Kanav Narayan Sahgal
Kanav Narayan Sahgal is a Communications Manager at Nyaaya, Vidhi Centre for Legal Policy located in India. Kanav frequently reports on the global state of LGBT+ rights, with a focus on India. He can be reached at sahgalkanav@gmail.com. All views are personal.
Introduction
Marriage equality has been a long-standing and contentious issue in India. Following the landmark Navtej Singh Johar v. Union of India (2018) verdict that decriminalized homosexuality, queer couples and activists have been advocating for the legal recognition of their right to marry. Over the past few years, multiple petitions have been filed before various High Courts of India, highlighting the demand for LGBTQ+ marriages to be recognized as a fundamental right. This resurgence of the issue has reignited the debate surrounding marriage equality in the country.
On January 6, 2023, the Supreme Court of India took over close to 15 petitions that sought recognition of same-sex marriage in the country. All these petitions were grouped in Supriyo v. Union of India. A five-judge Constitution Bench, led by Chief Justice DY Chandrachud, heard arguments from both the petitioners and respondents between April 18 and May 11. The bench concluded the hearing on May 11 and has now reserved judgment on the matter.
The hearings addressed not only the issue of marriage but also called for a constitutionally compliant declaration by the Court that would encompass the entire spectrum of rights arising from marriage such as the right to adopt, succession of property, maintenance, and more. This approach aimed to ensure that if the court’s declaration favoured the petitioners, they would enjoy the same rights as heterosexual couples, ensuring substantive equality. The government of India has opposed these petitions, arguing that legalizing LGBTQ+ marriage would have significant negative implications for various laws, including personal laws. The government also insisted that this is an issue that falls within the domain of the legislature, rather than the courts.
During the proceedings, Solicitor General Tushar Mehta referenced the 2022 U.S. Supreme Court ruling, Dobbs v. Jackson Women's Health Organization, as an example of how the U.S. Supreme Court dealt with the complex and politically divisive issue of abortion by relating it to the states and elected representatives instead of the courts. The solicitor general quoted Justice Clarence Thomas’ concurring opinion, which also suggested reconsidering Obergefell v. Hodges (2015), the landmark US Supreme Court verdict that legalized same-sex marriage nationwide in the United States by striking down bans on same-sex marriage. In the Dobbs case, the majority emphasized the court’s concern about the potential overreach of judicial power in the context of abortion rights and leaned toward the idea of returning the issue to elected representatives, allowing the states to have more say in regulating abortion. Justice Thomas’ reference to Obergefell raises questions about whether a similar approach could be applied to the issue of same-sex marriage in India.
It is important to note that Solicitor General Mehta clarified that he was not seeking to challenge the Indian Supreme Court’s abortion jurisprudence, which currently recognizes a woman’s right to bodily autonomy as a fundamental right under Article 21 of the Constitution of India. However, he argued that some issues, including LGBTQ+ marriage, are best addressed by elected representatives due to their jurisdiction to legislate on marriage and divorce under Entry 5 of the concurrent list in the Constitution of India.
The Solicitor General’s position contrasts widely with the arguments presented by senior counsel for the petitioners, Mukul Rohatgi, who also referred to Obergefell during the proceedings and instead, urged the Supreme Court to similarly consider a broader interpretation of marriage in a constitutionally compliant manner to include same-sex couples.
Obergefell v. Hodges: The Case for Marriage Equality in the United States and Its Implications for India
The concept of family and marriage has evolved in the United States and Western Europe. In the traditional perspective, family unity and communal living between spouses took precedence over individual identities. This framework revolved around procreation and child-rearing as central to societal stability, rather than emphasizing the individual rights and liberties of the parties involved in the relationships. This traditional view placed a strong emphasis on the roles of husbands and wives within the family unit, often limiting personal freedoms in the name of preserving social norms and order.
Legal systems in the Western world, including American law, historically recognized the significance of such traditional family structures and placed great emphasis on the importance of biological parents for the well-being of children, leading to the protection of parental rights and the sanctity of marriage. This recognition also frequently prevented state interference in family matters. For example, in Meyer v. Nebraska (1923), the US Supreme Court rendered a crucial Fourteenth Amendment decision regarding parents’ rights in directing their children’s education, including the right to use a foreign language. The case revolved around a Nebraska law that restricted the teaching of any modern language other than English to children who had not completed the eighth grade. The Court declared this Nebraska law unconstitutional, arguing that it violated the protection of liberty under the Due Process Clause of the Fourteenth Amendment. The Court elucidated that liberty encompassed more than just freedom from physical restraint; it extended to various rights and aspects of personal freedom.
