AVADH LAW COLLEGE

ALL INDIA POLITICAL PARTY MEET

TOPIC- SAME SEX MARRIAGE

 BACKGROUND GUIDE
Same-sex marriage, also known as gay marriage, is the marriage of two people of
the same legal sex. As of 2023, marriage between same-sex couples is legally
performed and recognized in 35 countries, with a total population of 1.4 billion
people (17% of the world's population). The most recent country to legalize same-
sex marriage was Nepal. It will become legal in a 36th country, Estonia, on 1 January
2024.

Adoption rights are not necessarily covered, though most states with same-sex
marriage allow those couples to jointly adopt as other married couples can. In
contrast, 35 countries (as of 2023) have definitions of marriage in their constitutions
that prevent marriage between couples of the same sex, most enacted in recent
decades as a preventative measure. Some other countries have constitutionally
mandated Islamic law, which is generally interpreted as prohibiting marriage
between same-sex couples. In six of the former and most of the latter,
homosexuality itself is criminalized. There are records of marriage between men
dating back to the first century.[2] It is legally recognized in a large majority of the
world's developed democracies; notable exceptions are Italy, Japan, South Korea,
Greece and the Czech Republic. It is not yet recognized in any of the world's Islamic
polities. Some countries, such as China and Russia, restrict advocacy for same-sex
marriage.

The first same-sex couples to be married legally in modern times were Michael
McConnell and Jack Baker in 1971 in the United States; they were married in the
county of Blue Earth County, Minnesota. The first law providing for marriage equality
between same-sex and opposite-sex couples was passed in the continental
Netherlands in 2000 and took effect on 1 April 2001. The application of marriage
law equally to same-sex and opposite-sex couples has varied by jurisdiction, and has
come about through legislative change to marriage law, court rulings based on
constitutional guarantees of equality, recognition that marriage of same-sex couples
is allowed by existing marriage law, and by direct popular vote, such as through
referendums and initiatives.[ The most prominent supporters of same-sex marriage
are the world's major medical and scientific communities, along with human rights
and civil rights organizations, while its most prominent opponents are religious
fundamentalist groups. Polls consistently show continually rising support for the
recognition of same-sex marriage in all developed democracies and in some
developing countries.

Scientific studies show that the financial, psychological, and physical well-being of
gay people are enhanced by marriage, and that the children of same-sex parents
benefit from being raised by married same-sex couples within a marital union that is
recognized by law and supported by societal institutions. Social science research
indicates that the exclusion of same-sex couples from marriage stigmatizes and
invites public discrimination against gay and lesbian people, with research
repudiating the notion that either civilization or viable social orders depend upon
restricting marriage to heterosexuals. Same-sex marriage can provide those in
committed same-sex relationships with relevant government services and make
financial demands on them comparable to that required of those in opposite-sex
marriages, and also gives them legal protections such as inheritance and hospital
visitation rights.[ Opposition is based on claims such as that homosexuality is
unnatural and abnormal, that the recognition of same-sex unions will promote
homosexuality in society, and that children are better off when raised by opposite-
sex couples. These claims are refuted by scientific studies, which show that
homosexuality is a natural and normal variation in human sexuality, that sexual
orientation is not a choice, and that children of same-sex couples fare just as well as
the children of opposite-sex couples.

Same-sex marriage is legally performed and recognized in the following 35

countries: Andorra, Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile,
Colombia, Costa Rica, Cuba, Denmark, Ecuador, Finland, France, Germany,
Iceland, Ireland, Luxembourg, Malta, Mexico, Nepal, the Netherlands, New
Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland,
Taiwan, the United Kingdom, the United States, and Uruguay. Same-sex marriage
will become legal in Estonia on 1 January 2024.

Same-sex marriage is under consideration by the legislature or the courts in Aruba,

Curacao, the Czech Republic, Greece, Honduras, Japan, Liechtenstein, the Navajo
Nation, South Korea, Thailand and Venezuela.

Civil unions are being considered in a number of countries, including Lithuania, Peru,
the Philippines, South Korea and Ukraine.

On 12 March 2015, the European Parliament passed a non-binding resolution

encouraging EU institutions and member states to "[reflect] on the recognition of
same-sex marriage or same-sex civil union as a political, social and human and civil
rights issue".In 2018, the Inter-American Court of Human Rights ruled that all
signatory countries must allow same-sex marriage.

