Same-sex marriage: One step forward, two steps back?

‘For never was a story of more woe, than this of Juliet and her Romeo’, was the final elegy written by William Shakespeare to draw the curtains on his tragic play about two star crossed lovers for whom it took death for their feuding families to reconcile. The question that stares us in the face today, is what is the fate of a Romeo-Romeo or a Juliet-Juliet?

The Supreme Court of India almost two years ago in Navtej Singh Johar v. Union of India, removed perhaps the biggest impediment in same-sex relationships, by invalidating the antiquated proscription of Section 377 of the Indian Penal Code which outlawed voluntary intercourse against the order of nature (read : between members of the same-sex).

The fulcrum of the reasoning on which the Supreme Court rested its judgment was right to privacy as well as the choice of an individual to be a pivotal facet of Article 21 of the Constitution of India, and therefore liable to be placed on the highest pedestal of constitutional morality. One concurring opinion in Navtej Singh Johar’s case opines that ‘…Section 377 affects the private sphere of the lives of LGBT persons. It takes away the decisional autonomy of LGBT persons to make choices consistent with their sexual orientation, which would further a dignified existence and a meaningful life as a full person.…’.

This powerful and meticulously penned verdict of the Supreme Court delivered the first strike towards ensuring equality for the LGBT+ community. Alas, the fight for the community was far from over.

Our courts today are now faced with deciding the question of legality and validity of same-sex marriages. The Delhi High Court is now hearing petitions to address questions of registration of same-sex marriages under the Special Marriage Act & the Foreign Marriage Act.

The statutory conditions for a Hindu Marriage, in accordance with Section 5 of the Hindu Marriage Act are qualified with the words ‘…a marriage may be solemnized between any two Hindus…’ therefore expressly making the wording of the statute gender neutral. The reference to bride and bridegroom in the Hindu Marriage Act, as well as a handful of other legislations may well have to be considered legislative surplusage and read down as white noise.

The courts in India would need to match rapid speed in deciding these imperative civil rights issues as each day a same-sex couple is treated differently than an opposite-sex couple, is a day which counts as a failure of an equal nation.

The same situation troubled same-sex couples in the United States, where the Congress, in 1996, passed the Defense of Marriage Act (DOMA) whereunder by Section 3 marriage for all federal-law purposes was defined as “only a legal union between one man and one woman as husband and wife”.

A challenge was made to the denial of rights to same-sex couples on the ground that it interfered with the guarantees of equal protection as well as due process afforded under the Fourteenth Amendment to the United States Constitution. The argument was founded on the premise that the right to marry was a fundamental right. Plaintiffs, who were same-sex couples succeeded in their challenge before the District Courts. However, the Court of Appeal for the Sixth Circuit reversed the decision from where the Plaintiffs petitioned the United States Supreme Court seeking a writ of certiorari.

Reversing the decision of the Sixth Circuit, the United States Supreme Court in Obergefell v. Hodges (2015), by 5-4 majority, laid down a generations worth of progressive civil rights jurisprudence compelling all states to perform and recognize the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples, with all accompanying rights and responsibilities.

The court heavily drew from its previous judgments in United States v. Windsor (2013), wherein Section 3 of DOMA was held as unconstitutional as well as Lawrence v. Texas (2003), whereby the Supreme Court invalidated laws that made same-sex intimacy a criminal act. (Peculiarly, it was Justice Anthony Kennedy who authored all three opinions scoring a perfect trifecta in a battle ensuring civil rights for the LGBT+ community).

On the world scenario the situation is varying. Same-sex marriage has been allowed by way of judicial orders in the jurisdictions of South Africa, Brazil, Canada, Colombia, Costa Rica and Taiwan. Whereas in a plethora of other jurisdictions, the same has been given legal sanctity by proactive legislative action. In some nations like China there is a policy of no approval, no disapproval, no promotion. The United Nations is still to do meaningful work in this arena, with an ultimate goal of drafting a convention recognizing rights of same-sex couples in fields of marriage, intimacy, adoption, domestic privileges etc. which also needs to be graciously adopted and implemented by member states.

Another aspect which needs to be considered is the evolution of society that has occasioned in the meantime. It may be noted that the language of Section 377, drafted in 1860, did in fact employ a vague and indeterminate expression – ‘against the order of nature’ without actually defining as to what would constitute the same. The Supreme Court in Navtej Singh Johar’s case held this expression to be too open ended.

Nevertheless, it is worth advocating that what was the order of nature, in 1860, when the Indian Penal Code was drafted is obviously in stark contrast to what order of nature exists today. Societal transformation has happened multiple times over. Therefore what was perhaps against the order of nature back then, may well be totally converse now. The same is true for same-sex marriage also. Same-sex marriage may have not been a common sight in the colonial times, but in 2020 to not acknowledge that society has progressed is to exist in illusion.

In fact, Justice SB Sinha in Anuj Garg v. Hotel Association of India held that changed social psyche and expectations are important factors to be considered in the upkeep of law. Decision on relevance will be more often a function of time we are operating in. Primacy to such transformation in constitutional rights analysis has to inevitably be factored in.

The right to marry, is a recognised tenet under Article 21 of the Constitution. There is no reason, why the same fundamental protection would not extend to same-sex marriages. The right to marry as well as the right to choose the person to marry inheres in the jurisprudential framework of a democratic nation. Any attempt to confine the interpretation of the law laid down in Navtej Singh Johar’s case to sexual intercourse and not extend the interpretation to marriage, would tantamount to insulting the intent of the judgment and to reduce it to a ineffectual memento.

The opening stanza to the preamble of the Universal Declaration of Human Rights states that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. Article I thereof stated that all human beings are born free and equal in dignity and rights. This milestone document was adopted by the United Nations General Assembly as a foundational text in the history of civil rights in the year 1948.

In 2020, isn’t the act of creating a bulwark of legal excesses to impede recognition of legal status to same-sex marriages taking two steps backward on the societal chess board? The question is indeed rhetorical.

Rushab Aggarwal & Mehak Bhambri are advocates. Views are personal.

The right to marry is a recognised tenet under Article 21 of the Constitution. There is no reason why the same fundamental protection would not extend to same-sex marriages. The right to marry as well as the right to choose the person to marry inheres in the jurisprudential framework of a democratic nation. Any attempt to confine the interpretation of the law laid down in Navtej Singh Johar’s case to sexual intercourse and not extend the interpretation to marriage, would tantamount to insulting the intent of the judgement and to reduce it to a ineffectual memento.

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