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Intersections Of Faith And Law: Exploring Religious And Constitutional Perspectives On Same-Sex Marriage

The topic of same-sex marriage intertwines religious beliefs and constitutional values/principles, necessitating the need to bridge the gap between them. While religious traditions frequently emphasize heteronormative Principles, constitutional frameworks strive for equality, tolerance, and inclusivity. This abstract explores the relationship between religious perspectives and constitutional mandates, highlighting various interpretations within faith traditions. [1]

It examines constitutional principles such as equality and liberty, instrumental in legalizing same-sex marriage. Debates surrounding religious exemptions and conscientious objections are examined, considering the delicate balance between religious freedom and preventing discrimination. Emphasizing dialogue and mutual understanding, the abstract calls for finding common ground that respects religious beliefs while upholding constitutional principles, fostering an inclusive society that respects diverse beliefs and upholds fundamental human rights.

[2]The topic of same-sex marriage evokes a profound interplay between religious beliefs and constitutional principles, encompassing a wide array of faith traditions. In India, the historical presence of homosexuality dating back to 1500 BC, as evidenced by references in the Manusmriti and the depiction of diverse forms of erotic expression in ancient temples like Khajuraho, reflects a complex journey of acceptance and suppression. However, societal standards and stigma continue to perpetuate shame and discrimination against individuals based on their sexual orientation, hindering legal acceptance.

Within the Islamic faith, traditional teachings generally deem homosexual acts as sinful, citing scriptural references that emphasize the importance of heterosexual marriage and procreation. Yet, it is important to note that there are diverse viewpoints within the Muslim community, with some progressive Muslims advocating for a more inclusive interpretation, emphasizing compassion, justice, and the overarching principles of Islam. They promote equal rights and recognition for LGBTQ+ individuals, including the possibility of same-sex marriage, challenging traditional interpretations. Similarly, within Christianity, varying views exist, with some denominations embracing LGBTQ+ inclusion and recognizing same-sex marriages, while others adhere to traditional interpretations that consider it contrary to religious teachings.

Striking a delicate balance between societal ethos and the rule of law is crucial, emphasizing that true acceptance requires a genuine shift in perspectives rather than solely relying on legal statutes. Nurturing societal change, combating discrimination, and fostering an environment where laws and societal acceptance go hand in hand are vital steps toward achieving inclusivity, and equality, and upholding the fraternity and unity that form the backbone of India and its diverse religious traditions.

Research Methodology
This research paper provides a descriptive analysis of the religious and constitutional perspectives on same-sex marriage, utilizing secondary sources for a comprehensive exploration of the topic is from Newspapers, the Internet, Websites, and Journal for Research.

Review of Literature
The Supreme Court's 2014 Burwell v. Hobby Lobby decision marked an endorsement of religious freedoms for privately held for-profit corporations. Four years later, in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court ruled in favor of a baker who declined to provide service to a same-sex couple, although the decision was based on narrow procedural grounds and is slated for further review by the court.

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family." - Justice Anthony Kennedy (from the Obergefell v. Hodges Supreme Court decision)

"Love is the only force capable of transforming an enemy into a friend." - Martin Luther King Jr.

The Review of Literature on Intersections of Faith and Law: Exploring Religious and Constitutional Perspectives on Same-Sex Marriage provides a comprehensive analysis of scholarly works that examine the complex relationship between religious beliefs and constitutional principles in the context of same-sex marriage.

Drawing from a range of academic articles, books, and relevant sources, this review critically evaluates the existing literature to shed light on the diverse perspectives within different faith traditions and legal frameworks. [3]It explores how religious teachings, scriptures, and interpretations shape attitudes toward same-sex marriage and the ways in which constitutional principles of equality, freedom, and human rights interact with religious freedom and conscientious objections.

By synthesizing and analysing these sources, the review identifies gaps, contradictions, and evolving discussions surrounding the intersections of faith and law, laying the groundwork for further research and providing a deeper understanding of the complexities inherent in this multifaceted topic.

Countries accepted Same-Sex Marriage
Presently, same-sex marriage is legally recognized in 34 countries across the globe. These nations include Andorra, Australia, Argentina, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States of America, and Uruguay.

