Same sex marriage: What’s the brouhaha about?

1.       The Human Rights Campaign Foundation, which tracks developments in the legal recognition of same sex marriage around the world, says 32 countries recognise same sex marriage as legal. This has been sanctioned by law in some countries and judicial fiat in others.

2.       These are Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the UK, the US and Uruguay.

3.       Most of these countries also recognise the right of these couples to adopt children.

4.       This despite opposition from the Catholic Church, which remains steadfastly opposed to any such move. Some protestant groups, however, have come around to allowing them same sex marriages to be held in their own churches. 

5.       Homosexual activity is deemed as sinful in Christianity and considers holy matrimony as only possible as a union between a man and a woman. 

6.       The movement to secure legal recognition for same sex marriages and civil unions for the LGBT community has gained traction in India after the court decriminalised all adult consensual sexual behaviour, including homosexual relations under Section 377, IPC.

7.       Once, the right to marry is recognised, other rights such as the right to adopt children and their right to claim ancestral property, will follow.

8.       The move has been opposed by all religious groups in India, the Christians and Muslims and Hindus alike. 

9.       The government of India also opposes any such recognition being granted to same sex marriages on the ground that marriage in this country is considered as a union between a man and woman as sanctioned by religion.

10.   Hence, it cannot be a union of same sexes.

11.   Same sex marriages are neither sanctioned by personal laws or codified laws, the government said in an affidavit filed in response to a court notice on a plea seeking legal recognition of such marriages.

12.   The government also cited cultural and societal constraints to oppose such a move. The institution of marriage had a certain sanctity attached to it, it said. It is not only just a union of two individuals but a solemn institution between a biological man and a woman.

13.   The union between a biological man and woman enjoins the parties to bring up “children born of the marriage and to ensure their proper mental and psychological growth” in the “most natural way possible”. Several rights and liabilities flow from such a marriage.

14.   A declaration recognising same sex marriages has many legal ramifications. It would be violative of existing codified laws and personal laws.

15.   Same sex couples would also not fit the legislative scheme of things, which clearly talk about a biological woman who is the wife and a man who is the husband, and hence be deprived from enjoying the benefit of any beneficial laws meant for couples.

16.   Decriminalisation of 377 doesn’t translate to right to marry for same sex couples, government says.

17.   The government cited legitimate state interest to limit legal recognition to marriages only between opposite sexes.

18.   Even if such a right were to be claimed under Article 21, which guarantees every citizen the right to life and dignity, it can be curtailed by a competent legislature on permissible constitutional grounds, including legitimate state interest.

19.   Laws, it said, are enacted by the house in its legislative wisdom in a manner concomitant with “societal values” and “national acceptability”.

20.   Indian courts unlike our Parliamentarians have, however, shown more sagacity in dealing with same sex unions. 

21.   In a recent ruling delivered in August, CJI D.Y. Chandrachud expanded the definition of family as we know it by including all atypical manifestations of a family unit. 

22.   Familial relationships may take the form of domestic, unmarried partnerships or queer relationships, it said, and it is as real as a traditional family unit and deserves equal protection under the law. 

23.   The court observed that the predominant understanding of a concept of a family both in law and society is that it consists of a single, unchanging unit with a mother and father (who remain constant over time) and their children.

24.   This assumption ignores many circumstances which may lead to a change in one’s familial structure and the fact that many families do not conform to this expectation to begin with.

25.   The petition seeking legal recognition for same sex marriages is pending with CJI Chandrachud and may well receive recognition through a court order, rather than a legislative enactment.