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
- 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 LGBTQ+ rights movements following the Stonewall riots in 1969.
The arguments began to focus less on demands for 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 marriage 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 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
- Have inheritance rights arising out of marriage
However, India provides some 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.
The Supreme Court in 2022 provided social security rights to those in same-sex live-in relationships while also recognizing same sex couples as a part of “family unit.”
Supriyo v. Union of India (2023)
- The case involved petitions filed by same sex couples challenging provisions of the Special Marriage Act, 1954 that limit marriage to heterosexual relationships.
- The ruling acknowledged dignity, equality and non-discrimination for LGBTQ+ individuals but reflected a cautious judicial approach.
- The Supreme Court ruled that the right to marry is not a fundamental right, deferring legalization of same-sex marriage to parliament.
- It affirmed LGBTQ+ individuals’ right to dignity and non-discrimination under Article 21, but did not recognize civil unions or adoption rights.
- The verdict included a directive for the government to form a committee to explore protections for queer couples.
Chief Justice D.Y Chandrachud, along with Justice S.K Kaul, formed a minority opinion, advocating for a broader interpretation to grant marriage equality or civil unions.
Arguments
In Favour of Same Sex Marriage
- Equal Rights and Protection Under the Law
- All individuals, regardless of sexual orientation, have the right to marry and form a family.
- Non-recognition of same-sex marriage amounts to discrimination that strikes at the root of the dignity of LGBTQIA+ couples.
- Strengthening Families and Communities
- Marriage provides social and economic benefits to couples and their families which will also benefit same-sex people.
- Cohabitation as a Fundamental Right
- The Chief Justice of India (CJI) acknowledged that cohabitation is a fundamental right, and it is the government’s obligation to legally recognize the social impact of such relationships.
- Biological Gender is Not Absolute
- The Supreme Court of India says that biological gender is not absolute, and that gender is more complex than just one’s genitals.
- There is no absolute concept of a man or a woman.
- Global Acceptance
- Same-sex marriage is legal in 32 countries.
- Denying this right in a democracy goes against global principles.
Against Same Sex Marriage
- Religious and Cultural Beliefs
- Many religious and cultural groups believe marriage should only be between a man and a woman.
- Changing the traditional definition of marriage, they argue, violates their beliefs and values.
- Procreation
- Some argue the primary purpose of marriage is procreation.
- Since same-sex couples cannot biologically have children, marriage should not apply.
- Legal Issues
- Allowing same-sex marriage could create issues with inheritance, tax, and property rights.
- It would be difficult to change all laws and regulations to accommodate.
- Issues with Adoption of Children
- Queer couples adopting children could face societal stigma, discrimination, and psychological challenges for the child.
- Especially in India, where LGBTQIA+ acceptance is not universal.
Key Judicial Pronouncements
- Navtej Singh Johar v Union of India
- Decriminalized consensual same-sex relationships by reading down Section 377 IPC.
- Affirmed liberty, dignity, and privacy for LGBTQ+ persons.
- Did not confer marital rights.
- Shafin Jahan v. Asokan K.M & Others
- Held that the right to marry the person of one’s choice is intrinsic to liberty under Article 21.
- Referred to the Universal Declaration of Human Rights.
- Principle later cited in marriage equality petitions.
- Deepika Singh v. Administrative Tribunal & Others
- Held that familial relationships can include same-sex partnerships and live-in relationships.
- Recognized such unions 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.
It is not only a matter of legal rights but also a reflection of society’s evolving understanding of love, partnership and equality.
While many nations proudly recognize same-sex marriage, others continue to resist, leaving millions without access to marriage rights.
Even within progressive jurisdictions, issues of parental rights, religious freedom and cross-border recognition persist.
At its core, the struggle over same sex marriage is about more than marriage — it is about whether sexual orientation can continue to serve as a basis for exclusion from one of society’s most cherished and legally significant institutions.
As courts and activists continue to push for change, the possibility of legal recognition of same-sex marriage in India could redefine the legal landscape for LGBTQ+ rights, aligning it more closely with global trends.
The trajectory suggests that same-sex marriage will remain one of the defining legal issues of the early 21st century.
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