Gay and lesbian unions have been treated like an "elephant in the living
room" by our law-making institutions. Everyone knows that they exist-their
children are in schools, their deeds are recorded in county offices, their
domestic partnership certificates are filed with local clerks, and their battles
over custody, visitation and property distribution are witnessed in the
courts-yet, every state has refused to recognize gay and lesbian unions, and
instead our legislatures and courts skirt around their perimeter.
As a result, our legal system has created a patchwork of rules and rights
applicable to couples of the same-sex and their children that often vary
depending on the county, city, or judicial district in which they reside, or the
institution at which they are employed. This inconsistent body of law creates
instability, uncertainty and chaos, conditions which are unacceptable in a
nation where due process and liberty are paramount values. In this paper, we
have discussed various approaches to same sex marriages in different
jurisdictions and analysed it with Indian Jurisprudence.
This study aims to investigate ither alternatives to marriage for same sex
marriages vis-�-vis a global perspective and Indian Perspective.
The authors have used Doctrinal methodology in the present paper.
Doctrinal (or "black letter") methodology refers to a way of conducting research
which is usually thought of as "typical legal research". A doctrinal approach to
research will focus on case-law, statutes and other legal sources. It differs
from other methodologies in that it looks at the law within itself; a pure
doctrinal approach makes no attempt to look at the effect of the law or how it
is applied, but instead examines law as a written body of principles which can
be discerned and analysed using only legal sources.
Marriage is a social institution that brings a couple together to form the
sub-unit of a society, family. It's a steady union in which a couple is allowed
and rather expected to stay together without compromising their standing in
society. Marriage being a social institution is never entirely about the
relationship of the two people rather; it has effects on the entire community
and subsequent generations. Conventionally, the marriage is between two people
of opposite genders refered to as heterosexual marriage.
After decades of struggle, restrictions and taboos being imposed on Homosexual
couples they have got some recognition. However, Marriage laws exclusively
recognize heterosexual unions, denying homosexual couples access to public
subsidies as well as sociopolitical acknowledgment enjoyed by married couples.
Today's adversaries of same-sex unions say that the objective of marriage is to
reproduce. Notwithstanding countless of rational rebuttals (for instance, Why is
wedding permitted amongst infertile individuals, persons over the age of
reproducing, and anyone who does not wish to reproduce?), this issue persists.
Since it is based on emotion and intuition, the contention is impregnable to
reasoning. An emotional assertion can only be adequately countered by another
emotional assertion, not by a reasonable argument.
Countries that severely penalised same-sex marriages in the early twenty-first
century tended to be in more conservative sections of the world, particularly
Islamic theocracies and parts of Asia and Africa. They frequently outlawed
actions that would be considered moral rather than legal in other countries.
The judicial systems of many predominantly Muslim countries criminalise.1
Northern Europe and countries with significant cultural ties to the region had
the most acceptance of same-sex couples. In 1989, Denmark became the first
country to introduce registered partnerships, a simplified version of marriage,
for same-sex couples. Soon after, similar laws were enacted, with specific
nomenclature (e.g., civil union, civil partnership, domestic partnership,
registered partnership) being used to designate same-sex partnerships.
The author of this article contends that it is not enough to just strive for
decriminalizing same-sexual carnal activities; it is also important to seek
legal recognition for same-sex couples and analyze the many possibilities that
may be taken to achieve such legal recognition.
Because this isn't just a theoretical legal matter, but one that elicits intense
debate and has ramifications for many people's daily lives, tactical
ramifications are suggested accordingly.
Alternative To Marriage, A Foreign Approach
One possibility is to have same-sex couples legally recognised as civil unions
or partnerships rather than marriages.2 Civil unions are recognised in several
states across the United States, as well as other Latin American and European
countries, Australia, and New Zealand. Several civil union models have been
implemented in these areas.3
Domestic partnerships are only recognised in some
states in the United States of America by municipal councils and private
businesses that provide spousal benefits to their employees' same-sex spouses.