In response to the international spread of same-sex marriage, a number of countries

have enacted preventative constitutional bans, with the most recent being Russia in
2020 and Mali in 2023. In other countries, constitutions have been adopted which
have wording specifying that marriage is between a man and a woman, although,
especially with the older constitutions, they were not necessarily worded with the
intent to ban same-sex marriage.[citation needed] In additional countries, such
restrictions and limitations are effected through legislation.

International Rulings

European Court of Human Rights

In 2010, the European Court of Human Rights (ECHR) ruled in Schalk and Kopf v
Austria, a case involving an Austrian same-sex couple who were denied the right to
marry. The court found, by a vote of 4 to 3, that their human rights had not been
violated. The court further stated that same-sex unions are not protected under art.
12 of ECHR ("Right to marry"), which exclusively protects the right to marry of
opposite-sex couples (without regard if the sex of the partners is the result of birth
or of sex change), but they are protected under art. 8 of ECHR ("Right to respect for
private and family life") and art. 14 ("Prohibition of discrimination"). Furthermore,
under European Convention of Human Rights, states are not obliged to allow same-
sex marriage:

The Court acknowledged that a number of Contracting States had extended

marriage to same-sex partners, but went on to say that this reflected their own
vision of the role of marriage in their societies and did not flow from an
interpretation of the fundamental right as laid down by the Contracting States in the
Convention in 1950. The Court concluded that it fell within the State's margin of
appreciation as to how to regulate the effects of the change of gender on pre-
existing marriages.

— European Court of Human Rights, Schalk and Kopf v Austria

British Judge Sir Nicolas Bratza, then head of the European Court of Human Rights,
delivered a speech in 2012 that signaled the court was ready to declare same-sex
marriage a "human right", as soon as enough countries fell into line.
Article 12 of the European Convention on Human Rights states that: "Men and
women of marriageable age have the right to marry and to found a family,
according to the national laws governing the exercise of this right", not limiting
marriage to those in a heterosexual relationship. However, the ECHR stated in Schalk
and Kopf v Austria that this provision was intended to limit marriage to heterosexual
relationships, as it used the term "men and women" instead of "everyone".

Nevertheless, the court accepted and is considering cases concerning same-sex

marriage recognition, e.g. Andersen v. Poland.

European Union
Coman and Others v General Inspectorate for Immigration and Ministry of the
Interior
On 5 June 2018, the European Court of Justice ruled, in a case from Romania, that,
under the specific conditions of the couple in question, married same-sex couples
have the same residency rights as other married couples in an EU country, even if
that country does not permit or recognize same-sex marriage. However, the ruling
was not implemented in Romania and on 14 September 2021 the European
Parliament passed a resolution calling on the European Commission to ensure that
the ruling is respected across the EU.
 Inter-American Court of Human Rights

Alexandra Chávez and Michelle Avilés, the first same-sex couple to marry in Ecuador
On 8 January 2018, the Inter-American Court of Human Rights (IACHR) ruled that
the American Convention on Human Rights mandates and requires the legal
recognition of same-sex marriage. The landmark ruling was fully binding on Costa
Rica and set binding precedent in the other signatory countries. The Court
recommended that governments issue temporary decrees recognizing same-sex
marriage until new legislation is brought in. Among states without same-sex
marriage, the ruling applies to Barbados, Bolivia, the Dominican Republic, El
Salvador, Guatemala, Haiti, Honduras, Nicaragua, Panama, Paraguay, Peru and
Suriname.

The Court said that governments "must recognize and guarantee all the rights that
are derived from a family bond between people of the same sex". They also said
that it was inadmissible and discriminatory for a separate legal provision to be
established (such as civil unions) instead of same-sex marriage. The Court demanded
that governments "guarantee access to all existing forms of domestic legal systems,
including the right to marriage, in order to ensure the protection of all the rights of
families formed by same-sex couples without discrimination". Recognizing the
difficulty in passing such laws in countries where there is strong opposition to same-
sex marriage, it recommended that governments pass temporary decrees until new
legislation is brought in.

The ruling has directly led to the legal recognition of same-sex marriage in Costa
Rica and Ecuador. In the wake of the ruling, lawsuits regarding same-sex marriage
were filed in Bolivia, Honduras, Panama, Paraguay (to recognize marriages
performed abroad), and Peru, all of which are under the jurisdiction of the IACHR.

International organizations
The terms of employment of the staff of international organizations (not commercial)
in most cases are not governed by the laws of the country where their offices are
located. Agreements with the host country safeguard these organizations'
impartiality.

