“I took personal satisfaction this past year when the United States Supreme Court overturned Section 3 of DOMA, the Defense of Marriage Act – and I say personal satisfaction because I was one of 14 senators who voted against that when it was passed, and that prevented federal recognition of same-sex marriages,” he said.
“That decision paves the way for policies and programs that support all married couples, regardless of their sexual orientation.”
Kerry was one of 14 senators, all Democrats, to vote against the DOMA when it passed by a vote of 85-14 on September 10, 1996.
Kerry made the comment during a meeting of the “LGBT Core Group at the United Nations,” a collection of a dozen countries pledged to combating discrimination and violence against lesbian, gay, bisexual and transgendered people.
For many LGBT proponents, the fact same-sex couples may not “marry” in most countries amounts to discrimination, although the Core Group’s primary focus is on criminalization of homosexual activity – a capital offense in a handful of countries – as well as discriminatory treatment not directly related to marriage.
Countries represented at Thursday’s event were Argentina, Brazil, Croatia, El Salvador, France, Israel, Japan, Netherlands, New Zealand, Norway and the U.S., along with a representative from the European Union.
Kerry’s reference to same-sex marriage in the context of the “LGBT Core Group” meeting was striking, given that not even all the members of that small group permit marriage between two men or between two women.
Of those present, neither Japan, Israel nor El Salvador has legalized same-sex marriage. (A 2010 opinion poll of view on same-sex marriage in 25 countries in the Americas placed El Salvador near the bottom of the list, with just 10.3 percent of respondents expressing support.)
Meanwhile Croatia only recently agreed to start recognizing same-sex civil unions – “not to be called marriage,” in the words of the responsible government minister – by the end of this year.
Major international legal bodies have not recognized same-sex marriage as a “right” in international law (see below).
With former Secretary of State Hillary Clinton and now Kerry at the forefront, the Obama administration has made promotion of LGBT issues a foreign policy priority.
In 2011 the U.S. co-sponsored the first-ever resolution adopted by the U.N. on the human rights of LGBT people, and the same year it launched a “global equality fund,” through which taxpayers have put up more than $7 million. Kerry said the funding, allocated to more than 50 countries, helps to challenge discriminatory laws and to bolster civil society organizations.
Expanding the effort, the U.S. and Sweden this month announced an additional $12 million for the fund, and Kerry said Thursday that the Netherlands has put up a further $1 million.
“We hope that every ally of LGBT persons around the world, including governments and corporations, are going to join us in this important work.”
Kerry said that in some countries, “people continue to be harassed, arrested or even murdered simply because of who they are or who they love.”
The International Lesbian, Gay, Bisexual, Trans and Intersex Association says “same-sex consensual acts between adults” amount to a crime in 78 countries, with punishments ranging from short prison terms to the death penalty in Iran, Mauritania, Saudi Arabia, Sudan and Yemen.
Kerry told the ministers that they were meeting “in support of the founding values” of the U.N.
“With our work together over the past several years, we have made almost unfathomable progress in the rapidity with which people have come to break down walls of injustice and barriers of prejudice, really quite stunning.”
A ‘right’ in international law?
A declaration issued by the meeting cited numerous human rights abuses against LGBT people in various places, including violence and discrimination based on sexual orientation and gender identity, and treatment that violates “the rights to freedom of expression, association and peaceful assembly, and work, education and enjoyment of the highest attainable standard of health.”
There was no reference to marriage, however. Key legal bodies have yet to recognize same-sex marriage as a “right” in international law.
Article 23(2) of the International Covenant on Civil and Political Rights (ICCPR) recognizes the “right of men and women of marriageable age to marry and found a family.”
When two lesbian couples in New Zealand sought support from the U.N. body responsible for ICCPR compliance, the committee in a 2002 decision turned them down. It pointed out that article 23(2) is “the only substantive provision in the Covenant which defines a right by using the term ‘men and women,’ rather than ‘every human being,’ ‘everyone’ and ‘all persons.’”
The European Convention on Human Rights states: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
In a case brought against the Austrian government in 2010, the European Court of Human Rights – which hears allegations of breaches of the convention – ruled that “as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State.”
The court added that “marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society.”
Fifteen countries around the world have legalized marriage between partners of the same sex at a national level since the Netherlands became the first to do so 12 years ago. The momentum has picked up in recent times, with 11 of the 15 having taken the step in the last four years.