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The ‘morality’ of Same-sex Marriage

WILL WE FINALLY LEGALIZE ALL MARRIAGES WITHOUT GENDER BEING A DETERMINING FACTOR?

29th June, 2021

Written by Sasha Shinde
Illustrated by Suryansh Srivastava

As you read this piece, I hope you look at this beyond whether or not this is something that personally affects you. Think of a few ‘what-ifs’. What if marriage wasn’t easy? What if you were questioned about whether you would die if you couldn’t get married? What if your marriage was an issue debated about in courts? What if someone wanted to end this debate before it began because your marriage was not an issue of life or death?

On the 21st of February 2021, the Centre submitted an affidavit to the Delhi High Court opposing petitions filed that sought to recognise marriages between two people irrespective of what sex both of them are of. This comes after the Delhi Government’s response on the same which said it would accept whatever the Court’s judgement would be. 

On the 24th of May 2021, the Centre via Solicitor- General Tushar Mehta, submitted an application seeking to adjourn the petitions citing that other urgent matters were at hand and “nobody is dying because they don’t have a marriage certificate.”

The History

2018 was a historic year for many reasons; the inauguration of the tallest statue in the world (my opinion of which I shall keep to myself), the judgement allowing women to enter the Sabarimala temple, Nirav Modi swindling the Punjab National Bank of a lot of money. The first draft NRC was announced, there was a huge flood in Kerala, and Section 377 of the IPC was decriminalised. 

For the uninitiated, Section 377 was a colonial law that made ‘carnal intercourse against the order of nature’ a punishable offence. This meant that till 2018, any kind of sexual intercourse, other than that between a man and a woman (for the sole purpose of procreation), could be punishable by up to ten years in prison and/or a fine. In a landmark judgement, the Honourable Supreme Court struck it down; giving people of the LGBTQ+ community a little hope that they would get a little bit of the dignity and respect that they deserve. 

This seemed like the beginning of a journey that would eventually lead to the acceptance of the LGBTQ+ community in society, which would lead to policy changes that support this. There were many writ petitions filed post this pushing for marriage as a means to legalize same-sex partnerships. 

Why It Matters

Marriage is a contract signed by two people. It makes it possible for those two people to buy a house, open a joint bank account, and possibly start a family together. 

To some, it is more than just a legal paper that they sign. To some, it is a sign that they are finally accepted. In a society that questions their very existence, it provides a sense of comfort. The societal heteronormativity might be against the queer folks however the assurance that the law is by their side is affirming. It also legitimizes the idea of a family beyond what we have known as a patriarchal concept. Looking at it from an outsider’s perspective - why should marriage be a choice of anyone but the people getting married?

Making a law that recognizes any marriage (irregardless of the genders of the people involved) does not mean that it would automatically gain acceptance from society. If that were the case, then inter-caste and inter-religious marriages would take place without a hitch. But it definitely is one step to reaching a point where it eventually is commonplace. 

The reasons for this step aside, it is simply a case of giving all of us the rights that some people do not recognise the privilege of.

Loose Morals

In the historic 2018 Judgement referred to earlier, a very interesting statement was made in favour of the petitioners, “Constitutional morality cannot be martyred at the altar of social morality”. Though introduced and included by Dr. Ambedkar, only recently has it been referenced in courts as something paramount in many important cases such as the one mentioned above.

“The term morality is very subjective, and very hard to define,” said Adv. Prashant Panchakshari, in our discussion on ‘morality’. My concept of morality may be very different from yours, and therein lies the trouble. Even the Constitution does not define morality anywhere. It is mentioned in several places, but the whole idea seems slightly vague.

The Government’s affidavit from February brings in the concept of public morality, though not mentioned directly. It says that any attempt to introduce same sex marriages via changes in the existing laws would cause “a complete havoc with the delicate balance of personal laws in the country.” Here, it is said that there would be total chaos if same-sex marriages are introduced in the country, which means that it is clearly referring to social morality.

However, one thing becomes very clear. Same-sex marriage would be a bit of a revolutionary concept. “Despite the decriminalisation of Section 377 of the Indian Penal Code (IPC), the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country”, the affidavit filed in February states. The Government seems to be worried about the values and morals of the people not affected by the proposed amendments rather than the ones that will be. The mentions of “biological man” and “biological woman” also essentially invalidate many identities lying on the gender spectrum.

My Morality

As a child, I have done and said many problematic things. I have laughed at “the third gender” option given in an application form; I have used the word ‘gay’ as an insult, and I have laughed at the dismal dirt-basket of a movie, Dostana.

My interaction with someone out of the closet, truly embracing their queerness, with people from the LGBTQ+ community was limited. I had no one to answer my questions about different identities, about sex or gender, about attraction - either romantic or sexual. Queerphobia was deeply internalized.

I grew up and realised that I had been wrong. My exposure to media from other countries and discussions in class opened my mind to the possibility of so much more. I learnt that “gay” was not an insult, and trans identities are just as real and valid as cis ones (take notes, Rowling).  

Had marriages between people regardless of their gender identities been the norm, I would have realised all this sooner. Had I seen people finding happiness despite society being against them, I would not feel as lost as I did. Had truly inclusive content been present in our media, my awakening would not come at 17 after watching Glee. 

To me, it’s simple. If I want to marry someone, I should be allowed to (my issues with the institution of marriage aside). The other individual should be a consenting person, and that’s it. I don’t understand why people without the lived experience, being outside heteronormative binaries are debating this issue and saying, “no one is dying” if the petitions for same-sex marriage are adjourned.

I don’t know what the outcome of the petitions will be. Are we going to take a step ahead or two steps back with respect to marriage where gender should not be a concern? Time will tell. Till then, know this; the Constitution guarantees equality under the Law while society does not.