A LEGAL AND JURISPRUDENTIAL ANALYSIS OF HOMOSEXUALITY AND SAME SEX MARRIAGES: SUPPORTING THE NIGERIAN POSITION
TABLE OF CONTENTS
Title Page i
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
2.2 Moral Implication of Homosexuality in Nigeria 47
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
1.2 WHO IS A HOMOSEXUAL?
According to the Lexicon Webster Dictionary, a homosexual is one who is characterized by a sexual interest in a person of the same sex. The Oxford Dictionary of Current English 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). 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 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 and pseudo-hermaphrodites 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, 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.
The decision in Corbett’s case was adopted by Bell, J. In the Marriage of C and D (falsefy called C) 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. 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:
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:
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.
The differences of opinion between the English and American courts illustrate the depth of the problem of determining, in some cases whether a marriage has been celebrated between persons of the opposite sex.
Unlike most European countries, two systems of marriage are recognized in Nigeria – the monogamous and polygamous systems. These two differ fundamentally in character and incidents. It is important to keep this dualism in view in every consideration of the marriage laws in Nigeria, in order to avoid any confusion. In every case concerning marriage, the lawyer in Nigeria has in the first instance to determine the type of marriage involved in order to enable him apply the appropriate law or determine the incidents.
Marriage (also called matrimony or wedlock) is a social union or legal contract between people called spouses that creates kinship. The definition of marriage varies according to different cultures, but is usually an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged. Such a union is often formalized via a wedding ceremony. In terms of legal recognition, most sovereign states and other jurisdictions limit marriage to two persons of opposite sex or gender in the gender binary, and some of these allow polygamous marriage. Since 2000, several countries and some other jurisdictions have legalized same-0sex marriage. In some cultures, marriage is recommended or compulsory before pursuing any sexual activity.
People marry for many reasons, including: legal, social, being in love, libidinal, emotional, financial, spiritual, and religious. These might include arranged marriages, family obligations, the legal establishment of a nuclear family unit, the legal protection of children and public declaration of commitment. The act of marriage usually creates normative or legal obligations between the individuals involved. Some cultures allow the dissolution of marriage through divorce or annulment. Polygamous marriages may also occur in spite of national laws.
Marriage can be recognized by a state, an organization, a religious authority, a tribal group, a local community or peers. It is often viewed as a contract. Civil marriage is the legal concept of marriage as a governmental institution irrespective of religious affiliation, in accordance with marriage laws of the jurisdiction. Forced marriages are illegal in some jurisdictions. Surveys show that people who are married are more likely to be happy than those who are not married.
1.4 FORMS OF SAME SEX MARRIAGES
A same-sex relationship is a relationship between two persons of the same sex and can take many forms, from romantic and sexual, to non-romantic close relationships. The term is mainly associated with homosexual people. In their essential psychological respects, these relationships are regarded as equivalent to heterosexual relationship.
The term same-sex relationship is not strictly related to the sexual orientation of the participants. As bisexual, pansexual, asexual and also heterosexual people may participate in same-sex relationships, some activists claim that referring to a same-sex relationship as a “gay relationship” or a “lesbian relationship” is a form of bisexual erasure. The term same-sex marriage is used similarly.
Same-sex relationships can be grouped into three categories: