Author : Supriya Jadhav, a student at Government Law College, Mumbai
Introduction
LGBTQAI+ marriage is a controversial and particularly sensitive issue globally, reflecting the diverse legal, cultural, and social landscapes of different countries. This article explores the current status, key legal battles, and the future of same-sex marriage in India and abroad.
In legal terms, marriage equality means the acceptance of and application of marital rights to same-sex or homosexual couples, ensuring the same legal status, benefits, and protections as heterosexual couples. This includes civil unions, domestic partnerships, and full marriage rights, with varying degrees of legal recognition across different jurisdictions of law.
Rights related to property, inheritance, taxation, social security, and adoption. The lack of legal recognition can result in significant legal and financial disadvantages for same-sex couples.
This article examines the legal status of LGBTQAI+ marriage in India and around the world, highlighting key case laws, legislative changes, and ongoing legal battles. It provides an overview of the evolving legal landscape, the role of judicial activism, and the societal implications of extending marriage rights to LGBTQAI+ individuals.
In India
LGBTQAI+ marriage rights have seen significant advancements all over the wide-world due to a combination of legislative action, judicial rulings, and social activism. In India, the landmark Supreme Court decision in ‘Navtej Singh Johar v. Union of India’ v. Union of India (2018) the Supreme Court of India removed Section 377 of the Indian Penal Code, decriminalising consensual same-sex relationships. This decision was a pivotal moment for LGBTQAI+ rights in India, providing a foundation for future legal challenges to the exclusion of same-sex couples from marriage and other legal benefits.This set a precedent for further legal challenges to the exclusion of same-sex couples from marriage rights.
Despite this significant progress, same-sex marriage is not yet legally recognized in India. The current legal framework does not provide same-sex couples with the same rights and protections afforded to heterosexual couples. This lack of recognition affects various aspects of life, including inheritance rights, adoption, tax benefits, and spousal entitlements in employment and social security.
Legal activists and LGBTQAI+ advocates continue to push for marriage equality, arguing that denying same-sex couples the right to marry violates several fundamental rights enshrined in the Indian Constitution. These include the right to equality (Article 14), the right to freedom (Article 19), and the right to life and personal liberty (Article 21). The case for marriage equality is further bolstered by international legal precedents and human rights standards, which increasingly recognize the importance of equal marriage rights.
Recent petitions filed in various High Courts, including the Delhi High Court, have sought to address the legal void surrounding same-sex marriages. These petitions demand that same-sex couples be granted the same marital rights as heterosexual couples, asserting that the absence of legal recognition perpetuates discrimination and social stigma. The government’s response has been cautious, often citing the need for broader societal consensus before making such a transformative change.
Public opinion in India is gradually evolving, with increasing support among younger generations and urban populations for LGBTQAI+ rights, including marriage equality. However, societal attitudes remain deeply rooted in traditional and conservative values. As the legal battles continue, there is cautious optimism that India will eventually join the growing list of countries that recognize and celebrate the right of all individuals to marry the person they love, regardless of gender.
Internationally
The recognition of same-sex marriage varies significantly across the globe. In Western countries, the movement for marriage equality has gained substantial ground, particularly in Europe, North America, and parts of Latin America. Scandinavian countries were among the pioneers, with Denmark being the first country to introduce registered partnerships for same-sex couples in 1989. Following Denmark’s example, many European countries have since extended full marriage rights to same-sex couples.
The United States and Canada both recognize same-sex marriage, though the journey has been markedly different in each country. In the US, the Obergefell v. Hodges*decision in 2015 marked a significant legal milestone, whereas Canada legalized same-sex marriage nationwide in 2005 through the Civil Marriage Act.
The United States Supreme Court ruled that same-sex marriage is a constitutional right under the 14th Amendment, which guarantees equal protection and due process. This landmark decision legalized same-sex marriage across all 50 states, setting a significant precedent for other jurisdictions.
Western Europe is largely supportive of marriage equality, with countries like the Netherlands, Belgium, Spain, and the UK leading the way. Eastern Europe, however, remains more conservative, with countries like Poland and Hungary enacting constitutional bans on same-sex marriage.
Argentina was the first Latin American country to legalise same- sex marriage in 2010.
Brazil, Uruguay, and Colombia have followed suit, showcasing a progressive trend in the region.
