The Sexual Revolution Continues

Stephanie Coontz is a socialist feminist and an academic she has written a controversial essay in the New York Times, which I have reprinted below, reminding us that it was the Sexual Revolution of the Sixties that opened the doors to Same Sex Marriage.

The Social Origins of Private Life; A History of American Families 1600-1900, her excellent social history, I reviewed back in 1996 for Labour News. I used it as a critique of the right wing definitions of 'family' of the time. It is online at: Whose Family Values? The Clash Between Middle Class And Working Class Families .

As I wrote a decade ago:

For the past decade the battle cry of the right wing, in both religion and politics, has been; " return of Family values". Every Reform or Tory politician raises the banner of the Family as the solution to the social problems of their own creating. While the business agenda has been to make Alberta and Canada a lean and mean competitive economy modeled after the United States and wrapped in the rhetoric of laissez fair capitalism, free trade and survival of the fittest. The apologists for the ensuing unemployment, poverty and destruction of social programs hearken back to some golden age of the family as the solution to all our problems.

If the issue is declining education, the solution isn't better funding or ending cutbacks, the solution is the family, giving money to parents to fund their child's education. If John or Jane aren't doing well in school its because they aren't being taught traditional family values.

If there is crime and poverty its probably because of the insidious machinations of the left wing to steal children from their parents and put them into day care centers. If there is unemployment its probably because there are too many women in the workforce, or taking advantage of that insidious day care, and its all the fault of the government which has failed to support the Family.

Canada and Alberta would be a better place if we all returned to the industrious traditions of family values. If we had these values, say its proponents, those lazy bums would get off welfare, the other lazy bums would find jobs and quit draining UI and women would return to their proper place; the home. But whose family values are these that we are assailed with in the Hansard, on the Talk Back radio shows and in the letters and editorials of the newspapers? Are these the family values of the First Nations? The extended families of Canada's aboriginal peoples? Are these the family values of the farm families of immigrant Canadians from before the depression? Are these the family values of the post war era and the nuclear family of mom and pop, two point five kids, a dog, a cat and a two car garage? Are these the family values of the extended families of recent immigrants who come from non European non Christian backgrounds? Are these the family values of the single mother or the gay family?

No this family is the social creation of the Canadian and American middle class. It is a family whose values are thrift, self-help, charity not welfare, pick yourself up by your bootstraps and get the job done, mom in the kitchen, the pleasant patriarchal father and the well behaved children out of the Dick and Jane reader. This family is a myth, a useful political tool of the right wing to blame social problems on us as individuals rather than blaming the capitalist system.

The Origin of the Family, as Frederick Engels pointed out over 100 years ago, is in private property. To understand the different kinds of families, and their class nature it is important we understand their property relations. There are no neutral family values. All values and roles reflect the very material reality from which they originate and which they reproduce. The so called "traditional family values" being extolled today are the middle class values of Dickensian world of dog eat dog. These are not, and never have been, the values of the working class. Our values reflect the traditions of mutual aid and solidarity, values that are not found in the world of high finance or the back benches of the Klein Government.

And in this whole sanctity of marriage debate I come back to my same conclusions as I did then whether the issue is gay marriage, family values (sic), women’s role in society, daycare, etc. What I said back then, still applies today. This can be clearly seen in the vitriolic rantings of the right wing and its religious allies over Same Sex Marriage in Canada. And in the attack on women's rights that I wrote about here in Whose Family Values? Women and the Social Reproduction of Capitalism

Stephanie Coontz also comes back to her original arguments from her 1991 work and those she has published since. In her essay from the New York Times yesterday she reminds us of the forgotten revolution of the sixties, the sexual revolution and its importance in setting the conditions for Same Sex Marriage.

The family changed with the sexual revolution that Wilhelm Reich documented back in the 1920's and by fifty years ago it was in full blown assault on so called traditional family values. Jews were no longer discriminated against by the WASP country club set, Civil rights were being demanded by Afro Americans, and Playboy had just published its first edition.