Processes of Legalization
The process of legalizing same-sex marriage has unfolded differently across various countries. In 23 nations, including Australia, Ireland, and Switzerland, same-sex marriage was legalized through national legislation, often following nationwide votes. In 10 countries, such as Austria, Brazil, Colombia, and the United States of America, national legalization came about through court decisions. Countries like South Africa and Taiwan enacted legislation after their courts mandated the recognition of same-sex marriage. This diversity in the processes of legalization demonstrates the evolving and complex nature of the movement for marriage equality worldwide.

Religion on Same-sex Marriage
Leaders representing India's major religions have voiced their opposition to the legal recognition of same-sex marriages, citing their belief that such unions are unnatural and contrary to religious teachings. One of the group's expressing opposition is the Communion of Churches, a Christian organization, which has written a letter to President Draupadi Murmu, expressing their disapproval of the move to legalize same-sex marriages in India. Similarly, Jamaat-e-Islami Hind, a Muslim faith group, intends to address the Supreme Court with their concerns.

As the Supreme Court of India prepares to hear a series of petitions advocating for marriage equality for same-sex couples on April 18, these religious leaders' opposition adds to the ongoing debate. Their arguments revolve around the notion that same-sex marriages are considered unnatural and incompatible with religious principles. These opposing views highlight the complex intersection of religious beliefs and the push for equal rights, creating a significant point of contention in the discussions surrounding same-sex marriage in India.

In response to the upcoming hearing on petitions seeking legal recognition of same-sex marriages in India, leaders representing various religious groups have expressed their opposition to the idea.

Father Felix Jones, who heads the Delhi Archdiocesan Commission for Ecumenism and Interfaith Dialogue, emphasized that according to Church teachings, marriage is exclusively between a man and a woman, and compromising on this principle is not possible.

Similarly, Mohammad Salim Engineer, vice president of the Jamaat-e-Islami Hind, stated that same-sex marriage contradicts their civilization and would have a negative impact on society since marriage is universally accepted as being between a man and a woman. They plan to engage the All-India Muslim Personal Law Board to approach the Supreme Court with their views.

It is worth noting that the federal government, led by a pro-Hindu party, has also opposed the legalization of same-sex marriages, arguing that they are unsustainable, untenable, and against Indian culture. Leaders from different religious backgrounds, including Hinduism, Sikhism, Jainism, and Tibetan Buddhism, have expressed their opposition, citing their respective religious beliefs and traditions. They argue that same-sex marriages go against their religious teachings and the foundational principles of reproduction and universal laws. As the Supreme Court prepares to hear these petitions, the opposition from religious leaders presents a significant challenge to the push for legal recognition of same-sex marriages in India.

The Bhagavad Gita, an ancient Hindu scripture, conveys the profound concept that divinity resides within every individual. According to Chapter 13, Verse 22 of the Bhagavad Gita, the divine essence, often referred to as the soul or the Self, is present within the body. This divine entity serves as a witness, guide, supporter, and observer of all the experiences encountered by the body.

In Hindu mythic stories, gods and goddesses are depicted with fluid genders and diverse orientations. These tales often portray deities who undergo gender transitions or exhibit characteristics of multiple genders. For instance, in the Bhagavad Gita, Lord Krishna refers to matter and mind as his two wombs, embracing both masculine and feminine aspects. Some gods are described as cross-dressing or manifesting attributes traditionally associated with the opposite gender. Lord Vishnu's form as the enchanting Mohini, a female seductress, and Lord Shiva's portrayal as a milkmaid in the company of Krishna exemplify such gender-fluid representations.

Goddesses in Hinduism are depicted as autonomous beings, often seen in the company of other goddesses, displaying traits considered masculine. They ride lions and wield tridents, traditionally associated with male attributes. Female deities are revered as mothers and daughters simultaneously, and they are worshipped alone, with female companions, or with male consorts in separate shrines. The Mahabharata, an epic tale, features queer characters like Brihanalla, Shikhandi, and Bhagashavana, who challenge traditional gender roles and identities.

