Same Sex Marriage

Syllabus: Salient features of Indian Society, Diversity of India, Effects of Globalization on Indian society (GS1)
Source: The Hindu – 18/10/2023

Application: Where to place?
When asked about
– Legality of same sex marriage in India
– Arguments for and against Same-sex marriage
– Ethical Perspective of same sex marriage
– Social perspective of same sex marriage

Context: The Supreme Court on Tuesday ruled that there cannot be legal recognition for same-sex marriages, doing so by a 3-2 majority.

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Content

Same-Sex Marriage

• Same-sex marriage is the marriage of two people of the same legal sex.
• Marriage between same-sex couples is legally performed and recognized in about 34 countries.
• Same-sex marriage is not legally recognized by the Indian government or courts as of now.

Evolution of Same Sex Marriage in India

2001	The Naz  Foundation (NGO) files a Public Interest Litigation (PIL) challenging Section 377 of the Indian Penal Code (IPC), which criminalizes homosexual activities as “unnatural offences” punishable by up to 10 years in jail.
2009	The Delhi High Court, in the Naz Foundation vs. NCT of Delhi case, ruled that Section 377 is unconstitutional and violates the right to equality, dignity and privacy of LGBTQ+ individuals. This decision makes homosexuality legal in India for the first time.
2013	The Supreme Court of India, in the Suresh Kumar Koushal vs. Naz Foundation case, overturns the Delhi High Court’s verdict and reinstates Section 377, saying that it is a matter of legislative policy and not judicial review.
2018	The Supreme Court of India, in the Navtej Singh Johar vs. Union of India case, strikes down Section 377 again, declaring that it is irrational, arbitrary and discriminatory. The court also recognizes the constitutional rights of LGBTQ+ individuals to express their identityand sexual orientation.
2020	The Supreme Court of India issues notice to the central government on a batch of petitions seeking legal recognition of same-sex marriages under the Special Marriage Act, 1954
2023	The Supreme Court of India, in the Abhijit Iyer-Mitra vs. Union of India case, refuses to grant legal recognition to same-sex marriages, saying that it is not a fundamental right and that it is up to the Parliament to amend the law accordingly.

Same-Sex marriage: SC verdict highlights(2023)

• No legal recognition of same-sex marriages: The Supreme Court ruled that same-sex marriage is possible only through a specific law enacted by Parliament and that it cannot read into existing laws to create such a right.
• Centre’s high-powered committee to examine concerns of same-sex couples: The Supreme Court recorded the Centre’s proposal to form a high-powered committee to look into the issues faced by same-sex couples and to suggest legislative measures to address them.
• The court said that it is the government’s job to legalise same-sex marriage and that it cannot usurp the role of the legislature.
• No right for queer couples to jointly adopt: The Supreme Court agreed that the regulations set by the Central Adoption Resource Authority (CARA) are constitutional and not void, as was observed by the CJI. The court said that CARA has the power to prescribe eligibility criteria for prospective adoptive parents and that it cannot allow same-sex couples to jointly adopt children under the existing laws.
• CJI directs the Centre to:
  • Ensure queer community is not discriminated against
  • Ensure there is no discrimination in access to goods and services.
  • Sensitize the public about queer rights.
  • Create a hotline for the queer community.
  • Create safe houses or Garima grih for queer couples.
  • Ensure inter-sex children are not forced to undergo operations.
  • No person shall be forced to undergo any hormonal therapy.

Arguments in favour of Same Sex marriage

• Right to Equality(Artcle 14) :Proponents of same sex marriage argue that denying same-sex couples the right to marry goes against the principle of equality, as it creates a second-class citizen status for those who identify as LGBTQ+.
• Fluidity of gender: The traditional binary understanding of gender is increasingly being challenged. Recognizing same-sex marriage acknowledges the fluidity of gender and sexuality, and respects individuals’ self-identified gender identities.
• Discrimination: Denying same-sex couples the right to marry can be seen as a form of discrimination, akin to denying individuals rights based on race or religion.
• Undemocratic Nature: In democratic societies, laws should reflect the will of the people. As public opinion shifts towards acceptance of same-sex marriage, it becomes undemocratic to uphold laws that deny these rights.
• Global acceptance: Many countries around the world, including the US and Canada, have legalized same-sex marriage.This global trend reflects a growing recognition of LGBTQ+ rights and sets a precedent for other countries to follow.
• Reflects Traditional mentality: While some argue that marriage should be between a man and a woman due to tradition, it’s important to recognize that societal norms evolve over time. What was once considered ‘traditional’ may no longer apply in a modern, inclusive society.
• Holistic view of marriage: Marriage is about love, commitment, and mutual respect. These values apply regardless of the genders of the individuals involved.
• Mental Health: Legal recognition of same-sex marriage can improve the mental health outcomes for LGBTQ+ individuals by reducing minority stress and validating their relationships in the eyes of society.
• Child Adoption: Same-sex couples are more likely to adopt children and provide loving homes for those in need. Recognizing their marriages can provide greater stability for these families.
• Right to Privacy (Article 21): According to this argument, the right to privacy includes the right to make choices about one’s body and intimate relationships, and this applies to same-sex couples as well.

