Legal rights for same-sex marriage: Hurdles are many, friends few

September 6, 2018, marked a watershed in Indian judicial history. On that day, a five-member bench of the Supreme Court scrapped Section 377 of the Indian Penal Code, enacted in the colonial times of 1861, which penalized sex between people of the same sex.

However, decriminalising gay/lesbian sex and sex between other members of the LGBTQ (lesbian, gay, bisexual, transgender, and queer) community did not settle all the issues of the rights of sexual minorities. They still do not have the legal right to marry and set up a family. This amounts to the Indian state reducing same-sex relationships to mere sex. It challenges the very philosophy of love and marriage, and even the supposedly glorious Hindu tradition. A higher emotional familial bonding between members of the same sex has neither legal recognition nor social sanction.

Such couples cannot register their marriage. They can, at best, only have sex in stealth. But they cannot come out of the closet and live together as a socially recognised couple or family. That is still taboo. Recognition for that in the community, and often within the family, is still a far cry.

So, four and a half years after decriminalising gay/lesbian sex, the Supreme Court on April 18 again started hearing a bunch of petitions from the LGBTQ community, this time seeking legal recognition for same-sex marriages. However, the path will be anything but easy, with the state opposing the plea tooth and nail and even lawyers’ bodies, including the Bar Council of India, imploring the apex court to leave the decision to the legislature instead of delivering a judgment.

Also read: Same-sex marriage: After BCI, Delhi lawyers oppose hearing; Mahua Moitra speaks up

So, why do LGBTQ people face obstacles at every step in institutionalizing their bond? What are the arguments of the pathological opponents of same-sex marriage?

What the opponents of same-sex marriage say

The main resistance to same-sex marriage comes from religious establishments. There is perfect inter-communal unity between Christian, Islamic, Buddhist, and Hindu orthodoxies in opposing same-sex marriages. Their main argument is that marriage is religiously sanctioned, and same-sex marriage is against the norms laid down by God. The Church orthodoxy invokes biblical passages like Genesis 2:24 and Mathew 19:4-6, which underline a man’s bonding with his wife, and the guidelines of St Paul, who described same-sex relations as “unnatural” and “shameful” to oppose any form of union between people of the same sex.

The Islamic law, viz. the Sharia, explicitly bans homosexuality on the premise that the Quran holds that homosexual acts are punished by God. In Islamic countries, LGBTQs face discrimination and violence.

Though there is no single overriding position in Buddhism on same-sex relations, many later-day Buddhist religious leaders have described same-sex marriage as “misconduct”. Though China claims that they negate Buddhism, in practice, they adhere to the same guideline.

In Hinduism, the Brahminical orthodoxy depends on scriptures like Manusmriti and Bhagavat Purana to exercise its hegemony. Manusmriti describes same-sex relations as immoral and sinful. Like the oppression of untouchables and toiling Shudras, LGBTQs are treated as outcastes, and there is no trace of empathy for them.

One may say that religious opposition to same-sex marriage is the most stubborn opposition to it.

Also read: Explained: Centre’s arguments in SC against same-sex marriages

Next is the opposition arising due to cultural politics. Conservatives oppose same-sex marriages because they feel same-sex relations would subvert the traditional institution of family and family values. They limit sex to procreation and deny that it is the logical culmination and highest form of love. In a cultural setting where marriages are usually forced and love marriage is an exception rather than the rule, where inter-caste and inter-religious marriages are responded to with honour killings, sympathetic approval for same-sex marriage seems virtually impossible.

Politically speaking, just like the Victorian white supremacist system of marriage, upper-caste “family values” which guide marriage, especially peasant marriage, hold LGBTQ same-sex bonding as equal to lower-caste delinquency.

Arguments of the supporters of same-sex marriage

Those who support same-sex marriage and the LGBTQ activists in India invoke the principle of equality enshrined in the Indian Constitution. They hold that denying marriage and family rights to same-sex partners amounts to discrimination against them. In their opinion, it is also a question of liberty of an individual, and such denial tramples upon their fundamental human right.

Some activists point out that the denial of a formal legal marriage status deprives same-sex partners of social security benefits such as pensions for dependents.

Rights activists point out that behind the refusal to recognize them as a family, there is a strong element of exclusion because they cannot rent a house together, run normal businesses, or carry on their professions with ease. For instance, it is very difficult for gays to work as teachers because parents would not be ready to send their children to them. There is a stigma surrounding same-sex relations, and lesbians are considered sluts. Even if same-sex couples defy social norms and live together as a “family” (without legal sanction), it is very difficult for them to adopt children, as orphanages usually deny same-sex couples the right to adopt.

What has transpired in the Supreme Court hearing so far

In the Supreme Court hearing so far, the main opposition to same-sex marriage has come from the government itself. Solicitor-General Tushar Mehta, representing the government, has challenged the very acceptance of the petition by the apex court and hearing it.

He has argued that it is the prerogative of the Parliament to legislate on socio-cultural issues, and it is not up to the court to dictate the position of law on this sensitive issue. On Wednesday (April 26), too, the Centre requested the Supreme Court to consider leaving the matter to the Parliament.

The Centre has also argued that the petitions only reflect “mere urban elitist views for the purpose of social acceptance” and cannot be equated with the views of the vast majority of India.

The arguments cited by Tushar Mehta are exactly the same as those of Hindu conservatives that have been summarized above—that a marriage is religiously ordained, and same-sex marriage is against religious values. “It is against nature and the people will not approve of it,” he has argued.