The indigenous Court of South Africa ruled that the marriage laws were unconstitutional as they discriminated against same- coitus couples. This decision led to the correction of the Marriage Act, making South Africa the first African country to legalise same- sex marriage. Asia presents a mixed picture. Taiwan stands out as a lamp of progress, while numerous other countries maintain conservative stations on LGBTQAI rights. Legal battles and advocacy continue in nations like Japan and Thailand, where there’s growing support for marriage equivalency. Taiwan’s indigenous Court ruled that the prohibition of same- sex marriage was unconstitutional, leading to the legalization of same- sex marriage in 2019. This made Taiwan the first country in Asia to celebrate marriage equivalency.
Challenges and Scope
Globally, the pursuit of marriage equality faces significant social and political challenges that vary widely across different regions. Socially, deeply ingrained cultural and religious beliefs often oppose same-sex marriage, creating substantial barriers to acceptance.
In many countries, conservative and traditionalist views dominate public opinion, leading to social stigma and discrimination against LGBTQAI+ individuals.
Politically, these social attitudes are often reflected in legislative and policy decisions. In many jurisdictions, lawmakers are hesitant to support marriage equality due to fear of political backlash or loss of support from conservative constituencies. This is particularly evident in regions like Eastern Europe, parts of Africa, and Asia, where political leaders frequently invoke cultural and religious rhetoric to justify opposition to same-sex marriage. Additionally, the influence of powerful religious institutions can shape public policy and opinion, further complicating efforts to achieve legal recognition for same-sex marriages. Despite these challenges, there are notable instances of progress driven by advocacy, judicial activism, and international human rights pressure. Countries such as Taiwan and South Africa have successfully navigated these challenges to legalize same-sex marriage, demonstrating that change is possible. However, the global landscape remains uneven, with significant work required to overcome the social and political obstacles to marriage equality.
Social acceptance and legal recognition are deeply intertwined. Legal recognition of same-sex marriage often leads to increased social acceptance, as it legitimizes LGBTQAI+ relationships in the eyes of the public. Conversely, societal acceptance can drive legal changes, creating a positive feedback loop that advances the cause of equality.
The legal recognition of LGBTQAI+ marriage remains incomplete and partial globally, although noteworthy advancements in various regions have been made there is persistent resistance in others. Judicial activism has played a crucial role in advancing marriage equality, often in the face of legislative inertia or societal opposition.
The decriminalisation of homosexuality in India was a watershed moment, but the fight for marriage equality is ongoing. Legal activists are challenging the exclusion of same-sex couples from the institution of marriage, arguing that it violates fundamental rights guaranteed under the Constitution, such as the right to equality (Article 14), the right to freedom (Article 19), and the right to life and personal liberty (Article 21).
The future of marriage equality in India hinges on the ability of activists to build a compelling legal case that resonates with the judiciary’s evolving understanding of constitutional rights. The judiciary’s willingness to address and rectify social injustices will be crucial in advancing the cause of marriage equality.
Conclusion
In conclusion, while the journey to marriage equality is extremely difficult, it is also rewarded by notable triumphs, and steps towards global acceptance. The worldwide push to acknowledge LGBTQAI+ rights signifies a profound shift towards inclusivity and the universal affirmation of human rights. In India, this journey is in its budding stage. Despite the formidable challenges ahead which instigate fear regarding change, recent victories, legally, politically and socially have created a wave of optimism. It is a ray of hope suggesting that a more equitable future is within reach. As India progresses, the spirit of resilience and hope generated by these achievements will continue to drive the movement towards full recognition and equality for all.
FAQ
- What is the current status of LGBTQAI+ marriage in India?
As of now, same-sex marriage is not legally recognized in India. However, the decriminalisation of same-sex relationships in 2018 has set the stage for future legal challenges aimed at securing marriage rights for LGBTQAI+ couples. - Which countries have legalized same-sex marriage?
Several countries have legalized same-sex marriage, including the United States, Canada, South Africa, and many Western European nations. Taiwan is notable as the first Asian country to legalize same-sex marriage. - What are the legal benefits of marriage that same-sex couples seek?
Legal recognition of marriage provides numerous benefits, including inheritance rights, tax benefits, adoption rights, spousal benefits under social security, and the ability to make medical decisions for one’s spouse, among others. - How has judicial activism influenced the legal status of LGBTQAI+ marriage?
Judicial activism has been pivotal in many countries where legislative bodies have been slow or resistant to change. Courts have often stepped in to ensure equal protection and rights under the constitution, leading to landmark rulings that recognize same-sex marriage. - What are the main challenges to achieving marriage equality in India?
The primary challenges include societal attitudes, political resistance, and the need for a comprehensive legal framework that explicitly includes same-sex marriage rights. Advocacy and strategic litigation are crucial in overcoming these hurdles.
