Happiness and same-sex affection

Author: Saul Leal
Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)

Chinelo Okparanta is a Nigerian writer, currently living as a citizen in the United States. She understands the prejudices of her native country, especially against homosexuals. In some parts of Nigeria, a gay individual may be stoned to death under the Shari’a law. Okparanta writes, in her lesbian romance Happiness like Water, ‘yes, our love may be hidden, but it is strong. It can still bring happiness’.[1]

Why must the love between two consenting adults be hidden? Should the State have the power to decide towards whom one may show affection? These disconcerting questions may be answered in terms of global Constitutions.

The most important Brazilian decision which entailed the right to happiness was in 2011.[2] The Supreme Court had to rule on the interpretation to be given to article 1.723 of the Civil Code, which only recognizes a common-law relationship between a man and a woman as a family unit which must be public knowledge, continuous, and long-lasting, and be established for the purpose of building a family. The need for the aforementioned ruling resulted from the fact that government bodies refused to grant these rights to homo-affectionate couples. Therefore, the Court had to decide if this union also covered same-sex couples, even though the provision expressly mentions ‘man and a woman’.[3]

During the trial, two judges used the word ‘happiness’. The first judge, Justice Luiz Fux, stated that ‘more than a life plan, we will give this segment of noble Brazilians a plan for happiness’. The second judge, Justice Celso de Mello, expressed ‘the right to the pursuit of happiness, a true implicit constitutional postulate, as expression of the conviction that derives from the principle of human dignity’.

In the Constitutional Court of South Africa, it was incumbent upon Justice Albie Sachs to present his opinion as to the constitutionality of same-sex marriage.[4] Sachs spoke about assuring the ‘the hope of happiness’ to same-sex couples.[5] The association of tolerance and acceptance with the hope of happiness is more than a linguistic imperative. Surveys show that ‘a greater tolerance of gays and other minorities increases the national happiness’.[6]

Sachs’s ‘hope of happiness’ encompasses a triumph of freedom in terms of the freedom of choosing to whom one will deliver one’s affection. Okparanta illustrates this freedom through stating that ‘the waterfowls are still quacking, and the sun is high in the sky. The river is still glowing in shades of silver and gold. Grace is sitting next to me, and I can’t help thinking that perhaps the verge of joy is its own form of happiness’.[7]

In the Brazilian case, the opinion of Mello J showed consideration of the philosophical roots of the right to happiness, and its evolution in other countries, such as in the United States, France, Japan, and the Kingdom of Bhutan. He inserted the right to happiness as a guiding element of the decision. The Justice’s decision also used several constitutional principles, such as human dignity, autonomy of will, protection of private life, privacy, and the right to equal protection under the law.[8] Mello J stated that, ‘I recognize that the right to the pursuit of happiness – which is severely compromised when the National Congress, due to the influence of majorities, fails to formulate measures to ensure that minorities enjoy fundamental rights – represents a variation of the human dignity principle. It thus qualifies as one of the most significant implicit constitutional postulates, the roots of which go historically back to the United States Declaration of Independence, of 4^th of July 1776’.[9]

The right to happiness complements the arguments presented in the decision on the relationship between same-sex couples. The right to happiness is implicitly contained in the Federal Constitution, and could therefore be used as grounds for Court’s decision. This position becomes relevant in terms of the normative density of the right to happiness, because this right is regarded to have the same relevance as any other, including, for example, the right to property which may be used as grounds for a ruling.

Regardless of the undeniable importance of the judgment, there is a long way to go to emancipate all those who are still discriminated against by majority groups. In this regard, happiness may represent the fluid cycle of the institution of fundamental rights. As Okparanta affirms, ‘happiness is like water: we’re always trying to grab onto it, but it’s always slipping through our fingers’.[10]

This is the third article in a series by Saul Leal.

• Article 1: Biko and the right to happiness
• Article 2: Constitutional jurisdiction and the right to happiness
• Article 3: Happiness and same-sex affection
• Article 4: Happiness as constitutional empowerment in Nigeria
• Article 5: The tragic dialectic between happiness and apartheid
• Article 6: The right to happiness in Africa

[1] Okparanta Happiness Like Water: Stories (2014) 143.

[2] The controversy brought about by the Brazilian trial, in addition to the fact that one of the opinions mentioned the right to happiness, raises questions as to whether the Supreme Court was moving towards judicial activism. In the House of Representatives, the coordinator of the Evangelical Parliamentary Front (Frente Parlamentar Evangélica), João Campos, did not only refer to the decision as ‘judicial activism’, but also said that ‘only a minority of society wishes to have a debate to change this concept of the Constitution. Who can make this change? Only the National Congress, through an amendment’.

[3] In Brazil, when Supreme Court justices allowed same-sex unions, the expression ‘homosexuality’ was banned from the decision and replaced by ‘homo-affection’ in response to accusations made by groups fighting for the freedom of sexual orientation that ‘homosexuality’ sounded like a disease. See also: Direct Action on Unconstitutionality (ADI) 42772 and the Claim of Fundamental Principle Violation (ADPF) 1323, Jude-Rapportaur Carlos Britto. See also CNJ, Resolução n. 175 (DJE May 15, 2013).

[4] De Vos & Barnard ‘Same-Sex Marriage, Civil Unions and Domestic Partnership in South Africa: Critical Reflections on an Ongoing Saga’ (2007) 124 SALJ 795. Pierre De Vos and Jaco Barnard, with regard to the South African context, published a paper whose preamble is a quotation of Hannah Arendt affirming: “Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to life, liberty and the pursuit of happiness…; and to this category the right to home and marriage unquestionably belongs”.

[5] Minister of Home Affairs v. Fourie 2006 (I) SA 524 (CC). 102 Ky. L.J. 147 2013-2014.

^[6] Inglehart, Foa, Peterson & Welzel ‘Development, Freedom, and Rising Happiness – A Global Perspective (1981-2007)’ (2008) Perspectives on Psychological Science 271.

[7] Okparanta (n 51) 151.

[8] Mello J continued to explain that the constitutional postulate of the pursuit of happiness, which results implicitly from the same core that irradiates the human dignity principle, takes on an extremely important role in the affirmation, enjoyment, and expansion of fundamental rights. Due to its own teleology, it qualifies as a neutralizing factor of harmful practices or omissions, whose occurrence may compromise, affect or even sterilize individual rights and freedoms. The Justice’s statement stresses the function of neutrality assumed by the right to happiness, as ‘(…) it qualifies as a neutralizing factor of harmful practices or omissions, whose occurrence may compromise, affect or even sterilize individual rights and freedoms’.

[9] After invoking human dignity, Mello J stated: ‘Considering that the fundamental objective of the Republic is to promote the general well-being, without any prejudice as to origin, race, gender, color, age, or other types of discrimination; it seems irrecusable that the recognition of the right to the pursuit of happiness, which is the conviction that comes directly from the constitutional postulate of human dignity, allows us, given the context before us, to breach the obstacles that hinder the intended qualification of homosexual civil unions as family units’. The Justice stated that the right to happiness was addressed by the Brazilian Constitution through the human dignity principle.

[10] Okparanta (n 51) 152.

About the Author:
Saul Leal was recently awarded by the University of Pretoria with the Vice-Chancellor Postdoctoral Fellowship, to be conducted at the Institute for International and Comparative Law in Africa (ICLA). He was a visiting researcher at the University of Cape Town and at SAIFAC (the South African Institute for Advanced Constitutional, Public, Human Rights and International Law). In Brazil, he translated into Portuguese the book ‘The Strange Alchemy of Life and Law’, by Albie Sachs, winner of the 2010 Alan Paton award.