On June 26, 2015, The U.S. Supreme Court legalized same-sex marriage throughout the United States in its landmark Obergefell v. Hodges, 2015 judgement (Peter Hart-Brinson, 2016). In an analysis of this judgement, Denniston (2015) highlighted that while this five-to-four decision was based firmly on the U.S Constitution, it could be undone only by a formal amendment, or a change of mind by a future Supreme Court. Neither of which is predictable. He went on to state that between 2013-2015, the right to marry had been extending rapidly and widely for the LGBTQ+ community in the United States, ultimately expanding to thirty-six states and Washington, D.C., through new laws, court rulings, or voters’ approval prior to Obergefell v. Hodges. From a 2003 ruling by the highest state court in Massachusetts allowing same-sex marriage, the movement to gain marital rights had spread from coast to coast, with lawsuits in every state where the right had not yet been recognized (Denniston,2015). Thus, the June 26, 2015 US Supreme Court Decision finally opened marriage legally in the remaining few U.S states and gave new legal protections to those who got married under court rulings that could not be considered truly final until the Supreme Court itself had decided this constitutional question.
The question to ask here is, what made this monumental occurrence possible in The United States? In 2003, the US Supreme Court ruled in Lawrence v. Texas, 2003 that consensual, adult homosexual intercourse violated the ‘Due Process Clause’ of the Fourteenth Amendment and was hence, decriminalized. The Indian Supreme Court too, decriminalized private, consensual same-sex activity by scrapping parts of Section 377 on September 6, 2018 (The Wire Staff,2018). Does this mean that India will take 12 years like the United States to legalize same sex marriage? These are difficult questions, but questions worth exploring.
Key Insights from the 2016 US Study on Attitudes towards Homosexuality and Same Sex Marriage:
Peter Hart-Brinson, Professor at The University of Wisconsin-Eau Claire, Wisconsin, United States published a paper outlining public attitudes towards homosexuality and same-sex marriage in the United States in February 2016 (Peter Hart-Brinson, 2019). His paper was widely read within academic circles and in it, he applied the social imagination to make sense of these changing social attitudes. I will discuss the key highlights of his paper and relate his findings to help make sense of the social realities surrounding homosexuality and same sex marriage in India today.
Brinson conducted 97 individual interviews comprising of 65 college students and 32 parents between September 2008 and April 2009 in Northern Illinois to understand their attitudes towards homosexuality and same sex marriage. His study focused on the metaphors and meanings that individuals attached to same sex marriage and homosexuality. He also analysed social attitudes surrounding these issues at a macro level. Note that this study was conducted well before the Obergefell v. Hodges, 2015 decision. What Brinson discovered was that younger people tended to essentialize homosexuality as an identity (i.e “who you are”), frequently comparing it with other social categories such as race and heterosexuality. On the other hand, most older cohorts tended to associate homosexuality with it being a lifestyle choice, a behavioral pattern (something that could be “improved” or “changed”), a disease, a sin and/or a tendency. Rather than view homosexuality as an identity, older cohorts viewed it as a behaviour. It is important to understand that these analyses are made at the individual (micro) level. The macro level findings are discussed in the following paragraph.
At the macro level, Brinson postulated that the dominant social imaginary surrounding homosexuality changed twice in the U.S: from mental illness to deviant behavior between 1969 and 1974 and from deviant behavior to collective identity between 1987 and 1992. Thus, most older cohorts came of age at a time when negative social attitudes towards homosexuality were predominant. Similarly, the younger cohorts came of age at a time when more positive attitudes towards homosexuality prevailed. This accounted for the difference in expression of homosexuality in both groups. The younger cohorts were more likely to support same-sex marriage in part because they came of age during a period in which the social imagination of homosexuality as an identity was hegemonic, and the question of same-sex marriage was a question of marriage between any two people, regardless of gender (i.e homosexuality is who you are). By contrast, the older cohorts were less likely to support same-sex marriage in part because they came of age during a period in which the social imagination of homosexuality as behavior was hegemonic (i.e homosexuality as a choice).
