Definition of marriage as man & woman will be constitutionally protected against court challenges: PM Lee

Most Singaporeans want to maintain current family and social norms, according to the Prime Minister.

Matthias Ang | August 21, 2022, 08:49 PM

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The government will amend Singapore's Constitution to protect the definition of marriage as between a man and a woman, Prime Minister Lee Hsien Loong announced at the National Day Rally on Aug. 21.

This amendment will prevent the definition from being challenged on constitutional grounds in court, he added.

It will also help the government repeal Section 377A of the Penal Code in a "controlled and carefully considered way".

PM Lee elaborated:

"It will limit this change to what I believe most Singaporeans will accept, which is to decriminalise sexual relations between consenting men in private.

But it will also keep what I believe most Singaporeans still want, and that is to retain the basic family structure of marriage between a man and a woman, within which we have and raise our children."

The legal definition of marriage in Singapore is contained in the Interpretation Act and the Women’s Charter.

Most Singaporeans want to maintain current family and social norms

PM Lee added that while most Singaporeans will accept the repeal of 377A, they do not want this action to trigger a drastic shift in societal norms across the board which includes how Singapore defines marriage, what is taught to children in schools, what is shown on free to air television and in cinemas, or what is generally acceptable conduct in public.

Many national policies rely upon this definition of marriage including public housing, education, adoption rules, advertising standards, and film classification.

He noted that for most members of the public, their main worry is what they feel 377A stands for, and what they fear repealing it may "quickly" lead to.

PM Lee said that parliament had previously debated the law in 2007, and decided to leave it in the books but not actively enforce it as an "untidy" compromise, as it would have been too divisive to repeal it then.

Now, with attitudes having shifted "considerably" in the last 15 years, most people accept that a person's sexual orientation and behaviour is a private and personal matter, and that sex between men should not be a criminal offence.

"Significant risk" of 377A being ruled unconstitutional in future court challenge

In addition, the Attorney-General and Minister for Law have both advised, following the latest legal challenge against the law, that there is a "significant risk" of 377A being struck down in a future court challenge, on the grounds that it breaches the equal protection provision in the Constitution.

However, most Singaporeans that the government has engaged with recently worry that the repeal may also encourage more aggressive and divisive activism on all sides, he said.

"This is not only the concern of those with religious objections, but is shared by many non-religious people. Even many Singaporeans who support repeal want to maintain our current family and social norms."

The government therefore has no intention of changing the definition of marriage, nor the national policies depending on it, PM Lee said.

Courts not the proper forum to settle political questions

The prime minister further noted that currently, the definition of marriage can be challenged on constitutional grounds, like what has happened to 377A.

In acknowledging that such challenges have happened elsewhere, PM Lee said, "If one day such a challenge succeeds here, it could cause same-sex marriages to become recognised in Singapore."

Such a change would be the result of a court judgement, and not because parliament passed such a law, he added.

In such a situation, even if the majority of MPs opposed same-sex marriage, parliament may not be able to simply change the law to restore the status quo ante. Instead, parliament would have to amend the constitution, which requires a two-thirds majority.

PM Lee highlighted:

"I do not think that for Singapore, the courts are the right forum to decide such issues.

Judges interpret and apply the law, that is what they are trained and appointed to do... But judges and courts have neither the expertise nor the mandate to settle political questions, or to rule on social norms and values. Because these are fundamentally not legal problems, but political ones."

Attempting to force change through the courts will inflame social tensions

This led to the prime minister's next point about seeking change by forcing the pace through litigation, which is adversarial in nature.

"It would highlight differences, inflame tensions and polarise society. And I'm convinced this would be bad for Singapore," he explained.

What the government therefore seeks, by constitutionally protecting the definition of marriage, is a political accommodation that balances different legitimate views and aspirations among Singaporeans, according to the prime minister.

Acknowledging the reception that might meet such a move, PM Lee said:

"For some, this will be too modest a step. For others, it will be a step taken only with great reluctance. But in a society where diverse groups have strongly-held opposing views, everyone has to accept that no group can have things all their way."

The prime minister also warned that any side pushing too hard will result in the other side pushing back even harder.

He cited "some Western societies" as an example of this conflict, where the end result has been "culture wars", contempt for opposing views, cancel culture to silence opponents, and "bitter feuds" splitting society into warring tribes.

Issuing a warning about this phenomenon, he said:

"There are some signs of similar things starting to happen here too. I say, let us not go in this direction. All groups should exercise restraint, because that is the only way we can move forward as one nation together."

Top left image via PMO/YouTube, right photo by Jeremy Wong Photography via Unsplash