Lakshita Bhagat
December 4th, 2023
The recent judgement by the Supreme Court of India to deny equal marriage rights to same-sex couples has re-opened the debate about the role of the judiciary, alongside the legislature, in protecting the rights of minorities, and ensuring equal rights for all citizens. Lakshita Bhagat examines the judgement in light of rights of same-sex marriage in other countries, as well as earlier interventions by the judiciary to ensure equal rights for minorities in India.
On 17 October 2023, a five-judge bench of the Supreme Court of India headed by the Chief Justice D. Y. Chandrachud, unanimously declined to legalise same-sex marriage. The Court delivered its judgement on the Supriyo & Supriya Chakraborty & Anr vs Union of India (2023) case after hearing a batch of petitions seeking to bestow on same-sex couples the right to marry on par with heterosexual couples. This post analyses how same-sex marriages have been legalised around the world, and where India stands on this issue.
The Legislature has not been the only way to bring marriage equality. In recent years, the Judiciary has played a proactive role in many countries in granting marriage equality to queer couples. The Indian Supreme Court, known for walking the extra mile to protect rights of marginalised citizens, lost a significant opportunity in this judgement.
Is legislature the only way towards marriage equality?
The short answer is ‘No’! Currently, 39 countries/territories recognise same-sex marriages, the newest additions being Estonia and Nepal (Table 1). While the legislative route has been followed by most countries to allow same-sex marriages, in eight countries the judicial intervention resulted in marriage equality.
Table 1: Countries/Territories where Same-sex Marriage is Legal
Country Year Procedure Comments
1 The Netherlands 2001 Legislature Same-sex partnerships recognised in 1998
2 Belgium 2003 Legislature
3 Spain 2005 Legislature
4 Canada 2005 Legislature
5 South Africa 2006 Legislature
6 Norway 2009 Legislature Same-sex civil unions allowed in 1993
7 Sweden 2009 Legislature
8 Argentina 2010 Legislature First country in Latin America to permit same-sex marriage
9 Iceland 2010 Legislature
10 Portugal 2010 Legislature
11 Denmark 2012 Legislature First country in the world to acknowledge same-sex civil unions in 1989
12 Brazil 2013 Judiciary In 2011, the country’s top court allowed same-sex couples to enter ‘stable unions’ akin to heterosexual marriages
13 England/Wales 2013 Legislature
14 France 2013 Legislature
15 New Zealand 2013 Legislature First country in Asia-Pacific to permit same-sex marriage
16 Uruguay 2013 Legislature Civil unions allowed previously
17 Luxembourg 2014 Legislature
18 Scotland 2014 Legislature Civil unions allowed previously
19 Finland 2015 Legislature
20 Ireland 2015 Popular referendum First country to legalise gay marriage by popular vote
21 USA 2015 Judiciary Before this decision, marriage equality varied across states
22 Mexico 2015 Judiciary The court declared the ban on same-sex marriages unconstitutional, but it took several years for all states to comply; all the states legitimised same-sex marriages in 2022
23 Colombia 2016 Judiciary Civil unions allowed previously
24 Greenland 2016 Legislature
25 Australia 2017 Legislature Preceded by a postal survey that showed that the majority supported the idea
26 Malta 2017 Legislature
27 Germany 2017 Legislature
28 Austria 2019 Judiciary
29 Ecuador 2019 Judiciary
30 Taiwan 2019 Legislature Parliamentary approval came two years after the judiciary took an expansive view of marriage
31 Northern Ireland 2019 Legislature Legislation passed by UK Parliament during political vacuum in Northern Ireland
32 Costa Rica 2020 Judiciary Judiciary declared the ban on same-sex marriage unconstitutional in 2018; first Central American country to allow marriage parity
33 Chile 2021 Legislature Bill introduced in 2017; civil unions permitted since 2015
34 Switzerland 2022 Popular referendum Two-thirds majority voted in favour of legalisation
35 Slovenia 2022 Legislature Legalisation followed the decision of the country’s constitutional court that outlawed ban on same-sex marriages and adoption; first post-Socialist country to permit gay marriages
36 Cuba 2022 Popular referendum Two-thirds majority voted in favour of legalisation
37 Andorra 2023 Legislature Allowed same-sex marriage and adoption
38 Estonia 2023 Legislature Amended the 2016 Family Law Act, which recognised civil unions
39 Nepal 2023 Judiciary
Source: Compiled by Author.
