Why India Should Legalize Same-Sex Marriage

Same-sex marriages refer to marriages between two individuals of the same gender. In India, same-sex marriages are not currently legal, although there are ongoing efforts to recognize and legalize them.

By Deepanshu Vasal, 21 Oct 2023

Indian culture and civilization are among the oldest on our planet. Over the centuries, we have evolved, incorporating a wealth of beautifully diverse elements, including a wide array of dances, music, cuisine, clothing, and a way of life that embraces people from diverse ethnic and cultural backgrounds. India is also the birthplace of Hinduism, among other religions, known for its inclusive nature. In texts like the Gita, we find wisdom that encourages focusing on effort rather than outcomes, rooted in rational thought. Similarly, in the Ramayana, Lord Rama personifies the highest moral standards, cherishing honesty and integrity above all else, earning him the title of “Maryada Purshottam.” The Mahabharata introduces us to characters like Acharya Dron and Bheeshma Pitamah, who uphold the values of their words and the purity and integrity of their characters. These principles have been woven into India’s cultural fabric for more than 4,000 years.

The principles of rationality and truth are not unique to Indian culture but resonate across the world. Whether it’s Aristotle’s axiom that “A is A” or the Renaissance’s embrace of rationality, including concepts like freedom of speech, these ideas have found their way into the foundations of many constitutions. The Indian Constitution, among others, inherits and champions these principles, emphasizing the importance of truth and consistency, not only in one’s relationship with the world but also within oneself. One can and has to use the same principle to adjudicate on the idea of same sex marriage.

Recognition of Same-Sex Attraction

Same-sex attraction in human beings is a phenomenon that has been recognized throughout human history and has even been observed among birds and animals. Instances of such behaviour can be found in ancient Indian texts, Hindu mythology, and the carvings at the Khajuraho temple. Same-sex relationships are not solely characterized by sexual attraction but also involve romantic connections, much like heterosexual couples. Lesbians and gays share the same human need to form emotional bonds, seek companionship, build families, and express their love through intimate relationships, just as heterosexual couples do.

Even if there were no inherent natural inclination beyond one’s control, it is imperative to recognize that two individuals have the right to live and act as they desire, provided they do not infringe upon the rights of others. One’s sexual orientation, whether heterosexual or homosexual, is not a matter of constitutional morality. Constitutional morality only becomes relevant when an individual violates another person’s right to life and property. Therefore, an act of love or intimacy between two consenting adults, regardless of their sexual orientation (gay or straight), should not be considered a matter of constitutional morality.

The Right to Marriage

A significant question that arises in the context of this debate is whether same-sex couples have a right to marry, or if there is even such a thing as a right to marriage. One could argue that, according to the natural code of law, only the right to one’s life and property exists. However, in the society we inhabit, this is a complex matter, as the state recognizes marriage as a legal institution for couples, symbolizing a commitment in their relationship and bestowing certain benefits, including tax incentives, insurance claims, and the right to make health-related decisions. Furthermore, the institution of marriage also serves to validate and legitimize relationships within society.

In principle, the state could choose to disengage from regulating the institution of marriage entirely, eliminating the concept of a “right to marriage.” However, as long as the state continues to regulate marriage, it has no moral grounds to discriminate against specific individuals based on their attributes. For example, the state cannot legitimately deny the privilege of marriage to other groups within society, such as SC/ST individuals, people with darker skin, or left-handed people, as this would be deemed unconstitutional and a form of state discrimination. In the same vein, the state cannot morally discriminate against the right of same-sex couples to marry while granting these rights and privileges to opposite-sex couples.

A History of Discrimination

Discrimination has been a persistent issue throughout human history, with various groups experiencing prejudice and injustice. Left-handed individuals, for instance, were once subjected to persecution. Women were unjustly accused of being witches and faced execution during medieval times. Indians were often treated as inferior by the British during the era of colonization. In the United States, black people were tragically enslaved and denied their basic rights. Women were not granted the right to vote until 1920, illustrating the struggles for gender equality. The Jewish community has faced discrimination and horrific massacres, notably during the Holocaust. Even today, the discrimination continues, with SC/ST individuals experiencing prejudice in India and LGBT individuals facing discrimination on a global scale.

In a perfectly rational world, no individual should be subjected to discrimination based on their superficial, unearned characteristics, such as race, caste, skin colour, sexual identity, or gender expression. Instead, every person should be valued for their capacity for rational thinking and treated with equality and respect.

The Procreation Argument

One argument against same-sex marriage posits that marriage between a man and a woman is rooted in the natural process of procreation, vital for the survival and continuation of our civilization. However, the legalization of same-sex marriage does not disqualify or prevent heterosexual marriages or procreation. The law’s purpose is not to protect “natural processes,” whatever that may imply. The natural world often involves organisms dying of disease or falling prey to other animals, concepts that bear no relevance to the objectives of a court. Moreover, many couples who marry either cannot procreate or choose not to. A morally upright state should not dictate its citizens’ procreative choices. Instead, a just state, built on principles of rationality, ensures equality and protects individual rights in a society where every individual is treated equitably.

The Evolution of Culture

Another argument against same-sex marriage hinges on the contention that it contradicts the current culture of Indian society. It is essential to recognize that cultures are not stagnant but continually evolving. Cultures are not sacrosanct; rather, the principle of rationality holds paramount importance. Cultures that embrace rationality are regarded as superior, while those clinging to irrational elements are deemed inferior. When cultures clash with reason, reason should always prevail. This approach leads to the strengthening of cultures, promoting a more rational, equitable, and robust society. This was evident in India’s battle against the practice of “sati,” and its fight for equal treatment of SC and ST individuals and women. Similarly, the fight for the rights of LGBT individuals today is a battle for rationality, making society more equitable and resilient.

The Universal Principle of Rationality

Human civilization, as we know it today, has developed over a relatively brief period in the grand scheme of the universe. While human culture and history span thousands of years, the universe has existed for approximately 13.8 billion years, with trillions more years to come. The universe operates under four fundamental laws of physics—weak law, strong law, electromagnetism, and gravity—all governed by precise mathematical formulas. These laws are objective, independent of space and time, and remain consistent throughout the universe. Human values, such as rationality and equality, have emerged over time through recognition of the idea that adherence to these principles benefits both individuals and society. Upholding these principles, particularly the idea of justice, remains the primary duty of any court.

The central question at hand today is whether the principles of rationality and equality should be applied to grant LGBT individuals the same rights and privileges enjoyed by their heterosexual counterparts. In a million years from now, inhabitants of this land will look back at this pivotal moment in history, not to gauge whether the court aligned with contemporary culture, but to assess whether it upheld the timeless and universal principle of rationality. This principle, which stands true today and will continue to hold in the distant future, ensures equality for all individuals, regardless of their sexual orientation.

(Deepanshu Vasal is a research scientist based out of the USA.)