Marriage Based on Religious Norms in International Human Rights Perspective

The judicial review hearing of Law No. 16 of 2019 on Marriage to hear the expert for the Indonesian Ulema Council (MUI) as a Relevant Party, Wednesday (10/19/2022). Photo by MKRI/Ifa.

Wednesday, October 19, 2022 | 15:51 WIB

JAKARTA (MKRI)—The Constitutional Court (MK) held another judicial review hearing of Law No. 1 of 1974 on Marriage as amended by Law No. 16 of 2019 on the Amendment to Law No. 1 of 1974 on Wednesday, October 19, 2022. At the hearing, the Indonesian Ulema Council (MUI) as a Relevant Party presented Atip Latipulhayat as an expert. He asserted that marriage laws in different countries differ as they follow the social, cultural, and religious lives of the people. Therefore, particularism applies at this level of human rights practice. He revealed the decision by the European Court of Human Rights (ECHR) in the case of Schalk and Kopf v Austria. Schalk and Kopf are a same-sex couple living in Austria, who demanded that their marriage be legally recognized in the country. The Austrian Court rejected the claim by applying a wide margin of appreciation and reasoned that society still adhered to Christian values, which prohibit same-sex marriage.

Atip also revealed that the Dutch government has recognized same-sex marriage legally. Based on these examples, he added, it can be concluded that it falls to the state to award legal recognition of LGBT people, including same-sex marriage. In other words, margin of appreciation is designed for flexibility in resolving conflicts or differences in the application of human rights due to social, political, cultural, and legal cultural diversity among European countries.

“So, in Europe, human rights universalism only exists at the value level. Meanwhile, at the practical level, human rights are very concerned about particular values, which are not subordinate, but an inseparable part of human rights. Reflecting on the European practice of margin of appreciation as a limit to the claim of universalism on human rights, this gives a strong message about claims of universalism in human rights which subordinates particular values, in fact, could potentially lead to new violations of human rights in the name of universalism,” Atip explained virtually before Chief Justice Anwar Usman and the other seven constitutional justices.

He argued that marriage arrangements based on religious norms such as in Indonesia are not a violation of human rights but rather another context of implementing and protecting human rights. The universal norm is the right to marry, while the implementation of the marriage itself is fully regulated and must be subject to the national legislation. In essence, the provisions of human rights are not supra-religious that regard religious teachings as subordinate, but exist to strengthen the implementation of religious teachings, because there are no religious teachings that demean human values, including in marriage.

Before concluding the session, Chief Justice Anwar Usman informed that the next hearing will take place on Wednesday, November 9 to hear 3 experts for Dewan Da’wah Islamiyah Indonesia as a Relevant Party.

Also read:

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Petitioner of Provision on Interfaith Marriage Reduces Object

House’s and Govt’s Stance on Interfaith Marriage

Interfaith Marriage in International and Islamic Laws

Indonesian Ulema Council Requests Court to Reject Interfaith Marriage

DDII: Petitioner’s Arguments on Interfaith Marriage Legally Groundless 

Ade Armando and Rocky Gerung Speak on Interfaith Marriage 

Interfaith Marriage Brings More Harm 

Article 29 of 1945 Constitution, Legal Basis for Marriage in Indonesia 

Indonesian Islamic Organizations Ban Interfaith Marriage 

The case No. 24/PUU-XX/2022 was filed by E. Ramos Petege, a Catholic who had intended to marry a Muslim woman. The union fell through because interfaith marriage was not accommodated by the Marriage Law. Consequently, the Petitioner’s constitutional rights were harmed.

He also felt harmed for losing freedom of religion and faith because if he wishes to have an interfaith marriage, either the bride or the groom will be coerced to convert. In addition, he also lost his freedom to have offspring by forming a family based on free will. The Petitioner challenges Article 2 paragraphs (1) and (2) as well as Article 8 letter f of the Marriage Law, which he believes contradict Article 28D paragraph (1) and Article 29 paragraphs (1) and (2) of the 1945 Constitution.

Article 2 paragraph (1) of the Marriage Law reads, “A marriage shall be legitimate, if it has been performed according to the laws of the respective religions and beliefs of the parties concerned.” Article 2 paragraph (2) reads, “Each marriage shall be registered according to the regulations of the legislation.” Meanwhile, Article 8 letter f reads, “[A marriage shall be prohibited between to people that] have a relationship that, by religion or other statutory regulations, are forbidden to marry.”   

Writer        : Sri Pujianti
Editor        : Nur R.
PR            : Raisa Ayuditha
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/20/2022 08:38 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

Wednesday, October 19, 2022 | 15:51 WIB 300