality sometimes considered a fourth).  Scientific and medical understanding is that sexual orientation is not a choice, but rather a complex interplay of biological and environmental factors, especially with regard to early uterine environment.[2]  While there are those who still hold the view that homosexual activity is “unnatural” or “dysfunctional”[3] research has shown that homosexuality is an example of normal variation in human sexuality and is not in and of itself a source of negative psychological effects.  Prejudice and discrimination against homosexual and bisexual people, however, have been shown to cause psychological harm.[4]

          The most common terms for homosexual people are lesbian for females and gay for males, though gay is also used to refer generally to both homosexual males and females.  The number of people as gay or lesbian and the proportion of people who have same-sex sexual experiences – are difficult for researchers to estimate reliably for a variety of reasons.[5]  According to major studies, 2% to 10% of people have had some form of same-sex sexual contact within their lifetime.[6]  In a 2006 study, 20% of respondents anonymously reported some homosexual feelings, although only 2-3% identified themselves as homosexual.  Homosexual behavior is also observed in many non-human animal species.[7]

          Many gay and lesbian people are in committed same-sex relationships, though only recently have census forms and political conditions facilitated their visibility and enumeration.[8]  These relationships are equivalent to heterosexual relationships in essential psychological respects.[9]  Homosexual relationships and acts have been admired, as well as condemned, throughout recorded history, depending on the form they took and the culture in which they occurred.  Since the end of the 19^th century, there has been a global movement towards increased visibility, recognition and legal rights for homosexual people, including the rights to marriage and civil unions, adoption and parenting, employment, military service, equal access to health care, and the introduction of anti-bullying legislation to protect LGBT minors.

          Societal attitudes towards same-sex relationships have varied over time and place, from expecting males to engage in same-sex relationships, to casual integration, through acceptance, to seeing the practice as a minor sin, repressing it through law enforcement and judicial mechanisms, and to proscribing it under penalty of death.

          In a detailed compilation of historical and ethnographic materials of Preindustrial Cultures, “strong disapproval of homosexuality was reported for 41% of 42 cultures; it was accepted or ignored by 21%, and 12% reported no such concept.  Of 70 ethnographies, 59% reported homosexuality absent or rare in frequency and 41% reported it present or not uncommon.”[10]

          In cultures influenced by Abrahamic religions, the law and the church established sodomy as a transgression against divine law or a crime against nature.  The condemnation of anal sex between males, however, predates Christian belief.  It was frequent in ancient Greece; “unnatural” can be traced back to Plato.[11]

          Many historical figures, including Socrates, Lord Byron, Edward II, and Hadrian,[12] have had terms such as gay or bisexual applied to them; some scholars, such as Michael Foucault, have regarded this as risking the anachronistic introduction of a contemporary construction of sexuality foreign to their times, though others challenge this.[13]

          Regarding homosexuality nature and historic expression there are two seemingly opposite positions.  These are represented by a constructionist and an essentialist approach.  In general social constructionism considers that there are “social constructions” resulting from the many characteristics of a particular social group, and not from some essential nature of the individual self.  On the other hand Essentialists defend the existence of real essences that define the individual’s expressions, and social learned aspects are only secondary.  David M. Halperin devotes a chapter”  homosexuality; a cultural construct of his work One Hundred Years of Homosexuality to this subject.[14] He says that the essentialism applied to sexual categories means that the terms like “gay” or “straight” refer to culturally not modifiable, essentially personal traits.  On the contrary, constructionists mean that these terms are the names of social processes.  Halperin leans towards this last position, as he considers that sexuality, including homosexuality, has been expressed in essentially different ways in different historic societies, as it is in present day ones.  He, nevertheless, cites Esteven Epstein[15] that compares the controversy between essentialists and constructionists to the general Nature versus Nurture debate.  As one of the main representatives of essentialists he cites John Boswel), and Michael Foucault as a prominent constructionist. 

