Forefront by TSMP: The Business and Law of Gay Marriage

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Forefront by TSMP

15 July 2015

The Business and Law of Gay Marriage

Forefront: By TSMP examines the US Supreme Court decision of Obergefell v Hodges on gay marriage

By Stefanie Yuen Thio

Cover photo credit: Unsplash.com

On 26th June 2015, America’s Supreme Court ruled, in a 5-4 decision, that gay marriage was a constitutional right.

On 27th June in Singapore, which is 12 hours ahead of the east coast, many of us woke up to social media that looked like something out of a Disney movie, our screens blanketed with rainbow stripes. Facebook had launched a tool to show support for the LGBT community, by allowing users to add a rainbow filter to their profile pictures. Over that weekend, 26 million users clicked Celebrate Pride and overlaid their personal photos with a semi-transparent rainbow hue.

News media that weekend was filled with extreme reactions to the Obergefell decision – from an exuberant President Barack Obama who tweeted “Love Wins” and had the White House flood lit in rainbow colours, to stories of ordinary men and women, variously celebrating the decision or bemoaning the development.

The discussion of LGBT rights has become an increasingly hot topic even in Singapore. Given the influence of American popular culture, and with so many global brands headquartered there, the impact of this development will inevitably be felt outside the US. Forefront: By TSMP looks at some business and legal implications of the US Supreme Court ruling.


Gay Rights as Big Business

Gay couples may have been the first to rejoice over the decision, but their ecstasy was followed by the celebrations of businessmen soon enough.

It has been estimated that the global LGBT consumer market is worth over a trillion US dollars a year, with the US making up $790 billion in value. Whilst corporate moves to hail the Supreme Court decision may have been motivated by genuine support for the cause, doing so also clearly made good business sense.

Businesses wasted no time in pledging their allegiance to the cause, by deluging the market with rainbow-adjusted logos, and tweets declaring their support for gay rights. Coca Cola, AirBNB and Uniqlo did it. Ben & Jerry’s introduced a new flavour “I Dough, I Dough”, and Cheerios, that favourite children’s breakfast cereal, declared Love is Love.

More interesting was the speculation that Facebook was using its Celebrate Pride tool to run a psychological test on its users. The social media platform has been accused of conducting experiments in the past, and there is now renewed speculation that it could be using this new tool to gain insight into how to influence people (claims the tech giant has denied). With data analytics being the buzzword of the future, the ability to test and see how quickly people can be influenced, and to gather indirect polling results on an issue, would potentially be an invaluable business tool.

Business advertising in Singapore has been less quick to embrace this marketing platform. A quick check disclosed that Ben & Jerry’s in Singapore has no plans to make the new ice cream flavour available here, for instance. That said, the Obergefell decision may well provide added momentum for global change, which will inevitably also affect Singapore.

Gay Rights and the Law

Western developments in gay rights have been closely watched in Singapore, both by the gay community and in other circles.

At his recent Ho Rih Hwa Leadership in Asia Public Lecture, Singapore’s Prime Minister Lee Hsien Loong was asked his views on the US case.

PM Lee noted that this “is how they resolve social, political, economic, racial, all kinds of important issues”. The Obergefell case itself was decided on a majority vote of 5 to 4, which essentially meant, he pointed out, that the decision was made by a sole Supreme Court justice who wielded the swing vote.

It was this, and not an inherent objection to gay marriage, that was stated as the basis for the dissenting decisions in the case. Chief Justice John Roberts, in his judgement said “Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law”.

The non-representative nature of the presiding Bench was remarked upon by another dissenting judge, Justice Antonin Scalia: “to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation”. He felt that any decision should be made by a more representative body than nine jurists “all of them successful lawyers who studied at Harvard or Yale Law School”.

While Singapore and the US are both democracies with an elected legislature and independent courts, PM Lee was clear that the US system of law-making through an activist judiciary “is not our system”. In Singapore, the legislature has adopted “a much more cautious approach towards social issues”, to ensure that any decision would be representative of the views and values of the population.

What Now?

The LGBT subject has long been a fault line dividing conservative sectors from their more liberal brothers. Rightly or wrongly, homosexuality has become one defining touchstone of the times, and this is becoming increasingly the case in Singapore. While it is important to stand up for one’s values and work to shape a society built on those values, making gay rights the de facto litmus test of morality would divert the resources of the community from other – more pressing – needs. These needs – which include battling poverty, ensuring access to justice for all, and treating the sick – deserve at least as much of our passion, commitment and effort.

Our Constitution is a secular one, built on the principle of religious and racial freedoms, so long as the expression of our beliefs does not infringe the rights of others.  These Constitutional liberties can and should be actively applied, to ensure sufficient space for Singaporeans to express differing views, while working together on common goals.

The Obergefell decision heralds a legal shift in the West, and while legislative change in Singapore is likely to be more measured, it is only a matter of time before the ramifications of the Supreme Court judgment will be felt here. Understanding the business and legal landscape is the first step to being prepared for that change.