The Supreme Court of India will soon adjudicate a historically significant decision related to the legalisation of same-sex marriages.
The framework of constitutional morality and the idea of a transformative constitution, which was emphasised by the Supreme Court in the 2018 Navtej Singh Johar case, was momentous in protecting the dignity and autonomy of individuals over societal restrictions and traditional notions based on social morality.
However, the Government of India, through an affidavit, opposed the legalisation of same-sex marriages in India by submitting that “the legislative intent of Indian statutory and personal law refers only to marriage between biological men and women and any interference in it would cause havoc to personal laws and accepted societal values”.
No public policy decisions of any state can be decided on the grounds of myth or cultural norms. Such decisions must be based on empirical and constitutional norms alone. The government’s heteronormative framework considers sexual relations as a utilitarian activity leading to sexual reproduction and any nonconformity is labelled as immoral or against the existing societal values. This understanding not only denies constitutional rights to a group of people who have historically been discriminated against, but also reinforces animosity against them by othering them based on cultural norms.
Examples from the US
The emerging legal doctrine of animus, which gave impetus to the US Supreme Court in legalising same-sex marriages, connotes subjective dislike in the actions of government, which is perilous to constitutional rights and benefits.
It follows from the legacy of “faction” and “class legislation”, which was intended to benefit a particular group and deny rights to others. In the Department of Agriculture vs Moreno case of 1973, which can be considered the beginning of the use of the animus doctrine, the US Supreme Court said:
“If the constitutional conception of ‘equal protection of laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate government interest.”
This case was related to the denial of food stamps to hippie-style family households.
In the 1985 City of Cleburne vs Cleburne Living Center case, the court declared that a government’s action is more susceptible to animus if a classified group, which is targeted based on its classification, has undergone historical discrimination based on immutable traits and continues to suffer from lack of political power.
In the 1996 Romer vs Evans case, the court noted that all legitimate classification must be justified by the legitimate interest of the state and the lack of it in this case showed that the state action was motivated by illegitimate interest or animus. While determining the nature of a classification, two factors are to be considered. These are: first, the invidiousness (or unfair discrimination) of the classification, and second, the nature of the rights at stake due to this classification. The invidiousness depends on the history of discrimination and the group’s lack of political power or the government’s inability to find a solution through political institutions and its processes.
In the landmark 2013 case of United States vs Windsor, the Supreme Court struck down section 3 of the Defense of Marriage Act, which defined marriage for all federal purposes as a legal union between one man and one woman as husband and wife. Justice Anthony Kennedy observed that since many states in the US recognise same-sex marriages, the only motive for the federal government to oppose it could be animus against homosexuals. The court further observed that it should look into whether animus is present or not in those cases where the law is motivated by the discrimination of an unusual character and the desire to harm a politically unpopular group.
Finally, in the 2015 Obergefell vs Hodges case, the US Supreme Court upheld the right of same-sex couples to marry. Justice Anthony Kennedy observed that marriage is a fundamental due process right, which is a crucial aspect of personal autonomy and a keystone of a nation’s social order. Same-sex couples are also intended to fulfil the above objectives. In the judgment, he honoured the religious and philosophical basis of opposition to same-sex marriages, but stated that when such personal opposition becomes enacted law and public policy, it institutionalises the exclusion to demean and stigmatise the group, which is prohibited by the constitution. Thus, animus violates the equal protection clause and restricts the intimate choices that define personal identity and belief, which are central to individual dignity.
The Indian context
Articles 14 and 15 of the Indian constitution establish the equality clause, affirming that the state shall not deny equality before the law and the state shall not discriminate against any citizen on grounds of religion, race, caste, sex, and place of birth.
In the 2014 National Legal Services Authority vs Union of India case, the Supreme Court of India legally recognised the transgender community and declared that members of the community are eligible for the right to equality (Article 14) and the right to non-discrimination (Article 15). Justice Indu Malhotra in the Navtej Singh Johar case interpreted the word “sex” under Article 15 as including the concept of sexual orientation. The judgment highlighted that neither the state nor the societal notions of heteronormativity restrict or regulate constitutional liberties based on the sexual orientation of an individual.
In the same case, Justice D.Y. Chandrachud, now the Chief Justice of India but then a judge of the Supreme Court, elaborated that the right to love includes the right to find a partner to find fulfilment in a same-sex relationship, which is essential to a society that believes in freedom under the constitutional order based on rights. Further, he emphasised that the right that makes us human is the right to love and to criminalise it is profoundly cruel and inhuman.
The Indian government’s opposition to same-sex marriages is not based on a legitimate classification towards fulfilling a legitimate interest of the state. The government, which is keen to bring in a Uniform Civil Code, quotes complexities in the same personal laws to oppose the legal recognition of same-sex marriages. Since transgender and homosexual identities are already protected by constitutional norms, the government’s opposition to giving them legal recognition and the benefits associated with recognition shows its subjective dislike towards them based on cultural notions.
The historical discrimination suffered by same-sex couples and their lack of political power to bring in legislative reforms make them depend on the judiciary for legal recognition. The state’s acceptance of homosexual relationships and opposition to the legal recognition of same-sex marriages on the grounds of cultural notions reeks of subjective dislike or animus towards homosexuals.
As underscored by Justice Chandrachud in the Navtej Singh Johar case, in denying the constitutionally recognised rights of homosexuals in India, social morality or norms cannot override constitutional morality. The hearing on the subject of same-sex marriages on April 18 is thus a historical opportunity for the Supreme Court to restore justice, equality and dignity to a historically discriminated community and establish the rule of law in India.
Venkatanarayanan S. is an associate professor and head of the Department of Political Science and History at Christ (Deemed to be University), Bengaluru.