          The American Psychological Association, American Psychiatric Association, and National Association of Social workers stated in 2006:

….currently, there is no scientific consensus about the specific factors that cause an individual to become heterosexual, homosexual, or bisexual – including possible biological, psychological, or social effects of the parents’ sexual orientation.  However, the available evidence indicates that the vast majority of lesbian and gay adults were raised by heterosexual parents and the vast majority of children raised by lesbian and gay parents eventually grow up to be heterosexual.[16]

          The Royal College of Psychiatrists stated in 2007:

…Despite almost a century of psychoanalytic and psychological speculation, there is no substantive evidence to support the suggestion that the nature of parenting or early childhood experiences play any role in the formation of a person’s fundamental heterosexual or homosexual orientation.  It would appear that sexual orientation is biological in nature, determined by a complex interplay of genetic factors and the early uterine environment.  Sexual orientation is therefore not a choice.[17]

          The American Academy of Pediatrics stated in Pediatrics in 2004:

…Sexual orientation probably is not determined by any one factor but by a combination of genetic, hormonal, and environmental influences.  In recent decades, biologically based theories have been favoured by experts.  Although there continues to be controversy and uncertainty as to the genesis of the variety of human sexual orientation, there is no scientific evidence that abnormal parenting, sexual abuse, or other adverse life events influence sexual orientation.  Current knowledge suggests that sexual orientation is usually established during early childhood.[18]

          The American Psychological Association states “there are probably many reasons for a person’s sexual orientation and the reasons may be different for different people”, and says most people’s sexual orientation is determined at an early age.[19]  Research into how sexual orientation in males may be determined by genetic or other prenatal factors plays a role in political and social debates about homosexuality, and also raises fears about genetic profiling and prenatal testing.[20]

          Professor Michael King states: “the conclusion reached by scientists who have investigated the origins and stability of sexual orientation is that it is a human characteristic that is formed early in life, and is resistant to change.  Scientific evidence on the origins of homosexuality is considered relevant to theological and social debate because it undermines suggestions that sexual orientation is a choice.”[21]

          Innate bisexuality (or predisposition to bisexuality) is a term introduced by Sigmud Freud, based on work by his associate Wilhelm Fliess, that expounds that all humans are born bisexual but through psychological development – which includes both external and internal factors-become monosexual, while the bisexuality remains in a latent state.

          The authors of a 2008 study stated “there is considerable evidence that human sexual orientation is genetically influenced, so it is not known how homosexuality, which tends to lower reproductive success, is maintained in the population at a relatively high frequency”.  They hypothesized that “while genes predisposing to homosexuality reduce homosexuals’ reproductive success, they may confer some advantage in heterosexuals who carry them”.  Their results suggested that “genes predisposing to homosexuality may confer a mating advantage in heterosexuals, which could help explain the evolution and maintenance of homosexuality in the population”.[22]  A 2009 study also suggested a significant increase in fecundity in the females related to the homosexual people from the maternal line (but not in those related from the paternal one).[23]

          Garcia-Falgueras and Swaab state in the abstract of their 2010 study, “The fetal brain develops during the intrauterine period in the male direction through a direct action of testosterone on the developing nerve cells, or in the female direction through the absence of this hormone surge.  In this way, our gender identity (the conviction of belonging to the male or female gender) and sexual orientation are programmed or organized into our brain structures when we are still in the womb.  There is no indication that social environment after birth has an effect on gender identity or sexual orientation.”[24]

          Most nations do not prohibit consensual sex between unrelated persons above the local age of consent.  Some jurisdictions further recognize identical rights.  Protections, and privileges for the family structures of same-sex couples, including marriage.  Some nations mandate that all individuals restrict themselves to heterosexual relationships; that is, in some jurisdictions homosexual activity is illegal. Offenders can face the death penalty in some fundamentalists Muslim areas such as Iran and parts of Nigeria.  There are, however, often significant differences between official policy and real-world enforcement. 

