Legality Of Same - Sex Marriages
The Netherlands became the first country to legalise same-sex marriage in
December 2000 when, by a three-to-one vote, the Dutch Parliament passed a
landmark bill allowing the practice. In June 2003 Belgium becomes the second
country in the World to legalise Same-Sex Marriages. The Canadian Parliament
passed legislation making Same-Sex Marriage legal nationwide in 2005 making
Canada the third country to legalise Same-Sex Marriages.
The same year in Spain, Parliament passed a measure to legalise Same-Sex
Marriages after a large protest in Madrid. South Africa was the first in Africa
to legalise Gay Marriages in 2006, one year after their highest Court decided
heterosexual-only marriage policy violated the Constitution's equal right
On June 5, 2010, Norway joined the list of countries legalising Same-Sex
Marriages becoming the 6th country in the world granting Same-Sex couple to
legally get married. Sweden was the seventh country in the World to legalize
Same-Sex Marriage in 2009. The 2009 Law allows gays and lesbians to marry in
both religious and civil ceremonies, but it does not require clergy to officiate
at such ceremonies. Portugal joined the list in the June of 2010, followed by
Denmark when its legislature passed a bill in 2012.
Argentina was the first country in Latin America and the 10th country in the
world to allow same-sex marriage nationwide. Consequently, Australia joined the
list in 2017. There are now a total of 29 countries around the world which
recognises same-sex marriages but the list excludes India till this day. Sexual
orientation and gender identity are integral aspects of a human being. And every
human being irrespective of their sexual orientation should be able to exercise
their rights without being discriminated against. India has come a long way
since it became Independent.
The legislature has passed a substantial amount of laws recognizing Human
Rights. Laws have been passed by the legislature without any stigma of
prejudiced beliefs of the society, to ensure every citizen's Right to Freedom
and Liberty. In a landmark judgment for the LGBTQ community, the Supreme Court
lifted a colonial-era ban when it de-criminalised section 377 in 2018.
There shall be no scepticism in believing that even though India has come a long
way in recognising rights of every community including the LGBTQ , there is
still a long road ahead that is yet to be traveled.
Two years after homosexuality was decriminalized in India, the Government still
holds the opinion of Same-Sex Marriages being against the Indian culture. Though
India officially does not recognise Same-Sex Marriage, the Rights of same-sex
couples who live together have been recognised by some State Courts. This year,
the High Court in the Northern State of Uttarakhand ruled that Same-Sex couples
are allowed to live together, even though they may not be entitled to marry.
The most common argument against the movement for the legalisation of Same-Sex
Marriage is that, as opposed to work reservations or offering refuge to those
rejected by their birth families, it does not top the list of priorities for the
queer community. India is a country with diverse, languages, traditions and
beliefs.Indian culture is rich in morals, compassion and kindness. Denying
marriage license to a homosexual couple for the supposed reason of it being
against the Indian culture is not only preposterous but also incorrect.Family is
the epitome of its social structure, denying any individual right to have a
family is homogeneous to denying an individual of his/ her Fundamental Rights.
An Ongoing Battle Around The World The United States v. Windsor | 570
U.S. 744 (2013) In 1996, Congress passed the Defense of Marriage Act (or
otherwise known as DOMA) in response to a movement going on at the time to
legalize same-sex marriage. DOMA said that if a Same-Sex couple got married in
one state, another state wouldn't need to recognize it. DOMA also defined
marriage for purposes of Federal Law as a union between one man and one woman.
In 2007, two New York women, Edith Windsor and Thea Spyer, decided to go to
Ontario, Canada, and get married. They returned to New York, and New York
recognized their marriage as legal. In 2009, Spyer died and left everything to
Windsor tried to claim estate tax exemptionbut was denied because of the
language in DOMA defining marriage between a man and women. Windsor sued in
federal court and argued that the provision in DOMA excluding same sex couples
from the definition of marriage violated the Fifth Amendment. During the
litigation the Obama administration decided that the DOMA provision was
unconstitutional and directed the Justice Department not to defend it in Court
However, even so the President said that the executive branch would continue to
enforce the Law until the Courts reach a final decision. Windsor won in the
trial and the Appellate Courts but the Federal Government refused to comply with
the Judgment due to which Windsor did not get the refund for all the estate
taxes she had paid.
The Federal Government appealed to the United States Supreme Court and the
issues that were raised before the highest Court were: 1. Whether the Courts had
the jurisdiction to hear the Case 2. Whether the DOMA provision was
Constitutional In a five-four split decision, the Court overturned the DOMA
provision holding that the Court does have Jurisdiction and that the exclusion
of Same Sex couples from the definition of marriage violates the due due process
clause in the Fifth Amendment. Obergefell v. Hodges, U.S. Supreme Court
2015 In response to some States legalizing Same Sex Marriage, various States
enacted laws and Constitutional Amendments defining marriage as between one man
and one woman within the U. S.
When James Obergefell's (plaintiff) partner, John Arthur, became terminally ill,
the pair decided to marry. The couple wed in Maryland, where Same Sex Marriage
was legal. However, after Arthur died, the couple's home state of Ohio declined
to list Obergefell on the death certificate as the surviving spouse of Arthur.
April DeBoer and Jayne Rowse (plaintiffs), a Same-Sex couple living in Michigan,
adopted three children. due to a state ban on adoptions by Same-Sex couples,
DeBoer and Rowse couldn't both be legal parents to their children. IpjeDeKoe and
Thomas Kostura (plaintiffs) got married in the big apple before DeKoe was
deployed to Afghanistan with the military reserve.
They later moved to Tennessee, which refuses to acknowledge the union. These and
similarly situated plaintiffs separately sued state officials (defendants)
charged with enforcing state marriage laws in federal courts in Michigan,
Kentucky, Ohio, and Tennessee, alleging violations of their rights under the
Fourteenth Amendment. In each case, the district courts ruled for the
plaintiffs, but the state officials appealed to U.S. before the Sixth Circuit
Court of Appeals.
The case was consolidated and dismissed by the Court of Appeals, ruling that
states were under no statutory requirement to licence or accept same-sex
marriages. The plaintiffs petitioned the U.S. Supreme Court for certiorari,
which was granted. Europe The European convention on human rights (ECHR) has
influenced the equality agenda contributing towards advancement of LGBTQ rights
both across the united kingdom and within member states.
The ECHR's decision within the case of Horst schalkand John Kopfwas a vital one
in recognition that a stable Same Sex relationship can fall within the
definition of family life a bit like an female couple. Hawaii Baehr v.Lewin,
Hawaii Supreme Court In 1991, in an exceedingly path breaking lawsuit with far
reaching consequences Baehr v. Lewin, the Hawaii Supreme Court held that
denying access to marriage to Same-Sex couples amounted to sex discrimination
under the Hawaii Constitution's Equal Protection Clause, which at trial, the
Director of the Health would have the burden of demonstrating that the State had
a compelling interest within the otherwise prohibited sex discrimination.
This ruling created an unlimited shift within the cultural landscape, setting
off a series of events that culminated within the US Supreme Court's 2012
Windsor and 2015 Obergefell decisions recognizing marriage equality nationwide,
and has had impacts worldwide within the LGBTQ+ rights movement. Navin Kumar
Jaggi Sejal Khanna
Law Article in India
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