Is it advisable to speak about “the family” or rather “families”? Would it be valid to simply recognize “the family,” whatever its composition, or should we assume the plural as a blanket term to cover all the multiple family constructions that exist today?
Such questions fuelled a dialogue with Dr. Ana María Álvarez-Tabío Albo, professor at the University of Havana’s Law School, who prefers to talk about the family in the singular, “regardless of the way one chooses to organize it.” As such, she considers “the use of the plural (families) in the draft Constitution unnecessary.”
Dr. Álvarez-Tabío questions giving priority to “the institution of marriage by expressly mentioning it as a protected institution, among so many other ways in which a family can be organized.”
Specifically on marriage, Article 68 of the draft Constitution incorporates a remarkable change: the requirement that the two individuals who decide to enter matrimony must be of a different sex is eliminated; and maintained is the already achieved principle of equality between spouses in their rights to the personal and economic effects that derive from the legal/conjugal relationship.
Undoubtedly, according to professor Álvarez-Tabío, this has been “one of the most debated issues; however, without diminishing its importance, it must be awarded the attention it rightly deserves, without overlooking other topics, as more important, that affect us all as citizens.”
She adds that views on this change have been polarized into two main groups: “One which is ‘scandalized’ at the prospect of marriage between people of the same sex; and another that understands that equality has no distinctions based on personal reasons or circumstances of any kind.”
It is striking, in her view, that the first group are not opposed to the content of articles 40 and 44 of the draft text, which enshrine full equality and guarantee respect for difference and the free development of personality.
To accept these precepts, but assume a position of discrimination regarding this issue, she stresses, is completely incoherent, and goes against the will to elaborate a fairer, more humanistic, more revolutionary and modern Magna Carta, in accordance with the principles of our social project.
It would be worth thinking, Álvarez-Tabío Albo notes, about how many times social changes have been protected in law, which at the time were unthinkable or “unacceptable” for many, and yet today are perfectly accepted.
“One could mention, for example, racial integration in all social spaces, including marriage; the acceptance of the legitimacy of unions regardless of their formalization in marriage; the possibility of divorce; or the elimination of the stigma differentiating children according to the conjugal status of their parents.”
The draft Constitution is based on the same legal treatment regardless of differences: those who are “different” (due to sex, gender, sexual orientation, etc.) must be treated as equals.
Taking this principle as a starting point, what arguments support the approval, in the current Cuban context, of marriage between two individuals?
I propose an exercise in deconstruction, based on some arguments put forward by those who do not accept or understand marriage between persons.
Among the unfavorable opinions are the negative effects that this would imply for the birth rate; the denaturalization of the traditional family model and the institution of marriage; the possible problems that children could face on being adopted by and growing up in a family formed by a same-sex couple; as well as disrespect of God’s law.
Remember that in Cuba, for a long time, procreation has not been the purpose of marriage, that is, it does not imply the commitment to have children.
Think, for example, of marital unions of sterile couples, or those where women are no longer of reproductive age, or those whose members already have children from previous unions and do not want more. Should we stop marriage between people who decide not to have children? Should women over 50 be forbidden from getting married?
Population aging is a complex phenomenon that must be addressed through public policies and from within the family; but the approval of marriage between two people of the same sex has nothing to do with this. In any case, it is related, among other causes, to heterosexual couples’ decision to have fewer and fewer children.
On the other hand, the family, like any institution linked to it, is a dynamic, dialectical social product, subject to modifications, and legal norms must be transformed to accompany these changes. Marriage does not escape this, and has notably evolved throughout history. A few decades ago, marriage between people of different social status, or between people of different skin color, was inconceivable.
As for the possible negative impact on children living with same-sex parents, or the confusion this could generate in their identity and education, it is worth emphasizing that they offer us lessons on respect for difference; discrimination and exclusion are learned from adults.
Growing up and being educated in a family of people of a “different” sexual orientation is not the cause of that same inclination. If it were, how can the presence of homosexuality in a heterosexual family be explained?
And lastly, we must not lose sight of the fact that marriage is a civil institution, while each religion decides its acceptance or rejection of it. When a state recognizes the liberties or rights of a person, this cannot be based on religious doctrines, but on secular ethical reasoning. That is enshrined in the draft Constitution.
The proposed Magna Carta, submitted for debate, for the first time expressly mentions human rights that due to their universal nature apply to all, that is, they are not exclusive: they are not only for men, or only for women; only for whites or only for mixed race people ...; as they are not only for heterosexuals and not for those of a different sexual orientation.
There is no reason why a decision to marry made by two adults, of either sex, should violate the rights of others.
Marriage also has an aspect that stands out both in the legal and social space. In the first case, a network of legal care is woven that must be extended to same-sex couples, because they also need to share medical benefits, be able to inherit property from each other, to make decisions for their partner faced with situations that arise in their life together…
In the second case, that is, in the expressive or social sphere of marriage, same-sex couples also have family and friends with whom they wish to celebrate their relationship on an equal footing.
A democratic and constitutional society, like that we want to build and support with this draft, and that postulates the rule of law, is also based on the plurality of individuals and families’ lifestyles, as long as they do not affect human dignity. In a democracy, tolerance must be the existential principle of coexistence in society.
I always share with my students an expression of Groucho Marx, who said “Marriage is a wonderful institution… but who wants to live in an institution?” And if two people have decided to live in that institution, their sexual orientation cannot be the reason that prevents it.