In countries like Germany, those who enter a civil partnership have only limited
legal rights. The legal advantages are limited to legislation concerning taxes,
pensions, and adoptions.
Other versions, such as the one adopted in Vermont in response to a Supreme
Court of Vermont directive,5 provide partners with the same legal protections as
married couples.6 The Supreme Courts of Vermont and New Jersey have recently
decided that same-sex couples cannot be denied the benefits of marriage, but
that the state can decide whether the benefits should be delivered inside the
framework of a marriage or through a parallel domestic partnership.7 The essence
of such "separate but equal" organisations should be analogous to marriage, with
the same legal safeguards.8
This paradigm has the advantage of facing less opposition, at least from a
religious standpoint, and avoiding the divisive debate over whether "marriage"
must be heterosexual.9 The law governing civil partnerships and the recognition
of same-sex weddings was passed in France in 2013. Civil unions were legalised
in England and Wales in 2004, and same-sex marriages were legalised in 2013.10
Allowing civil unions while prohibiting marriage for same-sex couples is
discriminatory in and of itself, because it provides a group of people with a
lesser status alternative than marriage.
Marriage isn't only a legal agreement between two people who seek to benefit
from one other's legal rights and benefits. Its dual goal is to provide legal
and social recognition to a partnership. Marriage gives the spouse a greater
status than other family members, as well as various rights such as
decision-making powers in the event of incapacity, death registration, and so
Furthermore, just because two institutions have the same legal rights does not
imply that they are on an equal footing. A legal marriage lacks the historical,
cultural, and social significance of marriage as an institution. Same-sex
couples value marriage's social status just as much as heterosexual couples do.
As a result, although providing them with the identical legal rights, a law that
exclusively allows same-sex couples to join civil unions will treat them
differently based on their sexual orientation.
The Connecticut Supreme Court ruled that the state's 'separate but equal' system
was unconstitutional for these reasons.12 Furthermore, accepting civil unions as
a substitute for marriage entails acknowledging that same-sex partnerships are
not equal to heterosexual relationships. It would imply admitting two types of
marriage, according to US Supreme Court Justice Ginsberg: a "complete marriage"
and a "skim-milk marriage."13
Same Sex Marriage Vis-a-Vis USA
Since at least 1993, the subject of whether or not same-sex couples should be
permitted to marry has roiled politics in the United States. In that year, the
Hawaii Supreme Court considered a case in which the plaintiffs claimed that the
state's refusal to grant marriage licences to same-sex couples violated those
couples' legal rights to equality. The state, on the other hand, maintained that
it had a strong interest in banning same-sex marriage because it would harm the
public welfare essentially.
The Defense of Marriage Act was passed in 1996 when
many Americans considered the Hawaii court verdict as posing a serious danger to
social stability. (DOMA). This measure specified that same-sex marriages would
not be recognised by the federal government for surviving spouse Social Security
payments or employment-based benefits for federal employees' partners.
According to American legal scholars and proponents of same-sex marriage, the
equal protection provision of the US Constitution protects the basic right to
marry. The procreative viewpoint was prominently represented in opposition
arguments, with biblical interpretation or other religious doctrine commonly
referenced to support claims that marriage should only be open to heterosexual
couples as defined.
Between December 2013 and August 2014, federal judges overturned 14 state
restrictions on same-sex marriage. In all but two of those states, the
convictions were stayed, but several of them allowed same-sex marriages for a
little time before outlawing them. In February 2014, Attorney General Eric
Holder announced that those weddings will be recognised by the federal
government, and he announced a Department of Justice policy that would provide
equal protection and respect to all valid marriages in the United States.
In January 2015, the Supreme Court agreed to hear an appeal from the Sixth
Circuit Court of Appeals, which upheld state statutes and constitutional
amendments barring same-sex marriage and refusing to recognise same-sex weddings
performed in other states. The Supreme Court overruled both of the Sixth
Circuit's findings in Obergefell v. Hodges, making same-sex marriage legal in
all 50 states.