But inter-racial/ inter-religious marriage was still taboo, whether it was between Jews and gentiles, or between Afro-Americans and whites. Ironically in post war America soldiers returned from the war with Japanese brides, which helped break down the inter-racial marriage taboo, as did the gentrification of the Jews. But it was the sexual and social revolution along with the civil rights movement of the Sixties that the conscious recognition of this taboo appeared in popular culture with the movie Guess Whose Coming to Dinner.

And the same arguments against Same Sex Marriage were used back then to deny inter-racial or inter- religious marriage. You wouldn't want your daughter to marry one applied to the Jewish Doctor, as well as the Black Stevedore and today it applies to the Divorced mother of two.

Common law relations were a sin, divorce was a sin and hard to get. The same arguments about the break down of the family that have surrounded the Same Sex Marriage debate occurred then too over the sin of divorce and the sin of common law relations. No Fault divorce was going to bring down the family and destroy society.

Birth control was a no-no, even after the discovery of the Pill. Always in initial caps, the Pill released women from having to merely have sex for reproduction. Controversial, for the decade of the sixties it was essential to women's freedom and to their pleasure as the feminists advocating birth control in the early 1920's like Emma Goldman and Margaret Sanger knew. The Pill began the modern sexual revolution.

And with it came the outing of the most noxious of the anti-sex secrets of the day; abortions. They were conducted in secret by back alley butchers, with women's sexual freedom came the demand of safe medically delivered abortions, this was a key demand in the new Sexual Revolution. And it remains a demand today as the forces of darkness and moral pulchritude attempt to force women back into the alleys.

And not much has changed with the Catholic Church teachings on these matters even today.

Sex education books were being published in the sixties which discussed 'petting and necking' and whether one should go 'all the way'. Definitely not before marriage, they advised. Sex education then WAS abstinenance education, and that was all it was.

Homosexuality was a deviance that could be cured these little pamphlets explained, and having a crush on your gym teacher was natural and did not mean you would grow up to be a homo.

As Coontz outlines in her essay it was the sexual revolution of the sixties that liberated us from all the old shit that dominated sexual relations. And not without controversy and the usual detractors from the right, who still to this day blame that revolution for all of society’s problems today.

And it was the 'hetero'-sexual revolution that did influence Women's Liberation and Gay Liberation back then, as witnessed even in the support these movements got from Playboy, much to the chagrin of later anti-sex feminists. But once the hetero-Sexual Revolution began it broadened the meanings given to sexuality and loving and living relationships between people. The Women’s Movement and the Gay Liberation Movement originated in the ideals of the sexual revolution of the sixties.

And it is this revolution that is still being fought against the forces of darkness that insist that their Family Values are sacred, traditional and the best for all of us.

---

July 5, 2005

The Heterosexual Revolution

© New York Times

By STEPHANIE COONTZ

Olympia, Wash.

THE last week has been tough for opponents of same-sex marriage. First Canadian and then Spanish legislators voted to legalize the practice, prompting American social conservatives to renew their call for a constitutional amendment banning such marriages here. James Dobson of the evangelical group Focus on the Family has warned that without that ban, marriage as we have known it for 5,000 years will be overturned.

My research on marriage and family life seldom leads me to agree with Dr. Dobson, much less to accuse him of understatement. But in this case, Dr. Dobson's warnings come 30 years too late. Traditional marriage, with its 5,000-year history, has already been upended. Gays and lesbians, however, didn't spearhead that revolution: heterosexuals did.

Heterosexuals were the upstarts who turned marriage into a voluntary love relationship rather than a mandatory economic and political institution. Heterosexuals were the ones who made procreation voluntary, so that some couples could choose childlessness, and who adopted assisted reproduction so that even couples who could not conceive could become parents. And heterosexuals subverted the long-standing rule that every marriage had to have a husband who played one role in the family and a wife who played a completely different one. Gays and lesbians simply looked at the revolution heterosexuals had wrought and noticed that with its new norms, marriage could work for them, too.

The first step down the road to gay and lesbian marriage took place 200 years ago, when Enlightenment thinkers raised the radical idea that parents and the state should not dictate who married whom, and when the American Revolution encouraged people to engage in "the pursuit of happiness," including marrying for love. Almost immediately, some thinkers, including Jeremy Bentham and the Marquis de Condorcet, began to argue that same-sex love should not be a crime.