Folk retellings of the Ramayana also incorporate queer interpretations of central characters. Aruna, the God of dawn, is portrayed as having an indeterminate gender and chooses to become a woman, becoming pregnant through relations with male gods. These stories showcase the acceptance and fluidity of gender and sexual identities in Hindu mythology.

Importantly, Hinduism lacks the concept of homosexuality as a sin, as it doesn't align with the metaphysics of karma and reincarnation.

Importance of Fundamental Rights:
Articles Importance in Protecting Fundamental Rights

  • Article 21 Upholds human dignity and ensures the right to a dignified life
  • Article 32 Provides enforceable protection against state violations
  • Article 19 Safeguards citizens' liberties, including freedom of speech and expression
  • Article 14 Prevents autocratic government actions and establishes equality
  • Article 13 Derives fundamental rights from the fundamental law of the land
  • Article 15 Essential for implementing reservations and positive discrimination
  • Article 23 Guards against exploitation and forced labour
  • Article 25 Essential for securing religious rights and conscience
  • Article 19 Ensures freedom of speech, expression, assembly, association, movement, residence, and profession

In this table, each article of the constitution is listed along with its importance in protecting fundamental rights. The table provides a clear overview of the key constitutional provisions and their significance in upholding individual liberties, equality, and dignity.

The importance of fundamental rights, enshrined in the articles of the constitution, cannot be overstated. These constitutional provisions serve as the bedrock of a just and democratic society, upholding human dignity and providing enforceable protection against violations by the state. They act as a safeguard for citizens' liberties, preventing autocratic government actions and ensuring that individuals are free from undue oppression.

Fundamental rights are derived from the fundamental law of the land, reflecting the core values and principles upon which a nation is built. They are essential for establishing equality among all citizens, regardless of their background or circumstances. These rights play a crucial role in implementing reservations and positive discrimination measures, promoting social justice and empowering marginalized communities.

Landmark Judgment
The Navtej Singh Johar v/s Union of India case, writ petition (criminal) no. 76 of 2016, was a landmark judgment by the Supreme Court of India. In this case, the court struck down Section 377 of the Indian Penal Code, a law that criminalized consensual same-sex relationships. The judgment was delivered on September 6, 2018.

The Court ruled that discrimination based on sexual orientation violated the right to equality guaranteed by Article 14 of the Indian Constitution. It also recognized that sexual orientation is an inherent part of an individual's identity and denying the same would be a violation of the right to life and personal liberty under Article 21. The Court held that Section 377 was manifestly arbitrary and violated the fundamental rights of LGBTQ+ individuals.

The case was brought by Navtej Singh Johar and others, who challenged the constitutionality of Section 377. The Court's decision, in this case, marked a significant step towards the recognition and protection of the rights of the LGBTQ+ community in India. It affirmed the principles of equality, dignity, and personal autonomy enshrined in the Indian Constitution and paved the way for greater inclusivity and acceptance.

The judges on the bench were Honorable Mr. Justice Dipak Misra (CJI), Honorable Mr. Justice A.M. Khanwilkar, Honorable Mr. Justice Rohinton Fali Nariman, Honorable Mr. Justice D.Y. Chandrachud, and Honorable Mrs. Justice Indu Malhotra. This landmark judgment marked a significant milestone in recognizing the rights of the LGBTQ+ community and upholding the principles of equality and personal liberty.

The upcoming hearings in India's Supreme Court on the legalization of same-sex weddings are significant in the country's legal history. This critical juncture provides a chance for the judiciary to provide legal relief to the LGBTQ+ community. The court's judgment and judgment will not only impact the present but will also serve as a reference point for future generations when faced with comparable issues. As a result, this case is extremely significant since it marks a pivotal chapter unfolding within the nation's supreme body, changing the path of history.

CASE LAW: Supriya Chakraborty & Anr v/s Union of India (W.P. (C) 1011/2022).
On November 14, 2022, two same-sex couples filed writ petitions to the Supreme Court seeking legal recognition of same-sex marriages in India. The focus of the petitions was the Special Marriage Act, 1954.

