lawyers in India

Recognition of Equality Marriage

Written by: Suvigya Saxena - IV year, National Law Institute University, Bhopal
Divorce Law
Legal Service
  • "Each individual's journey through life is unique. Some will make this journey alone, others in loving relationships – may be in marriage or other forms of commitment."

    Marriage is an eternal bond, the essence of family. In most parts of the world, the idea of marriage is confined strictly to union of two biologically different sexes, one man and one woman, the basic formula for propagating the species. But in some cultures, marriage has broader meanings. In India, it's not uncommon for children as young as 10 years old to wed. In Africa, polygamy is still the norm in many countries. After existence of child marriage, polygamy, mixed race marriage and other forms of unions now, despite opposition from religious groups and society, same-sex marriage is on the rise.

    ‘Equality Marriage’ is marriage between individuals who are of the same legal or biological sex. It is also called ‘marriage equality’ and just ‘marriage’ by the proponents, whereas ‘homosexual marriage’ by the opponents.

    It would be inaccurate to refer ‘Equality Marriage’ as ‘Gay marriage’ and ‘Homosexual marriage’, since non-homosexuals may seek a same-sex marriage. The term gay is variously used to refer to gay men and lesbians. Aside from the semantic issues concerning bisexuality, in the case of an intersex partner, an otherwise heterosexual marriage could be classified either legally or genetically as a same-sex marriage. It is different from "same-gender marriage" when gender and characteristic sex diverge. These terms are considered variously ambiguous, depending on the perception of society. Proponents of traditional marriage believe that such gender confusion is a product of modern society and that the traditional definition of marriage as being between one man and one woman is lucid, such conflation of same-sex and opposite-sex marriage being a threat to marriage itself.

    History of Same Sex Marriages

    Same sex unions as well as marriages were quite prevalent in early and medieval times. In Asia, same-sex romantic love or sexual desire has been recorded from ancient times in the east, often taking the form of same-sex unions, usually between men. However, same-sex attraction between women was not valued. In China, men would marry youths in elaborate ceremonies. In Europe, there has been a long history of same-sex unions in the western world. Same sex relationships were tolerated and even celebrated in many early western societies, like ancient Rome and Greece. In North America, among the Native American societies, it took the form of two-spirit-type relationships, in which some male members of the tribe, called to take on female gender with all its responsibilities. In Africa, among the Azande of the Congo, men would marry youths for whom they had to pay a price for the bride to the father. These marriages likewise were understood to be of a temporary nature.

    Current Status of Same-Sex Marriage

    The institution of marriage has been in a state of flux for centuries. It was only after the civil war that African and Americans were allowed to marry in all areas of the U.S. It was only after a great debate that mixed race couples could marry anywhere. It was only after colossal struggles that bigamy was prohibited. But, until recently, same-sex couples could not marry at several places in the world. This taboo union should be looked with a new perspective on an ancient institution.

    This final constraint was lifted during 2001, when Holland expanded its definition of marriage including both opposite-sex and same sex couples, Belgium following the same in 2003. Subsequently, Ontario, a province in Canada did the same in June 2003. By 2004, same-sex marriage had become available in most of the Canadian places. A lawsuit is expected in Alberta early in 2005 as well.

    In Asia, in 2003 the Republic of China as well as The National People's Congress, proposed legislation granting marriages to same-sex couples but failed. Within the governments of all the states of Asia there has been fierce debate on the issue of same-sex unions. The Communist Party of the Philippines conducted the country’s first same-sex marriage in 2005; however the government did not recognize it.

    In Europe, same-sex marriages currently are legally recognized nationwide only in the Netherlands, Belgium and Spain. Belgium extends all the rights of marriage except adoption to same-sex couples. Spain, on the other hand, has also extended adoption rights to same-sex couples.

    In Canada, court rulings in the provinces of Ontario, British Columbia, Quebec, Manitoba, New Brunswick, Nova Scotia, Saskatchewan, Newfoundland and Labrador, as well as the Yukon Territory, have found the prohibition of same-sex marriage to be unconstitutional, thus legalizing it in those jurisdictions. In July 2005 the Canadian Parliament passed the Civil Marriage Act defining same sex marriage nationwide, as "the lawful union of two persons to the exclusion of all others".

    In United States as of April 2005,only the state of Massachusetts recognizes same-sex marriages, while the states of Vermont, Maine, Hawaii, California, New Jersey, Connecticut, and the District of Columbia offer same-sex partners benefits similar to those of legally married couple. In the United States, the debate over whether or not to make same sex marriages legally binding remains one of the most polarizing and divisive political debates of the early 21st century. During 2004, 13 states amended their Constitutions to define marriage as being only between one man and one woman and 14 attempted to do so but failed.
    Australia currently recognizes same-sex partnerships in all but two of its states Victoria and South Australia. South Australia as of 2005 has legislation pending allowing the recognition of same-sex partnerships. Australia however prohibits same-sex couples from adopting children.