Same-sex marriage, however, remained unimaginable because marriage had two traditional functions that were inapplicable to gays and lesbians. First, marriage allowed families to increase their household labor force by having children. Throughout much of history, upper-class men divorced their wives if their marriage did not produce children, while peasants often wouldn't marry until a premarital pregnancy confirmed the woman's fertility. But the advent of birth control in the 19th century permitted married couples to decide not to have children, while assisted reproduction in the 20th century allowed infertile couples to have them. This eroded the traditional argument that marriage must be between a man and a woman who were able to procreate.

In addition, traditional marriage imposed a strict division of labor by gender and mandated unequal power relations between men and women. "Husband and wife are one," said the law in both England and America, from early medieval days until the late 19th century, "and that one is the husband."

This law of "coverture" was supposed to reflect the command of God and the essential nature of humans. It stipulated that a wife could not enter into legal contracts or own property on her own. In 1863, a New York court warned that giving wives independent property rights would "sow the seeds of perpetual discord," potentially dooming marriage.

Even after coverture had lost its legal force, courts, legislators and the public still cleaved to the belief that marriage required husbands and wives to play totally different domestic roles. In 1958, the New York Court of Appeals rejected a challenge to the traditional legal view that wives (unlike husbands) couldn't sue for loss of the personal services, including housekeeping and the sexual attentions, of their spouses. The judges reasoned that only wives were expected to provide such personal services anyway.

As late as the 1970's, many American states retained "head and master" laws, giving the husband final say over where the family lived and other household decisions. According to the legal definition of marriage, the man was required to support the family, while the woman was obligated to keep house, nurture children, and provide sex. Not until the 1980's did most states criminalize marital rape. Prevailing opinion held that when a bride said, "I do," she was legally committed to say, "I will" for the rest of her married life.

I am old enough to remember the howls of protest with which some defenders of traditional marriage greeted the gradual dismantling of these traditions. At the time, I thought that the far-right opponents of marital equality were wrong to predict that this would lead to the unraveling of marriage. As it turned out, they had a point.

Giving married women an independent legal existence did not destroy heterosexual marriage. And allowing husbands and wives to construct their marriages around reciprocal duties and negotiated roles - where a wife can choose to be the main breadwinner and a husband can stay home with the children- was an immense boon to many couples. But these changes in the definition and practice of marriage opened the door for gay and lesbian couples to argue that they were now equally qualified to participate in it.

Marriage has been in a constant state of evolution since the dawn of the Stone Age. In the process it has become more flexible, but also more optional. Many people may not like the direction these changes have taken in recent years. But it is simply magical thinking to believe that by banning gay and lesbian marriage, we will turn back the clock.

Stephanie Coontz, the director of public education for the Council on Contemporary Families, is the author of "Marriage, a History: From Obedience to Intimacy, or How Love Conquered Marriage."

OPINION

Op-Ed: American history is a parade of horrors — and also heroes

John Brown, an evangelical militia leader who was hanged for trying to arm enslaved people for an uprising, is depicted in a detail from the mural “Tragic Prelude” by John Steuart Curry.
(Photo Researchers / Getty Images)

BY STEPHANIE COONTZ

AUG. 14, 2022 3 AM PT

As a historian in the age of the 1619 Project and the debates over “critical race theory,” I find many of the audiences I address fall into one of two camps. Some celebrate American exceptionalism and resist dwelling on horrors like slavery or settler colonialism. Others primarily see a centuries-long saga of white supremacism and oppression.

The shameful institution of slavery must loom large in any honest account of American history. But so should the struggle of both Black and white abolitionists to end that institution. Recognizing those who fought from the very beginning to extend the ideal of equality beyond white men is essential to understanding the American story. We shouldn’t be afraid of schoolchildren learning why our nation needed those heroic reformers.

And yet, since January, legislators in more than half the states have introduced bills forbidding schools from teaching that America’s founding documents had anything to do with defending slavery or from discussing any other “divisive concepts.” Typical is the wording of the Florida and South Dakota bills, which prohibit use of material that makes anyone “feel discomfort, guilt, anguish, or any other form of psychological distress” on account of “actions committed in the past by other members of the same race, color, sex, or national origin.”

