This article is written by Rahul Bajaj, a student of Nagpur University.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” – Justice Anthony Kennedy in Obergefell v. Hodges
While the world is celebrating the U.S. Supreme Court’s historic ruling in Obergefell v. Hodges which recognized the fundamental right of same-sex individuals to marry each other, there are many who argue that the decision has no significance or relevance outside the United States and that it would be foolhardy to expect this landmark judgment to suddenly effectuate a paradigmatic shift in the societal conception of homosexuality. This judgment, they argue, was crafted in response to a specific set of circumstances by a handful of liberal-minded judges who arrogated to themselves the task of reinterpreting and reconceptualising certain facets of the American constitution to provide same-sex couples the kind of legal security and protection that no other organ of the government has hitherto been able to provide. It is submitted that this argument not only fails to recognize or appreciate the incremental sociolegal changes in the American society that laid the groundwork for this historic ruling, but, by extension, also fails to take cognizance of the fundamental insight that this decision reveals about how law is shaped by, and in turn shapes, social phenomena. While it may be true that the decision does not have binding legal force in countries like India, it would be very disingenuous to ignore the decision’s potential to positively shape social conversations, change minds, shed light on the constant struggles and challenges faced by this oppressed minority and ultimately restructure societies in ways that no one could have predicted a few years ago.
In order to better appreciate the positive impact that this decision is likely to have, it would be instructive to examine the principal arguments for the ostracization and invisibilization of homosexuals. While there are some who still believe that homosexuality is a disease which must be cured; a vice which must be curbed, the number of people who subscribe to this absurd conceptualization of homosexuality has decreased steadily over the years, to the point that hardly any well-informed critics of pro-gay policies or movements make this argument today. The main argument that is commonly made by anti-gay activists is that homosexuals cannot be fully integrated into extant social institutions and societal structures because to do so would be to change the very meaning, definition and nature of those social institutions. In other words, even if they recognize that homosexuality is an innate trait and is a facet of one’s personality and not something that one voluntarily chooses, the challenges associated with restructuring existing institutions that give meaning and purpose to our lives are considered so insurmountable that they effectively keep homosexuals beyond the scope of their purview. Further, those who subscribe to this viewpoint often rely upon the way in which these heteronormative institutions have functioned since times immemorial to argue that it would be undesirable and infeasible to immediately change their core features at this late stage. Indeed, this argument finds eloquent expression in Chief Justice John Roberts’ dissent in Obergefell, where he states: “The Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”
The Court counters this argument at multiple levels. It explains how our understanding of social institutions and structures is informed by prevailing societal norms; how the abhorrent practices of racial segregation and coverture, which were once a central feature of American society, were later recognized as being incompatible and inconsistent with the values of a free democratic order predicated upon the principle of universal equality and how law must keep pace with changing needs and demands. In so doing, the Court arms pro-gay activists across the globe, especially in societies like India whose belief systems closely mirror those of the United States, with a robust precedent to substantiate the argument that a sizable portion of the population cannot be deprived of the opportunity to meaningfully participate in institutions of paramount importance only on the ground that they have historically not been a part of such institutions. Similarly, the decision offers thinkers an unparalleled opportunity to analyse and question the history of social institutions to better understand if such institutions have always been as guided by homophobic beliefs as most people would have us believe. Take, for example, Ishaan Tharoor’s analysis of Chief Justice Roberts’ assertion mentioned earlier, in which he comes to the conclusion that, contrary to what Roberts states, same-sex relations were, in fact, deeply embedded within the social fabric of the 4 tribes that Justice Roberts refers to.
Those who argue against judicial intervention for the vindication of the rights of homosexuals often state that unelected judges lack the legitimacy and popular support that is a sine qua non for bringing about such bold structural changes within the society. As a matter of fact, this is the principal ground upon which Justice Singhvi reversed the decision of the Delhi High Court in Naz Foundation v. NCT of Delhi, 160 (2009) DLT 277 and left it up to the legislature to decide, in its collective wisdom, whether Sec. 377 ought to be removed from the statute book. One finds this argument in Justice Scalia’s scathing dissent in Obergefell as well where he states: “to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
Justice Kennedy articulates the need for the Court to intervene for upholding the rights of gay people by relying on the due process clause of the 14th Amendment which has had a formative influence on Article 21 of the Indian Constitution and has profoundly shaped its content and structure. More specifically, he explains how, judicial restraint, instead of allowing this issue to be resolved through the democratic process, would, in fact, merely perpetuate the ostracization of homosexuals and would ensure that they continue to be deprived of the opportunity to participate in the dignity-bestowing institution of marriage which provides a stabilizing structure to every family and forms the foundation upon which the edifice of larger social units rests. It would be apposite at this juncture to remember that the evolution of Article 21 has closely mirrored that of the 14th Amendment and the expansive interpretation of Article 21 of the Indian Constitution that was adopted by the Indian Supreme Court in the case of Maneka Gandhi v. Union of India, AIR 1978 SC 597, to infuse within Article 21 a requirement of due process, was based on a number of formative decisions of the American Supreme Court. Therefore, the rejection of the judicial restraint argument by Justice Kennedy has a twofold significance. First, it clearly demonstrates how the failure of the judiciary to act decisively in such circumstances is not a virtue entailing no consequences, but in actuality merely provides legal legitimacy to actions that are discriminatory, unjust and inconsistent with constitutional values. Second, it brings into clear focus the need for courts across the globe to make important policy choices in cases of legislative inaction for the protection of historically marginalized minorities. Above all, it clearly shows how the law can be used as an emancipatory and equalizing force within the confines of widely accepted constitutional imperatives and interpretations. As Suirith Parthasarathi has eloquently argued in this piece, the decision brings into clear focus the need for the Indian Supreme Court to deeply reflect on its retrograde stance on this issue which has robbed a sizable portion of our population of the opportunity to freely exercise the liberties that our Constitution guarantees to every individual and has significantly undermined the strength of the Indian judiciary’s promise of structuring a legal regime that respects individual autonomy and dignity.
Finally, through his rhetorical flourishes, Justice Kennedy eloquently summarizes the centrality of the institution of marriage in the lives of most individuals and puts forth a set of cogent arguments for providing homosexuals the right to espouse its transcendental values. In so doing, he places marriage on a different footing than most other social institutions and helps emphasize the urgency of providing legal recognition to efforts aimed at securing marriage equality.
If there is one lesson that cuts across all social movements – from the struggle against racism in the United States to the anti-apartheid movement in South Africa; from the battle for the equality of the sexes to the movement against castism in India – it is this: Progress typically takes place in fits and starts; in short bursts and small steps; in changing public perceptions and societal conceptions. And then there comes a time when the movement reaches its crescendo – a time when, after long last, decisive electoral or legal victories overhaul and revamp existing institutions and pave the way for unprecedented integration and inclusion. I would argue that the decision in Obergefell v. Hodges was precisely that decisive moment in the fight for ending discrimination against homosexuals. To be sure, there is only so much that the stroke of a pen can achieve on its own, but it is not hard to predict the wider ramifications that this decision is likely to have when one analyzes it by situating it in its proper social context. By embracing the values of diversity and inclusion, this decision will go a long way in promoting unconstrained social conversations and creating secure free spaces for homosexuals to fully express themselves which, in the final analysis, are as important, if not more, than favourable legal codes.