The ongoing litigation around ‘same sex marriage’ in India raises the need to understand the importance of marriage to same-sex couples. It is also essential to understand the jurisprudential reasoning behind opening up the institution of marriage and extending the bundle of marital rights, benefits, and privileges to same-sex couples.
Universally, LGBTQI+ rights movements have progressed through three stages: eliminating sodomy laws; advocating for equal rights, including marriage rights, and seeking to end discrimination. While the LGBTQI+ movement in the US has reached the third stage after the Supreme Court’s decision in Obergefell v. Hodges (2015), the movement in India remains in the second stage.
The Supreme Court of India decriminalised homosexuality through its judgement in the Navtej Johar v. UOI case in 2018. However, removing ‘homosexuality’ from the category of ‘perverse’ sexualities and accepting it as a core part of individual sexuality requires more than legal changes like reading down Section 377. Influencing social morality is a challenge that goes beyond court battles.
The key questions that arise are: how to respect and accept same-sex love within families and society, and who holds the responsibility to grant legitimacy to same-sex love?
Michel Foucault wrote in The Wisdom of Marriage that Greek philosophy and Christian morality conceive, evaluate, and regulate the good behaviour of individuals in the form of ‘sexual fidelity’. He wrote: “The moral code was to symmetrically impose the same obligation on the two spouses to engage in sexual relations only within marital union and the same duty to give these relations procreation as the privileged if not exclusive aim.” Likewise in India, marriage, backed by various institutions like religion, economy, politics, education, medicine, media, popular culture, law, and justice, is highly revered. Further, the stakeholders in these institutions, like religious leaders, lawmakers, bureaucrats, teachers, judges, and police, vigorously defend the institution of marriage and consider any change to be a dilution of the institution.
Unfortunately, marriage is often equated with heterosexuality, while homosexuality is often associated with promiscuity. While this perception needs to be challenged, how does one appeal to these power wielders and their anti-LGBTQI+ narratives? What holds when constitutional arguments of ‘equality’ and ‘equal protection’ fail?
‘Sexuality’ may be viewed as an interplay of biological, natural, and social forces that together contribute to the achievement of an individual’s personal autonomy. Personal autonomy is intrinsically valuable and may be achieved first by the absence of State coercion or paternalism like Section 377, and second by an individual having a range of acceptable options like the right to enter into marriage.
The State and society are duty-bound to provide sufficient options for citizens to choose from to uphold their personal autonomy. Marriage, as a valuable good, will enable same sex partners to achieve autonomy through their collective endeavour.
As a biological force, sexuality is grounded in every individual’s body and psyche, usually as ‘sex drive.’ In this sphere of personal autonomy, individuals seek to control their own destiny through voluntary decisions like choosing a friend, exploring pleasurable relations with partners, breaking up or concretizing the relationship through marriage, and choosing to procreate or not. Marriage provides legitimacy and dignity for individuals to satiate this biological force.
As a natural force, sexuality is grounded in the terminology of ‘universal’ and ‘normal’ which is ever-changing and actually derived from dominant practices present in a particular era. For example, arranged marriage was steadily replaced by love marriage in India. Newspaper matrimonial advertisements have declined. Online dating was scorned but is now widely accepted. Further, more youth are choosing to remain single and not marry.
The transformative effect of the Naz Foundation, NALSA, and Navtej Johar has been that LGBTQI+ identity has moved from being considered a malign variation to being a tolerated category. But with the right to marry, LGBTQI+ individuals would transition into a benign and accepted variation. That is the ultimate goal for the LGBTQI+ rights movement.
As a social force, sexuality is the product of the complex interaction of past cultural and social conventions that shape and condition us today. Across cultures and civilisations, marriage is the most exalted form of association among human beings; it validates and legitimises their love, mutual intimacy, and commitment. It has a civilising effect on individuals and acts as a barrier to frequent breakups. It provides collective goals for couples to strive towards instead of short-term flings. It also helps in integrating LGBTQI+ individuals within their families and homes.
(Prerna Dhoop is an assistant professor at the NLSIU, Bengaluru, and Vandana Dhoop is a Kolkata-based independent research consultant.)