This is a new twist on old efforts by political demagogues to stoke white racial anxieties. Over the past 100 years we have heard that “they” are coming to rape “our” wives and daughters, take “our” jobs, waste “our” tax money, steal “our” wallets, and murder us at random. Now, it appears, they’re coming to hurt our feelings!

Sojourner Truth was born into slavery and became an icon of equality, fighting for women’s rights as well as racial justice.
(National Portrait Gallery)

But although studying the history of slavery and settler colonialism ought to be disturbing, it doesn’t have to be demoralizing. We need to tell the full story of slavery because without doing so there is no way to understand the heroism of those who fought for equal rights. The only people who should feel “discomfort” in learning American history are individuals who refuse to build upon the efforts of those early visionaries. A case in point is the difference between today’s White evangelical leaders and their forbears, who actually did believe that Black Lives Matter.

In the era when our nation was founded, it truly was revolutionary to claim that all human beings had the right to be treated humanely and equally. For most of history the morality of slavery was never questioned. People resisted being enslaved, but they did not condemn the existence of slavery. And because people believed it was perfectly acceptable to kill or enslave those they conquered, they felt little need to claim their victims were inherently inferior. Subordination was the way of the world, with citizens subject to kings, wives to husbands and slaves to masters.

Profit, not racism, was the primary impetus for the expansion of the African slave trade and the establishment of an African labor force in the Americas. But racism gradually became the primary defense of slavery.

Slave owners responded to an emerging global market by combining the ruthlessly impersonal profit calculations of mass production with the cruel intimidation required to extract maximum effort on exhausting tasks while forestalling resistance by enslaved people, who vastly outnumbered overseers and owners.

But at the same time, the rise of capitalism and the overthrow of autocratic rulers challenged traditional justifications of social hierarchy. More and more people asserted that “the whole human race is born equal.” Some would go on, for the first time in history, to build a movement to abolish slavery, not merely to emancipate an individual or a specific group.

When American revolutionaries claimed an “inalienable” right to liberty without demanding an end to slavery, many people pointed out the contradiction. In 1774, an anonymous “Son of Africa” challenged the rebel colonists to “pull the beam out of thine own eyes.” Caesar Sarter, who was once enslaved, urged the revolutionaries to liberate all slaves as “the first step” toward freeing themselves.

Some white Americans rose to the challenge. Vermont abolished slavery in 1777, giving Black men the vote. In 1781, two Massachusetts slaves, Elizabeth Freeman and Quok Walker, sued their masters for freedom. Both managed to convince white jurists that slavery violated the state’s constitution, which stated that “all men are born free and equal.” Anti-slavery sentiment became widespread during and after the American Revolution.
But there was an ironic backlash. Once revolutionaries articulated mankind’s right to “life, liberty, and the pursuit of happiness,” those who supported — or just tolerated — the subjugation of other human beings were put on the defensive.

Very few people like to admit it when we put selfish interests ahead of moral convictions. Patrick Henry, the famous orator who supposedly once declared “Give me liberty, or give me death,” strikes me as an exception that reveals something important about the psychology that helped create American racism.

In 1773, a Quaker abolitionist sent Henry an antislavery pamphlet. When I first began reading Henry’s answer, I thought the pamphlet had done its trick. In line after line, he describes slavery as an “Abominable Practice … a Principle as repugnant to humanity as it is inconsistent with the Bible and destructive to Liberty.”

So I was shocked when Henry goes on to admit that he himself owns slaves and has no intention of freeing them, due to the “general inconvenience of living without them.” He labels his conduct “culpable,” saying “I will not, I cannot justify it.” At his death in 1799, he still owned 67 slaves, whom he bequeathed to his wife and sons.

Very few people can live with that level of cognitive dissonance. Racism offered one way to resolve it.

In the late 18th century, and especially in the first half of the 19th, a sustained campaign was launched to explain away the contradiction between the rhetoric of the Declaration of Independence and the reality of a Constitution that tolerated slavery. Black people, Indians and other non-European groups began to be described as less than fully human, incapable of exercising the responsibilities of liberty.

