Same Sex Couples At The Time example essay topic

The Ruritania case unveils the making of, not one, but a few very important laws which are linked by one common thread: same sex couples within an ever-changing society. The first premise is that since each decision in law (custom, jurisprudence and edict) affects the next law, timing is the key to dissecting whether or not there were failures to make the law. Additionally, legal acceptance of same-sex couples is a very volatile topic, which has brought about a plethora of public opinion and endured many changes. Examining this case in a chronological manner will help yield the most accurate interpretation of the laws at hand.

The modus operandi used in analysis has led to the conclusion that there may have been a failure to make law. However, this is embedded within a framework where many laws adhered to the principles and rules of law making. It is important to briefly outline what was done correctly in order to have a basis of comparison to decide what may have been done wrong. The 1982 constitutional legislation including the guarantee of equality rights touches on matters of discrimination, which according to Joseph Raz should be institutionalized by general rules. This eliminates flexibility of the law and serves as a durable base, which limits the unpredictability of particular orders.

This also ensures stability in the law because general laws reduce the impact of ever changing mores within society. The equality guarantee in Ruritania is very clear and does, in fact, cater towards the same sex component of this case. It states a few specific categories by which discrimination is most commonly and frequently observed. However, it is understood that the law is not solely restricted to these particular orders because of the stable and general statement preceding these specific examples. To quote "Every individual is equal before and under the law... equal protection and equal benefit... ".

. It is unnecessary to enter into more detail since this states, very clearly, that every individual should be treated equally, 'point finale'. Therefore, although in 1982 same sex couples were still very much an obscurity and did not appear in the list of particular examples of discrimination, they were, nonetheless, entitled to the benefits of equality under the general rule of the constitution. It may even be considered that it was this constitution that eventually led homosexuals to more readily expose themselves to the critical eyes of society.

Throughout the 1980's, laws began to recognize sexual orientation to include ideas beyond heterosexuality. This ambiguous time period, when same-sex couples slowly took to the stage, complicates the decision as to whether or not there was a failure to make law. In 1985, the pension law interprets the word 'spouse' to mean 'husband' or 'wife', which, with today's knowledge of same-sex couples, would be an act of discrimination under the equality law. However, a fine line begins to take form around this interpretation because of the time context.

At this time, there were no laws justifying same-sex marriages, therefore the cohabitation statement is more relevant. There is a general statement, .".. anyone who has cohabited with that citizen... ". , followed by a particular order, .".. as if he or she were the husband or wife... ". . This does not mean that it must be the husband or wife because there is a general statement that included anyone who has been living together for over three years.

There is not a contradiction of the guarantee of equality rights and, thus, there is no failure to make the law. It may be argued, however, that the rules were not understandable and that there was a failure to make the law. Nevertheless, in keeping with the time context and one's conception of same-sex couples, the words used to create the law are understandable to most people since the majority of the population lived or married someone of the opposite sex. Looking back now, because of our acquired knowledge of same-sex couples, the wording would have to be different, but at that time it sufficed and there was no failure to make a law and it should be considered valid at the time of its enactment. The assumptions of the officials and judges between 1985 and 2000 are, however, discriminatory because they introduce a contradictory rule to the 1985 pension law. They specifically enact a particular order, .".. must be someone of the opposite sex", which is not coherent with the general cohabitation rule.

In rendering that their judgements on pension liabilities must be based only on heterosexuality, the judiciary clearly exemplified that they were cognoscente of the possibility of homosexuality. They simply chose to ignore this reality since there was no public pressure at that time to do what was right. Extraneous laws affecting same-sex couples at the time also confirm the judiciary's discriminatory views by demonstrating that similar societies were already recognizing same-sex couples, which the Ruritania legal system failed to do between 1985 and 2000. For example, in Canada 1995, family benefits were being extended to gay and lesbian employees who were in same-sex relationships. With this background evidence, the judiciary 'assumptions' can be confirmed as acts of discrimination and help justify that, in effect, the cases held between 1985 and 2000 should have been null and void because there is a failure to make the law. This is warranted by the outcome of the case brought to the courts in 2000 arguing that this 'opposite sex requirement' does, in fact, discriminate.

There was no congruence between the equality rules as announced and the way in which they were administered to other related laws. However, this is irrelevant since law must be prospective and one can not go back and grant everyone pensions from 1985 to 2000, which leads to the next topic at hand. The success of the year 2000 case not only sets a precedent for all other similar cases, but legally obliges the judges to adopt a different interpretation of the pension laws to include same-sex couples. This can only be applied to future cases if it is to keep with the rule of law and it's prospective principles.

A failure to make the law is apparent in the second half of the year 2000 judicial decision which states that the pension benefit will be granted to "survivors in same-sex couples, whose partners have died since 1995". This is entirely retroactive in nature. Additionally, the 1995 cut-off date is quite ambiguous as it reflects a matter that is, in itself, progressive and changed over time. It is impossible to put a specific date on changes and attitudes that evolved slowly.

Although this failure to make the law may seem unfair, especially to the individuals whose cases occurred before the precedent was set in 2000, it is the rule of the law. This issue raises a problem with characteristics of moral nature. The retroactive law would no doubt lead to 'frustrated expectations' because the need for stability, which 'encourages people to rely and plan on the basis of the existing law', is shattered. Morally, it should be a case of all or nothing - either all same-sex cases are considered since 1985 and given pension benefits or none at all.

Unfortunately, going back in time and granting each qualified individual benefits is still retroactive even if it does not include an ambiguous cut-off date. We must simply accept the 2000 case as a precedent for future cases even if this may seem morally wrong. Hypothetically, if a plaintiff maintaining that the opposite sex requirement was unfair brought matters to the court in 1985 and won, all cases after that may have easily been considered. Having established a failure to make the law, the 1987 case demanding the survivor benefit cannot be considered because the precedent was set in the year 2000.

We are dealing now only with future cases since the law did not exist at the time of action- 1987, when the partner died. It is a matter of timing in the law and of the changing mores within society concerning same-sex couples, a somewhat subjective issue. Considering what we know today about the prevalence of same-sex couples, sexual orientation would easily have been considered one of the particular orders by which discrimination was prohibited in the guarantee of equality rights. This would have led to a better understanding of the law and a clearer interpretation of future laws. However, it would be wrong to assume that the law was not understandable because it did not include sexual orientation in the list of orders or because there was failure to make laws that were based on the premises of this equality guarantee. The general, open rule stating equality to each individual must and can be understood to include every citizen of the state under which the law applies.

There is no failure to make this law, but this, ironically, breeds failures in making laws that were based on the premises of this equality guarantee. The two main failures were the contradiction of later laws to the earlier equality laws and the incongruence between the announced equality rules and how they were administered, or in this case, not administered at all (ignored). Additionally, the timing effect is important in order to avoid retroactive laws, but must also come into question when considering attitudes, mores and customs. Changing dates as to when same-sex couples were legally recognized for pensions through a precedent to an ambiguous, earlier date set by ever-changing societal values is retroactive and also a failure to make a law.

Although failures have been observed, there are many exemplary laws that highlight important principles of the rule of law and help shed light on what constitutes a failed law by serving as a basis of comparison.