Future Of Same Sex Marriage Across The Globe
The impact of a country's institutional forces on the creation of rights for
same-sex couples is considerable. The courts played an important role in
countries like Canada, South Africa, and the United States that have federal
political systems and strong judiciaries. Due to institutional rules, voters in
another group of countries, such as Switzerland and many U.S. states, were able
to have a direct voice in whether legislation was passed or rejected. In other
cases, national pluralism and a tendency for secularism and religion to entwine
in subtle and unexpected ways exacerbate the range of views on sexuality and the
purpose of marriage.
The Indian Perspective
Personal laws including the Hindu Marriage Act of 1955, the Indian Christian
Marriage Act of 1872, and the Muslim Personal Law (Shariat) Application Act of
1937, among several others, regulate weddings in the Nation. Whilst same-sex and
queer weddings are not formally recognized in India, such unions are not without
There are strong pragmatic incentives, to pursue legal, societal and political
acceptance for same-sex unions. Certain legislative privileges afforded to
married couples, such as inheritance, maintenance, and retirement rights, are
not offered to same-sex unions. Financial advantages from legislation such as
the Employment Provident Fund Scheme of 1952 and the Workmen's Compensation Act
of 1923 are only granted to bloodline or married relatives.14
Personal Laws In India
Furthermore, Single people and unmarried couples have struggled to adopt since
the Central Adoption Resource Authority (CARA) released adopting rules which
then also affects the Homosexual Couples.15
The mentioned strategies can be used to achieve validation of same-sex marriages
under Hindu personal laws by firstly, interpreting established legislation to
legitamise same-sex marriages, secondly analyzing that the LGBT congregation
encompasses a segregated community whose social norms and practices permit
same-sex marriages, thirdly, ammending the Hindu Marriage Act, 1956 ('Act') to
legitamise same-sex relations on the grounds that it would otherwise be rendered
arbirary and unconscionable, or fourthly, ammending the Personal Law altogether
to include the same-sex marriages.16
Since this Code is gender-neutral besides the phrases bridal and groom, it is
conceivable to claim that same-sex spouses can have their weddings solemnized
underneath if one of them is designated as the bridal and the other as the
This perception will reaffirm conventional despotic gender norms and prejudices
that men and women are fundamentally distinct, that 2 individuals in a marriage
have pre-determined responsibilities, so even same-sex unions must admit
conventional roles in order to get married, at a period when opposite sex
spouses' unions are being re-designed to make each other more equivalent.18
Another strategy would be to ask the courts to interpret the clauses of Hindu
and Christian personal laws so that same-sex marriages are recognized, arguing
that interpreting these legislation as forbidding same-sex marriages would yield
the subject to the provisions illegitimate and arbitrary because they
discriminate on the basis of sexual orientation.
It is also pursued that choosing a spouse is a very personal decision about
which anyone, particularly the government, shall have no say. Thus, the simple
contention in support of same-sex union is that if two individuals wish to
marry, they should be able to accomplish so without discrimination based on
their sexual orientation. Citizens are excluded from the advantages and respect
that comes with that commitment, they are treated as second-class citizens and
demeans their worth.
It is important to note that in India, same-sex unions aren't prohibited.
Despite this, Indian personal laws do not expressly allow same-sex unions and,
in fact, demonstrate a profound heterosexual prejudice by using terminology that
exclusively indicate a heterosexual union.
Legislation, particularly on a subject matter where there is expected to be
strong resistance, is anticipated to be prolonged. Although it can be claimed to
encroach on religious liberties, it might be criticized since it allows for the
legalization of non-marital live-in couples, both heterosexual and homo-sexual,
which is assumed to against Indian tradition. Thus, even from a strategic
standpoint, obtaining laws to recognize civil unions does not appear to be the
best course of action.