The Special Marriage Act, 1954 currently recognizes marriage only between a male and a female (Section 4 (c)), upholding traditional societal values. As a result, same-sex couples are denied matrimonial benefits such as adoption, surrogacy, employment, and retirement benefits. The petitioners argued that Section 4 (c) was unconstitutional, as it violated the rights to equality, freedom of expression, and dignity. The petitions also challenged the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969, with references to the cases of Navtej Singh Johar v/s Union of India (2018) and NALSA v/s Union of India (2014).

Chief Justice D.Y. Chandrachud referred the case to a 5-judge bench on March 13, 2023, comprising:
Honorable Mr. Justice D.Y. Chandrachud
Honorable Mr. Justice S.K. Kaul
Honorable Mr. Justice S.R. Bhat
Honorable Mrs. Justice Hima Kohli
Honorable Mr. Justice P.S. Narasimha

The petitioners' counsel presented the following arguments:
Marriage is a union that transcends genders.
The right to be acknowledged as equals. Homosexuality is not a disease.
The state's counsel contended that it was a socio-legal issue falling within the jurisdiction of the Parliament. The petitioners argued that marriage should be seen as a union of two individuals, not limited to a man and a woman.

The Solicitor General for the State argued that the right to love and cohabit is a fundamental right. However, it was stated that marriage itself cannot be an absolute right, even among heterosexual couples. The argument of incest was presented to support the notion of retaining the same logic for same-sex marriage in the future, which the bench deemed far-fetched. The court held that sexual orientation and autonomy cannot be exercised in all aspects of marriage.

During the hearing, the bench acknowledged the complexity of the 35 laws governing divorce, adoption, succession, maintenance, and other religious personal laws. Chief Justice DY Chandrachud stated that entering this arena would require legislative action, recognizing the powerful argument made by the petitioners.

The bench raised concerns about social rights, such as holding joint bank accounts, ensuring the security of same-sex couples, and allowing partner nominations in insurance policies or school admissions for their children. The court also questioned how the government would prevent the ostracization of same-sex couples.

While homosexuality is finding its place in the Indian constitution, societal acceptance and the eradication of stigma hold paramount importance. Individual liberty is a vital aspect of a vibrant democracy, and India's progress relies on striking a delicate balance between rigidity and embracing individual liberty.

In researching the intersections of faith and law regarding same-sex marriage, it is essential to acknowledge the inherent contradictions between religious beliefs and legal perspectives on this issue. However, it is important to recognize that human needs and societal advancements have the potential to drive change, even in seemingly conflicting domains. By exploring the historical and cultural contexts, researchers can identify instances where religious traditions have adapted to accommodate shifting societal attitudes.

Simultaneously, emphasizing the fundamental principles of equality, dignity, and individual rights enshrined in constitutional frameworks can highlight the potential for legal systems to evolve and protect the rights of marginalized communities. Examining case law, constitutional amendments, and legislative changes can shed light on how legal systems have responded to the intersections of faith and the recognition of same-sex relationships.

By fostering dialogue, understanding, and inclusivity, researchers can contribute to the ongoing discourse, promoting a more harmonious coexistence between religious beliefs and evolving legal frameworks, ultimately fostering a more inclusive and equitable society.

In conclusion, the research paper on the topic "Intersections of Faith and Law: Exploring Religious and Constitutional Perspectives on Same-Sex Marriage" reveals the contrasting nature of religious doctrines and legal frameworks regarding same-sex marriage, while also recognizing the potential for change based on human needs.

The findings highlight the inherent contradictions between religious beliefs and constitutional principles, yet also emphasize the capacity for religious traditions to adapt to evolving societal attitudes. Constitutional frameworks, grounded in principles of equality and individual rights, have played a transformative role in recognizing and protecting same-sex relationships.

The research underscores the importance of ongoing dialogue and engagement between religious communities and legal institutions to foster understanding and respect. By navigating the complexities of faith and law with open-mindedness and empathy, society can strive towards inclusivity, equality, and the well-being of all individuals, regardless of sexual orientation or religious beliefs.

This research paper lays the groundwork for further exploration and dialogue, informing decision-making, policy formulation, and societal progress in promoting a more inclusive and equitable environment for all.

Written By: Arpita Tiwari. Third Year BLS LLB Kes College of Law, Mumbai
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