So even as abolitionism gained momentum, racist invective, which historian Van Gosse notes had been “episodic prior to the 1810s,” became far more common and considerably more vicious. In the South, free Black people faced increasing restrictions. Violent riots against them flared up in the North, reaching a high point in 1863, when demonstrators against the Civil War draft vented their fury on Black neighborhoods.

But to my mind these terrible trends make the resistance to such behavior by a courageous minority of Americans all the more inspiring. And resistance there was. Two recent books, “The Slave’s Cause” by Manisha Sinha and “Standard-Bearers of Equality” by Paul J. Polgar, describe how a “radical, interracial movement” consistently advocated for racial equality from the 18th century onward, gaining support even as racism hardened and slaveholders pushed their interests more aggressively.

Frederick Douglass inspired an interracial coalition for abolition and equality.
(Library of Congress)

Black social reformers like Frederick Douglass, Sojourner Truth and Sarah Parker Remond rallied huge followings of white and Black Americans in support of racial equality. By the 1840s, legislators in Massachusetts, Maine, Vermont and New Hampshire were routinely defying racially-exclusionary federal regulations. In the free states, interracial crowds spontaneously formed to rescue men and women caught up by slave catchers. The 1840s and 1850s saw interracial rescues in nearly every free state, with dramatically large turnouts in Chicago, Syracuse, Detroit and Buffalo. When a fugitive captured in Boston in 1854 was returned to slavery, 50,000 protesters lined the streets shouting “Shame! Shame!”

Then the war itself turned many skeptical white Northerners into strong supporters of abolition and equality. Union soldiers’ diaries and letters show this transformation occurring as young Northern men saw slavery up close, while fighting alongside Black comrades.

Legislators who worry that schoolchildren who learn an unexpurgated version of history will “denigrate” our founders are probably right to fear that youths who discover Patrick Henry’s choice of convenience over conscience will be unimpressed by his “liberty or death” oratory. But there are plenty of other heroes — Black, brown and white — to take his place. In fact, many young white people will find some groups of their ancestors more worthy of admiration than their modern-day counterparts.

During the first half of the 19th century, for example, many white evangelicals were ardent abolitionists who would have been horrified by the recent migration of prominent white evangelicals into the camp of white Christian nationalism.

Jonathan Blanchard, founder of Wheaton College, the pre-eminent Christian evangelical college in America, spent a year in Pennsylvania working as a full-time “agitator” for the American Anti-Slavery Society. He called slave-holding “a social sin” that could be addressed only by immediate abolition.

And then, of course, there was John Brown, the devout Reformed Evangelical whose militia battled slavery proponents in the Kansas territory and who led an attack on a federal armory in Virginia in 1859 in an attempt to arm slaves for an uprising. He was tried for insurrection and hanged. Yet his stand against slavery inspired later Union troops to march into battle singing “John Brown’s body lies a-mouldering in the grave, but his soul goes marching on.”

Evangelical abolitionists opposed other injustices as well. In 1838 several white Baptist and Methodist preachers not only protested the forced relocation of the Cherokees but also marched with them along the Trail of Tears. Others joined the Liberty Party, which opposed the war with Mexico and condemned the exploitation of Native Americans and Chinese, Mexican and Irish laborers. Many evangelicals were early supporters of female equality.

If our histories refuse to acknowledge the extent and brutality of the injustices that accompanied our nation’s founding, how can we or our children honor the idealism and courage of those who struggled to implement and enlarge the revolutionary demands for equal rights? And if we don’t understand the way people’s belief systems can change, how can we hope to build on the best parts of our heritage and rise above the worst? That’s why an unflinching account of American history can actually give us hope for the future.

Stephanie Coontz, a professor emerita of history at Evergreen State College in Washington, is the author of the forthcoming book “For Better AND Worse: The Problematic Past and Uncertain Future of Marriage.” This piece is adapted from the essay “Why Learning the History of Slavery in America Doesn’t Have to Be Depressing.”

SEE

 LA REVUE GAUCHE - Left Comment: Search results for Stephanie Coontz

Five Things Feminism Has Done For Me

I got tagged in the Five Things Feminism Has Done For Me meme by John Murney, thanks John. You can read here to find out what its about.