Arguments against Same Sex Marriage 

• Procreation or Reproduction as the important function of marriage: Some argue that the primary purpose of marriage is procreation, and since same-sex couples cannot naturally conceive children, they should not be allowed to marry.
• Against law or order of nature: Critics often claim that homosexuality is against the natural order, and thus, same-sex marriages should not be recognized.
• Legal Issues associated with same sex marriages in India: In India, where homosexuality was decriminalized only recently, legalizing same-sex marriage could lead to complex legal issues and conflicts with existing laws.
• Against Indian culture and religious beliefs: Homosexuality is often seen as contrary to Indian cultural norms and religious beliefs, leading to resistance against same-sex marriage.
• Traditional definition of marriage: Marriage has traditionally been defined as a union between a man and a woman, and some believe changing this definition would undermine societal norms.
• Influence on children and adolescents: There are concerns that legal recognition of same-sex couples could influence young people’s understanding of relationship norms, potentially leading to confusion or misunderstanding.
• Minority of countries have legalised same-sex marriage: Only a small number of countries worldwide have legalized same-sex marriage, indicating a lack of global consensus on the issue.
• Slippery slope effect: The government has expressed concern that redefining marriage could lead to demands for legal recognition of other types of relationships, creating a “slippery slope” effect.
• Adoption by same-sex couples: The issue of adoption by same-sex couples raises concerns about the child’s upbringing, with critics questioning whether such households can provide balanced environments for children’s development.
• Potential for social disruption: Critics argue that legalizing same-sex marriage could lead to social disruption, as it challenges long-standing social structures and norms.
• Destroy the concept of family:It is argued that legalizing queer marriages will destroy the concept of family, which is the “fundamental building block of society.”

Social perspective (Indian society) of Homosexuality

• Social stigma : Despite the decriminalization of homosexuality in 2018 by the Supreme Court, homosexuality is still considered as a taboo and immoral by many people in India.
• Social Discrimination: Homosexuality couples face social and legal discrimination, harassment, violence, and ostracism from their families and communities.
• Social instability: Same-sex marriage might cause social instability and chaos by disrupting the existing norms and traditions that have been followed for centuries.
• Social change over time: Proponents of same-sex marriage argue that social change is inevitable and desirable, and that society should adapt to the changing times and needs of its members.
• Social consensus: A major challenge for same-sex marriage is to achieve social consensus and acceptance from the majority of the population, especially from the religious and conservative groups that oppose it on moral and cultural grounds.

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Ethical Perspective of Homosexuality

Ethical Dilemma (Individual vs Community)

• The ethical dilemma between individual and community rights arises when there is a conflict or tension between the personal choices and preferences of homosexual individuals and the social norms and expectations of their communities.
• Community perspective: Some communities may not accept or tolerate homosexuality, and may impose legal, social, or religious sanctions or restrictions on homosexual individuals or groups. This may result in discrimination, oppression, violence, or persecution of homosexuals.
• On the other hand, some communities may embrace or celebrate homosexuality, and may provide legal, social, or religious support or protection for homosexual individuals or groups. This may result in inclusion, empowerment, diversity, or solidarity of homosexuals.
• Individual perspective: Homosexuality is not immoral or unnatural, but rather a valid and legitimate expression of human diversity and dignity. Homosexuality does not harm anyone or anything, but rather contributes to human happiness and well-being.

Same Sex Marriage in other countries

• According to the Human Rights Campaign, there are currently 34 countries where same-sex marriage is legal.
• Some of these countries are Argentina, Canada, France, Germany, Ireland, New Zealand, South Africa, Taiwan, the United Kingdom, and the United States of America.

Conclusion

• Same-sex marriage is a complex and controversial issue in India, as it relates to various legal, social, religious and cultural factors.
• The LGBTQIA+ community in India hopes that the Parliament will pass a legislation that recognizes their rights and dignity.
• However, any legal change also requires a social change, as the law can only be fully effective if there is a public acceptance or agreement.

Key Words

• Heteronormativity:Heteronormativity is the concept that heterosexuality is the preferred or normal mode of sexual orientation.
• Cis Gender: Term used to describe a person whose gender identity corresponds to their sex assigned at birth (antonym of transgender)
• LGBTQIA+: Lesbian, gay, bisexual, transgender, queer or questioning, intersex, asexual, and others
• Horizontal reservation: Horizontal reservation is a term used to describe the provision of equal opportunity for certain categories of beneficiaries, such as women, veterans, the transgender community, and individuals with disabilities, across the vertical categories of reservation, such as Scheduled Castes, Scheduled Tribes, and Other Backward Classes.
• ‘Social’ or ‘Circumstantial’ infertility: Circumstantial infertility is when a person is unable to conceive naturally due to the lack of a partner with whom to conceive or due to the fact that their partner is transgender or of the same sex and they therefore need donor assistance to conceive.

Practice Question: Analyze the recent Supreme Court verdict on same-sex marriages in India and its implications for the LGBTQIA+ community and the society at large. How can the government address the concerns and grievances of same-sex couples in a sensitive and inclusive manner?

Reference

• Same-sex marriage: What Government of India argued before Supreme Court bench
• A brief history of the quest for LGBTQ rights and same-sex marriage in India
• Same-Sex Marriage Verdict: SC refuses to give marriage equality rights to LGBTQIA+ community in India
• SC verdict on same sex marriages Explained Highlights: No fundamental right of same-sex couples to marry, says Supreme Court