The US Supreme Court’s affirmation of the right to same-sex marriage comes as a mixed blessing for the queer community in the United States and elsewhere. Marriage is often an unequal space where women experience misery, harm and violence. The struggle to secure equal rights within the marital relationship, including the recognition of marital rape in India, remains an elusive one. Legally speaking, marriage in India continues to reinforce distinct and unequal roles for men and women – it has not been radically transformed despite feminist interventions. While there have been some significant changes in marriage and divorce laws, culturally and socially, marriage continues to be about property and power, preserving caste and religious hierarchies, sealing business deals, consolidating inheritance, producing heirs, and being a duty. The right to same sex marriage, even if it were an option for gays and lesbians in India, would clearly not be a panacea. Yet decriminalisation of homosexuality could discourage at least some of the more egregious abuses that occur within this arrangement.
Amongst these is the situation of women being married off to men who are gay often without their knowledge. This arrangement operates against a number of pernicious assumptions. The first is that marriage can ‘correct’ or normalise the behaviour of gay men; and the second is that women who ultimately come to know that their husbands are gay will nevertheless remain in emotionally dead relationships, simply because, well that’s what Indian women do. She will not dishonour the family through separation or divorce, especially if children are involved. The issue of homosexuality reinforces these assumptions. For some women stuck in marriages to gay men the situation becomes so intolerable as to lead to suicide as in the recent case of Priya Vedi in New Delhi. Her father-in-law asserted that as a ‘traditional Indian woman’, it was her responsibility to make the marriage work. Or in other instances, a woman seeks recourse to section 377 as in the case last year of a woman in Bangalore who, feeling distraught and betrayed, filmed her husband’s sexual encounters with men and then lodged a complaint with the police on the basis of this evidence.
The state’s role
The intervention of the state that dictates who we can or cannot marry, how we conduct ourselves in marriage and how we can exit from marriage exposes how marriage is neither “private” nor a given natural or normal space. It is naturalized and normalized in and through law. It is a space where competing ideologies and political battles have been and continue to be fought out. During the colonial encounter in the late 19th century, the struggle for autonomy and self-rule was partly fought out through legal battles over the definition of marriage, the age of consent to marry, and the issue of widow remarriage. Ultimately, self-rule for the country was won at the cost of less sovereignty and self-rule for women in the home, an inequality that was packaged and sold as ‘Indian cultural values.’ This slogan continues to be deployed to sustain some of the most grotesque features of and practices in marriage in the contemporary moment.
The law has a role to play in bringing about change starting first and foremost with the decriminalisation of sodomy that impacts disproportionately and negatively on gay men. It is the fear of prosecution and the stigma of criminality that produce a conspiracy of silence in which families and gay men are complicit. Marriage as a space of refuge from social condemnation as well as a minimal form of protection from criminal law is an option for some gay men, an option that also contributes to the exploitation of women within the structure of marriage.
Law as signifier
In the wake of the US Supreme Court ruling, the debate is not whether same sex marriage is a solution for homosexuals in terms of the recognition it confers or whether it offers the possibility of freedom and emancipation. Clearly it does not, given how it is an institution riven with inequality. The issue is that in the course of the struggle by sexual minorities for recognition, these institutional inequities and the deeply homophobic and intolerant attitudes of society that they embrace are laid bare. The law is an authoritative discourse and can encourage abuse and violence against sexual minorities and women by simply setting them up as different, and not entitled to the same rights as all other citizens (read straight men). So to engage with law on marriage is to expose the inequity and exclusiveness of this standard and the egregious hierarchy on which it is based – where rights are contingent not only on sexual status and sexual conduct, but also on caste, religion and race. Caste, religion, and sexual conduct all continue to determine and shape the contours of marriage, who counts and who does not. If legal exclusion from marriage diminishes one’s humanity on any of these grounds it is a maleficent law that must be changed. The right to marry should be available but not because it leads to greater freedom. To have a relationship sanctioned, regulated and disciplined by the state can hardly be called a victory. It is at best an equivocal outcome. The struggle for equality demands a broader aperture as well as a more critical engagement with the downsides of institutional recognition.
The US Supreme Court decision was handed down on the same day as the funerals of and eulogies for nine black people massacred in a church in Charleston by a white racist were taking place. Caste and religious discrimination continue to flourish in India too, where violence against these minorities, including women and queers, is a daily feature of life. These are stark reminders that civil rights ‘victories’ are indeterminate, and that in the midst of these victories social movements need to look into their complicity in producing the fault lines of exclusion, including racial and religious bigotry.
Ratna Kapur is a Professor of Law, Jindal Global Law School