Despite their relative independence, few organizations recognize same-sex

partnerships without condition. The agencies of the United Nations recognize same-
sex marriages if the country of citizenship of the employees in question recognizes
the marriage. In some cases, these organizations do offer a limited selection of the
benefits normally provided to mixed-sex married couples to de facto partners or
domestic partners of their staff, but even individuals who have entered into a mixed-
sex civil union in their home country are not guaranteed full recognition of this
union in all organizations. However, the World Bank does recognize domestic
partners.
 Same Sex Marriage In India

Same-sex marriage, a topic that has stirred debates and discussions globally, has
undergone a transformative journey in India. In a country rich in cultural diversity,
the legal landscape concerning LGBTQ+ rights has been evolving over the years.
This essay explores the historical context, legal developments, societal perspectives,
and the ongoing quest for equality in the realm of same-sex marriage in India.

Historical Context:

India has a long history of diverse cultural and religious traditions, many of which
have included acceptance of a spectrum of gender and sexual identities. However, in
the modern era, the legal framework was not always accommodating. The infamous
Section 377 of the Indian Penal Code criminalized "unnatural offenses," including
consensual same-sex relations. This colonial-era law was a significant barrier to
LGBTQ+ rights.

Legal Developments:

The turning point in the legal battle for LGBTQ+ rights in India came in 2018 when
the Supreme Court, in the landmark Navtej Singh Johar v. Union of India case,
decriminalized consensual same-sex relations by striking down Section 377. This
historic decision marked a crucial step towards recognizing the dignity and rights of
the LGBTQ+ community. While the decriminalization was a milestone, it did not
directly address the issue of same-sex marriage.
 Subsequent Developments:

Post-Section 377 decriminalization, there have been incremental steps towards

acknowledging and affirming the rights of the LGBTQ+ community in India. Public
awareness and acceptance have grown, and several individuals have come forward
to share their stories, contributing to changing societal attitudes.

In 2020, the Delhi High Court recognized the right to marriage for same-sex couples,
stating that denial of this right is a violation of the principles of equality and non-
discrimination. This judgment provided a glimmer of hope for those advocating for
same-sex marriage in India.

Societal Perspectives:

Societal attitudes towards same-sex relationships have been evolving, but challenges
persist. While urban areas may be more accepting, rural communities and
conservative sections of society continue to uphold traditional norms. Public
awareness campaigns, education, and representation in media have played essential
roles in shaping attitudes towards the LGBTQ+ community.

Challenges and Road Ahead:

Despite the positive developments, challenges remain on the path to full equality.
Legal recognition of same-sex marriage is yet to be achieved at the national level.
Some argue that societal change should precede legal reforms, while others stress
the need for legal recognition to drive social acceptance.
The lack of legal recognition poses practical challenges for same-sex couples in
areas such as inheritance, healthcare, and adoption. Advocacy groups and individuals
continue to push for comprehensive legal reforms that address these issues and
recognize same-sex marriages on par with heterosexual unions.

Global Comparisons:

Looking beyond India, the global landscape for same-sex marriage is diverse. Many
countries have embraced marriage equality, while others still grapple with legal and
societal challenges. India stands at a crossroads, drawing inspiration from global
examples while navigating its unique cultural and legal complexities.

Conclusion:

The journey towards recognizing and legalizing same-sex marriage in India is

multifaceted. From the historical shadow of Section 377 to the progressive
decriminalization of consensual same-sex relations, the country has come a long
way. However, the quest for full equality persists, with legal, societal, and cultural
dimensions at play.
As India grapples with these complexities, it is crucial to foster open dialogues,
promote understanding, and advocate for inclusive legal reforms. The recognition of
same-sex marriage is not just a legal milestone; it is a reflection of a society that
values diversity, equality, and human rights for all its citizens. The ongoing struggle
for same-sex marriage in India is a testament to the resilience and determination of
the LGBTQ+ community and its allies in their pursuit of a more inclusive and
equitable future.
 Legality Of Same Sex In India
A five-judge bench of the Supreme Court that was headed by Chief Justice of India
DY Chandrachud, unanimously ruled against legalising same sex marriage in India
today (October 17). The bench also ruled in a 3:2 verdict against civil unions for
non-heterosexual couples. It comprised Justices Sanjay Kishan Kaul, Ravindra Bhat,
Hima Kohli and PS Narasimha.

In his opinion, the CJI has left it to the Parliament to decide on the issue. The CJI
and Justice Kaul batted for civil unions for non-heterosexual couples. The CJI added
that the SC cannot strike down the provisions of the Special Marriage Act (SMA) or
read words differently. The focus of the petitions filed is the gender-neutral
interpretation of the SMA. It is a secular legislation designed to facilitate inter-caste
and inter-faith marriages. The petitioners have sought a broader interpretation of
the SMA to include same-sex marriages too.