Lessons for India:
Applying Brindon’s macro level analysis of the social imagination of homosexuality, we see that homosexuality is still thought of as a mental illness and deviant behavior in India. It was only a few weeks before the Section 377 verdict was read out, that the Indian Psychiatric Sociaty (IPS) issued a public statement unequivocally denouncing homosexuality as a mental illness (The News Minute Staff, 2018). Similarly, the Section 377 decision is only a little over a year old in the country. Despite these moves, social attitudes surrounding homosexuality will take time to change in the country, particularly in rural areas, where bulk of the Indian population resides. A good example of this dissonance between the Supreme court judgement and family attitudes towards same sex relations was demonstrated when Dutee Chand came out. She has since made multiple public appearances stating the blackmail and torture, she experienced (and continues to experience) owing to her sexuality and the fact that she is in a same sex relationship with another woman (India Today Web Desk, 2019). All this, despite the IPS statement and Supreme Court ruling. Her story though, is just one of many.
It is important to also not forget that at the time of the hearings for Obergefell v. Hodges, over 70% of U.S States and the District of Columbia had already recognized same-sex marriage, and only 13 states had bans (Georgetown Law Library,2019). Although, India’s legal system concerning marriage is very different from the U.S system, it cannot be said that the general Indian public is anywhere close, at present, to accepting same sex relations as the U.S public was at the time of Obergefell v. Hodges.
India still has a long way to go before homosexuality and same sex relationships are normalized and imagined as less of an oddity and more of an identity. However, there is hope. Brindon’s paper highlights that as younger cohorts replace older cohorts, the dominant narratives towards homosexuality will change. Given that India now exists in a “post 377” era, younger Indian cohorts should slowly start perceiving homosexuality not as a deviance, rather, as an identity. Moreover, Brindon’s secondary research also shows that higher levels of education attainment, greater personal interaction with LGBTQ+ individuals and more inclusive definitions of family also helped change the American people’s perception towards homosexuality. In other words, visibility, education and advocacy matters. All of this, however, needs to be patiently accommodating of the unique social-cultural reality of India. In a country where caste, class, Adivasi identity and religious identity (to name just a few) intersect with one’s gender and sexual identity, the road ahead for LGBTQ+ identifying individuals to achieve social equality will be a long one. It will, however, be one worth fighting for.
A copy of Peter Hart-Brinson’s paper may be downloaded from the SAGE Journals website as it is available for free public consumption: https://journals.sagepub.com/doi/full/10.1177/2378023116630555#articleCitationDownloadContainer
Denniston, L. (2015, June 26). Opinion analysis: Marriage now open to same-sex couples. Retrieved November 22, 2019, from https://www.scotusblog.com/2015/06/opinion-analysis-marriage-now-open-to-same-sex-couples/
Hart-Brinson, P. (2016). The Social Imagination of Homosexuality and the Rise of Same-sex Marriage in the United States. Socius. https://doi.org/10.1177/2378023116630555
Georgetown Law Library. (2019). Guides: A Brief History of Civil Rights in the United States: Obergefell v. Hodges. Retrieved November 23, 2019, from https://guides.ll.georgetown.edu/c.php?g=592919&p=4182205
India Today Web Desk. (2019). Sister’s blackmail, torture forced me to reveal my same-sex relationship: Dutee Chand. Retrieved November 23, 2019, from https://www.indiatoday.in/sports/athletics/story/dutee-chand-same-sex-relationship-blackmail-1531211-2019-05-21
Lawrence v. Texas, 539 U.S. 558 (2003)
Obergefell v. Hodges, 576 U.S. ___ (2015)
Peter Hart-Brinson. (2019). Retrieved November 22, 2019, from https://www.uwec.edu/profiles/hartbrin/
The News Minute Staff. (2018). Homosexuality not a disorder: Indian Psychiatric Society reiterates its stand. Retrieved November 22, 2019, from https://www.thenewsminute.com/article/homosexuality-not-disorder-indian-psychiatric-society-reiterates-its-stand-84512
The Wire Staff. (2018). Supreme Court Scraps Section 377; ‘Majoritarian Views Cannot Dictate Rights,’ Says CJI. Retrieved November 22, 2019, from https://thewire.in/law/supreme-court-scraps-section-377-majoritarian-views-cannot-dictate-rights-says-cji