Also Today the Progressive bloggers will be doing a pro feminist blog burst...october is women's history month, a call to post or re-post "5 things feminism did for me" anytime on the 2nd

I won't blog about five things rather I will blog about feminists I consider historically important. Feminism has been essential in the development of my libertarian and pagan perspective.

I will blog about those who did not take State funding to fight for womens rights and against patriarchical society. In fact their autonomous activity showed that women had to organize despite the State, academia, capitalism, and Christianity. I am not here to support the Status of Women or the State. It is reformism pure and simple. That being said I donot support the attempts by the vile rightwhing to get rid of the Status of Women. This is political correctness from the right, attempting to impose their Christian fundamentalist values on secular society.

I think Status of Women is a liberal sop and it is irrelevant to historically authentic feminism and to women organizing for themselves as the proletariat.

Since it is womens history Month I thought I would post my selection of Greatest Feminists Not Supported By the State in historic waves of Feminism. And my waves fit historic periods. While mainstream Feminism says there are three waves of Feminism historically there are actually six. And those who claim we are in some sort of post-feminist period are deluded as are the post-modernists.

I look at when these women were active or published. When dealing with their ideas and influence it is interesting to note when they actually published. Margaret Mead for instance published her works on Samoa back in the late 1920's while her influence continues right through till today.

And yes I have included liberated women who embrace sexuality as a positive affirmation of themselves. "Yes, I am a revolutionist. All true artists are revolutionists." Isadora Duncan.

And in keeping with this meme I tag the following five:

Larry Gambone

CathiefromCanada

RustyIdols

Daveberta

DearKitty



Feminist Wave 1 1790-1899

1. Mary Wollstencroft

2. Sojourner Truth

3.Victoria Woodhull

4. Anne Besant

5. Lucy Parsons

6. Eleanor Marx

7. Mother Jones

8. Voltairine de Cleyre

9. Florence Farr

10. Helena Petrovna Blavatsky

11. Sophia: British Feminism in the Mid Eighteenth Century


Feminist Wave 2 1900-1950

1. Jane Ellen Harrison

2. Emma Goldman

3. Margaret Sanger

4. Alexandra Kollanti

5. Dr. Margret Murray

6. Sylvia Pankhurst

6. Mary Beard

7. Helen Keller

8. Mujeres Libres

9. Simone de Beauvoir

10. Margaret Mead

11. Dion Fortune

12. Isadora Duncan

13. Gypsy Rose Lee

14. Bettie Page

15. Elizabeth Gurley Flynn


Feminist Wave 3 1960-1970

1. Gloria Steinem

2. Betty Friedan

3. Evelyn Reed

4. Raya Dunesevkeya

5. Madalyn Murray O'Hair

6. Clara Fraser

7. Rachel Carson

8. Jayne Mansfield




Feminist Wave 4 1970-1980

1. Jane Godall

2. Shulamith Firestone

3. Selma James

4. Maria Della Costa

5. Kate Millet

6. Sheila Rowbotham

7. Angela Davis

8. Barbara Ehrenreich

9. Sharon Presley

10. Robin Morgan

11. Ti-Grace Atkinson

12. Betty Dodson

13. Jo Freeman

14. CWLU

15. Marge Piercy


Feminist Wave 5 1980-1999

1. Maria Gimbutas

2. Wendy McElory

3. Camilia Paglia

4. Stephanie Coontz

5. StarHawk

6. Annie Sprinkle

7. Nina Hartley

8. Dawn Passer


Feminist Wave 6- 2000-200?

1. Jennifer Baumgardner and Amy Richards

2. Kathy Pollitt



For more lists of women see:

Women in Science.

WOMEN WRITERS

Literary Resources -- Feminism and Women's Literature (Lynch)



For my blog articles see:

Feminism


Find blog posts, photos, events and more off-site about:
feminism, women, blog, writers, scientists, feminist, US, Canada, UK,

India: Is Legislature the Only Way to Legalise Same-sex Marriage?




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.

*

The views expressed here are those of the authors and do not represent the views of the ‘South Asia @ LSE’ blog, the LSE South Asia Centre or the London School of Economics and Political Science. Please click here for our Comments Policy.

This blogpost may not be reposted by anyone without prior written consent of LSE South Asia Centre; please e-mail southasia@lse.ac.uk for permission.

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