The US Supreme Court’s decision in 2015 to ban same-sex marriage in 13 states sparked an issue that seemed to go far beyond the places of worship or courthouses where marriages are typically performed. A petition by Jim Obergefell and co-petitioner Robert Grune sought the right to describe Obergefell as a ‘surviving spouse’ when his partner of two decades died. Grune, the owner of the funeral home where Obergefell’s husband John Arthur was cremated, joined the petition because he wanted to truthfully describe the relationships of same-sex couples. Because the state of Ohio did not recognize same-sex marriages, Grune had to write ‘friend’ as opposed to ‘husband,'” he said.
Arthur and Obergefell’s marriage was consummated more than a decade ago, requiring a flight to the state of Maryland, where same-sex marriage was permitted, even though the couple lived less than a kilometer from a court-house in Cincinnati. Arthur was seriously ill at the time, so it took $13,000 to organize a medical jet to Maryland and back, which was funded by friends and relatives.
The Indian government’s opposition to the many petitions seeking to legalize same-sex marriages ignores the wider implications of loving someone, which go far beyond having sex with them. As an open letter released this week in Bengaluru by Namma Pride and the Coalition of Sex Workers and the Sexual Minorities Rights, the Supreme Court in its landmark had maintained Navtej Johar Vs Union of India The decision that decriminalizing homosexuality was only a starting point: “Constitutional principles that have led to decriminalization must be continually engaged in a rights discourse to ensure that same-sex May relationships find true fulfillment in every aspect of life. The law… must also take affirmative steps to secure equal protection.” Indeed, in that judgment, the apex court extended the recognition of these rights to include issues of marriage, inheritance, employment, health care and adoption. prepared a road map to comprehensively. After all, this is what equal treatment means.
The government’s contention that the right to equality enshrined in Article 14 does not violate the status quo as “same-sex relationships and heterosexual relationships are clearly distinct categories which cannot be treated equally” goes backwards. The US case won by Obergefell and Grune magnifies the fact that there are very practical reasons, including tragic end-of-life issues, why same-sex couples need to be married in the eyes of the law. One of the gay couples with two children who petitioned India’s top court highlighted that the current situation, where one of them has parental rights and the other does not, despite being the primary caregiver, is unjust. And both are impractical.
According to an open letter from an LGBTQI+ group in Bengaluru, the government’s second argument is that “the legislature reflects the collective wisdom of the nation … based on cultural ethos, social norms and other such factors that define acceptable human behavior” and therefore The sole right to “regulate or restrict human relations” is problematic because it undermines the primacy of the Constitution and the rule of law. Several state legislatures in recent years have mandated that interfaith couples must obtain permission from a magistrate to marry, after much uproar over “forced” conversions. Thus, it would be a dangerous precedent if the apex court accepted the Centre’s contention.
Furthermore, the religious belief that the legislature has the right to define who can be considered married also contradicts Indian diversity. I’m tired of political gossip, but even I’ve heard rumors of former political leaders who had non-traditional marital relationships because they loved women they weren’t married to. Far from being seen as an abdication of their responsibility to “regulate or prohibit” human relations, it spoke volumes of our civilization as a nation to allow such speculations about decades-old love affairs as their was not used as a political weapon against
Marriage matters because it is “the cornerstone of our social system,” as Justice Anthony Kennedy said in that landmark decision in the US. I was reminded of this in 2008 when writer Jan Morris, who began life as James and was a father to five children, and a contributor to the pages I edit, left me a high-spirited voicemail. In his eighties, Morris was finally able to celebrate his same-sex union with his wife, Elizabeth, with whom he continued to live after a sex-change operation in the 1970s.
I came out as a gay man in the late 1980s while living in New York, but stupidly delayed telling my parents in Kolkata. My flawed rationalization was one that is partly what the government is using now: that is, India’s ethos and traditions defining acceptable behavior were very different. It was a terrible decision, not least because I had unusually liberal parents who were even more protective of me when I told them. My father signed a public petition demanding the decriminalization of homosexuality and scoffed at the fallacy of Section 377, a colonial law that declared all carnal intercourse “against nature.” A year before my father died in 2009, PeppermintThe Weekend Edition reviewed a book of my travel essays. In a chapter on New York, I wrote that watching the city’s celebrations of LGBTQ identity helped me come to terms with being openly gay. This passage was quoted in its entirety in that review. When I checked my email that morning, I couldn’t help but acknowledge that my father had sent the review to everyone on his mailing list.
Rahul Jacob is a columnist for Mint and former foreign correspondent for the Financial Times.
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