Openness May Not Completely Disarm Prejudice, But It's A Good Place To Start

LGBTQ and their struggle for marriage equality
Reading time: 5-6 minutes.
“Openness may not completely disarm prejudice, but it's a good place to start”
….. Jason Collins
A great German thinker, Johann Wolfgang von Goethe, once said, “I am what I am, so take me
as I am” and likewise John Stuart Mill quoted “But society has now fairly got the better of
individuality; and the danger which threatens human nature is not the excess, but the deficiency
of personal impulses and preferences”, though these cardinal quotes were highly appreciated by
the Hon’ble Supreme Court while delivering the famous judgment regarding the
decriminalization of certain provisions in Section 377 of Indian Penal Code, 1860 and legalizing
the so called taboo in the Indian society for having the same sex relationship in Navtej Singh
Johar & Ors. v. Union of India.1
After this long battle for recognition finally LBGTQ community got their identity. However,
there are certain aspects which are still not answered in the said judgment and one such major
topic is ‘MARRIAGE EQUALITY’ which has led to severe hardships for both the society and
the pink community.
History plays a major role in evolving the law in the present scenario. One of the major examples
is of ancient Rome, where men with wealth and power sometimes married same-sex partners. It
wasn’t uncommon for men and women to have sexual partners of same sex, but those with
influence could get societal recognition and acceptance. There were some Roman emperors who
had two husbands: King Elagabalus married two men. One was a famous athlete and the other
was a royal slave.
In India it is the Khajuraho temple in Madhya Pradesh where many scriptures in the temple
describe either women erotically embracing other women or men displaying their sexual desires
towards each other, the former being more common. These images portray the existence of
homosexual behaviour in ancient period. It is evident that the natural identity of an individual
should be treated essential to his being.
1
(2018) 10 SCC 1
Therefore, in the absence of marriage equality in 2006, the Humsafar Trust a famous NGO wing
began organizing same-sex marriage ceremonies for people in the coastal state of Goa. While not
legally recognized, these unions were symbolic and very affirming for many same-sex couples in
India.
In the landmark judgment of Shakti Vahini v. Union of India2, it was held by the Hon’ble
Supreme Court that the right to select a life partner is a fundamental right. This right has been
declared as a fundamental right because it is an inherent part of Article 19 and 21 of the
Constitution. Similarly, LGBTQ persons constitute a ‘miniscule fraction’ of the country’s
population but it cannot be a ground to deprive them of their fundamental rights guaranteed by
Part III of the Indian Constitution. Even though the LGBTQ constitutes a sexual minority,
members of the LGBTQ community are citizens of this country who are equally entitled to the
enforcement of their fundamental rights guaranteed by Articles 14, 15, 19, and 21. Fundamental
rights are guaranteed to all citizens alike, irrespective of whether they are a numerical minority
or not. Modern democracies are based on the twin principles of majority rule, and protection of
fundamental rights guaranteed under Part III of the Indian Constitution.
Under the Indian Constitutional scheme, while the majority is entitled to govern; the minorities
like all other citizens are protected by the solemn guarantees of rights and freedoms under Part
III of the Indian Constitution. Even though Section 377 is facially neutral, it has been misused
by subjecting members of the LGBTQ community to hostile discrimination, making them
vulnerable and live in fear on account of their sexual orientation. The half-hearted decision given
by the Hon’ble Supreme Court just decriminalizes certain provisions of section 377 of Indian
Penal Code, 1860 and allows the persons of LBGTQ community to have a relationship with
same sex persons and to fulfil their sexual desires but denying them the right to marry each other
is still a very important issue to be addressed.
According to D.Y.Chandrachud J in the case of Shafin Jahan v. K M Ashokan & Ors. 3

choice of a partner whether within or outside marriage lies within the exclusive domain of each
individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The
2
(2018) 7 SCC 192
3
(2018) 16 SCC 368
absolute right of an individual to choose a life partner is not in the least affected by matters of
faith.
The historian John Boswell4 have argued that same-sex unions were recognized by the Roman
Catholic Church in medieval Europe. In the late 20th century, a period when attitudes toward
homosexuality and laws regulating homosexual behaviour were liberalized, particularly in
Western Europe and the United States. Many counties have legalized the concept of same sex
marriage under their respective domain and the prominent examples are the following;
Netherlands was the first country to legalize gay marriage. The marriage bill was drafted and
debated in the Dutch Parliament, and finally passed by the House of Representatives and the
Senate on December 19, 2000. The law came into effect on April 1, 2001.
In United States of America, the State of Massachusetts was the first state in America to legalize
same-sex marriage. During the year 1996, the Former President Bill Clinton of USA signed the
Defence of Marriage Act5 (DOMA), which defined marriage as a union between a man and a
woman, thereby denying same-sex couples’ federal marriage; although the Hon’ble U.S.
Supreme Court's in United States v. Windsor6 decided to strike down provisions contained
under section 3 of the Defence of Marriage Act, 1996.
The Hon’ble Supreme Court7 in Obergefell v. Hodges8 gave the decision of legalizing gay
marriage in all states.
The U.S. Supreme Court in Lawrence v. Texas9, struck down sodomy law and elaborated for a
broader constitutional right to sexual privacy.
In the year 2012, former President Barack Obama of the United States of America once said that
he himself is in favour of gay marriage, and according to him now Americans should allow its
gay citizens to say, ‘I do' instead of 'I can't’.
4
Yale professor (1947- 1994)
5
22ndSeptember 1996
6
570 U.S.744
7
United States of America
8
576 U.S. __ (2015)
9
539 U.S. 558 (2003)
At present there are around 28 countries which have legally recognized and performed same sex
marriages.
The UN Human Rights Council expressed grave concerns over violence and discrimination
against individuals based on sexual orientation and gender identity. In 2014, the council passed a
resolution to combat anti-LGBTQ violence and discrimination. Two years later in 2016, the
United Nations appointed its first-ever independent expert on sexual orientation and gender
identity. Also, in EU10 institutions and member states too recognize same-sex marriage or civil
unions as a political, social and human and civil rights issue.
Therefore, the right to marriage as enumerated in the domain of Article 21 should be given to
same sex couples, deprivation of this fundamental right guaranteed by the Indian Constitution is
a major setback for the LGBTQ community. And if the right to marriage is guaranteed to
LGBTQ community it can easily be pledged under the Special Marriage Act, 1954 just by
making mere amendments to the said act. Moreover, history owes an apology to the members of
this community and their families, for the delay in providing redressal for the ignominy and
ostracism that they have suffered through the centuries. The members of this community were
compelled to live a life full of fear of reprisal and persecution. This was on account of the
ignorance of the majority to recognize that homosexuality is a completely natural condition and
part of a range of human sexuality. The misapplication of this provision denied them the
fundamental right to equality guaranteed by Article 14. It infringes their fundamental right to
non-discrimination under Article 15, and the fundamental right to live a life of dignity and
privacy and right to marry a partner of one’s choice is guaranteed by Article 21.
The LGBTQ persons deserve to live a life unshackled from the shadow of being nnapprehended
felons.
10
European Union

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LGBTQ and their struggle for marriage equality

Reading time: 5-6 minutes.

….. Jason Collins

According to D.Y.Chandrachud J in the case of Shafin Jahan v. K M Ashokan & Ors. 3

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