Internal Topic: Same Sex Marriage

Dr. Rina Pitale Puradkar

Marriage is a cultural universal. But how cultures conceive of marriage vary depending on many
factors such as the customs and mores accepted, sex roles, gender roles, human right
interpretation, religion, procreation and perpetuation of lineage, etc. Thus, there are many types of
marriages. However, marriage is principally an institution in which interpersonal relationships,
usually sexual, are acknowledged. Traditionally, it depicts a socially and legally recognized union
between two people – one, the husband, and the other, the wife: presupposing man and
woman.

Same-sex marriage is the practice of marriage between two men or between two women or two
people of the same sex. Homosexuality is generally defined as the attraction between people of the
same sex by nature or love, but it is a narrow definition of homosexuality.

The idea of same-sex involves homosexuality, gay and lesbianism. These terms simply refer to
activities of persons having sexual feelings or orientation to persons of their own sex. The terms
homosexual and gay are mostly used to characterize the males, while the term lesbian refers to the
female homosexuals. The 21st century has witnessed a flurry of conceptions of marriage that calls
for gender neutral language rather than gender specification. This has made all major English
dictionaries, sociologists and anthropologists revise their definition of the term marriage to include
same-sex unions. Same-sex marriage refers to the union of two people of the same sex who live
together as a family.

Although same-sex marriage has been regulated through law, religion, and custom in most
countries of the world, the legal and social responses have ranged from celebration on the one
hand to criminalization on the other. Critics of same-sex marriage say it is immoral and unnatural,
while supporters say there is nothing immoral about it, as far as it is covered by human rights
doctrine. Yet, many people do not even know that same-sex marriage is not a recent
phenomenon; but, has been there as far back as the early Roman Empire. Many people believe that
same-sex marriage is exclusively a western phenomenon and so are ignorant of the fact that it is
practiced and accepted by other cultures, such as in Sub-Saharan Africa. With the advent of liberal
voices for the recognition of same-sex couples, there have been several calls for re
conceptualization of the term marriage, to the extent that marriage is now regarded as the union of
two people living together as spouses in a family.

There are records of marriage between men dating back to the first century. In the modern era, the
first civil government to knowingly issue a marriage license to same-sex couples was Blue Earth
County, Minnesota in 1971. The first law providing for marriage equality between same sex and
opposite-sex couples was passed in the continental Netherlands in 2000 and took effect on 1 April
2001. Canada legalized same sex marriage in July 20, 2005. There are several categories of flour
mainly in the gay category which are described as follows -

•Lesbian - A woman's attraction to another woman

•Gay - One man's attraction towards another man

•Bisexual - Attraction towards both (same and opposite) sexes

•Transsexual - Changes in the opposite sex of the natural sex

•Queer - They are not confident about their sexual attraction.

These categories are collectively combined with LGBTQ. They are said to represent the gay category. The
application of marriage law equally to same-sex and opposite-sex couples has varied by
jurisdiction, and has come about through legislative change to marriage law, court rulings based
on constitutional guarantees of equality, recognition that marriage of same-sex couples is allowed
by existing marriage law, and by direct popular vote (via referendums and initiatives). The most
prominent supporters of same-sex marriage are human rights and civil rights organizations as well
as the medical and scientific communities, while the most prominent opponents are religious
fundamentalist groups.

Some scholars, most notably the historian John Boswell (1947–94), have argued that same-sex
unions were recognized by the Roman Catholic Church in medieval Europe, although others have
disputed this claim. Scholars and the general public became increasingly interested in the issue
during the late 20th century, a period when attitudes toward homosexuality and laws regulating
homosexual behaviour were liberalized, particularly in Western Europe and the United States.

The first law for recognizing same sex marriage in modern times was enacted during the first
decade of the 21st Century. Legal recognition of same sex marriage is referred as Equal marriage
Historian John Boswell records that the first performance of same-sex marriage between child
emperor Elagabus to Hierocles, his chariot driver, as the husband. He is also said to have married
Zoticus, an athlete in a lavish public ceremony in Rome. Nero, the first Roman Emperor, is
recorded in history to have engaged in same-sex marriage. He married two other males on
different occasions. The first was Pythagoras, with whom Nero was the bride. He later married
Sporus, a young boy, and here took the role of the groom. These were done in a public ceremony
with all the solemnities of matrimony.

A marriage between two Roman males or with a slave would have no legal standing in Roman
law. In 342 AD Christian emperors Constantius II and Constans issued a law in the Theodosian
Code prohibiting same sex marriage in Rome and ordering execution for those who get married.
During the Victorian Era, two women cohabiting were termed as a Boston marriage.

The first law for recognizing same sex marriage in modern times was enacted during the first decade of
the 21st century. Legal recognition of same sex marriage is referred as equal marriage. Scholars and the
general public became increasingly interested in the issue during the late 20th century, a period when
attitudes toward homosexuality and laws regulating homosexual behaviour were liberalized, particularly
in western Europe and the United States. In 1989, Denmark became the first country to legally recognize
a relationship for same-sex couples, establishing registered partnerships, which gave those in same-sex
relationships "most rights of married heterosexuals, but not the right to adopt or obtain joint custody of a
child". In 2001, the continental Netherlands became the first country to broaden marriage laws to include
same-sex couples. Since then, same-sex marriage has been established by law in 29 other countries,
including most of the Americas and Western Europe. Yet its spread has been uneven — South Africa is the
only country in Africa to take the step; Taiwan is the only one in Asia.
The issue of same-sex marriage frequently sparked emotional and political clashes between
supporters and opponents. By the early 21st century, several jurisdictions, both at the national
and subnational levels, had legalized same-sex marriage; in other jurisdictions, constitutional
measures were adopted to prevent same-sex marriages from being sanctioned, or laws were
enacted that refused to recognize such marriages performed elsewhere. That the same act was
evaluated so differently by various groups indicates its importance as a social issue in the early
21st century; it also demonstrates the extent to which cultural diversity persisted both within
and among countries. In 1989, Denmark became the first country to legally recognize a
relationship for same-sex couples, establishing registered partnerships, which gave those in
same-sex relationships "most rights of married heterosexuals, but not the right to adopt or
obtain joint custody of a child".

