Same-Sex Marriage Litigation in Foreign Jurisdictions

The Indian Supreme Court is all set to hear a batch of petitions arguing for marriage equality for LGBTQ+ couples on April 18th, 2023.  If these petitions succeed, India will become only the second Asian country to recognize same-sex marriage. 

Many Indian judicial precedents already make a compelling case for the recognition of same-sex marriage. Sexual orientation and gender identity are now recognized as prohibited grounds of discrimination under Article 15; the right to privacy is a fundamental right and the right to marry is seen as a fundamental aspect of one’s personal autonomy. Yet, the legal path to recognizing same-sex marriage is far from clear. 

The Indian judiciary has a strong tendency to cite foreign cases and the Indian government’s submissions against same-sex marriage share many similarities with arguments brought forth in foreign jurisdictions. Moreover, in each of the three jurisdictions examined here (USA, Canada and South Africa) the judiciary has played a critical role in facilitating the recognition of same-sex marriage. 

Canada was one of the first countries to legalize same-sex marriage through legislation. However, many judgements paved the way for this recognition. Notable among them is the 2003 Ontario Court of Appeal’s decision in Halpern v Canada (AG) (‘Halpern’) which legalized same-sex marriage in Ontario. In South Africa, the Constitutional Court recognized this right in 2005 through its verdict in Minister of Home Affairs v. Fourie (‘Fourie’).  The U.S. Supreme Court recognized such a right in 2015  in Obergefell v. Hodges (‘Obergefell’). 

These judgements are likely to have persuasive value in the upcoming same-sex marriage litigation in India and are thus worth examining. Below, three common arguments against legalizing same-sex marriage and the way the courts responed to the same are discussed. These responses are likely to find resonance with the Supreme Court in the upcoming litigation. 

Marriage is historically understood as a heterosexual union

A key argument made by opponents of same-sex marriage is that marriage historically, has been between a biological men and  women. This is because procreation ‘naturally’ stems from a heterosexual union and is reflected in the law. The heterosexual nature of marriage is its very essence. Allowing same-sex couples to marry would fundamentally alter the very essence of marriage. 

Justice Kennedy (U.S. Supreme Court), who wrote the majority opinion in Obergefell (2015), reflected on this argument. While recognising the right to marriage for same-sex couples, he noted that the history of marriage has been one of ‘continuity and change’. Though marriage is an old socio-cultural institution, it has undergone transformation too. Justice Kennedy pointed to changes in the stature of women within marriages over time. Additionally, he cited Loving v Virginia, (1967) where bans on interracial marriage were struck down, to show that the Court has upheld personal liberty over arbitrary restrictions on marriage. Framing the history of marriage as one of ‘continuity and change’ is relevant for India too, where the parallels with inter-caste and inter-faith marriages are hard to ignore. Such marriages do not enjoy social sanction, yet the state has stepped in to legitimize these marriages anyway. Thus, arguing that marriage ought to be heterosexual merely because it has always been so is the kind of circular reasoning that courts are likely to strike down. 

 Marriage promotes social stability

Another major argument against the recognition of same-sex marriage is pegged on marriage being a unique type of relationship. In Halpern, it was argued that marriage qualified for a special treatment for three reasons.  First, it helped bring men and women together; second, it enabled procreation and third, it promoted companionship and close bonds within society- all of which are central to the maintenance of social order. The South African state too underscored the need to give special treatment to the institution of marriage in Minister of Home Affairs v. Fourie (2005).

The Indian government has made a similar argument at the Supreme Court. It claims that marriage and the heterosexual family form the key building block of society; thus, it is integral to social stability. Since procreation and the socialization of future generations happens within a marriage, there is a compelling state interest in preserving and protecting it by giving it a special status. Thus, while other relationships may be legal, not all relationships have to be given the same status in law that marriage enjoys. This is the stance of the Indian government.

Both the Canadian and the South African Court rejected this argument. The Constitutional Court in Fourie pointed out that if it accepted the state’s argument that procreation was the essence of marriage, what would happen to couples who could not or chose not to procreate? Procreation therefore could not be the essence of marriage.

In Halpern, the Ontario Court of Appeal agreed that marriage was key to promoting social stability. However, while promoting procreation was a laudable goal, according to the Court the state had not supplied any evidence to show how preventing same-sex couples from getting married furthered procreation. Rather, this belief is built on the stereotype that same-sex couples cannot parent as well as heterosexual couples. 

Moreover, as the US Supreme Court pointed out in Obergefell, the state’s goal of promoting procreation was negatively impacted by leaving same-sex couples out of its purview. This was because LGBTQ+ persons in the US were already allowed to adopt children as either single individuals or as a couple in several jurisdictions. However, preventing these couples from marrying meant that the security, stability and rights offered by marriage would be unavailable to children born to unmarried same-sex couples. This is also the situation in India in as much as LGBTQ+ persons can adopt as single individuals. However, their partner will be treated as a legal stranger to the child. 

Thus, there’s quite a lot that the Indian Supreme Court can draw from these judicial decisions. In particular,  by pushing the state towards providing a higher standard of evidence for its stated objectives. 

The Legislature should legalise same-sex marriage, not the judiciary

According to the Union government, legalising same-sex marriage is a task for the Parliament, not the judiciary. This argument was made in Obergefell too and marked the fork in the road where Judges disagreed and wrote dissenting opinions. 

The majority opinion in Obergefell was categorical in stating that individuals need not wait for legislative measures before approaching the courts. As long as their rights were infringed, courts could step in to provide relief. 

In South Africa and Canada however, same-sex marriage recognition was the result of a public dialogue between the judiciary and the legislature. In Fourie, the South African Constitutional Court found that the definition of marriage violated the equality and liberty of same-sex couples. However, the Court suspended its verdict for a year to give Parliament an opportunity to come up with a legislative framework that would reflect the values laid down in the Constitution and as interpreted in the judgement. If the legislature failed to enact an appropriate constitutional remedy within a year, the Court would go ahead and read the relevant provisions in a manner that favours same-sex couples.

 Such a remedy strikes a balance between the judiciary and the legislature and is respectful of the separation of powers. It also provides safeguards against undue stalling from the Legislature. Given that the Indian government has argued that changing who can marry legally is likely to have a ripple effect on a whole host of laws, it may be fair to adopt a similar remedy that makes space for dialogue between Parliament and the Supreme Court. This will ensure that democratic deliberations are given their due.

A perusal of foreign judgements thus gives a glimpse of the constitutional values, priorities, and arguments used by judges to strike down legislations that deny marriage equality. These may come in handy for the judges of the Indian Supreme Court as they sit to deliberate the scope of such rights in India. Whether it be evaluating the ways marriage has changed over time, holding the state up to a higher standard of evidence for its stated objectives, or crafting a balanced remedy that makes place for democratic deliberation, the Indian courts can draw from these foreign precedents to develop a robust rights jurisprudence.

(Diksha Sanyal is an Assistant Professor at Jindal Global Law School)