The Netherlands became the first country to legalise same-sex marriage in December 2000 when, by a three-to-one vote, the Dutch Parliament passed a landmark bill allowing the practice. In June, 2003 Belgium becomes the second Country in the World to legalise Same-Sex Marriages. The Canadian Parliament passed legislation making Same-Sex Marriage legal nationwide in 2005 making Canada the third country to legalise Same-Sex Marriages. The same year in Spain, Parliament passed a measure to legalise the Same-Sex Marriages after a large protest in Madrid. South Africa was the first in Africa to legalise Gay Marriages in 2006, one year after their highest Court decided heterosexual-only marriage policy violated the Constitution’s equal right guarantee. On June 5, 2010, Norway joined the list of countries legalising Same-Sex Marriages becoming the 6th country in the world granting Same-Sex couple to legally get married. Sweden was the seventh country in the World to legalize Same-Sex Marriage in 2009.
The 2009 Law allows gays and lesbians to marry in both religious and civil ceremonies, but it does not require clergy to officiate at such ceremonies. Portugal joined the list in the June of 2010, followed by Denmark when its legislature passed a bill in 2012.
Argentina was the first country in Latin America and the 10th country in the world to allow same-sex marriage nationwide. Consequently, Australia joined the list in 2017.
There are now a total of 29 countries around the world which recognises same-sex marriages but the list excludes India till this day.
Sexual orientation and gender identity are integral aspects of a human being. And every human being irrespective of their sexual orientation should be able to exercise their rights without being discriminated against.
India has come a long way since it became Independent. The legislature has passed a substantial amount of laws recognising Human Rights. Laws have been passed by the legislature without any stigma of prejudiced beliefs of the society, to ensure every citizen’s Right to Freedom and Liberty.
In a landmark judgment for the LGBTQ community, the Supreme Court lifted a colonial-era ban when it de-criminalised section 377 in 2018.
There shall be no scepticism in believing that even though India has come a long way in recognising rights of every community including the LGBTQ , there is still a long road ahead that is yet to be travelled.
Two years after homosexuality was decriminalized in India, the Government still holds the opinion of Same-Sex Marriages being against the Indian culture. Though India officially does not recognise Same-Sex Marriage, the Rights of same-sex couples who live together have been recognised by some State Courts. This year, the High Court in the Northern State of Uttarakhand ruled that Same-Sex couples are allowed to live together, even though they may not be entitled to marry.
The most common argument against the movement for the legalisation of Same-Sex Marriage is that, as opposed to work reservations or offering refuge to those rejected by their birth families, it does not top the list of priorities for the queer community.
India is a country with diverse, languages, traditions and beliefs. Indian culture is rich in morals, compassion and kindness. Denying marriage license to the homosexual couple for the supposed reason of it being against the Indian culture is not only preposterous but also incorrect. Family is the epitome of its social structure, denying any individual right to have a family is homogeneous to denying an individual of his/ her Fundamental Rights.
An Ongoing Battle Around The World
The United States v. Windsor | 570 U.S. 744 (2013)
In 1996, Congress passed the Defense of Marriage Act (or otherwise known as DOMA) in response to a movement going on at the time to legalize same-sex marriage. DOMA said that if a Same-Sex couple got married in one state, another state wouldn’t need to recognize it. DOMA also defined marriage for purposes of Federal Law as a union between one man and one woman.
In 2007, two New York women, Edith Windsor and Thea Spyer, decided to go to Ontario, Canada, and get married. They returned to New York, and New York recognized their marriage as legal. In 2009, Spyer died and left everything to Windsor. Windsor tried to claim estate tax exemption but was denied because of the language in DOMA defining marriage between a man and women.
Windsor sued in federal court and argued that the provision in DOMA excluding same-sex couples from the definition of marriage violated the Fifth Amendment.
During the litigation, the Obama administration decided that the DOMA provision was unconstitutional and directed the Justice Department not to defend it in Court anymore. However, even so, the President said that the executive branch would continue to enforce the Law until the Courts reach a final decision.
Windsor won in the trial and the Appellate Courts but the Federal Government refused to comply with the Judgment due to which Windsor did not get the refund for all the estate taxes she had paid.
The Federal Government appealed to the United States Supreme Court and the issues that were raised before the highest Court were:
1. Whether the Courts had the jurisdiction to hear the Case
2. Whether the DOMA provision was Constitutional
In a five-four split decision, the Court overturned the DOMA provision holding that the Court does have Jurisdiction and that the exclusion of Same-Sex couples from the definition of marriage violates the due process clause in the Fifth Amendment.
Obergefell v. Hodges, U.S. Supreme Court 2015
In response to some States legalizing Same-Sex Marriage, various States enacted laws and Constitutional Amendments defining marriage as between one man and one woman within the U. S. When James Obergefell’s (plaintiff) partner, John Arthur, became terminally ill, the pair decided to marry. The couple wed in Maryland, where Same-Sex Marriage was legal. However, after Arthur died, the couple's home state of Ohio declined to list Obergefell on the death certificate as the surviving spouse of Arthur. April DeBoer and Jayne Rowse (plaintiffs), a Same-Sex couple living in Michigan, adopted three children. due to a state ban on adoptions by Same-Sex couples, DeBoer and Rowse couldn't both be legal parents to their children. IpjeDeKoe and Thomas Kostura (plaintiffs) got married in the big apple before DeKoe was deployed to Afghanistan with the military reserve. They later moved to Tennessee, which refuses to acknowledge the union. These and similarly situated plaintiffs separately sued state officials (defendants) charged with enforcing state marriage laws in federal courts in Michigan, Kentucky, Ohio, and Tennessee, alleging violations of their rights under the Fourteenth Amendment. In each case, the district courts ruled for the plaintiffs, but the state officials appealed to the U.S. before the Sixth Circuit Court of Appeals. The case was consolidated and dismissed by the Court of Appeals, ruling that states were under no statutory requirement to licence or accept same-sex marriages. The plaintiffs petitioned the U.S. Supreme Court for certiorari, which was granted.
The European convention on human rights (ECHR) has influenced the equality agenda contributing towards the advancement of LGBTQ rights both across the united kingdom and within member states.
The ECHR’s decision within the case of Horst schalkand John Kopfwas a vital one in recognition that a stable Same Sex relationship can fall within the definition of family life a bit like an female couple.
Baehr v.Lewin, Hawaii Supreme Court
In 1991, in an exceedingly path breaking lawsuit with far reaching consequences Baehr v. Lewin, the Hawaii Supreme Court held that denying access to marriage to Same-Sex couples amounted to sex discrimination under the Hawaii Constitution’s Equal Protection Clause, which at trial, the Director of the Health would have the burden of demonstrating that the State had a compelling interest within the otherwise prohibited sex discrimination. This ruling created an unlimited shift within the cultural landscape, setting off a series of events that culminated within the US Supreme Court’s 2012 Windsor and 2015 Obergefell decisions recognizing marriage equality nationwide, and has had impacts worldwide within the LGBTQ+ rights movement.
Navin Kumar Jaggi