    Thus it can be observed that in the late 20th and early 21st centuries, there has been a growing movement in a number of countries to regard same sex marriages as a right, which should be extended to all citizens regardless of sexual orientation. It should therefore be tacit that restricting legal recognition to opposite-sex couples excludes same-sex couples from gaining legal access to benefits entailing a wide range of entitlements, including social security, health insurance, taxation, inheritance and other.

    At the religious front, some churches, such as the Unitarian Universalist Association, advocate marriage rights for gays and lesbians as well as straights. However, most major religions disapprove of same-sex marriages. In 2002, the Anglican Diocese in British Columbia began allowing its churches to bless same sex unions in marriage-like ceremonies. In response, Bishops from Africa, Asia and Latin America, representing more than one-third of Anglican Communion members worldwide, cut their relations with the diocese.

    Why still a Taboo Union-
    The pigeonhole thought is that same sex marriages are promiscuous, not lasting relationships, shallow and uncommitted. Many of the reasons offered for opposing these marriages are based on the assumption that gays and lesbians have a choice in which they can feel attracted to and if they choose they can become heterosexual. But the reality is that very few do have a choice in the same way as more than very few heterosexuals could choose which sex to find themselves attracted to.

    People believe that homosexuality is about nothing but sex, considering it to be merely a sexual perversion. The reality is that homosexuality is multidimensional, and is much more about love and affection than it is about sex. These relationships are based on mutual attraction, love and affection. Sex, in a committed relationship, is merely a means of expressing that love, just the same as it is for heterosexuals. People should feel that being gay is much more profound than simply a sexual relationship; being gay is part of that person's core identity. It is like being black in a society of whites, or a blonde European in a nation of black-haired Asians.

    Reasons being offered these days for opposing gay marriage are usually based on variations on a few well-established but groundless themes, some of them are given as follows-
    Marriage means an institution between one man and one woman. This is nothing but a simple, nebulous declaration, with no real moral pedestal behind itself, being hardly a compelling reason. It is more like an expression of prejudice than any kind of a real argument. It was society, which defined marriage in such terms and therefore it should be the one to amend it too, considering the needs of the contemporary society.

    Same-sex couples are not the capable to raise children. Another reason is children can rise in such an environment. Murderers, convicted felons of all sorts, even child molesters are all allowed to freely marry and procreate, and do so every day, with hardly a second thought, by these same critics. It needs to be noticed that several scientific studies have shown that the outcomes of the children raised in the homes of gay and lesbian couples are just as good as those of straight couples. Thus, this is merely a squabble.

    Same sex marriage is decadent. It connotes that the Right to Freedom of Religion implied the right to freedom from religion as well. Almost all religions have problems with recognizing same sex marriage. The question arises that in which religious book, be it Bible, Qoran or Bhagwad Gita, it is so mentioned. None of the sacred books or sects interprets marriage as the union of two biologically different sexes only.

    Procreation and continuation are the main purposes of marriage. Such an argument fails to persuade as the infertile couples are allowed to marry routinely. It should therefore be understood that marriage is all about love, sharing and commitment with procreation a purely secondary function.

    Same-sex marriage is a threat to the institution of marriage. It is believed that same sex marriage undermines the sanctity of marriage. This reason itself raises a question, how can marriage be threatened by allowing people to marry. By allowing such marriages the number of opposite-sex marriages that end up in the divorce courts can be reduced. When Britney Spears' 55-hour just-for-fun marriage can be meaningful than why not same sex marriages?

    marriage is traditionally a heterosexual institution. It is morally a weak argument, as slavery was also a traditional institution, based on traditions. But by the 19th century, it has been abolished. It is society, which makes traditions according to its expediencies; therefore these traditions should not dominate people’s will.

    Same-sex marriage is an untried social experiment. The fact is that a form of same sex marriage has been legal in Denmark since 1989. In Dutch it was recently made legal nationwide, including the word "marriage" to describe it. It should therefore be accepted that someone has already done the "experiment" and accept the results as positive.

    Same-sex marriage would lead down to a "slippery slope". It is believed that same sex marriage would result towards legalizing incest, bestial marriage, polygamy and all kinds of other horrible consequences. However, this opposition is a classic example of the reductio ad absurdum fallacy. There has been no clamor for it in the countries where forms of legalized gay marriage already exist. Moreover, the society is capable of distinguishing between better and worse proposals for reforming marriage.

    Right to marry is a "special" right for same sex couples. Since ninety percent of the population already have the right to marry which is informed, and would even consider a fundamental right, constitutionally protected right, therefore extending it to the remaining ten percent would not constitute a "special" right.