Two decades later, Skinner v. Oklahoma (1942) underscored the fundamental significance of marriage and procreation for the “continuation and survival of the human race”. The case centred on an Oklahoma statute that authorized the sterilization of “habitual criminals”, defining them as individuals convicted two or more times of “felonies involving moral turpitude” either in Oklahoma or another state. The US Supreme Court, in its ruling, found that this statute violated the Equal Protection Clause of the Fourteenth Amendment. In recognizing the fundamental significance of marriage and procreation, the US Supreme Court underscored the need for equal protection under the law, emphasizing that the state’s authority in this regard cannot infringe upon the basic rights and liberties of its citizens. However, modern developments have reshaped these ideals. Reproductive technologies, including adoption and surrogacy, have played a pivotal role in decoupling biological reproduction from child-rearing. The emergence and greater recognition of same-sex families, as well as the growth of single-parent families, have further contributed to this evolving landscape. These transformative shifts have led to a re-evaluation of traditional notions of family and marriage, emphasizing individual rights and choices in forming and raising families.
The legal conception of the family also underwent significant changes, culminating in two landmark Supreme Court decisions that affirmed and expanded gay rights in America: U.S. v. Windsor (2013) and the above-mentioned Obergefell. These rulings effectively overturned the Defense of Marriage Act (DOMA), a federal law that was in effect from 1996 to 2013 which explicitly denied same-sex couples all the benefits and recognitions afforded to opposite-sex couples. These benefits encompassed over 1,000 federal protections and privileges, including the legal recognition of relationships, access to a partner’s employment benefits, inheritance rights, joint tax filings and more. President Bill Clinton signed DOMA into law on September 21, 1996, at the federal level and afterwards, about 40 states enacted state-level bans on same-sex marriage. Almost three decades later, on December 13, 2022, President Joe Biden signed into law the Respect for Marriage Act, whose primary purpose was to codify and solidify the legal principles established by Loving v. Virginia (1967), which legalized interracial marriage nationwide, Obergefell, and Windsor. Importantly, the act legislatively repealed DOMA once and for all.
The passage of this legislation was prompted by the Dobbs verdict earlier on June 24, 2022, which overturned Roe v. Wade (1973) and, consequently, revoked nearly 50 years of constitutional rights related to abortion. Given the seismic implications of Dobbs, the Respect for Marriage Act emerged as a safeguard to protect the legality of same-sex marriage and interracial marriage, should they face potential legal challenges in the future.
In the Indian context, the legal precedents set by Obergefell and Windsor and the passage of the Respect for Marriage Act are relevant for understanding the imperative need to grant constitutional protections to LGBTQ+ couples’ rights and for comprehending the adverse consequences of denying these rights.
During the hearings on marriage equality in India, Chief Justice DY Chandrachud highlighted that while these landmark judgments played a pivotal role in shaping LGBTQ+ rights jurisprudence in the United States, they were responses to legislative actions, specifically the enactment of same-sex marriage bans at both the state and federal levels. This intricate interplay among the three branches of government showcased a triadic approach to exploring the feasibility of same-sex marriage in the United States. However, at the time of the marriage equality hearing in India, neither any codified law nor uncodified law explicitly restricted same-sex marriage. This posed the challenging question of whether the judiciary would be overstepping its authority by adjudicating an issue that might require initial deliberation by elected representatives first. However, legislative action is not a precursor to judicial action and interestingly, even the petitioners failed to highlight the fact that the passage of DOMA and its subsequent repeal did not originate from legislative action but rather from judicial decisions.
The genesis of DOMA can be traced back to a lesser-known 1993 judgment by the Supreme Court of the State of Hawaii Baehr v. Lewin. In this case, the court determined that three same-sex couples were entitled to an evidentiary hearing to evaluate if the state could demonstrate compelling interests justifying the denial of marriage licenses to same-sex couples. Should the state fail to meet this burden, it would no longer be able to withhold marriage licenses from same-sex couples solely based on their sex. This marked a potential pathway for legalizing gay marriages in Hawaii.
In its ruling, the Hawaii Supreme Court concluded that laws denying marriage rights to same-sex couples should be subjected to strict scrutiny, deeming it a violation of equal protection under the Hawaii Constitution. Furthermore, the court recognized this denial of marriage rights as a form of sex discrimination. In Baehr, the Court drew inspiration from the United States Supreme Court’s landmark decision in Loving, highlighting the need for constitutional law to adapt to changing societal norms and accommodate shifts in customs. This perspective underscored the importance of moving away from predetermined and unchanging definitions of marriage rooted in traditional concepts, such as the "divine will" theory, which was previously invoked to justify the denial of marriage rights to interracial couples in the state of Virginia.
