SAME SEX MARRIAGE – POLITY
News: Ready
to play facilitator to push government to ease concerns of same-sex partners,
Supreme Court
What's in the news?
● The
Supreme Court said it is ready to play
the role of a “facilitator” to push the government into taking administrative
steps to bring down “barriers” and ease the day-to-day human concerns faced
by cohabiting same-sex partners in areas like joint banking, insurance and
admissions of children to schools without touching upon the issue of legal
recognition of same-sex marriage.
Same Sex Marriage:
● Same
sex marriage means marriage between two
people who belong to the same gender or sex.
● They
enter into a religious or a civil marriage ceremony.
● By
same sex marriage we mean marriage between gays (boy marrying a boy) and
lesbians (girl marrying a girl).
● Same
sex marriage legalization can help an individual to own up to his individuality
and can finally be themselves.
● It
also provides a brighter path for the
people of the LGBTQ+ community.
Same Sex Marriage in Global Context:
● The
Netherlands was the first country in 2001 to legalize same-sex marriage and
many other countries followed it.
● As
of now, around 32 countries have
legalized same-sex marriages. Many of these countries have recognized
same-sex civil unions.
Arguments in favor of Same Sex Marriage:
1. Equal Rights and Protection Under the Law:
● All
individuals, regardless of their sexual orientation, have the right to marry
and form a family. It will protect the implicit right of right to marry under article 21 of the constitution.
2. Court already decriminalized homosexuality:
● Recognition
of same sex marriage is in continuation of the previous SC judgment – Navtej Singh Johar judgment of 2018
(decriminalizing homosexuality) and the Puttaswamy judgment of 2017 (affirming
the Right to Privacy as a fundamental right).
3. Reducing Social stigma and Social Stability:
● Legalizing
same-sex marriage can help promote
social stability by increasing the number of legally recognized families
and reducing social stigmas.
4. Social well-being of Same sex couples:
● There
are scientific studies that prove
how same sex marriage benefits the two beings.
● With
the help of marriage, studies show that marriage enhances the financial,
psychological and physical well-being of the gay or lesbian couple.
● Children
who are brought up in such households are comparatively well brought up and are
more open minded and have the ability to take up views of other people
5. Reduce the suicide:
● It
is also observed that in countries like the US, after same sex marriage was
legalized, a study was done regarding suicide.
● The
count of suicide declined by a huge margin as the country legalized same sex
marriage.
● Many
lead researchers have stated that since the change in law on same sex marriage
was brought into action, it has given rise to the gay/lesbian couples and
teenagers a hope that there is a bright future for them in times ahead.
6. International scenario:
● Same-sex
marriage is legal in many countries around the world, and denying this right to
individuals in a democratic society goes against the global principles.
● In
133 countries homosexuality decriminalized, but only in 32 of them same-sex
marriage is legal.
7. Joint Property Rights:
● Marriage
generally creates a presumption of joint ownership of property accrued during
the marriage.
● The
presumption is the opposite for unmarried couples, where your property will be
presumed to be owned by whoever acquired it.
● Deciding
which presumption works best for you and your partner can be helpful in
deciding whether or not to get married.
8. Government benefits:
● The
government provides a lot of benefits exclusively to married couples.
● A
small sample of these benefits includes Social Security benefits, health care
benefits, nursing home care, and unpaid leave from your job to care for family
members.
9. Compliance with the judgment:
● SC
judgment of NALSA vs Union of India judgment (2014) - held that non-binary
individuals were protected under the Constitution and fundamental rights such
as equality, non-discrimination, life,
freedom, etc. also applied to these individuals.
Arguments against the same sex marriage:
1. Religious and Cultural Beliefs:
● Many
religious and cultural groups believe that marriage should only be between a
man and a woman.
● They
argue that changing the traditional
definition of marriage would go against the fundamental principles of their
beliefs and values.
2. Procreation:
● Some
people argue that the primary purpose of marriage is procreation, and that
same-sex couples cannot have biological children.
● Therefore,
they believe that same-sex marriage should not be allowed because it goes against the natural order of things.
3. Legal issues:
● There
are concerns that allowing same-sex marriage will create legal problems, such
as issues with inheritance, tax, and property rights.
● Some
people argue that it would be too difficult to change all the laws and
regulations to accommodate same-sex marriage.
4. Procedure establish by law:
● The
fundamental right under Article 21 is subject to the procedure established by
law and it cannot be expanded to include the fundamental right for same sex
marriage to be recognized under the laws which in fact mandate the contrary.
● Article
21 of the Constitution guarantees the right to life. This right cannot be taken
away except through a law which is substantively and procedurally fair, just
and reasonable.
5. Formalities:
● Marriage,
for all its pros and cons, requires that certain formalities be performed,
which may or may not be what you want.
● Unmarried
couples can get together, and break up, without all the formalities (and court
hearings) required for married couples
6. Children:
● There are concerns that children may be negatively affected by growing up in same-sex households.
7. Social Consequences:
● Some
people believe that legalizing same-sex marriage will have negative social
consequences, including the breakdown of the family and moral decay.
The
hallmark of a progressive nation is
reflected in its ability to accept diversity, include minorities, and integrate
the marginalized. Legalising same-sex marriage may pave the way for generations
to come and become a big step towards reclaiming the diverse, multicultural,
and inclusive civilization that India has always been. Government should strike a balance between individual rights and social
cohesion, taking into account the unique cultural and social contexts of India.