The Americans still have trouble allowing women free access to abortion, but they have at last embraced gay rights. The Indian Supreme Court luckily doesn’t have a problem with abortion, but it has impeded gay rights. Though its December 2013 judgement on Section 377 explicitly warned against allowing “foreign” developments to influence “Indian” thinking on the matter, it would do well to heed the verdict of the US Supreme Court. In a landmark judgement, the US Supreme Court legalised same-sex marriage throughout the country.

The US verdict recognises that legal rights should be equal for all, and as such, it is a terrific judgement. But, equally, one has to pay heed to what the verdict is about. The issue at hand is marriage.

The issue of marriage has long galvanised mainstream gay activism in the US even as it has divided people, both gay and straight, into pro- and anti-marriage camps. What is important to remember is that those who opposed making marriage a central tenet of the gay faith were not opposing the right to equality under law. We were opposed to the vehicle chosen for the demand of equality.

Why marriage? The legal and popular debate over gay marriage has always had two prongs, although only one of them is highlighted at a time depending on the circumstances. There is the question of legal discrimination: how can the law state that consensual sexual behaviour of any kind can be the basis for discrimination? And then there is the sentimental issue: why can’t love between gay people be recognised as love every bit as much as love between straight people?

Instrument of state control

It is this sentimental component – integral rather than marginal to the debate over gay marriage – that is problematic. Marriage is, and historically has been, a mode by which the State exercises social control over its citizens. In order to register a marriage, you need legal permission and recognition from the State. Furthermore, marriage laws – for instance, marriage of people of different religious communities in India – have long been used to control miscegenation or interbreeding of people considered to be of different racial types.

Marriage defines for us our civil rights – how much tax we pay if we are married or not, how much money we can inherit, etc. From desire to inheritance, marriage controls the socio-sexual life of citizens. It is, some say, the most effective instrument by which State control is exercised.

Where this becomes problematic is when the discourse around marriage allies itself with a discourse about the “truth” of one’s emotions. Marriage historically was instituted to deal with ownership of property (an arrangement in which women too were considered property). It was only in the late 18th century that the idea of “love” and the “companionate marriage” started to emerge as a way of making emotional what had started out as a purely logistical arrangement.

We have now reached a stage where that emotional aspect is being reinforced to such an extent as to paper over the economic base of marriage. And even this would not be such a problem if the emotional “truth” of marriage were not being used to enforce increasingly repressive regimes of sexual normativity.

Truth of our desires

“No longer may this liberty be denied,” Justice Anthony M Kennedy wrote in the majority decision of the US Supreme Court. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.” By announcing that marriage is a “keystone of our social order”, Justice Kennedy conflates the legal and the emotional by saying that the plaintiffs were seeking “equal dignity in the eyes of the law”.

If marriage equals money and property arrangements, and if it is nonetheless continually defined as having to do with love, then what is the fallout of this discourse?

Justice Kennedy tells us exactly what when he writes that this judgement will ensure that gay people are “not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions”.

A major achievement of gay marriage thus seems to be the normalisation of marital coupledom as the most sacred site of emotional fulfilment. In the name of greater inclusivity, this “expansion” of the institution of marriage manages to stigmatise people who would like to stay or simply are single, people in ménage à trois, people with multiple sexual partners, and a host of others.

If we celebrate marriage as the truth of our desires, then we ignore the fact that allowing gay marriage has simply shifted the site of sexual stigma elsewhere. And allowed a rather repressive institution to remain intact.