Justice Kaul said the legal recognition of civil unions for non-heterosexual couples
represents a step towards marriage equality. But all five judges agreed that there is
no fundamental right to marry and in a majority verdict, the court has ruled against
same-sex marriage. The majority view is that the legislature or Parliament must
decide on bringing in same-sex marriage.

The top court had heard the arguments over 10 days in April and May. Arguments
ranging from the right to equality to the right to privacy, the legal privileges and
rights bestowed by marriage, and the impact of same sex marriages on children
were made. Those opposing the petitioners included the Central government, the
national child rights body NCPCR, and the Jamiat-Ulama-i-Hind, a body of Islamic
scholars.

Though the Supreme Court has refused to legalise same-sex marriage, the
Constitution Bench judgment is a formidable step to silence hostile voices who claim
that homosexuality and gender queerness are un-Indian. “It is not queerness which
is of foreign origin but the many shades of prejudice in India which are remnants of
a colonial past,” Chief Justice of India (CJI) D.Y. Chandrachud observed.

The judgment bells the cat on how atypical gender identity or sexual orientation is
still considered alien, urban and elite – a view put forward in court even by the
Union government during the arguments of the same-sex marriage case. The
Constitution Bench’s comments highlighting societal and even state discrimination
on the basis of sexual orientation comes five years after the apex court
decriminalized homosexuality.

Justice Sanjay Kishan Kaul accepted non-heterosexual relationships as part of the

“pluralistic social fabric” and an “integral part of Indian culture”.

All the five judges on the Bench agreed that queerness was not a phenomenon
limited to the few and English-speaking urban rich. Expressions of queerness are
more visible in urban centres as cities afford a degree of anonymity and access to
resources, the Chief Justice reasoned. Queerness is not urban or elite. Persons of any
geographic location or background may be queer, the court said in one voice.

Chief Justice Chandrachud delved into the notion “homosexuality or gender

queerness is not native to India”. He said to deflate this prejudice, one has to define
the term ‘Indian’. The Chief Justice did so by recording that “a thing, an occurrence,
or a practice is ‘Indian’ when it is present in India, takes place here, or is practised
by Indian citizens. Something which is Indian could be present from time
immemorial or it could be a recent development… Sexual and gender minorities are
as Indian as their fellow citizens who are cisgender and heterosexual”.

The Chief Justice said the nation and its constitutional authorities should not shrug
off the rising call for equality from within the LGBTQIA community. Their demand to
legalise same-sex marriage should not be dismissed as a copycat idea borrowed
from abroad, he noted. “The recent visibility of queerness is not an assertion of an
entirely novel identity but the reassertion of an age-old one… An environment has
been fostered which is conducive to queer persons expressing themselves without
the fear of opprobrium,” Chief Justice Chandrachud observed.

He said the British brought not only their laws but also their morality to India. He
referred to how transgender persons were referred to as “eunuchs” in the Criminal
Tribes Act and included in the category of “habitual offenders”.The Act heaped
“enormous indignity” on trans-persons by permitting the government to medically
examine them, penalising them for dressing “like a woman” or playing music or
dancing and had even rendered their will invalid.
 Chronology
November 25, 2022: Two same-sex couples approached the Supreme Court to
request the recognition of same-sex marriage within the framework of the Special
Marriage Act. The petition argues for the Special Marriage Act to be rendered
gender-neutral, and as a result, the Supreme Court issued notices to both the

central government and the Attorney General.

December 14, 2022: The top court issued notices for a plea by another same-sex
couple, consisting of an Indian and a US citizen, seeking recognition of their
marriage under the Foreign Marriage Act. The Court consolidated similar cases from
various high courts and scheduled a hearing for March 13, 2023, with a government
response due by February 15

March 12, 2023: The Centre filed an affidavit in apex court opposing the legal
validation of same-sex marriage, saying it would cause a complete havoc with the
delicate balance of personal laws and in accepted societal values. At the same time
it submitted that though the Centre limits its recognition to heterosexual
relationships, there may be other forms of marriages or unions or personal
understandings of relationships between individuals in a society and these "are not
unlaw .The Centre said the institution of marriage between two individuals of the
same gender is neither recognised nor accepted in any uncodified personal laws or

any codified statutory laws.