Same-Sex Marriages Under The Special Marriages Act
Seeking an alteration in the Special Marriage Act of 1954 ('SMA') to allow
same-sex unions is an approach that shall not raise religious objections. The
SMA is a secular law that allows persons of different religions or those who do
not want to be constrained by their own regulations to marry.19 A Marriage
Officer documents the marriage rather than a religious ceremony. The SMA appears
to apply to heterosexual unions in its current version, since it stipulates that
the male must be twenty-one years old and the female must be eighteen years
Within the context of SMA, however, same-sex unions are not difficult to
perform. It'd only be essential to change Section 4(c) to state that a spouse
must be at least 21 years old if he is man and 18 years old if she is woman, and
to include an explicit clause that same-sex unions are authorized.21 In any
event, even if personal legislation are changed to recognize same-sex weddings,
the SMA would need to be changed to recognize same-sex unions amongst people of
In Arun Kumar vs The Inspector General of Registration and Ors
Madurai Bench of the High Court of Madras deployed a beneficent and purposeful
understanding, ruling that the expression "bride" underneath the Hindu Marriage
Act, 1955, covers transgender women and intersex people who identify as female.
As a result, a marriage solemnized between a male and a transwoman who practice
Hinduism is recognized as a valid wedding underneath the Act. This is a crucial
judgment because it expands the meaning of a word used in the Hindu Marriage Act
and lays the groundwork for LGBTQIA+ marriage rights to be redefined.22
The Madras High Court judgment is based on the grounds set by the Supreme Court
of India in Shafin Jahan versus Asokan K.M. and Ors., in which the right to
chose and engage a partner was declared a guaranteed by the constitution right.
The Supreme Court held that "marital displays of affection lie inside a
sacrosanct core domain of privacy."
As a result of these judgments, any legislation or administrative restriction on
same-sex and queer weddings must be considered illegal, particularly as a
violation of Articles 14, 15, and 21 of the Constitution.23
Significance Of UN SDG
The United Nations has urged countries to uphold their international human
rights commitments to prevent hatred and oppression against lesbians, gays,
bisexuals, and transgender persons. Laws that penalize consensual relationships
among adults of the same sex, crossdressing, and prejudiced constraints on
national discourse of LGBT rights or the work of LGBT associations and human
rights defenders all contravene international human rights norms, and the United
Nations calls for their abrogation.
Stereotyping against LGBT people cannot
excuse such laws; instead, it necessitates that countries take special steps to
safeguard LGBT people from harm. Stereotyping, bigotry, and brutality against
LGBT people have a wide range of consequences for human rights and community
health, notably LGBT people's capacity to receive preventative and primary
The global community at large growth undertakings, as embodied in the
Sustainable Development Goals, necessitate that instantaneous consideration be
paid to addressing the structured marginalization of these communities, groups,
and cultures: to ensure nobody is left apart, steps must be taken to dismantle
the systemic barriers that keep LGBT people from benefiting from the
Laws that criminalize homosexual activity, pathologize trans and non-binary
people, and other forms of brutality and prejudice based on sexual inclination
and gender identity sculpt the behaviours, regulations, and procedures of health
centers and employees, perpetuating connotation and discouraging people from
pursuing assistance, and potentially leading to defiance of their right to
One of the underlying determinants of the human rights violations that LGBT
people experience, notably coercive therapies such as so-called "conversion
therapies," has been and remains to be labeling them as sick based on their
sexual orientation or gender identity.Resolving these issues is inextricably
linked to numerous international human rights benchmarks, as well as the
implementation of SDG 3, which focuses on good health and well-being and
includes the goal of "access to adequate fundamental health services."
SDG 16 - the development of truly harmonious and equitable communities - calls
on everyone to help LGBTQI persons have access to resources. When LGBTQI
individuals are excluded, a vital component of the jigsaw is missing.
