The denial of same-sex marriages violates a basic right
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PremiumThe US Supreme Court decision in 2015 to overturn bans on same-sex marriage in 13 states turned on an issue that seemed far from the places of worship or court-houses where marriages are typically solemnized. A petition by Jim Obergefell and co-petitioner Robert Grunn asked for the right to describe Obergefell as the ‘surviving spouse’ when his partner of two decades died. Grunn, owner of the funeral home where Obergefell’s spouse John Arthur’s funeral was conducted, joined the petition because he wanted to describe the relationship of same-sex couples truthfully. Because the state of Ohio did not recognize same-sex marriages, Grunn had had to “write ‘friend’ as opposed to ‘spouse’," he said.
Getting Arthur and Obergefell’s marriage solemnized more than a decade ago required a flight to the state of Maryland, where same-sex marriages were allowed, even though the couple lived less than a kilometre from a court-house in Cincinnati. Arthur was terminally ill at the time, so organizing a medical jet to Maryland and back took $13,000, which was funded by friends and relatives.
The Indian government’s opposition to a number of petitions seeking legalization of same-sex marriages overlooks the broader implications of loving someone, which extend well beyond having sex with them. As an open letter released in Bengaluru this week by Namma Pride and Coalition of Sex Workers and the Sexual Minority Rights observes, the Supreme Court had maintained in its landmark Navtej Johar vs Union of India ruling that decriminalizing homosexuality was just a starting point: “The constitutional principles which have led to decriminalization must continuously engage in a rights discourse to ensure that same-sex relationships find true fulfilment in every facet of life. The law… must also take positive steps to achieve equal protection." Indeed, in that judgement, the apex court set a road map for broadening the recognition of these rights to include marriage, inheritance, employment, healthcare and issues surrounding adoption. After all, that is what equal treatment means.
The government’s argument that the right to equality as embodied in Article 14 is not violated by the status quo because “same sex relationships and heterosexual relationships are clearly distinct classes which cannot be treated identically" goes backwards. The US case won by Obergefell and Grunn magnified the fact that there are very practical reasons, including tragic end-of-life issues, why same-sex couples need to be married in the eyes of the law. As one of the gay couples with two children who have petitioned India’s top court highlights, the current situation, where one of them has parental rights and the other doesn’t, despite being the primary caregiver, is both unjust and impractical.
As the open letter from the LGBTQI+ group in Bengaluru asserts, the government’s other argument that the “legislature reflects the collective wisdom of the nation… based upon cultural ethos, social standards and such other factors defining acceptable human behaviour" and therefore has the sole right to “regulate or prohibit human relations" is problematic because it undermines the primacy of the Constitution and rule of law. Many state legislatures in recent years have mandated that interfaith couples must seek permission from a magistrate to marry, after much rabble-rousing over “forced" conversions. It would thus be an alarming precedent if the apex court accepted the Centre’s logic.
Moreover, the theocratical notion that the legislature has the right to define who can be considered married is also a denial of Indian diversity. I am bored by political gossip, but even I’d heard rumours of former political leaders whose conjugal relationships were non-traditional, as they loved women they were not married to. Far from being viewed as an abdication of their responsibility to “regulate or prohibit" human relations, it spoke volumes of our civility as a nation that such speculation about decades-long loving relationships was not used as a political weapon against them.
Marriage matters because it is a “keystone of our social order," as Justice Anthony Kennedy said in that landmark judgement in the US. I was reminded of this in 2008 when the writer Jan Morris, who had started life as James and been father to five children, and was a contributor to pages I edited, left me a high-spirited voicemail. In her eighties, Morris had at last been able to celebrate her same-sex union with her wife Elizabeth, who she had continued to live with after a sex-change operation in the 1970s.
I came out as a gay man while living in New York in the late 1980s, but foolishly delayed telling my parents in Kolkata. My flawed rationalization was partly what the government is using now: i.e., that India’s ethos and traditions defining acceptable behaviour were very different. It was a terrible decision, not least because I had unusually liberal parents who were even more protective of me when I did tell them. My father signed a public petition seeking to decriminalize homosexuality and poked fun at the prudery of 377, a colonial law that he pointed out prohibited all carnal intercourse “against the course of nature". A year or so before my father died in 2009, Mint’s weekend edition reviewed a book of my travel essays. In a chapter on New York, I had written about how witnessing the city’s celebrations of LGBTQ identity had helped me be openly gay. This passage was quoted in its entirety in that review. When I checked my email that morning, I could not help admiring that my father had sent the review to everyone on his mailing list.
Rahul Jacob is a Mint columnist and a former Financial Times foreign correspondent.
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