Same-Sex Marriage: The Court Must Not Follow the Doctrine of ‘Separate but Equal’

Can Constitutional equality be reduced to differential rights for different groups based on arbitrary classification and majoritarian social norms? This is the direction in which the same sex marriage rights case is headed in the Supreme Court of India which is going to pronounce the final judgment in the coming days. 

Constitutional equality was established by Chief Justice of India (CJI) D.Y. Chandrachud in the case of Navtej Singh Johar (2018) by emphasising that the LGBTQ+ community  has a constitutional right to equal citizenship in all its manifestations and state or social notions of heteronormativity cannot regulate constitutional liberties based on sexual orientation. In the same case, the Supreme Court outrightly rejected the notion that majority opinion should prevail over the right to dignity and liberty of the minority and underlined that sexual orientation is an intrinsic element of liberty, dignity, privacy, individual autonomy and equality. 

The government’s intransigent position in opposing the same sex marriage rights based on majoritarian social values, but accepting same sex relations, has led the apex court to look for a compromise in the form of some administrative solutions to queer l couples’ grievances. This contradicts the court’s earlier position of upholding constitutional morality over social morality in protecting a politically weaker group’s rights.

Separate but equal

The ignominious ‘Separate but Equal’ doctrine of the US Supreme Court in the Plessy Vs. Ferguson case (1896) validated the racial segregation laws and dismissed the contention that it violated Thirteenth and Fourteenth Amendment that abolished slavery and established equal protection of law in the US. 

The court justified this racially discriminatory interpretation by saying that all people are equal before the law in political and civil rights but such equality cannot override social inferiority based on racial difference. The case was related to state mandated racial segregation in interstate travel which had a ‘white only’ passenger car. It took more than 58 years in the Brown vs. Board of Education (1954) case for the US Supreme Court to overrule the ‘Separate but Equal’ doctrine. In this period, the state enacted various racially discriminatory laws. 

On similar lines, the Indian government and the Supreme Court are trying to establish the discriminatory ‘Separate but Equal’ doctrine by recognising constitutional equality and non-discrimination based on sexual orientation, but denying the constitutional right of marriage for sexual minorities. 

The CJI’s observation of incremental progress and three levels of reform at administrative, subordinate regulation and scope of law is a major compromise in weakening constitutional morality. The court’s observation that social institutions evolve over a period of time and the court acts as facilitator contradicts its earlier position that social morality cannot override constitutional morality. 

Also read: 53% of Adults in India Support Legalisation of Same-Sex Marriages, Finds Pew Research Center

The sexual minorities being a suspect classification group  that has been subjected to discrimination historically, it is the constitutional duty of the Supreme Court to uphold their rights and liberties. Application of marriage laws by arbitrarily classifying the constitutionally equal groups based on social morality and majoritarian heteronormative notions is a clear violation of constitutional morality. 

The solicitor general’s assurance – that the government could consider granting certain benefits associated with marriage to same-sex couples but without formal recognition – moves the debate away from a rights based approach by accepting whatever the government feels is good for the society and the minority community. This reflects the ideological antipathy of the current government towards same-sex couples and their rights that stems from conservative notions regarding marriage and its ‘divine’ aim of procreation.

Political powerlessness    

The government’s argument that the legislature should be the deciding authority in recognizing same-sex marriages doesn’t stand the test of constitutionalism due to the political powerlessness of sexual minorities in India. The aggregate policy preferences of this vulnerable group will hardly be heard in parliament where majoritarian social and cultural notions dominate in making collective decisions. 

The political powerlessness of the group makes them a suspect class where heightened judicial protection should be extended to shield them from majoritarian values and regulations. Complex statutory modifications with regard to the rights associated with marriage cannot be the cover for denying the constitutional rights for same sex couples. The constituted power of parliament cannot override the constitutional values to satisfy the majoritarian interest. 

Marriage is an important social and legal institution that is accompanied by a set of rights and liabilities and it is not possible to restrict the role of women as passive recipients of sex and agents of biological reproduction. Women’s movements renegotiated with their social, political and economic spaces to accommodate their notion of bodily autonomy and freedoms which led to a progressive transformation in laws and institutional mechanisms. 

Also read: ‘SC Must Walk the Full Mile’: What Petitioners Said in the Same-Sex Marriage Equality Rights Case

Similarly, communities and identities, which have hitherto been on the margins of discussions on sexuality, marriage and childbirth, would have reimagined their own social interactions and institutions they wish to inhere. At a time when the horizons of law and social ethics all over the world are broadening to accommodate inclusivity, plurality and difference, the courts must not invoke a restricted, limited and exclusionary notion of matrimony in following the logic of ‘Separate but Equal’. 

In this dialectic of society and idea, the Supreme Court has the important responsibility of reifying constitutional sensibility and ethos that encompasses every newly emerging social aspiration related to the rights of the people.

Transformative constitutionalism

The courts ought not to follow the social sensibilities and moralities; rather it needs to guide legislative action in the realisation of constitutional values and norms. The same Supreme Court has set a precedent in the Navtej Singh Johar case by emphasising upon the commitment to safeguard and protect the constitution by invoking the idea of transformative constitutionalism. 

Justice Bhatt observed in the same-sex marriage case that the Constitution itself is a tradition breaker. The Supreme Court’s acceptance and contentment with the cabinet secretary headed committee to find some administrative solutions to the grievances of the LGBTQ+ community and Justice Ravindra Bhatt’s observation–that some of the changes urged are not substantial, but sometimes beginning can be small and the struggle for equality should continue–has shown the weakened position of the court in upholding the constitutional rights of queer couples. 

Some states have already opposed the idea of legal recognition of same-sex marriages and many have requested time for expansive debate. The majoritarian opinion is going to decide the status of constitutional rights of same sex-couples recognised by the Supreme Court of India. 

Let the apology extended by Justice Indu Malhotra to sexual minorities for historical discrimination against the community in the Navtej Singh Johar case (2018) not repeat itself in the future for institutionalising the “Separate but Equal’ doctrine by denying them the right to marriage and only recognizing them as a constitutionally equal group.

Venkatanarayanan S. is Associate Professor and Head of the Department of Political Science and History, Christ University, Bengaluru.

Abhiruchi Ranjan is Assistant professor at the Department of Political Science and History, Christ University, Bengaluru.

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