Same-sex marriage in India: Decoding the myths

The denial of right to marry for gender minorities demonstrates the gap between the orthodox concept of marriage between male and female and the marriage of transgenders.

- DR. DEBASREE DEBNATH

The current debate on same-sex marriage has overlooked two substantial assumptions; firstly, the proponents of same-sex marriage consider the civil unions as a satisfactory union and thus they seek to rectify the persisting injustice which consists of unwarranted legal discrimination on the basis of sex; and secondly, the opponents of same-sex marriage argues that marriage is a valuable institution, it signifies the deep and abiding commitment towards each other. The idea of 'ideal marriage' does not comprises of the normative or aspirational values which inculcate the positivist aspects in the contemporary era. Therefore, efforts can be made to include the Constitutional values, such as dignity, liberty and equality of an individual to incorporate the same-sex couple. The laws on same-sex marriage also have its own differences throughout the globe, in the year 2015 the US Supreme Court in Obergefell v. Hodges [576 U.S. 644 (2015)] legalized the same-sex marriage while interpreting the Fourteenth Amendment of the Constitution which provides equal protection for all citizens. But, the samesex couples still face challenges in obtaining the same recognition in the society in comparison with the heterosexual couples. The author Andrew Koppelman in the article titled "Interstate Recognition of Same-sex Marriages and Civil Unions: A Handbook for Judges" discussed elaborately the issues and challenges of same-sex couples. The author in this article mentioned four such challenges, such as, first - 'evasive marriages,' this includes those couples who travelled out of their home state to evade the state's prohibition of their marriage; however, they return to their home town once they solemnise their marriage. These marriages become invalid in their home state as the public law of the state do not permit for such marriages.