An ideal judgment on same-sex marriage

The US Supreme Court ruling that made same-sex marriage a right in all states has been welcomed around the world by gay people and liberal thinkers. In today’s world, where it is illegal to be gay in 75 countries (punishable by death in 10 countries) and Section 377 of the Indian Penal Code is alive in law, the US example is an inspiring step forward. The 13 American states that still had bans in force against same-sex marriage cannot now enforce them. The judgment came on a wafer-thin majority, the Chief Justice leading the way for the majority of five judges against four conservative ones, suggesting how sharp and close the debate still is.

“No union is more profound than marriage for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” the Chief Justice said. Those feminists who considered it fashionable to rail against marriage may find it somewhat curious that marriage has now become the vehicle for gay liberation. A deep reflection of the issue would, however, bring home even to the sceptics that those human beings who love each other cannot be excluded simply because two of them may be of the same sex. It would be illiberal to be judgmental of an issue that, according to the judgment, is as old as the Kalahari bushmen, the Han Chinese and the Aztecs.

Happy as we are with a progressive ruling, which frees up so many while promising to treat them as well as their families and children with dignity and equality, it is clear that a number of frontiers remain to be conquered. For instance, there is a huge bias against gays in matters of employment. Nor can gays easily find housing as tenants or, sometimes, even as owners. The equal protection promised by law might help take away some of that bias in the US and other liberal countries. It is even estimated that by allowing the right to marry, the state might have to bear an additional quarter of a million dollars per couple in social security benefits.

In other parts of the world it will still be an uphill task for the LGBTQ community. It is a serious matter that India still allows Section 377 of the IPC to be part of the statute. A celebrated judgment of the Delhi high court decriminalising gay sex should have been a watershed. On the contrary, the Supreme Court’s reasoning that the LGBTQ constituted a minuscule fraction of the population, and that Section 377 has been seldom used against them (less than 200 reported in 150 years), only served to nullify the gains in equality before law. Isn’t it time legal luminaries revisited the subject in the light of the judgment in the US