Same sex marriage – Supreme Court Judgement

Reason:

1. Marriage “as a social institution predates all rights, forms of political thought and laws,” and there is no unqualified right to marry that people can claim as a fundamental right.
2. Court can not issue a mandamus to parliament

1. Same sex couples do not have a ‘right to marry
2. Transgender persons have a right to marry under the current framework.
3. Same-sex couples have a right to choose their partners and cohabit with one another.

1. Queer couples do not have the right to adopt
2. Couples do not enjoy a right to a civil union
3. State legislatures can enact laws recognising and regulating same-sex marriages

Example:

1. Tamil Nadu amended the Hindu Marriage Act in 1968
2. States such as Andhra Pradesh, Assam, Gujarat, Madhya Pradesh and Rajasthan have opposed outright the legal recognition of same-sex marriages in the past.

      Marriage is treated as a fundamental right in USA in pursuit of happiness. 

• Marriage is a fundamental right under the Constitution.
• If the court recognised this as a fundamental right, then it would cast an obligation on the state to protect this right.

MINORITY VIEW:

• Marriage may not have attained the social and legal significance it currently has, if the state had not regulated it through law.
• Thus marriage is not fundamental in itself, it may have attained significance because of the benefits which are realised through regulation.

MAJORITY VIEW:

1. There is difference between what is fundamentally important to an individual and what is an enforceable fundamental right.
2. The fundamental importance of marriage remains that it is based on personal preference and confers social status.
3. Importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support.
4. Right to marry as a fundamental right  in pursuit of Happiness (as it appears in their Declaration of Independence) by free persons may not be sound.

      It enable marriage between inter-faith or inter-caste couples without them giving up their religious identity or resorting to conversion.

      The SMA governs a civil marriage.  In this system, the marriage is sanctioned by the state but not religion. 

• The SC has to interpret the word marriage as between “spouses” instead of “man and woman”.
• Alternatively, the petitioners had asked for striking down provisions of the SMA that are gender-restrictive.
• The court can recognise same-sex marriage by allowing a gender-neutral interpretation of the SMA.

MINORITY judgement:

• Court can not interfere in this matter to amend the Special Marriage Act, because legislation is a task of legislature.

MAJORITY VIEW:

• This is also similar to minority view.
• The court could not interpret the SMA to include same-sex couples since the objective of the legislation is not to include same-sex couples within the realm of marriage.
• The SMA is only intended to allow inter caste and inter religious marriages between heterosexual couples.

      According to Central Adoption Resource Authority rules, adoption is allowed only under the following conditions – 

1.   Only a couple who have been in at least two years of a stable marital relationship.

2.   Individually, queer persons can adopt as single people. 3. A single male is not eligible to adopt a girl child

4.   A single female is eligible to adopt a child of any gender.

Prohibiting unmarried couples to jointly adopt children, is discriminatory against queer couples who cannot legally marry.

MINORITY VIEW:

1. The legislation’s object is not to preclude unmarried couples from adopting a child.
2. The Union of India has not proved that precluding unmarried couples from adopting a child (even though the same people are eligible to adopt in their individual capacity) is in the child’s best interests”.
3. The exclusion of same-sex couples from adopting has the effect of “reinforcing the disadvantage already faced by the queer community.
4. Law cannot make an assumption on good and bad parenting based on the sexuality of individuals.

MAJORITY VIEW:

1. It agreed with the discriminatory aspects of preventing queer couples from adopting children. This will have the “most visible” discriminatory impact on queer couples.
2. A couple “tied together in marriage are not a ‘morally superior choice’, or per se make better parents”.
3. However, this change cannot be “achieved by the judicial pen”.
4. The fact that Parliament has made the legislative choice of including only ‘married’ couples for joint adoption (i.e.,where two parents are legally responsible), arises from the reality of all other laws wherein protections and entitlements flow from the institution of marriage.
5. Only the legislature and executive should take the call.

Before full marriage rights were recognised for same-sex couples by the US Supreme Court, several states had allowed civil unions.

• Civil unions are not an equal alternative to the legal and social institution of marriage, and “relegating non-heterosexual relationships to civil unions would send the queer community a message that their relationships were inferior to those of heterosexual couples.

MINORITY VIEW:

1.      The right to form intimate associations is within the fundamental right to freedom of speech and expression.

2.      For this right to have “real meaning”, the state must recognise “a bouquet of entitlements which flow from an abiding relationship of this kind”.

3.      A committee chaired by the Cabinet Secretary would be constituted to set out the rights which would be available to queer couples in unions.

MAJORITY VIEW:

The court cannot prescribe a “choice” of civil unions to queer couples.

The state should facilitate this choice for those who wish to exercise it, is an outcome that the community may agree upon.

1. Ensuring that the queer community is not discriminated against because of gender identity or sexual orientation
2. Sensitising public about queer identity
3. Establishing hotline numbers the queer community can access
4. Establishing safe houses in all districts to provide shelter to members facing violence
5. A ban on treatments that aim to change gender identity or sexual orientation
6. Inter-sex children are not forced to undergo operations
7. No person shall be forced to undergo any hormonal therapy
8. Ensure there is no discrimination in access to goods and services.
9. The Mental Healthcare Act must formulate modules to safeguard mental health of queer persons and implement programmes to reduce suicides