This post is written by Anushree Tadge, a 3rd-year law student of ILS Law College, Pune, she tries to explain briefly how same-sex marriages have evolved, how the institution of marriage anciently embedded in religious texts have been affected and what is the legal status of the same in India as well as other countries.

Introduction

Quite what it’s literal meaning implies, the term ‘Same-sex marriage’ refers to the practice of marriage between two individuals of the same gender- two men or two women. Same-Sex marriages have been widely debated topic and they have been regulated not just through the law, but also religion, customs etc., responses have also ranged widely, right from celebrating the bond shared between two individuals, irrespective of gender to shaming and criminalizing such individuals.

The late 20th century witnessed a period where general public’s attitude towards homosexuality and laws regulating homosexual behaviours were liberalized to a great extent, like never before, particularly in countries of western Europe and the United States.

By the early 21st century, the issue of same-sex marriage actually came into light and on, several jurisdictions (local, national and international) same-sex marriages were legalised as well as sanctioned. The scope of such laws has been extremely wide and the same act of ‘marriage as an institution’ irrespective of gender has been impacted upon. People have praised as well as criticised it as a social issue in the early 21st century. Cultural diversity and the middle class of every country affected largely the regulations that affected such customs. Till date, same-sex intimacy is considered as an unseemly topic for discussion of any sort in any place.

Same-Sex Marriage And Religion

Over time historical and traditional cultures have emerged for wide acceptance of marriages that are ‘common and natural’. Almost all the world religions at some points in their histories have opposed the concept of same-sex marriage, homosexuality has been considered as against natural law and is even considered immoral; only the marriage of one man and a woman was considered valid. But by the early 21st century, religions like Judaism, Christianity, Hinduism, and Buddhism deliberated on this issue with multiple opinions. Orthodox segment of the all these religions opposed same-sex marriage, while the Reform, traditions allowed for it. Christian conservatives opposed the concept of same-sex marriages, while the United Church of Christ, took a positive stand and upheld Christian individual autonomy. Universal Fellowship of Metropolitan Community Churches fully accepted same-sex marriage. Hinduism has widely criticised the idea of homosexuality for the longest time. Buddhism being liberal from the very beginning, viewed all marriage irrespective of any criteria as a choice between the two individuals involved in the relationship.

A concern of the above-mentioned point has been beautifully expressed by Cathy Renna, the news media director for the Gay and Lesbian Alliance Against Defamation (GLAAD), working in New York City, She says that “My hope is that this reflects a deeper understanding of the distinction between the civil and religious components of marriage — and that while all [religious] denominations should have the freedom to choose whether or not to recognize same-sex relationships, we should all have access to all of the legal rights and protections mixed-gender couples do.”[i]

Same-Sex Marriage and its place in Legislations

Societies have shown very wide and mix responses regarding the views on morality, desirability, and administration along with legislations when it came to the topic of same-sex marriages. However, since this topic has ever been discussed, by the beginning of the early 21st century leaders of most of the countries, around the globe have opted for one of these three legal resolutions to controversial problems like homosexual marriages

  1. to ignore the very concept of same-sex partnerships,
  2.  to criminalize them and consider people who practice it as criminals,
  3. grant them a similar status like any other marriage.

Majorly societies have traditionally chosen to ignore the long-debated issue of same-sex marriage. This is practised on the most local till the apex level, the taboo of considering and even treating same-sex intimacy as a subject that is not suitable for discussion. Jurisdictions around the globe actively criminalize the concept of same-sex relationships, marriages and unions, many have also put forth contentions like homosexuality and lesbianism are mental disorders that are picked up by individuals. Same-sex desire is considered a psychiatric illness, and so the scope of same-sex intimacy and same-sex marriage was transferred from the ambit of civil regulations to that of public safety hence, in the domain of criminal law. Hence, making such relationships and identities to remain in the ‘closet’ and not on the open front. This also implies such activities to be hidden.

Same-sex marriage in India

Same-sex marriages are a step further to the acceptance of individuals by the society identifying themselves as gay or lesbians. In a country like India with groups like Brahmo Samaj, it is a very difficult task to radically change the mindset of people towards such concepts. Once the issues of homosexuality were not considered worthy of even discussing but now people are broadening their horizons of mindsets and with that, a need for legislating same-sex marriages is observed. Homosexuality was recently decriminalised and movies like Shubh Mangal Savdhan starring Ayushman Khurrana were popularly watched to show acceptance of natural identification of the person of being gay/lesbian. Although same-sex marriages are still not deliberated upon and people are being pro-active in that regard.

Same-sex marriage and the world

Same-sex marriages are considered legitimate in countries like Argentina, Australia, Belgium, Canada, Denmark, France, Germany, Iceland etc between the years mainly 2010 and 2017. Other than that legal status of same-sex marriages in countries like Italy, Chile, United Kingdom etc. is civil union while others like Czech Republic, Germany, Greece, Hungary and Switzerland observe it as a registered partnership.

Conclusion

We live in the world’s largest democracy and yet a freedom so important- the freedom to express one’s intimacy, sexual desire is considered not important and not valued enough. Restricting the allowance of same-sex marriages won’t benefit people at large but legalising it would pave way for the pursuit of happiness of so many homosexuals. Concepts like Human Rights are heavily linked with the issues of same-sex marriages. People are the most aware they have ever been about their rights and freedom. And on top of this, if we are living the lives in the 21st century and being in love with a same-sex person is regarded as a crime, are we actually living the land of free?


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