          Although homosexual acts were decriminalized in some parts of the Western world, such as Poland in 1932, Denmark in 1933, Sweden in 1944, and the United Kingdom in 1967, it was not until the mid-1970s that the gay community first began to achieve limited civil rights in some developed countries.  On July 2, 2009, homosexuality was decriminalized in India by a High Court ruling.[25] A turning point was reached in 1973 when the American Psychiatric Association removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders, thus negating its previous definition of homosexuality as a clinical mental disorder.  IN 1977, Quebec became the first state-level jurisdiction in the world to prohibit discrimination on the grounds of sexual orientation.  During the 1980s and 1990s, most developed countries enacted laws decriminalizing homosexual behavior and prohibiting discrimination against lesbian and gay people in employment, housing, and services.  On the other hand, many countries today in the Middle East and Africa, as well as several countries in Asia, the Caribbean and the South Pacific, outlaw homosexuality.  In six countries, homosexual behavior is punishable by life imprisonment; in ten others, it carries the death penalty.[26]

          Employment discrimination refers to discriminatory employment practices, such as bias in hiring, promotion, job assignment, termination, and compensation, and various types of harassment.  In the United States there is “very little statutory, common law, and case law establishing employment discrimination based upon sexual orientation as a legal wrong.[27]  Some exceptions and alternative legal strategies are available.  President Bill Clinton’s executive order 13087 (1998) prohibits discrimination based on sexual orientation in the competitive service of the federal civilian workforce,[28] and federal non-civil service employees may have recourse under the due process clause of the U.S. Constitution.[29] Private sector workers  may have a Title VII action under a guid pro quo sexual harassment theory,[30] a “hostile work environment” theory,[31] a sexual stereotyping theory, or others.[32]

          Housing discrimination refers to discrimination against potential or current tenants by landlords.  In the United States, there is no federal law against such discrimination on the basis of sexual orientation or gender identity, but at least thirteen states and many major cities have enacted laws prohibiting it.[33] 

          Hate crimes (also known as bias crimes) are crimes motivated by bias against an identifiable social group, usually groups defined by race (classification of human beings), religion, sexual orientation, disability, ethnicity, nationality, age, gender, gender identity, or political affiliation.  In the United States, 45 states and the District of Columbia have statutes criminalizing various types of bias-motivated violence or intimidation (the exceptions are AZ, GA, IN, SC, and WY).  Each of these statutes covers bias on the basic of race, religion, and ethnicity; 32 of them cover sexual orientation, 28 cover gender, and 11 cover transgender/gender-identity.[34]  In October 2009, the Matthew Shepard and James Byrd, Jr. Hate crimes prevention Act, which “… gives the Justice Department the power to investigate and prosecute bias-motivated violence where the perpetrator has selected the victim because of the person’s actual or perceived race, colour, religion, national origin, gender, sexual orientation, gender identity or disability”, was signed into law and makes hate crime based on sexual orientation, amongst other offenses, a federal crime in the United States.[35]

1.2     WHO IS A HOMOSEXUAL?

          According to the Lexicon Webster Dictionary,[36] a homosexual is one who is characterized by a sexual interest in a person of the same sex.  The Oxford Dictionary of Current English[37] defines a homosexual in its adjectival form; as a feeling or involving sexual attraction to people of one’s own sex.

          From the above definition, it is clear that a homosexual is a person who prefers and proffers affections, intimately and sexually to persons of the same sex; that is a man who would rather have sexual relations with a man; and a woman who would rather have sexual relations with another woman. It is clear therefore that a homosexual person can either be a man or a woman.  A male homosexual is often referred to as gay, which according to the Oxford Dictionary of Current English (supra), is a homosexual man.  While a female homosexual; is regarded or known as a lesbian (which originates from Lesbos; a Greek Island and homo of Sappho; who expressed her love for woman in her poetry).[38] The Lexicon Webster Dictionary (supra) defined a lesbian as a female homosexual and lesbianism as homosexual relations between females.

          The attitudes of society towards homosexuality has varied from age to age; from society to society and from group to group.  Homosexuality has sometimes been extolled (praised enthusiastically); and at other times, it has been condemned as a heinous crime; a classic example is the destruction of Sodom and Gomorrah by God in the Bible[39]           Homosexuals vary in personal capabilities and appearances as widely as other groups, many are ordinary men and women (just ordinary people), a few have a made outstanding contributions in artistic and other field.  For example, George Michael (Pop Musician), Sir Elton John (Musician).