March 13, 2023: The Supreme referred the case to a Five-judge Constitution bench,
underscoring the connection between statutory regulations and constitutional rights.
The petitioners argued for more extensive constitutional privileges rooted in the
rights to life, personal freedom, and dignity as defined in Articles 14, 19, and 21.
SC also directed that the proceedings of the hearing will have to be live-streamed
on its website and YouTube.
April 1, 2023: “Same-sex marriage is an assault on the family system and goes
against the personal laws of all religions recognizing the concept of marriage
between a man and a woman,” said Muslim organisation Jamiat Ulama-i-Hind in an
application opposing same-sex marriage applications in Supreme Court.

April 6, 2023: The Delhi Commission for Protection of Child Rights (DCPCR)
submitted an intervention request in favour of both same-sex marriages and the
adoption rights of same-sex couples.

April 17, 2023: Terming the petitions seeking legal validation of same-sex marriage
as one which reflect an "urban elitist" view, the Centre told the Supreme Court that
recognition of marriage is essentially a legislative function which the courts should
refrain from deciding.

April 18, 2023: The apex court commenced hearing arguments in the matter.

April 27, 2023: The Supreme Court asked the Center to submit a response
regarding the social advantages that can be extended to same-sex couples even
without legally recognizing their marital status.

May 3, 2023: The Centre told the court it would constitute a committee headed by
 the cabinet secretary to examine the administrative steps that could be taken for
addressing "genuine humane concerns" of same-sex couples without going into the
issue of legalizing their marriage.

May 11, 2023: While hearing the matter, the bench had observed it cannot give a
declaration on same-sex unions on the anticipation as to how Parliament is likely to
respond to it. The top court reserved its verdict in the matter.
The bench had made it clear during the arguments that it will not go into personal
laws governing marriages while deciding the pleas seeking judicial validation for
same-sex marriages and said the very notion of a man and a woman, as referred to
in the Special Marriage Act, is not "an absolute based on genitals".
 Challenges Of Same Sex Marriage In India

While the legal landscape regarding same-sex relations has evolved in India with the
decriminalization of Section 377, there are still challenges and obstacles to the
recognition of same-sex marriage in the country. Some of the key problems include:

1. Legal Recognition:
India did not legally recognize same-sex marriages. This lack of legal recognition
denies same-sex couples various rights and benefits that heterosexual couples enjoy,
such as inheritance, spousal support, and the right to make medical decisions for
their partners.

2. Social and Cultural Conservatism:

Indian society is diverse, and attitudes toward homosexuality and same-sex
relationships vary across regions and communities. However, conservative social and
cultural norms, often rooted in religious beliefs, can contribute to a lack of
acceptance for same-sex marriages. These attitudes may pose challenges to
legislative efforts seeking to legalize same-sex marriage.

3. Religious Opposition:
Some religious institutions in India maintain traditional views on marriage and
family structures, which may include opposition to same-sex relationships and
marriages. Resistance from religious leaders or institutions can influence public
opinion and contribute to a slower acceptance of same-sex marriages.

4. Lack of Public Awareness:

Despite progress in recent years, there remains a lack of widespread awareness and
understanding regarding LGBTQ+ issues in many parts of India. Public education
campaigns and efforts to raise awareness about the importance of recognizing and
respecting same-sex relationships are crucial for fostering acceptance.

5. Political Sensitivities:
Political considerations can impact the progression of LGBTQ+ rights, including
same-sex marriage. Policymakers may be hesitant to take a stand on controversial
issues, fearing backlash from conservative constituencies. Political will and leadership
are essential for driving legal reforms and promoting societal acceptance.

6. Family and Social Pressures:

Same-sex couples in India may face challenges related to family and societal
expectations. Traditional expectations regarding marriage and family can create
tension and difficulties for individuals coming out to their families or seeking
acceptance for their same-sex relationships.

7. Lack of Legislative Action:

While the decriminalization of Section 377 was a significant step forward, it did not
automatically lead to the legalization of same-sex marriage. The absence of specific
legislation recognizing and regulating same-sex marriages leaves many couples
without legal protection and societal validation.

8. Discrimination and Stigma:

Discrimination and stigmatization of the LGBTQ+ community persist in various
forms. Same-sex couples may face prejudice and bias in their personal and
professional lives, contributing to a challenging environment for those seeking to
have their relationships legally recognized. Addressing these challenges requires a
multi-faceted approach involving legal reforms, social awareness campaigns, and
ongoing efforts to change cultural perceptions. As public discourse evolves and
societal attitudes shift, there is hope for progress toward greater acceptance and
recognition of same-sex marriages in India.