Rainbow Revolution
The US Supreme Court’s landmark judgment on same sex marriage has given hope to many. When will India shed its anathema towards
homosexuals and other marginalized groups?
By Roshini Seth
THE US Supreme Court (SC) in its landmark ruling on June 26, 2015, legalized same sex marriage. The court ruled 5-4 that the US constitution provides same-sex couples the right to marry. Earlier, gay and lesbian couples could marry in 36 states, but with this new ruling, same sex marriage will be legal in the remaining 14 states too.
The majority opinion of the nine-judge Bench held that “no union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family”. They argued that the federal ban violates constitutional protections and discriminates against same-sex couples by preventing them from fully accessing “laws pertaining to social security, housing, taxes, criminal sanctions, copyright and veterans’ benefits”.
The SC ruling is the culmination of a long legal fight by gay rights advocates. The right to marry a person of the same sex in the US was unthinkable a decade ago, but there have been steady gains in public approval for it in recent years. In 2004, Massachusetts became the first state to legalize gay marriage.
WINDS OF CHANGE
Why has the public’s attitude changed so rapidly in the US and the western world? The declining influence of the Catholic Church and the emergence of a tolerant attitude towards homosexuality have been big factors. In the recent Ireland referendum campaign on same sex marriage, the Church kept a low profile in marked contrast to its position on this issue. Most political parties in Europe and the US favor marriage equality, which has also resulted in the acceptance of LGBT communities and their rights.
However, there are a large number of critics too of the SC judgment, who say that the court has taken an “extraordinary step” in deciding not to allow states to decide the issue for themselves as the constitution does not define marriage. They hold that even if same-sex marriage is a good policy, it should have come from the elected representative of the people and not from the courts.
The four dissenting judges each filed a separate opinion. Chief Justice John Roberts wrote in his dissent that “if you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision, but do not celebrate the constitution. It had nothing to do with it”.
GROUP MARRIAGE
During these proceedings, more complex issues about human relationships emerged. One was whether groups of more than two people would also have a constitutional right to marry. The liberal movement in the West is also insisting that consent should be the measure in sexual and romantic practice. As long as all parties involved in a marriage are consenting adults, it should be made
permissible.
Advocates of polygamy have started raising the demand that consent between adults who knowingly and willfully enter into a joint marriage contract, should be permitted to do so, according to the basic principles of personal liberty.
Although the American SC judgment has legal sanction only within the US, gay rights activists are celebrating it across the world. Developments in the US reflect a fundamental change in public opinion and are bound to have a ripple effect in other countries too, especially those having a strong gay movement. There are expectations that even if same sex marriage is not allowed, open
discrimination against the LGBT community will definitely end.
INDIAN STORY
In India, the scene is altogether different. In December 2013, the SC upheld Section 377 of the IPC, which criminalizes homosexuality and places the LGBT community out of societal norms. The two-judge Bench held that it is up to parliament to decide whether to retain, amend or delete the Section.
After the adoption of the IPC in 1950, around 30 amendments were made to it, the most recent being in 2013, which specifically deals with sexual offenses and to which Section 377 belongs. The 172nd Law Commission Report specifically recommended deletion of this Section. The SC in its ruling has also clarified that the legislature is free to consider the desirability and propriety of Section 377, but parliament has so far not acted to delete or dilute Section 377.
Union Law Minister DV Sadananda Gowda recently said: “The mood appears to be in favor of it. But it can be done only after widespread consultations and taking all views into account.” Soon after the story broke, Gowda was going blue in the face saying that he had been misquoted.
Meanwhile, senior BJP leader, Subra-manian Swamy issued a statement that his party position always has been that homosexuality is a genetic disorder. He added that homosexuals are genetically handicapped.
While sections of Indian society are beco-ming more inclusive and liberal, homophobia is still deeply entrenched. India still has a long way to go before LGBTs can be treated as equals and homosexuality is legalized.