Introduction
Same-Sex Marriage has emerged as one of the most significant legal and social issues of the 21st Century. The recognition of same-sex marriage has evolved dramatically over the past few decades, influenced by changing social attitudes, legal battles, and landmark court decisions.
It refers to the legally recognized union of two individuals of the same sex with the same legal rights, responsibilities, and protection as heterosexual marriages. The legal recognition is crucial because marriage is more than a symbolic or religious union – it confers a wide range of civil benefits, including inheritance rights, tax benefits, spouse privilege, immigration status, healthcare decision-making, and parental rights.
Historical Background
For centuries, marriage was defined legally and socially as a heterosexual institution, deeply tied to procreation and traditional gender roles. Religious influences cemented this understanding, particularly in cultures where family structures were defined by patriarchal norms.
The struggle for same-sex marriage can be traced back decades. In many societies, same-sex relationships were often stigmatized and criminalized.
The push for marriage equality began in earnest during the late 20th century, fueled by the LGBTQ+ rights movement following the Stonewall riots in 1969.
The arguments began to focus less on cultural recognition and more on constitutional questions of due process, equality, and dignity. These shifts reframed same-sex marriage not simply as a social innovation but as a matter of fundamental rights.
Activists sought not only legal recognition but also social acceptance of same-sex relationships.
Constitutional Principles at Stake
1. Equality and Non-Discrimination
At the core of the debate is the constitutional principle of equal protection under the law. Excluding same-sex couples from marriage has often been argued to constitute discrimination based on sexual orientation, analogous to past exclusions based on race, gender, or religion.
Courts facing marriage equality questions have had to consider whether sexual orientation warrants strict or heightened scrutiny in constitutional law, and whether bans on same-sex marriage violate equal protection guarantees.
2. Liberty and Privacy
Marriage has traditionally been protected under the constitutional right to privacy and liberty. In many jurisdictions, the right to marry has been classified as a fundamental right.
When same-sex couples are denied that right, the legal system must reconcile whether such denial infringes upon individual liberty.
3. Human Dignity
Many courts and advocates argue that same-sex marriage is fundamentally about dignity. Denying same-sex couples the right to marry deprives them not only of material benefits but also of the social recognition and symbolic validation associated with marriage.
Thus, the denial implicates both substantive and symbolic harms.
Legal Framework
Legal recognition of same-sex marriage varies significantly worldwide. While many countries and regions have embraced marriage equality, others continue to uphold bans or offer minimal legal recognition for same-sex relationships.
Numerous countries including Germany, Canada, Thailand, and the Netherlands have legalized same-sex marriage, reflecting changing societal attitudes and the growing acceptance of LGBTQ+ rights.
Within the United States, the situation remains complex. While Obergefell v. Hodges established nationwide marriage equality, some states have attempted to undermine these rights through legislation aimed at restricting recognition or access to marriage.
Recognition of Same-Sex Unions in India
India does not recognize same-sex marriage, civil unions, or other forms of partnerships. This means same-sex couples cannot register their marriage with the state, enjoy spousal benefits, or have inheritance rights arising out of marriage.
However, India provides limited legal recognition to cohabitating same-sex couples in the form of live-in relationships.
Several same-sex couples have married in traditional Hindu ceremonies since the 1980s. However, these marriages are not registered with the state and couples do not enjoy all the same rights and benefits as married opposite-sex couples.
Key Developments in India
- The Supreme Court in 2022 provided social security rights to those in same-sex live-in relationships while also recognizing same-sex couples as part of a “family unit.”
- In October 2023, in Supriyo v. Union of India, petitions were filed by same-sex couples challenging provisions of the Special Marriage Act, 1954.
- The Court acknowledged dignity, equality, and non-discrimination for LGBTQ+ individuals but deferred the authority to legalize same-sex marriage to Parliament.
- The Court affirmed that the right to choose a partner is protected under Article 21, but it did not recognize a constitutional right to marriage itself.
- The Special Marriage Act, 1954 was held not to apply to same-sex couples. Chief Justice D.Y. Chandrachud and Justice S.K. Kaul (minority opinion) advocated for broader interpretation to grant marriage equality or civil unions.
Arguments
In Favour of Same-Sex Marriage
- Equal Rights and Protection: Same-sex couples should have the same legal rights and protections as opposite-sex couples. Non-recognition amounts to discrimination and undermines dignity.
- Strengthening Families and Communities: Marriage provides social and economic benefits, extending these to same-sex couples strengthens society.
- Cohabitation as a Fundamental Right: The CJI acknowledged cohabitation as a right, obligating the government to recognize its social impact.
- Biological Gender is Not Absolute: The Supreme Court noted gender is more complex than genitals; there is no absolute concept of man or woman.
- Global Acceptance: Same-sex marriage is legal in 32 countries, and denying it contradicts democratic and global principles.
Against Same-Sex Marriage
- Religious and Cultural Beliefs: Many traditions restrict marriage to heterosexual unions.
- Procreation Argument: Some argue marriage’s primary purpose is procreation, which same-sex couples cannot biologically achieve.
- Legal Complications: Concerns over inheritance, taxation, and property adjustments.
- Adoption Concerns: Fear of societal stigma affecting children adopted by queer couples, especially in Indian society with limited acceptance.
Key Judicial Pronouncements
- Navtej Singh Johar v. Union of India (2018): Decriminalized consensual same-sex relationships by reading down Section 377 IPC. However, no marital rights were granted.
- Shafin Jahan v. Asokan K.M. (2018): Court held that the right to marry a person of choice is intrinsic to liberty under Article 21, citing international norms.
- Deepika Singh v. Administrative Tribunal (2022): Court recognized that familial relationships can include same-sex partnerships and live-in relationships, especially for social security benefits.
Conclusion
The legal recognition of same-sex marriage represents a profound shift in constitutional law, human rights jurisprudence, and societal understanding of equality.
Its recognition is not only about legal rights but also about society’s evolving understanding of love, partnership, and dignity.
While many nations embrace marriage equality, others resist, leaving millions without access to marital rights. Even in progressive jurisdictions, parental rights, religious freedom, and cross-border recognition remain challenges.
At its core, the struggle is about whether sexual orientation can continue to justify exclusion from one of society’s most cherished institutions.
In India, the Supreme Court has affirmed dignity and choice but deferred marriage equality to the legislature. The trajectory suggests that same-sex marriage will remain one of the defining legal issues of the 21st century.
Also Read:
Rights of undertrial prisoners in India
How To Send A Legal Notice In India