Arguing for the petitioners, Mukul Rohtagi has invoked the Constitutional principle of right to life, saying that denying same-sex couples the right to marriage and family amounts to denying them a right to life with dignity. Feminist-advocate Menaka Guruswamy has argued that “Marriage is not only a question of dignity but a bouquet of rights that LGBTQ people are being denied post-Navtej Johar judgment (wherein Section 377 was held unconstitutional on September 6, 2018), like life insurance or medical insurance.”

In the course of the hearing, some interim observations made by the court have hinted at the direction in which the five-judge Constitution Bench was moving. When Tushar Mehta asserted that marriage before Indian law has always been between a biological male and a biological female, Chief Justice DY Chandrachud, who is heading the Bench, made an interim comment saying, “The notion of a biological man or woman is not absolute”, and “It is not a question of what your genitals are”.

At other times, the court has emphasized that same-sex relationships are not just physical relations but more of a stable, emotional relationship, that the state cannot discriminate against individuals based on their sexual characteristics over which they have no control, and that the Centre has not been able to present any data to support its claim that same-sex marriage is an “elitist” or “urban” concept. On Wednesday (April 26), the CJI observed that the Centre’s elitism argument is “just prejudice and has no bearing on how the court will decide the case.”

The CJI has also said that “between Navtej Johar and today, our society has found much greater acceptance of same-sex couples. That’s very positive because you find that there is a greater acceptance in our universities”. He has gone on to add that “in this evolving consensus, the court is also playing a dialogical role to create that consensus and move towards an equal future”.

The Supreme Court has restricted the focus of the petitions on the Special Marriage Act, 1954, and has said it may be interpreted in a way so that same-sex marriage can be assimilated in it, as the law has evolved over the years. The petitioners are essentially seeking the provisions of the Special Marriage Act to read marriage as a union between “spouses” instead of “man and woman”.

However, a crucial hurdle remains in the path of same-sex marriage being legalized even if the country’s top court is sympathetic to the cause. It is indeed the Parliament that is empowered to legislate on marriage and divorce, as the Supreme Court pointed out on Tuesday (April 25), and asked how far it could interfere in such matters.

The bench has also observed that legalising same-sex marriage without touching personal laws would not be easy and has wondered how to come up with a solution. CJI Chandrachud has said, “The framework set out by the court has to be fleshed out by the legislature.”

What rights activists say

Ravindra Garhia, an activist-lawyer practicing in the Supreme Court, told The Federal, “Unfortunately, the Indian Constitution recognizes only religious minorities and national/ethnic/linguistic minorities as minorities legally empowered with minority rights but not sexual minorities. So, fighting for their rights is a grim battle.”

Kumaraswamy, a leading lawyer in Chennai, told The Federal, “Ideally, an exclusive law on minority rights would be more preferable than just a pronouncement by the apex court. But in a scenario where the parliamentary majority is with the conservative Hindu Right, it is a welcome move by the Supreme Court to uphold Constitutional rights. Democracy doesn’t mean majority in numbers alone. It is a defence of rights-principles even if they are the rights of a small minority, or even that of an individual.”

A law giving legal sanction to same-sex marriage can only be a first step. But how to tackle the entrenched issue of social taboo?

Ruth Vanita, a renowned women’s rights activist, told The Federal: “I think this happens more through everyday experience and knowing such couples as your family members, neighbours, colleagues, and less through political campaigns. There are already numerous same-sex couples who are married by religious rites or are living as married couples, including many in villages and small towns. This has been happening for at least 50 years, probably longer. Levels of acceptance vary from family to family, community to community. However, as more such couples become visible, acceptance increases.”

Whether the Centre tactically tries to pass the buck for permitting same-sex marriage on the Supreme Court to shield its own flanks from the wrath of Hindu conservatives, or whether the government would go all out to block the Supreme Court from legally allowing same-sex marriage to champion the cause of Hindu orthodoxy would be known before long.

Also read: SC urged to use moral authority to ensure acceptance of same-sex marriages

In fact, RSS chief Mohan Bhagwat, in an interview to the editors of RSS journals Organiser and Panchjanya on January 8, 2023, made some observations about the LGBTQ community, which were interpreted by sections of the media as a rethink by the Sangh Parivar on the issue. That assessment was wrong. A close reading of the interview reveals that Bhagwat was ready to grant them their traditional niche space and categorically asserted that, “All other ways of resolving the issue would be futile.” That he was only stressing the conservative Hindu view of maintaining the status quo was confirmed by the stand taken by the Narendra Modi government in the Supreme Court. The RSS doesn’t change its spots.

But the court proceedings would take time and socio-cultural transition would take even longer. Activist-lawyer Ravindra Garhia argues that it is not a question of simply okaying same-sex marriage. “Rather, the very legal concepts of marriage and family need to be redefined by the apex court. All stakeholders need to be heard. There are also some pending unresolved issues associated with same-sex marriage like sharing of common property, the question of adoption of children (as only LGBTQ individuals can adopt children and not couples), the issue of divorce and alimony, the question of inheritance and rights of dependents for pension due to the death of the main bread-winner, and so on. These are knotty issues. It would be interesting to see how the Supreme Court sorts out these issues and other issues related to marriage and family, which are still evolving. But sooner or later, the LGBTQ people can hope to wing their rights for same-sex marriage and family.”

Let us see.