In an unfortunate turn of events in 1998, the Hawaii Legislature approved a constitutional amendment, which, if ratified by voters, would grant the Legislature the authority to limit marriage to heterosexual unions. Hawaii voters adopted this marriage amendment by a significant majority and subsequently, the Baehr decision was overturned that same year. It took nearly two decades for the U.S. Supreme Court to revisit the issue in Obergefell, where it concluded that marriage was a fundamental right, and all citizens, irrespective of their sexual orientation, must have equal access to this institution.
Two Key Takeaways for India
This historical journey of the United States' same-sex marriage laws and caselaw highlights two important points relevant to the petitions in the Supriyo case. First, legislative action is not necessary before judicial action as evidenced by Baehr which preceded any legislative action on marriage equality. Even though Baehr faced setbacks following the passage of DOMA and various state-level same-sex marriage bans, the final judgment in Obergefell essentially returned to the starting point established by Baehr.
During the hearings in India, Senior Advocate Mukul Rohatgi also made a point about how a delay in a positive judgment on marriage equality also detrimentally affects ageing same-sex couples. As time passes by and society deliberates on this issue, same-sex couples continue to age. Their lives progress and careers advance, but the rights guaranteed to them by the Constitution remain in a state of limbo, through no fault of their own. Hence, relying on public opinion or elected representatives to determine the rights of an enfranchised minority group either to their benefit or detriment, contradicts the precedent set in India’s Navtej verdict which unequivocally states
“it is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception. The Court has to be guided by the conception of constitutional morality and not by the societal morality.”
The Solicitor General’s insistence on viewing this issue as potential judicial overreach is also incorrect. Given that constitutional rights are at stake and considering the legislature’s historical failure to address LGBTQ+ rights through prior legislation, such as the failure to adopt the 2017 Anti-Discrimination and Equality Bill or the Special Marriage (Amendment) Bill (2022), it’s clear that relying on legislative action is not a viable option for advancing LGBTQ+ rights in India. Ironically, bills that stripped away the rights of LGBTQ+ people, such as the 2016 Transgender Persons (Protection of Rights) Bill, and the 2019 Surrogacy (Regulation) Bill, were passed promptly. This pattern demonstrates that the legislature has been more inclined to infringe upon the rights of the LGBTQ+ community rather than protect and uphold them. Therefore, the judiciary’s intervention remains essential to ensure that LGBTQ+ individuals receive the constitutional protections and rights they deserve, especially in the absence of proactive legislative measures.
According to Pinklist India, the country’s first archive of politicians supporting LGBTQIA+ rights, there has been no progress on marriage equality since 2008. Despite questions raised in the Parliament, objections during debates, and private member bills, no substantial advancement has been made.
In May 2008, Shahid Siddiqui from an opposition party posed a question in the Rajya Sabha regarding the government's stance on recognizing same-sex marriage. In December 2020, Derek O’Brien, representing another opposition party, raised a similar query in the Rajya Sabha. In both instances, the government responded that it had no intentions of taking any such steps. The legislature also had an opportunity in 2015 not only to repeal Section 377 of the Indian Penal Code - a colonial-era statute that criminalized homosexuality in India- but also to pass progressive legislation furthering LGBTQ+ community rights. However, they did nothing. In the face of such negligence, the Supreme Court is indeed the right forum to resolve the debate about equal rights, given how social attitudes and negative public perceptions about LGBTQ+ people significantly affect the attitudes of elected representatives.
The second learning from the historical journey of the United States same-sex marriage laws is that while courts can overturn discriminatory legislation through the power of judicial review, it’s not necessary to wait for such discriminatory laws to be enacted in the first place. In the Indian context, this implies addressing the intentional gap left by the legislature and restricting the legislature from enacting such laws that could encroach upon the rights of the LGBTQ+ community if they are deemed fundamental. This could involve a declaration by the Supreme Court explicitly recognizing LGBTQ+ people’s rights to marry, inherit property, raise children, and start families. The Supreme Court of India need not await a situation analogous to DOMA in the United States because the Indian government’s denial of recognition of same-sex marriages is already a precursor to such legislation.
Rather than waiting for more complexities to emerge, the Supreme Court of India now has an opportunity to establish a clear and just precedent based on previous judgments that uphold constitutional morality and equitably adjudicate this matter. Such a move would not only grant LGBTQ+ individuals the rights they deserve but also set a powerful example for future generations, promoting a society rooted in inclusivity and equal protection under the Constitution of India.
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