Grantmakers may enhance the wellbeing of individuals and encourage the
integration of disadvantaged populations within civilized society, notably
LGBTQI persons, by incorporating sexual orientation and gender identity (SOGI)
in ongoing development programs and policies.
The aim of Funders for LGBTQ Issues is to provide resources to LGBTQI
communities so that everyone feels secure, has complete legal rights, and has
the same integrity, optimism, and opportunity as non-LGBTQI individuals.
To address the needs of the Homosexuals, the legislation must broaden the
concept of marriage to include all gender and sexual orientations. It is past
time for India's marriage laws to be changed to enable marriage amongst
consensual adults regardless of sexual orientation, gender, or sex.24
Going through the half-way house of civil unions, as it was accomplished in the
Western, has no benefit. Gaining official recognition through a civil union is
equally as difficult as acquiring approval via same weddings. It is obvious that
denying same-sex unions the option of marrying promotes prejudice by considering
The most gratifying option in a culture that places such a high value on
marriage would be to allow same-sex weddings under personal laws. Obtaining
changes to all faiths' personal laws, on the other hand, would be a difficult
- UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, (November 17, 2011),
- Nicola Barker, Not the Marrying Kind - A Feminist Critique of Same-Sex Marriage 48 (2012).
- Id., at 44.
- Thomas John, supra note 25, at 360.
- Baker v. Vermont, 744 A 2d 864 (Vt 1999).
- Nicola Barker
- Baker, supra note 33.
- Lewis v. 188 NJ 415 : 908 A 2d 196 (NJ 2006).
- Angela Charlton, French President Signs Gay Marriage Into Law, Huffington Post, http://www.huffingtonpost.com/2013/05/18/french-president-signs-ga_0_n_3298916.html.
- Gay Marriage Is Now Legal In England and Wales After 'Historic' Bill Gets Royal Assent, Huffington Post, http://www.huffingtonpost.co.uk/2013/7/17/gay-marriage-is-now-legal-in-the-uk_n_3610453.html
- Nicola Barker
- Kerrigan v. Commr. of Public Health, 289 Conn 135 (2008)
- John Lewis & Stuart Gaffney, From Skim Milk to Harvey Milk: How Our Community Made History at Last Week's Supreme Court Arguments, Huffington Post, http://www.huffingtonpost.com/john-lewis/from-skim-milk-to-harvey-_b_3020284.html.
- Employment Provident Fund Scheme, S. 2(g) (1952). Workmen's Compensation Act, S. 2(d) (1923).
- Siddharth Narrain & Birsha Ohdedar, A legal perspective on Same-Sex Marriage and other Queer relationships in India, Orinam, http://orinam.net/resources-for/law-and-enforcement/ same-sex-marriage-in-india/
- Gregory M. Herek, Legal Recognition of Same-Sex Relationships in the United States: A Social Science Perspective, 61(6) Amer. Psycho. 607-621 (2006).
- Ruth Vanita, supra note 29, at 348-350.
- Nicola Barker, Not the Marrying Kind - A Feminist Critique of Same-Sex Marriage 48 (2012).
- Jeffrey A. Redding, Queer Theory - Law, Culture and Empire 125-127 (Robert Leckey & Kim Brooks eds., 2010)
- Jeffrey A. Redding, Queer Theory - Law, Culture and Empire 125-127 (Robert Leckey & Kim Brooks eds., 2010)
- The Special Marriage Act, 1954, S. 4
- Michael J. Klarman, From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage (2012)
- Gautam Bhatia, The Unbearable Wrongness of Koushal v. Naz Foundation, Indian Constitutional Law and Philosophy (December 11, 2013), http://indconlawphil.wordpress.com/2013/12/11/the-unbearable-wrongness-of-koushal-vs-naz-foundation/
- Tarunabh Khaitan, Reading Swaraj into Article 15 - A New Deal for All
Minorities, in Law Like Love 281-283 (Arvind Narrain & Alok Gupta eds., 2011)