Safeguarding Marriage Against The “Non-Immediate” Challenges To Come

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Singapore’s view on marriage is one that prioritises a comprehensive view of marriage – that marriage is more than an affair of consenting adults. It is something that is deeply connected to children and the wider community, and therefore reinforced and state-sponsored through various policies.

This national position on marriage can be understood from the descriptions of “family” and “marriage” in our 1991 White Paper on Shared Values and Prime Minister Lee’s 2007 speech during the debates over Section 377A of the Penal Code.

Current View Of Family And Marriage In Singapore

1991 Shared Values: “The family is the fundamental building block out of which larger social structures can be stably constructed. It is the group within which human beings most naturally express their love for parents, spouse and children, and find happiness and fulfilment. It is the best way human societies have found to provide children a secure and nurturing environment in which to grow up, to pass on the society’s store of wisdom and experience from generation to generation, and to look after the needs of the elderly.”

2007 Speech: “The family is the basic building block of our society. It has been so and, by policy, we have reinforced this and we want to keep it so. And by “family” in Singapore, we mean one man one woman, marrying, having children and bringing up children within that framework of a stable family unit.”

In summary, Singapore’s view on marriage is one that prioritises the comprehensive view of marriage – that marriage is more than an affair of consenting adults. It is deeply connected to children and the wider community, and therefore reinforced and state-sponsored through various policies.

“Family” is Challenged by Some

Most Singaporeans may find this surprising, but as early as 2011, there have been repeated open submissions and articles asking for the government to repeal S377A and to recognise same-sex marriage.

In submissions to the Universal Periodic Review (UPR) cycles held by the United Nations Human Rights Office of the High Commissioner (UN OHCHR), activist groups such as People Like Us (2011), Oogachaga and PinkDot (2016, 2021), and several other groups (2021) have submitted a whole suite of requests to change Singapore legislation and policies, which include repealing S377A and recognising same-sex marriage.

Apart from participating in submissions to UPR above, AWARE also raised several issues beyond S377A in 2012, which included recognition of same-sex marriages, access to assisted reproduction technologies and other state-sponsored social support schemes. A separate petition was launched in 2018 asking for both the repeal of S377A and to legalise same-sex marriage.

Most recently, in May 2022, the “Rainbow Families” project was launched to challenge the prevailing norms and to suggest that “the definition of family is beyond just a man-and-woman binary.”

The Cold Comfort of “No Immediate Plans” to Challenge Marriage

In light of the previous consistent and repeated activism seeking the repeal of S377A and recognition of same-sex marriage in Singapore, it is both surprising and frankly unbelievable to hear activists claim they have no immediate plans to mount a legal challenge against standing definition of marriage if S377A is repealed.

Definition Of Marriage – Concerns And Safeguards

In response to the various LGBTQ activism efforts in Singapore, the Protect Singapore Townhall was held on 23 Jul 2022. Organisers of this townhall called on “the Government to maintain the current political package and not to repeal Section 377A unless and until there are adequate safeguards for our marriages, families, and freedom of conscience. This includes enshrining man-woman marriage in the constitution.”

This emphasis on the safeguarding of marriage is also echoed by the Singapore Catholic Church, similar to its position articulated in its pastoral letter concerning s377A in 2018.

Since then, some public discussion about various ways to protect the legal definition of marriage in Singapore has taken place over mainstream local press. This follows Minister Shanmugam’s comments on 30 Jul that “the Government is considering how to safeguard “the current legal position on marriage” from being challenged in the courts, after receiving feedback that most people want the current position on marriage to stay

If the Government is looking at solutions related to the Constitution of Singapore, there are two highlighted options by legal experts interviewed by Channel NewsAsia on 6 Aug.

Essentially, the options which could result in some safeguarding of the definition of marriage in Singapore are as follows:

  1. Amending the Constitution of Singapore to include the current definition of marriage.
  2. Making constitutional provision that references the relevant provisions of Women’s Charter or interpretation Act and shield them from constitutional challenge (in courts).

These two options have massive differences in their effectiveness in safeguarding status quo. As things currently stand, there are two ways to challenge and change the legal definition of marriage.

The first way is to mount a legal challenge to strike down the existing piece of legislation. If a law is struck down in this manner, the Parliament will have little to no opportunity to debate and decide what to do with the ramifications of such a decision.

The second way is to amend the legal code via Parliamentary vote. This means that only elected members of Parliament who are meant to represent their constituents will have the ability to decide what to do with the legal definition of marriage.

Both safeguarding options mentioned earlier (to enshrine the definition of marriage in the constitution and to give constitutional protection to the standing definitiion of marriage) prevent legal challenges to the definition of marraige, and therefore protect marriage from being redefined via the judicial route like how we have seen S377A challenged over the last few years.

However, option 2 does nothing to prevent a challenge and change of the definition of marriage via the Parliament.

With a mere constitutional provision, a simple majority (i.e. above 50%) of votes in the Parliament can change the legal definition of marriage. This is already the current status for the definition of marriage in Singapore.

However, if option 1 is taken and there is a direct incorporation of the definition of marriage into our Constitution, the bar to change the legal definition of marriage in Parliament is significantly raised. A supermajority (i.e. above 66%) of votes in the Parliament will be required to effect a change in the definition of marriage once enshrined in the Constitution.

Therefore, if the goal of the ongoing review is truly to safeguard the status quo and current legal position on marriage, as per the will of most people in Singapore, option 1 is much more effective.

The Future Of Marriage In Singapore

What will be the fate of the definition of marriage in Singapore in our nation’s future? Which view of marriage should be upheld and protected via legislation?

Any active and engaged citizen should give this issue serious consideration and have their voices represented well in Parliament.

If S377A is repealed without any satisfactory safeguards in place to protect the current legal definition of marriage, it is just a matter of time before activists will mount a challenge against it, even if not immediate as claimed.

Therefore, the concluding words of PM Lee concerning the previous 2007 Parliamentary debate on 377A ought to be duly considered:

“On issues of moral values, with consequences to the wider society, first we should also decide what is right for ourselves.

But secondly, before we are carried away by what other societies do, I think it’s wiser for us to observe the impact of radical departures from traditional norms on early movers…

We were right to uphold the family unit when Western countries went for experimental lifestyles… I’m glad we did that because today, if you look at Western Europe, where marriage as an institution is dead, families have broken down, the majority of children are born out of wedlock and live in families where the father and the mother are not the husband and wife living together, bringing them up. And we’ve kept the way we are.

I think we have also been right to adapt, to accommodate homosexuals in our society, but not to allow or encourage activists to champion gay rights (as) they do in the West.

So I suggest, Mr Speaker, and I suggest to the Members of the House, we keep this balance, leave Section 377A alone.

I think there is space in Singapore and room for us to live harmoniously and practically all as Singapore citizens together.”

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