Should India legalise same-sex marriages?
Navigating through individual rights and societal morality to identify the legitimacy of same-sex marriages in Indian society
George A. Lundberg, a twentieth-century American sociologist, noted ‘Marriage consists of the rules and regulations which define the rights, duties and privileges of the husband and wife.’ This view of marriage evokes the role of government in the formalisation of the institution of marriage. In the Indian context, the Constitution has empowered the government to make policies on matters on marriage under personal laws.
Lundberg’s apparently objective interpretation of marriage, however, fails to capture civil unions among same-sex couples. John F Kennedy notes that ‘Change is the law of life’ and in this contemporary world, should the definition of marriage be changed to encompass same-sex couples? Different countries have taken varying positions on this issue, although India has mostly remained silent. While decriminalising homosexuality in the 2018 Navtej Singh Johar v. Union of India judgement, Justice Indu Malhotra said: “Society owes an apology to the LGBTQ community for the years of stigma imposed on them.” To ensure the society does not continue to discriminate against the LGBTQ community, it is essential to address the question of legalisation of same-sex marriage.
The 2018 flagship Supreme Court judgement attempted to legitimise homosexuality in Indian society. It cemented the constitutional ideology that societal morality cannot trump constitutional morality. The principles of equality, freedom and liberty, which are the foundations of the Indian Constitution, were reinforced in the judgement. Justice J. Chandrachud further added that decriminalisation of homosexuality was only the first step. He argued that LGBTQ individuals possessed a full range of constitutional rights, including sexual orientation and partner choice, equal citizenship and equal protection of laws.
From an individual’s rights perspective, liberty and equality safeguards protect them from unwarranted government intrusion into protected spheres of life. The choice of one’s spouse is one of the most personal decisions an individual makes. An equal society should extend to homosexual individuals the same liberty in this respect as afforded to heterosexual ones. Further, marriage allows the two parties to benefit from various social security schemes, acquire properties jointly, adoption and avail insurance and pension, among other special privileges. Denying the right to marriage essentially denies same-sex couples these benefits created for the common good.
The above argument, however, does not account for societal morality of marriage. Michael Sandel, philosopher and professor at Harvard University Law School, argues that justice cannot be detached from the question of the ‘good’ which is deeply linked to societal morality. Among his many arguments, Justice Chandrachud defended homosexual sexual relationships between consenting adults on the grounds of it being a private affair. However, marriages are not a private affair in India. Even the Constitution leaves matters of marriage to personal laws, which themselves are many times at odds with the fundamentals of the Constitution. Therefore, it is vital to view the societal moral arguments with respect to same-sex marriages.
But what is Indian morality and Indian culture? The pre-Vedic time in India was pre-patriarchal and anti-binary, focusing on female sexuality based on pleasure and not procreation. During the Arab-Persian-Islamic rule, homoerotism was practised in court and celebrated in Urdu and Sufi poems. However, the British colonialization taught Indians to look down upon homosexuality. Recently though, the Indian Society has started to evolve again and accept homosexuality.
It is challenging to navigate through these changing narratives of society’s morality. The relativistic principle of justice argues for thinking about justice based on values prevalent in a community, at any given time. In today’s time, three main aspects shape the Indian society’s views on marriage — the deep connection of marriage with religion, marriage as an institution backed by informal yet strong social legitimacy, and finally the purpose of marriage being procreation.
The society’s moral view on same-sex marriage as informed by these aspects is not tricky to gauge. Most religions do not accept same-sex marriages. In the absence of a credible poll, it will not be wrong to assume that a portion of the Indian population may not provide social legitimacy to same-sex marriages. Finally, same-sex couples cannot procreate among themselves.
Hence, we have a typical situation of natural conflict between individual rights and societal morality. Here, one needs to evaluate the extent to which justice for homosexual individuals should be driven away from objectivity and governed by the prevalent social mores.
The first moral argument is that religions do not acknowledge same-sex marriages. Religious texts and ceremonies are central to various aspects of weddings, limiting not only to the facilitating of the process of marriage but also the rules of the contract. This substantial influence of religion on marriage made Michael Kinsley, an American political journalist, argue for the dis-establishment of marriage. He said “Let churches and other religious institutions offer marriage ceremonies. Let department stores and casinos get into the act if they want to. If you and your government aren’t implicated, what do you care?” But the government still interferes in matters of marriages because the rights and duties of citizens are involved. And because the reason for government involvement in affairs of marriage is to protect individual rights, the right to equality is paramount and should be prioritised in policy-making for marriages.
The second moral argument is that a section of society is not ready to provide social legitimacy to same-sex marriages, that same-sex marriages undermine or weaken the institution of marriage. When recognising the right of an individual to marry a person of a different religion did not devalue intra-religion marriages, neither will recognising same-sex marriages diminish the validity of the opposite-sex marriage. If anything, it will reinforce the importance of marriage to individuals and communities, and the concept of exclusivity, mutual support, and commitment to one another which is the spirit of marriage in the Indian society.
As per a survey conducted by Pew Research Centre, in 2019, 61% of Americans favoured allowing gays and lesbians to marry legally, as opposed to only 31% in favour in 2004. The supporter percentage has plateaued in the past few years. Potentially opponents of same-sex marriages will continue to remain high in the near future, but this did not deter the US Supreme court from legalising same-sex marriage. While public support is critical in policy-making, when the main question is about the fundamental rights of citizens, countries can’t wait for society to evolve enough to gather 100% support.
The third moral argument is on the purpose of procreation being essential to marriage. Humans are reproducing biological beings, and procreation is important for the continuity of society. However, raising children is a personal choice of a married couple. Indian personal laws do not require the marrying couple to attest to their ability or intention to conceive children. Fertility is not a condition of marriage. People who have never consummated their marriage can still stay married. Hence, the consummation of a marriage for procreation is not necessary to its validity, and same-sex couples cannot be deprived of marriage on this ground.
While the Indian society catches up to appreciate the sincerity of same-sex marriages, the rights argument builds a strong case to act for the acknowledgement of same-sex marriages. In the US Supreme Court judgement granting same-sex couples the right to marry, Justice Kennedy rightly concluded:
“ …marriage embodies a love that may endure even past death. It would misunderstand these (homosexual) men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
What is the way forward?
In the Indian context, the road ahead, however, would not be a straight one. As the current marriage laws in India stand, different religions follow different personal laws. The inherent discrimination against women has yet not been rectified, which shows how challenging it will be to progress them to accept same-sex marriages. Uniform Civil Code (UCC), is a welcome step in this direction. To legitimise same-sex marriages, the UCC should be made gender-neutral. A gender-neutral UCC will ensure that subjects surfaced along with same-sex marriages such as adoption, divorce and property rights are also addressed. This should be the next milestone of various LGBTQ rights activists in the country. However-tough the journey may be, we should continue to fight to attain a just society.