As of 2023, marriage between same-sex couples is legally performed and recognized in 35

countries (nationwide or in some jurisdictions) with the most recent being Chile on 10 March
2022 and Switzerland starting 1 July 2022. Adoption rights are not necessarily covered, though
most states with same-sex marriage allow those couples to jointly adopt. In contrast, 34
countries (as of 2021) have definitions of marriage in their constitutions that prevent marriage
between couples of the same sex, most enacted in recent decades as a preventative measure.
Some other countries have constitutionally mandated Islamic law, which is generally interpreted
as prohibiting marriage between same-sex couples. In six of the former and most of the latter,
homosexuality itself is criminalized.

After the Supreme Court of India has decriminalized homosexuality, demands have arisen regarding the
recognition of same-sex marriage. Recently some people belonging to the LGBTQ community appealed to
the Delhi High Court to recognize the marriage between any two people under the Special Marriage Act
without considering what their gender is. A bench of two judges sought a response from the central
government, on which the central government has submitted its affidavit against same-sex gay marriage.
Non-recognition of same-sex marriage violates rights under Articles 14 (right to equality before law), 15
(right against discrimination on grounds of religion, race, caste, sex, place of birth), 19 (freedom of speech
and expression), and 21 (protection of life and personal liberty) of the Constitution. An adult person has
the right to marry a person of their choice under Article 21. By depriving legal status to homosexual
marriages, the state is denying the legal security of dual parenthood and guardianship to the child.

Sexuality is but one of many areas where religious and civic authority interact; definitions of the
purpose of marriage is another. In one view, the purpose of marriage is to ensure successful
procreation and child rearing. In another, marriage provides a—and perhaps “the”—
fundamental building block of stable communities, with procreation as an incidental by-product.
In their view, because male and female are both necessary for procreation, the privileges of
marriage should be available only to opposite-sex couples. In other words, partnerships involving
sexual intimacy should have at least a notional potential for procreation. From this perspective,
the movement to legally recognize same-sex marriage is a misguided attempt to deny the social,
moral, and biological distinctions that foster the continued existence of society and so should be
discouraged. Same sex unions cannot produce children through ordinary and proper procreation,
such unions do not add to the survival of the human race. Furthermore, it is immoral to legitimize
gay unions because it is not in the best interests of the children who might be adopted by gay
couples. These children would be lacking either the awareness of fatherhood or motherhood.

Biological reproduction is a sort of social obligation, its advocates tend to frame individuals’ legal
and moral commitment to one another as a matter of genetic relatedness. In cases of inheritance
or custody, for instance, they generally defined the parents’ legal duties to their biological
children differently than those to their stepchildren. Among groups who feel strongly that same-
sex marriage is problematic, there is also a tendency for the legal relationships of spouses,
parents, and children to converge. Typically, these societies provide for the automatic
inheritance of property between spouses, and between parents and children, and allow these
close kin to co-own property without joint ownership contracts.
Most of the world religions have at some points in their histories opposed same-sex marriage
for one or more of the following stated reasons: homosexual acts violate natural law or divine
intentions and are therefore immoral; passages in sacred texts condemn homosexual acts; and
religious tradition recognizes only the marriage of one man and one woman as valid. In the early
21st century, however, Judaism, Christianity, Hinduism, and Buddhism all spoke with more than
one voice on this issue. There are many religious arguments and protests that are against gay
marriage. Among these are the belief that gay couples are unnatural, marriage is sacred and a
sacrament, the primary purpose of marriage is procreation, and marriage is defined as a union
between a man and a woman. Many point to biblical scripture when arguing against gay marriage.
Most religious opponents to gay marriage cite two passages from the Old Testament as proof of
their point-of-view. The first of these is Leviticus 20:13: If a man lies with a man as one who lies
with a woman, both of them have done what is repulsive. They must be put to death (Burns,
2002). Cohabiting homosexuals can make use of various legal provisions to protect their rights,
there is no need to allow gay couples the legal status of marriage, especially since such a change
would threaten the common good. (Burns, 2002)

Orthodox Judaism opposed same-sex marriage, while the Reform, Reconstructionist, and
Conservative traditions allowed for it. Most Christian denominations opposed it, while the United
Church of Christ, the United Church of Canada, and the Religious Society of Friends (Quakers)
took a more favourable stand or allowed individual churches autonomy in the matter. The
Unitarian Universalist churches and the gay-oriented Universal Fellowship of Metropolitan
Community Churches fully accepted same-sex marriage. Hinduism, without a sole leader or
hierarchy, allowed some Hindus to accept the practice while others were virulently opposed. The
three major schools of Buddhism—Theravada, Mahayana, and Vajrayana— stressed the
attainment of enlightenment as a basic theme; most Buddhist literature therefore viewed all
marriage as a choice between the two individuals involved. The legal recognition of same-sex
marriages would grant same-sex couples benefits at par with heterosexual couples.
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