1.3     WHAT IS MARRIAGE?

          Marriage is a universal institution which is recognized and respected all over the world.  As a social institution, marriage is founded on, and governed by the social and religious norms of society.  Consequently, the sanctity of marriage is a well-accepted principle in the world community. Marriage is the root of the family and of society.

          It is universally accepted that marriage, being a union of man and woman, involves two persons of opposite sex.  Consequently, sex constitutes an essential determination of marriage relationship.  In order, therefore, to establish the existence of a valid marriage, it must be proved that the persons involved are man and woman.  Ordinarily, this seems a straightforward question.  However, the issue has been complicated by the existence of hermaphrodites[40] and pseudo-hermaphrodites[41] and advances in medical science which has made sex-change operation feasible.  In the light of this important development, the legal question has arisen as to the sex of persons who had undergone sex-change operations and whether such person can be regarded as “man” or “woman” for the purposes of contracting a valid marriage.  This question has been considered in different jurisdictions.

          In the English cases of Corbett v Corbett,[42] the petitioner and the respondent went through a ceremony of marriage in September, 1963.  The petitioner knew that the respondent had been registered at birth as a male and had in 1960 undergone an operation for the removal of the testicles, most of the scrotum and the construction of an artificial vagina.  Since that operation, the respondent had lived as a woman.  In December, 1963, the petitioner filed a petition for a declaration that the marriage was null and void because the respondent was a person of the male sex or alternatively, for a decree of nullity on the ground of either incapacity or willful refusal to consummate.  The respondent in the answer prayed for a decree of nullity on the ground of either the petitioner’s incapacity or his willful refusal to consummate the marriage.  Furthermore, she pleaded that the petitioner was stopped from alleging that the marriage was void. Ormrod, J. held that the respondent had remained at all times a biological male and that, accordingly, the so-called marriage was void.  The learned judge observed.

The question then becomes, what is meant by the word ‘woman’ in the context of a marriage, for I am not concerned to determine the ‘legal sex’ of the respondent at large.  Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormones which can exist in a person with male chromosomes, male gonads and male genital cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.  In order words, the law should adopt in the first place, the first three of the doctor’s criteria, i.e. the chromosomal, gonadal and genital  tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly and ignore any operative intervention.  The real difficulties of course will occur if these three criteria are not congruent… My conclusion, therefore, is that the respondent is not a woman for the purposes of marriage but is a biological male and has been so since birth.[43]

The decision in Corbett’s case was adopted by Bell, J.  In the Marriage of C and D (falsefy called C)[44] a case heard at the Family Court of Austria at Brisbane in 1979.

          But a different view was held by the Superior Court of New Jersey (Appellate Division) in M.T. v. J.T.[45] The facts were similar to Corbett’s case.  The wife filed a complaint for support and maintenance.  The husband pleaded in defence that the wife was a male and that their marriage was, therefore, void.  They disagreed with the conclusion reached in Corbett’s case.  Explaining the basis of its objection the court observed that:[46]

Our departure from Corbett thesis is not a matter of semantics.  It stems from a fundamentally different understanding of what is meant by ‘sex’ for marital purposes.  The English court apparently felt that sex and gender were disparate phenomena.  In a given case there may, of course be such difference.  A pre-operative transsexual is an example of that kind of disharmony, and most experts would be satisfied that the individual should be classified according to biological criteria.  The evidence and authority which we have examined, however, show that a person’s sex or sexuality embraces an individual’s gender, emotional sense of sexual identity and character.  Indeed, it has been observed that the ‘psychological sex of an individual’, while not serviceable for all purposes, is ‘practical, realistic and humane, it went on to emphasize that:[47]

 The English court believed, we feel incorrectly, that an anatomical change of genitalia in the case of a transsexual cannot ‘affect her true sex’.  Its conclusion was rooted in the premise that ‘true sex’ was required to be ascertained even for marital purposes by biological criteria.  In the case of a transsexual following surgery, however, according to expert testimony presented here, the dual tests of anatomy and gender are more significant.  On this evidential demonstration, therefore, we are impelled to the conclusion that for marital purposes of the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards.