By Bharti Mishra from Surendranath Law College, Kolkata
The world has seen several distinctions since humans happened. There are race distinctions, caste distinctions, creed distinction, color distinctions, etc. In a few Asian countries, there is even a distinction based on the same race and caste. The same has given way to distinguish between normal and LGBTQ (lesbians, gay, bisexuals transgender, queer). In many countries, they face the eradication of their rights and demolitions despite being a legal citizen.
The distinguishing nature of the human race has paved the way for seeing same-sex marriage as a taboo. Same-sex marriage which is also known as gay marriage. It is the marriage of two people who have the same sex. Unlike the normal custom of marriages, same-sex marriage is often visualized as a taboo topic. Although it has been legalized in many countries, the act is often condemned on various platforms and by various people and is often made fun of.
By the early 21st century many constituencies legalized same-sex marriages and laws were enacted to protect their rights and prosperity, while several constituencies consider this as taboo and enacted laws for prevention of any such act. This type of Global attention towards same-sex marriage made it an inevitable diverse topic and also established its importance as a social issue.
History of Same-Sex Marriages in the World
The world has witnessed same-sex marriages for ages and it’s not a new thing. Various types of same-sex relationships have been witnessed, which were informal, unsanctioned relationships to highly ritualized unions. The Globe has been home to various civilizations and kingdoms since ages and each of them has witnessed the same-sex marriages. The Greeks, the Egyptians, the Guptas, the Mauryas, the Hanas, the Early humans, and all that’s lived. In each part of the history here were people both in for and against same-sex marriage and the same is the scenario today.
Same-sex marriages were known to occur in Ancient Greece and Rome, ancient Mesopotamia, some regions of China, and at a certain time in the ancient European history.
The first century A.D witnessed same-sex marriage. Nero was the first, though there is no legal provision for this in the Roman Law, and it was banned in the Roman Empire in the fourth in a law of 342 A.D., the text is corrupt, “marries a woman” nubit feminam might be cubit infamen “goes to bed in a dishonorable manner with a man” as a condemnation of homosexual behavior between men.
The LGBTQ community
The LGBT movement started in the United States of America at the beginning of the 20th century and comprised and arbitrate the history of lesbians, gay, bisexuals, transgender. The motive of this movement was to influence these communities and stand up for their rights, progress, and support. By now the LGBT has evolved to LGBTQ+ and have included communities like queer and straight in them. Like all other rights, the LGBTQ+ group has also stood for the legalization of same-sex marriages.
LGBT communities have been subjected to laws or constitutional amendments which is backed by the 1996 Defence of Marriage Act, which defined marriage as a legal union solely between a man and a woman. This in turn gives a clear intuition that same-sex marriage is somehow of lesser value than is heterosexual marriage; this paves way for an underlying fear which is often that marriage equality will cause societal harm. Being cast in such a light strongly contributes to the phenomenon known as “minority stress,” which members of this community experience in their struggle for validation and acceptance in our heterosexist society.
Legalization of same-sex marriages
As of today i.e in 20th and 21st century, same-sex marriages have been largely legalized with a great variant in sixteen European countries like Austria, Belgium, Denmark, France, Finland, Germany, Iceland, Ireland, Luxembourg, Malta, Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom(England, Guernsey, Isle of Man, Jersey, Northern Ireland, Scotland, and Wales).
The following countries have legalized same-sex marriages in the respective years –
Argentina (2010), Australia (2017), Austria (2019), Belgium (2003), Brazil (2013), Canada (2005), Colombia (2016), Costa Rica (2020), Denmark (2012), Ecuador (2019), England/Wales (2013), Finland (2015), France (2013), Germany (2017), Greenland (2015), Iceland (2010), Ireland (2015), Luxembourg (2014), Malta (2017), The Netherlands (2000), New Zealand (2013), Northern Ireland (2019), Norway (2008), Portugal (2010), Scotland (2014), South Africa (2006), Spain (2005), Sweden (2009), Taiwan (2019), United States (2015), Uruguay (2013)
Canada became the fourth country in the World as well as the first country in America which legalized same-sex marriage. It was legalized throughout the nation and the Civil Marriage Act was enacted, which provided an equal gender marriage definition. Court decisions, starting in 2003, each already legalized same-sex marriage in eight out of ten provinces and one of three territories, comprising residents among whom about 90% were Canadian population. Before passage of the Act, more than 3,000 same-sex couples had already married in those areas. Most legal benefits commonly associated with marriage had been extended to cohabiting same-sex couples since 1999.
In the United States of America during the 19th century, there was recognition of the relationship of two women making a long-term commitment to each other and cohabitating, referred to at the time as a Boston Marriage; however, the general public at the time likely did not assume that sexual activities were part of the relationship.
Rev. Troy Perry performed the first public gay wedding in the United States in 1969, but it was not legally recognized, and in 1970, Metropolitan Community Church filed the first-ever lawsuit seeking legal recognition of same-sex marriages. The lawsuit was not successful. In March 2005, two Unitarian Universalist ministers Kay Greenleaf and Dawn Sangrey were charged with multiple counts of solemnizing a marriage without a license in the State of New York. The charges were the first brought against clergy for performing same-sex unions in North America, according to the Human Rights Campaign, a Washington, D.C.-based gay rights group.
Scenario in India
Section 377 of the IPC made same-sex marriages punishable by the law. However, on 6th September 2018, the Supreme Court of India decriminalized Section 377 making same-sex marriage a legal act. Arundhati Katju and Menaka Guruswamy, two of the lawyers that fought this legal battle against 377 in court have now put forth the plan of fighting for the recognition of same-sex marriages. Same-sex marriage is legal in 29 countries across the globe as of May 2020. While many see the legalization of same-sex marriages as the next obvious step, others from within the community view this move as exclusive. The Marriage Project, a legal framework aimed at making same-sex marriages constitutional rights has been underway ever since the decriminalization of section 377. According to Guruswamy, “gay or straight, Hindu or Muslim, upper caste or lower caste, male or female, all desire the same thing: a lasting long-term relationship ‘recognized by the society and law’”. This project aims to bring some systematic amends to legitimatize same-sex marriage legally, by getting long term relationships recognized by society and legalization the same by the constitution.
Although 377 was announced non-criminal, scenarios didn’t change for the queer community. Decriminalization isn’t the same as recognition, thus, even though the adults can enter non-heterosexual relationships with mutual agreement, they have a lot to bear socially. It is evident and witnessed that they aren’t accepted socially and many people refrain from building relationships with such people. They are often bullied on social media and condemned in various platforms. These relationships don’t stand at the workplace, in insurance claims, property rights, inheritance, and whatnot. In the words of the lawyers, “marriage is a bundle of rights“. All these accompanying benefits across sectors are intricately tied to blood relations – those that involve a parent, a child, or a spouse.
In the Indian context, this becomes even more rigid. Guruswamy elaborates in the video recorded at Oxford, “We are a country that sanctifies on kind of relationship – marriage and policing a relationship has been integral to our legal history.” In Indian society, marriage is the only legally and socially acceptable form of union between two people. So it is said if the queer community is to be assimilated, it has to be done within these folds. While the law doesn’t allow same-sex marriages, couples can opt for a ‘Civil Union’ under the Special Marriages Act 1954. Further, India being a collectivist culture is a kin-based society, holding the institutions of family and marriage very close.
In January 2020, a married gay couple from Thrissur moved to Kerala Hight court to get permissions for registering their marriage. Justice Anu Sivaraman of the Kerala High Court has agreed to examine their plea, and thus she issued notice to both the Central Government and the State Government. Before filling the petition, they approached the district administration to register their marriage. However, the officer arbitrarily stated that the law didn’t allow it and thus refused the petition.
Affects of legalizing same sex marriages
Although same sex marriage isn’t widely criminalized as of now, there are few countries who are still against it. This has led to a social diversity around the globe. Many people in countries where the act is legal believe that the same is not a good practice and thus it has created many communal rifts and movements around the globe. A study of data from national representative survey of US adults reported that mental health of LGBTQ representatives are more normal compared to the constituencies where same-sex marriage is illegal. Same-sex marriage has also resulted in revised health care and insurance policies around the world. Various emotional and political clashes between supporters and opponents is the biggest problem which has found place after same-sex marriage legalization. Many reports claimed that same-sex physical relationships may cause few health related problems. Since the two-way diversion of the globe towards this act, there has been numerous debates socially.
A criss-cross of views has bewildered in the matter of legalizing same-sex marriages. As already said, many are against the legalization while many stand in support of the same. However, in the long run, it can be seen that mostly all the countries are stepping up towards legalizing same-sex marriages. They have chosen to give way to love rather than treating them as unusual.
However, legalization doesn’t always give way to recognition. Society seems to have its own set of cons for condemning the act of same-sex marriage. It’s weird and ironic that more than ninety percent of those who are against this would be triumphant if weed would be legalized but feel low for the legalization of same-sex marriage.
We are an evolving race and we have learned to replace old customs with new for betterment. However, in this case, we seem to be unsure without any proper reason. We should give way to new thoughts and chain them with our journey forward. As the law is helping out these communities to grow and prosper, we should be the helping hand in the same. We all are created from the same earth and there should be no means of distinctions in one’s choice of domestic relations.
Although many of us are learning to accept these as a new normal and boosting their will, there is a lot of negativity in the society which is still prevailing. We should stop them from being carried forward.