    Churches have a moral objection. It is believed that same sex marriages would force churches and priests to marry homosexual couples to which they morally object. They need to understand, if homosexuality is contrary to the will of God then why does it exists. It would actually expand the meaning of religion and “right to freedom of religion”.

    Society is not comfortable with it. The fact the people are not comfortable with the idea stems primarily from the fact that for many years, society has promoted the idea that a marriage between members of the same sex is ludicrous. It may offend the majority. But that is why constitutional government was established, to ensure that powerless minorities are still protected from the tyranny of the majority. Even Southern whites were once uncomfortable with allowing blacks to give equal rights. Half a century ago, those ideas were just as unthinkable as this.

    Gay sex is unnatural. This argument is often encoded in the very name of sodomy statutes, that is, "crime against nature". The reality backed by explanations of sociobiologists has proposed that it has evolutionary significance, which applies as much to humans as it does to other animal species.

    Gay people recruit straight people to become gay. The apprehension of recruitment is baseless because it is based on a false premise. It cannot be so as sexual orientation is inborn, and cannot be changed. So the notion that someone can be changed from straight to gay is just as unlikely.

    As it can be seen, the arguments against gay marriage do not hold up to close scrutiny. Neither the arguments traditionally raised nor the real feelings of the opponents make much sense when held up to the harsh light of reason and logic.

     We need to ponder our own choices and try to understand the choices of others. Love has many shapes and colors and is not finite. It can not be measured or defined in terms of sexual orientation.

    It should be realized that same sex marriage is far from being just a theoretical issue. It refers to matters of civil justice, which can have life-damaging and even life-threatening consequences. They have nothing to do with the ecclesiastical origins of marriage. They are matters that have become enshrined in state laws by legislation or court precedent over the years in many ways that exclude us from the rights that legally married couples enjoy and even consider their constitutional right.

    People may oppose it but people have always protested change. Marriage is an ever - changing institution and a basic human right as well as an individual personal choice. Marriage has not always been what it is today. It has meant different things at different times in different places. "If marriage means everything, it means absolutely nothing. It will mean nothing to same-sex as well as opposite-sex couples. The current decline of the institution of marriage will be accelerated.” (By Dr. James C. Dobson, Focus on the Family). Also hetero and homosexuality is a way of life. There is nothing anyone can do to make something like homosexuality no longer exist. People need to just accept it or turn a blind eye. Proponents of same-sex marriage point out that traditional concepts of marriage have already given way to liberalization in other areas, such as the availability of no-fault divorce and the elimination of anti-miscegenation laws.

    The proponents of same-sex marriages are not asking the government to legalize polygamy or incest or bestiality. They are asking the government to grant homosexual couples the same rights that have been granted to heterosexuals. They are not asking the government to change ‘marriage; they are asking the government to remember a group of people that were forgotten, a group of people that desperately need these rights.

    The statutory compilations and legislations of India as well as other states confirm, "rights, benefits, and privileges contingent on marital status." A denial of rights or benefits without substantive due process, would directly contradict the Constitution. Legislations need to protect them, as done in 2003 a case in United States titled Lawrence v. Texas, where the Supreme Court held that the right to private consensual sexual conduct was protected under the Fourteenth Amendment of the US Constitution. This ruling paved the way for subsequent decisions invalidating state laws prohibiting same-sex marriage.

    It seems that the interests of society are better served by legalizing homosexual marriages than by outlawing them. There is abundant literature showing that discrimination adversely affects the mental health of minority groups who experience irrational stigma. The failure to recognize homosexual relationships promotes discrimination against gays and lesbians, as well as the perception that they are "second-class citizens."

    Therefore, same sex marriages need to be legalized. States should decide individually, like they did with slavery. States decided whether or not they wanted to legalize or outlaw slavery. Eventually however, it was forever outlawed. It can happen with same sex marriages as well and may be then the beautiful quote- "Then hugs. And kisses. Love was being expressed. Love that finally had found a tiny crack from which to shine” becomes true. (By Rev. Ed Evans the pastor in Vancouver, commenting on same-sex marriage ceremonies he was performing in Multnomah County.)

    Massachusetts may be the first state to open its doors to gays, but it likely won't be the last. With sides so entrenched, "it's very difficult to change minds on this," but if present trends hold, gay-marriage opponents will eventually find themselves outnumbered in the courts, in statehouses and around the dinner table
    So let's get on with same sex marriages and grant it legal recognition. It is the time to legalize same sex marriage and get over of aversion to what is opposed for irrational reasons, based on ignorance, prejudice and faulty assumptions, and make ours a more just and honorable society with liberty and justice for all. Above all, only a woman can truly understand a woman just as only a man can share another man's sense of humor!

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