Same Sex Marriage in Legal and Human Rights Perspectives

By Yuningsih, Deity; Haris, Oheo K. et al. | Journal of Legal, Ethical and Regulatory Issues, January 1, 2018 | Go to article overview

Same Sex Marriage in Legal and Human Rights Perspectives


Yuningsih, Deity, Haris, Oheo K., Rezky, Ali, Tegnan, Hilaire, Journal of Legal, Ethical and Regulatory Issues


INTRODUCTION

Same-sex marriage, also known as gay marriage, is a marriage entered into by people of the same sex, either as a secular civil ceremony or in a religious setting. The requirements of a marriage in a country depend on its applicable laws and regulations. In religious countries such as Indonesia, it is imperative that a marriage only takes place between a man and a woman who are bond together to form a family based on both religious and national laws, whereas in countries that have a rather liberal view on religion, religious law does not play any significant role in a marriage contract between two individuals but rather the provisions of applicable laws. In the Indonesian contest, a legal and legitimate marriage relationship must occur only between a man and a woman, unlike some countries whereby a legal and legitimate marriage may also take place between persons of the same sex. The United States of America, through its Supreme Court ruling of June 26, 2015, has become the 21st state to legalize homosexuality. Besides the United States, the following countries have also legalized same sex marriage: Ireland, Germany, Iceland, Malta, Mexico, (Joseph & Barry, 2011) England, Argentina, Belgium, Brazil, Canada, Colombia Denmark, Finland, France, Iceland, France, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, Spain, South Africa,1 Sweden, the United Kingdom, Uruguay, Australia, Austria, Taiwan2 and Costa Rica. The Indonesian Marriage Law not recognizes same sex marriage and therefore it does not provide any legal protection to same sex couples.3 In July 2015, the Indonesian Religious Affairs Minister stated in a newspaper that LGBT was unacceptable in Indonesia, because strongly held religious norms disapprove it (The Jakarta Post, 2015). Similarly, in January 2016, Higher Education minister, Muhammad Nasir went further to say that LGBT people should be barred from university campuses. Defence Minister Ryamizard Ryacudu, on the other hand, called the LGBT movement a "proxy war" to brainwash Indonesians (Alisa, 2016). Sexual orientation is not explicitly addressed by the Indonesian constitution, which only guarantees all citizens various legal rights, including equality before the law, equal opportunity, humane treatment in the workplace, freedom of religion and opinion, peaceful assembly and association. This lact of constitutional protection fragilizes human rights along with LGBT rights (Offord & Cantrell, 2001).

Human Rights and the Issue of Same Sex Marriage in Indonesia

Human rights are a concept according to which every human being has universal; inalienable rights regardless of his/her nationality, ethnicity, social status, culture, religion and the law in force in the country where he/she lives. Karel Vasak classified human rights into three categories in 1979 as: (1) Human Rights of First Generation: International Covenant on Civil and Political Rights; (2) Human Rights of Second Generation: International Covenant on Economic, Social and Cultural Rights; (3) Human Rights of Third Generation: Collective Rights. LGBT rights are among these rights. The population of LGBT in Indonesia has increased over last couple of decades. Today, it is estimated to over one million individuals4. However, despite its increase in number, the Indonesian society seems not to take kindly to LGBT cause. In 2012 the Ministry of Health reported that LGBT population is estimated to 1,095,970 individuals of whom more than five percent 66,180 have HIV. Additionally, Indonesia UNAIDS reported that in 2016, Indonesia had 48,000 new HIV infections and 38,000 AIDS-related deaths. The agency also reported that there were 620,000 individuals living with HIV in 2016. The report concludes that the key populations most affected by HIV in Indonesia are sex workers with an HIV prevalence of 5.3%, gays account for 25.8%, 28.76% for drug users, transgenders account for 24.8% and prisoners close the statistics with 2. …

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