America’s Statement On Nigeria’s Proposed Prohibition And Criminalisation Of Same Sex Marriage Is Mischievous

I have been following the controversy and the looming diplomatic crisis between the US and Nigeria over the proposed prohibition and criminalization of same sex

marriage by Nigeria with keen interest and it is my sincere opinion as a human rights lawyer that the issue is being over emphasized by either side to the extent that both countries are losing sight of more important areas that promote mutually beneficial relationship between them. For instance, the past one and a half years have witnessed positive developments in the relationship between the US and Nigeria. Both countries have agreed among others, to set up a Bi-National Commission for management of bilateral relations and to develop stronger ties, friendship and partnership with each other.

When you consider the issue of same sex marriage in the US, it is not as if all the states recognize it even though they may not criminalize it as Nigeria has proposed which I think, is the gravamen, the most important part and substance of the face-off, and I also know for sure that the US federal law does not recognize same sex marriage either.

There are fifty states in the U.S with a strong federal system out of which only about six, namely, Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, plus Washington, D.C. currently grant same sex marriage licenses. Some years ago, same sex marriage was recognized in California but as a result of Proposition 8 which called for the elimination of same sex couples to marry among other things, the new Section 7.5 of Declaration of Rights which was passed in November 2008 amended the state constitution to provide that “only marriage between a man and a woman is valid or recognized in California.” By limiting the recognition of marriage to opposite-sex couples, the new provision repealed the California Supreme Court’s ruling of In re Marriage Cases that recognized the constitutionality of same-sex marriage.

 It is also imperative to note that in the US, out of twenty eight states where constitutional amendments that define marriage as the union of a man and a woman were proposed in referenda, voters in all the twenty eight states voted overwhelmingly to approve such constitutional amendments to the point that as at today, several [update] states have constitutional provisions restricting marriage to one man and one woman, while at least, a dozen others have laws prohibiting same sex marriage and “restricting marriage to one man and one woman only.

The story is not any different at the federal level in the US as recognition of same sex marriage is unequivocally barred by law. According to the Defense of Marriage Act (DOMA) which is a United States federal statute signed into law by President Clinton on September 1, 1996, the US Government defines marriage as a legal union between one man and one woman. Under the federal legislation, no U.S. state may be required to recognize as a marriage, a same-sex relationship considered a marriage in another state. This means that sates are not bound to give full faith and inter-state credit recognition to same sex marriage laws.

Section 3 of the Defense of Marriage Act (DOMA) does not recognize same-sex marriage for all federal purposes, which include family insurance benefits for employees of the US government, survivors’ benefits from Social Security, and joint tax filings. Even though, some state courts in Massachusetts and California have declared this section as unconstitutional, however, there are reports that these decisions are still subject of appeal and the courts have granted a stay. I must also say that the current administration of President Obama is not comfortable with some provisions of DOMA which his administration feels are unconstitutional. Hence, the US Department of Justice has stopped defending the Defense of Marriage Act in accordance with President Obama and Attorney General Eric Holder’s decision that that Section 3 of the Act –the federal definition of marriage is unconstitutional. According to the Department of Justice in one of its briefs attacking the provision of the DOMA, “[T]he official legislative record makes plain that DOMA Section 3 was motivated in substantial part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3. Section 3 of DOMA is therefore unconstitutional.” In the same vein, efforts to make the Congress repeal the law have not been successful as “the backbone is not there in the Congress” and the risk of filibuster which may delay such repeal particularly in the Senate is also very high. However, in the absence of the Congress repealing the federal law, or the Courts declaring the law unconstitutional, DOMA is the controlling law in the US today.

 While I admit that the issue is not yet settled in the US and the debate still rages on across the states, I would like to remind President Obama that his current sympathy for same sex marriage runs sharply contrary to his personal views on the same matter at least during his campaign days when he was running for President even though he has said recently according to a publication by the Washington Post of January 5, 2011 that his current position is “evolving”, literally meaning it is neither here nor there thereby placing his position between two extremes – the devil and the deep blue sea which will remain a recurring sticky situation for most part of this election year.

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