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Marriage, Moral Panic And The Suspect Future Of Marriage Equality

The common thread that runs through the contention is the oldest trick in the book, employed by opponents of marriage equality globally - to create a moral panic in the mind of the judiciary.

Introduction

In a recent judgement (Kumari Neha Chandra Vs. the State Of U.P. And 3 Others, 2022 Livelaw (All) 174), the Allahabad High Court rejected the request of two women to recognise their same-sex marriage, and upheld the contention of the State Government that same-sex marriage was against Indian culture, laws and Indic religions. The order begets an important discussion which I will seek to address in this article — the first, what are the implications of this order for the marriage equality movement.

For the first part, I will seek to analyse the arguments of the State, which are quite similar to those arguments that are advanced before the Delhi High Court and that have been rejected in the order in question, and in the latter part, I will seek to address the broad question of what this means for the queer rights movement as a whole.

Dissecting the Arguments of the State

Let us first look at the arguments advanced by the State of Uttar Pradesh. A plain reading of the order of the single judge will tell us that there were the following arguments that were tabled-

1. Under Indian culture, religion and law, marriage is a sacrament. The state contrasted this with marriage in other countries where it is a contract.

2. The second contention was that a marriage between two women would be against the traditional conception of an Indian family.

3. The state also contended that the Hindu Marriage Act 1955, Special Marriage Act 1954, and even the Foreign Marriage Act 1969 do not allow homosexual marriage.  

4. Finally, the state contended that under the Indian law and culture, a marriage is between a biological man and a biological woman to beget children.

The common thread that runs through the contention is the oldest trick in the book, employed by opponents of marriage equality globally – to create a moral panic in the mind of the judiciary. Simply put, moral panic is a widespread fear that is created by a threat to the perceived values, traditions and institutions. In this case, the gay agenda (whatever it may be), threatens the Indian family system by allowing western notions of sexuality to permeate the traditional notions.  However, there is something far more sinister that happens in the contentions raised by the State of UP and that is the inextricability of Indian law, religion and culture.

Over the past decade or so, the Indian Courts have developed this idea of a constitutional morality – that is, a morality that is inherent to the constitution itself, and that guides the interpretation of the constitution. In Navtej Singh Johar v. Union of India, the Supreme Court held that constitutional morality could not give way to popular morality and that being a transformative document, the constitution aims toward a theory of progressive realisation of rights. Under such a framework, religious morality ought to give way to constitutional morality and must be separated. By keeping religion and law as two inextricable parts of the same argument, there seems to be an underpinning that law must give way to religious morality when they are in conflict. Though the main issue is under challenge in the Sabarimala review petition, in no progressive society, must religion dictate the law, much less fundamental rights.

Another thread that runs through the contentions of the State is the biological essentialism in the argument. By arguing that marriage is between a biological man and a biological woman, there is a broader plot, according to me, to deprive transgender persons of the right to marriage. Not only that, but it also risks putting ace persons who are sex-averse and anti-natalists or uterus-owners who may not be able to bear children for various other reasons, who want to get married, at risk by claiming that the sole purpose of marriage is to bear children. Notably, section 12 of the Hindu Marriage Act allows for a marriage to be voidable on the grounds of impotency. Not only that, various courts (including the Supreme Court), in their immense wisdom, have held that withholding intercourse from a spouse amounts to cruelty under section 13 of the Hindu Marriage Act.

Wherefore Hence for the Queer Rights Movement?

Marriage equality cannot be the goal of the queer rights movement, given the diversity and intersectionality of identities it represents. It, however, seems to be the short-term goal for the movement in India. As Allahabad High Court accepts these contentions, this will have persuasive value in the Delhi High Court Case. This also presents an important question for homonationalists within the movement – is the government that they support supporting them? While the outcome of the petition there remains to be seen, the queer rights movement in India must introspect — where are the petitions challenging the Trans Act? Where are we headed as a movement? Is the movement, as it now stands only supporting causes that benefit the cis, upper-class, upper-caste queer persons? If the answer to that is yes, are we, as a movement, truly fighting to be equal and inclusive?

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Rohin Bhatt is a queer lawyer and a Master of Bioethics candidate at Harvard Medical School. He is the co-founder of the Indian Bioethics Project.
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