By Anaida Kuthiala, Army Institute of Law, Mohali.

A swift torrent of change rose when the U.S. Supreme Court in Obergefell v. Hodges on 26 June, 2015 ruled, by a 5-to-4 vote that the Constitution guarantees a right to same-sex  marriage in all 50 states. This decision is a culmination of decades of litigation and thus it came against the backdrop of the changing opinions of the masses which was portrayed as being now approving of the union of two persons – of whatever sexual orientation, thus expanding the array of marriage, which is the keystone of our social order.

It was not until 2004 that Massachusetts became the first state to legalize same sex marriages. This decision was not only a victory for the concerned couples, but also for the President of the United States of America, Barack Obama’s administration, which challenged the bans on same-sex marriages. The Justices in this writ petition (of Certiorari) embraced a vision of a “living constitution”; one that evolves with societal changes, as in the case of Loving v. Virginia in which the Supreme Court held that the right to marry is protected by the Constitution.

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The three reasons that marriage is fundamental under the constitution apply with equal force to same sex couples too. The first reason being, that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. Secondly, the right to marriage is fundamental because it supports a two-person union. Same sex couples have the same right as opposite sex couples, to enjoy intimate association. Finally, the nations’ traditions make it clear that marriage is the keystone of the national social order.  It was held that it is demeaning to lock same sex couples out of the central institution of the nations’ society, for they too may aspire to the uplifting purpose of marriage. In 2003, the SC in Lawrence v. Texas, decriminalized same sex intimacy and in 2013, the Federal Defence Marriage Act was also struck down in United States v. Windsor.

The Supreme Court, in this writ petition, held that the Fourteenth Amendment requires the State to licence a marriage between two people of the same sex and to recognise a marriage between two people of the same sex when their marriage was lawfully performed and licensed out of State. These fundamental rights protected by the Fourteenth Amendment’s due process clause extend to certain personal choices central to individual dignity and autonomy, including the intimate choices defining personal identity and beliefs. The right of same sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. Thus, the right to marry is a fundamental right inherent in an individual, and under the due process and equal protection clause of the Fourteenth Amendment, couples of the same sex may not be deprived of that right and the liberty to marry and live together. The promoters of same sex marriage deny the biological, physiological and psychological defences between a man and a woman.

While for some people, this judgement is considered to be a boon and a great advancement in recognizing the essence of equality, others regard it as a disastrous precedent that would echo down the years to come.  Marriage is not the creation of the state, rather it is said to have been established by God in a place known as “paradise” for our first parents, Adam and Eve. The almighty blessed our originals with the power to be fertile and multiply. The protestors against the judgement opine that calling something marriage does not make it a marriage. Since time immemorial, the institution of marriage has been a covenant between a man and a woman, which by its nature is focussed at the procreation and education of the children and the unity and well being of the spouses. Same sex marriages deny this specific primary purpose of marriage; the perpetuation of the human race. Further, it is advised by these protestors that such type of unions violate the natural law. Such unions always deny the child a father or a mother role model, and are said to ignore the child’s best interests.  One of the Justices of the Honourable Court in the case of Obergefell, Justice Thomas, stood by his dissent to the judgement as it being based on a simple distortion of the meaning of the rendering of freedom and liberty to the people. He opined that the Constitution of the United States predicates : One’s liberty, not to mention one’s dignity, was something to be shielded from- and not provided by- the State. This decision taken by the majority in the Supreme Court, disregards the most plausible understanding of the word liberty and under the guise of dignity, one should not be provided a freedom, which is derogatory to the sentiments and the morals of the society. Thus, the most feared of all consequences of this judgement is that by legalising same-sex marriages, the State becomes its official and active promoter, thus imposing its acceptance on the whole of the society. But, while the ruling only affects state laws, the religious institutions can still choose whether to marry same-sex couples or not, further increasing the complexity of the matter at hand.

It is rare that a decision made by the Supreme Court of one country gives a cause of cheer across the world. The U.S. Supreme Court sparked a momentous celebration among the LGBT community in the country. Indian law on the matter of homosexuality continues to retrograde. The Indian Supreme Court’s 2013 judgement upholding Section 377 of the Indian Penal Code, which seeks to punish this unnatural activity continues to hold the field. Homosexuality is still a crime in India, after the Apex Court overturned a High Court order decriminalising it. Marriage is a far way to go, whereas in England, whose colonial laws are still being followed in India, same-sex marriages became legal in 2013, for unions outside the church of England. A total of 21 countries across the world have decriminalised and made legal the union of two souls, without the discrimination on the basis of sex, thus establishing equality for all, in its true sense.

This judgement is highly criticised as under the Constitution, judges have the power to decide and confirm what the law is, not what the law should be; the essence of the concern being that the Court is not the Legislature and that the issue of legality of same-sex marriages should have been left free to be decided by the various states. But not taking an extremely stringent view, one may consider the majority’s decision in this case to be an act of will, and not a rigorous standing, which expressly disclaims judicial caution and omits the presence of humility, thus rendering an equal stand for all in the eyes of the law.

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