“Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”

– Supreme Court of the United States, in Obergefell v Hodges

Even as we are flooded with images of jubilant crowds celebrating the decision of the US Supreme Court in Obergefell v Hodges declaring marriage equality a fundamental right, one cannot escape the dark realisation that here in the world’s largest constitutional democracy we are still struggling with the decriminalisation of non-heteronormative identities.

As activists, lawyers and constitutional scholars shape demands and fashion strategies towards realising the rights of Lesbian, Gay, Bisexual, Transgender, Queer persons in India, this judgment emphatically pronounces on certain important legal principles and at the same time raises important questions about the future of LGBTQ politics.

Evolving rights

Marriage equality signals a new phase in the evolution of LGBTQ rights, with the last decade witnessing considerable public debate on the question. At the time of the Obergefell petition, 37 states in the United States had already introduced marriage equality either through judicial or legislative intervention.

In 2013, the US Supreme Court declared section 3 of the Defence of Marriage Act, defining "spouse" as solely a partner in a heterosexual marriage, as unconstitutional. The petitioners in this case, however, hailed from states that were not as inclusive – Michigan, Kentucky, Ohio and Tennessee – and challenged their respective state laws.

Echoing arguments made in Lawrence v Texas, the case that struck down anti-sodomy laws in the US, the petitioners in Obergefell argued that the failure to recognise the marriages of same-sex couples violated their rights under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

The Due Process Clause, comparable to Article 21 in the Indian Constitution, safeguards the right to life and liberty. Indian courts have interpreted this right expansively, or as legal terminology puts it, as a "substantive due process" clause, reading in the right to dignity, privacy, health, a clean environment, education and a number of such rights essential to a life with dignity.

This dynamism in understanding the right to life, however, was the crux of the conflict amongst the US Supreme Court judges. Chief Justice Roberts and Justice Scalia in the respective dissenting opinions argue that the courts, being non-democratic institutions, are not positioned to decision questions of policy. Scalia harkens back to the American Revolution when he declares in outrage that “to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.” The fact that only 19% of Congresspersons are women, 10% African American and 1.6% gay seems to escape the poor chap. Justice Roberts makes the point just a little easier to grasp, “Just who do we think we are?”

Two arguments

The Indian Supreme Court asked a similar question when Justive Singvi in Koushal v. Naz concluded that “the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book”.

The US Supreme Court, in its majority judgment emphatically answers this point with two arguments.

First, the court points out that the entire purpose behind constitutionally guaranteed fundamental rights is that they are placed beyond the vicissitudes of the legislative process and the tyranny of the majority. Thus, under the constitutional scheme, any person whose fundamental rights are curtailed can directly invoke their right to constitutional protection before a court. Therefore, the court is not extending its power, but rather acting in it assigned role as a counter-majoritarian institution.

Second, the majority point out that the question of marriage equality has undergone considerable public debate with a substantial shift in opinion in favour of same sex marriage. This process of heightened public engagement reflects what scholar Bruce Ackerman famous described as a "transformative constitutional moment" – a unique period of political deliberation where ordinary citizens ascend from their passivity and overwhelmingly signal a change in constitutional values resulting in a shift in constitutional meaning without necessitating a formal amendment process.

Thus, judges merely recognise these shifts when they incorporate them into law. “With such widespread support, why not just wait for an actual amendment?” you might ask along with Chief Justice Roberts. Because amendments are cumbersome (even the present Bharatiya Janata Party government would testify to this) and time means harm to those whose rights are abridged, answers the majority.

Marriage as fundamental right

The Court then went on to hold that marriage as a fundamental right applies equally to same sex couples for four reasons.

First, the Due Process Clause guarantees the right to autonomy in one’s intimate life choices and marriage being one of the most important such choices, this right is violated when the same is withheld from same sex couples.

Second, the quality of a marital union is “unlike any other in its importance to the committed individuals” and hence fundamental. Quoting a previous decision the court observes, “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” And here we hit the first red flag. The "sacredness" of marriage has long been utilised to defend its oppressive practices. Most recently, Haribhai Parathibhai Chaudhary, minister of state for home, cited this very ‘fact’ to defend marital rape.

Third, the court’s next observation only cements the notion of social order it defends in recognising marriage equality. Withholding such rights to same sex couples denies stability and dignity to children brought up by “unmarried parents”, says the court.

And finally, the court argues that “marriage is a keystone to our social order,” and “It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.”

But what, pray are these transcendent purposes?

Scalia seems to have gotten one thing right when he states that the majority’s opinion is replete with “mystical aphorisms of the fortune cookie.”

Marriage as an institution has operated to safeguard and reproduce patriarchal structures in society. Even though the laws of coverture have been formally dissolved, women continue to be expected to remain subordinate to their husbands. This attitude is not merely enforced through social sanction – courts are replete with patriarchal attitudes ranging from holding that a woman who cannot make round chapattis is "insane" and directing rape victims to mediate (read marry) their rapists. These issues are intractable from a discussion on any notion of marriage "equality".

Equal protection

The court next considers the argument under the Equal Protection clause and observing that equality and liberty must be read in conjunction with each other, finds that the right of same sex couples to equal recognition of their unions is violated by those states denying marriage equality.

The Indian Supreme Court, on the other hand, held that the words “unnatural sex” do not invoke any distinct class of individuals so as to raise a question of discrimination.

The dissenting opinions similarly rubbish this analysis as the majority merely substituting its own opinion for a centuries old belief that marriage is qualitatively designed only for "opposite sex couples", thereby eviscerating any question of an existing right to equality.

The importance of marriage equality in ensuring the dignity and autonomy of LGBTQ persons cannot be disputed. However, in this process, we cannot afford to lose criticality in our assessment of marriage as an institution in itself.

While some have argued that same sex marriage could revolutionise the way we understand “duties and responsibilities” in marriage we must resist the temptation to simply apotheosise this institution at the altar of equality. Accompanying demands for marriage equality must also be demands for greater equality within marriage and for individuals who are unmarried and face marginalisation based on their marital status – such as single mothers, sex workers, women seeking abortion and so on.

Queer politics has been so contentious and discomfiting because of its ability to subvert oppressive social constructs like gender and sex and their accompanying institutions. To lose that edge would be to give up on the celebration of fluidity, difference and autonomy that the queer community holds so dear.