After various failed attempts spanning two decades to bring a law on marriage equality between same-sex and different-sex partnerships, Brazil became the first country to legalise same-sex unions (and later, marriages) by judicial intervention in 2011 and 2013 respectively. These judicial decisions rest on a long history of legal change and jurisprudence, from outlawing colonial law criminalising gay sex immediately after their independence from Portugal in the 19th century to crafting a new legal notion of family based not just on biological ties but on affection and emotion (‘socio-affective family’) and then extending it to same-same families (‘homo-affective family’). However, the decisions legitimising same-sex families have been controversial and polarising in a country known for its rich religious and ethnic diversity.
Apart from Brazil, five other countries (USA, Colombia, Austria, Ecuador, and Costa Rica) have legalised same-sex marriage via judicial direction. Ireland, Switzerland and Cuba resorted to popular referendum to legalise same-sex marriages. While Mexico City was the first city across Latin America to legalise same-sex marriage through a legislative vote in 2009, the judicial ruling of 2015 paved the way for subsequent legalisation across all other states.
In countries where opinion on same-sex relationships is highly polarised and religiously opposed, stakeholders have often approached the judiciary for expansion and protection of their rights. For instance, the US Supreme Court, in their landmark ruling on Obergefell vs Hodges (2015), extended the right to marry to same-sex couples under the 14th Amendment of the US Constitution. The same year, Mexico’s top court struck down a ban on same-sex marriages, calling it discriminatory and violative of the country’s Constitution. Recently, Sri Lanka and Nepal’s top courts have paved the way for the decriminalisation of homosexuality.
The case of Nepal can serve as a notable example of how things might transpire when the country’s Judiciary rolls the ball into the Legislature’s court. So, in 2007, Nepal’s highest court instructed the government to form a committee to prepare a legal framework to facilitate non-heterosexual marriages. While the Committee submitted its report and recommended same-sex marriages in 2015, successive governments did not follow up with any legislation. Due to such political delays, the court allowed same-sex marriages from this year (2023). Importantly, Nepal and Sri Lanka are the only two countries that allow queer marriage in South Asia. India, despite its growing influence and aspirations in the region and globally, is being left behind by smaller countries that have taken a lead in collapsing the distinction between heterosexual and homosexual marriages.
Why did India’s Supreme Court lose this opportunity?
Putting the Supreme Court’s judgement into perspective reveals various significant insights. First, the Indian judiciary has, on earlier occasions, played an assertive role in filling legislative and policy vacuums to protect the rights of vulnerable people. The Vishaka Guidelines (Vishaka & Ors vs State of Rajasthan & Ors 1997) is one a shining example of judicial intervention, along with the Transgender Persons Protection Act (2019), and the declaration of ‘Triple Talaq’ as unconstitutional (2018), to name a few. By refusing to intervene and provide equal marital rights to the queer community, the Judiciary betrays its legacy of positive intervention and upholding the principle of equality.
Finally, it is important to note that family and marriage are not static institutions; they have varied over time and space, and evolved over centuries. It is through the state and legal framework that a specific type of marriage and family have come to be institutionalised, and ultimately legitimised. With changing circumstances, the understanding of marriage also requires revision. The Indian top court had an opportunity to push the narrow boundaries of definition of marriage and family. According to social historian Stephanie Coontz, ‘the institution of marriage has already been in a state of revolution for some time — and the same-sex-marriage movement is one step in a series of huge changes’. Everyone, regardless of their gender or sexual orientation, must have the right to form emotional relationships and choose their partner. If not full mile, the Indian Supreme Court lost an opportunity to walk at least half a mile by recognising civil unions for the same-sex couples.
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Banner image © Sneha Sivarajan, Delhi, 2022, Unsplash.
About the author
Lakshita Bhagat
Dr Lakshita Bhagat is Assistant Professor in Public Policy at Amity University, Noida, India. Her areas of research interest include women’s and gender studies, demography, family sociology and work-family studies.
Posted In: India
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