SAME-SEX MARRIAGE: Why Is It Still A Taboo?
BY- SREYASI BHATTACHARYA
(HERITAGE LAW COLLEGE)
Same-sex marriage is also known as homosexual marriage or gay marriage. Same-sex marriage is a marriage where there is a ceremonial union of two individual of the same sex; a marriage-like relationship or marriage between men and women.
Marriage, as we know is one of the universal institutions. It was established by human society for the control and regulation of the sex life of a man. There are certain definitions to marriage which truly shows the real meaning of marriage which is accepted by society.
Edward Westermark in his work “History of Human Marriage”, defined marriage as ‘a more or less durable connection between a male and a female lasting beyond the mere propagation till after the birth of an offspring’. Alfred McClung Lee wrote that marriage may be defined as the people joining together where regulations are socially specified for a man and a woman to be husband and wife. These definitions have focused on the bonding or connection of a male and a female, but have no interpretation for the marriage between two individuals of the same sex. This raises the question of whether our society understands and accepts the concept of same-sex marriage.
CONCEPT OF SAME-SEX MARRIAGE:
Medieval documents and artefacts show that marriage has not always been strictly heterosexual. Pieces of evidence show homosexuality have existed for millenniums. The word 'homos’ is a Greek word meaning "same" and the Latin based ‘sexual’, which had been coined by Karl-Maria Kertbeny only in the year 1869. For a millenary, Christianity excluding the state laws, have controlled marriages, which have made the Christian attitudes towards homosexuality historically important, later becoming curiously equivocal. An inscription titled as 'Tomb Slab of an English Couple' where all the standard iconic symbols representing a marital couple are engraved. One of the name presents was Sir William Neville and Sir John Clanvoe, who died in October 1391. During the renovations in a Dominican church in Istanbul, the existence, and the location were found which denied the official teachings on same-sex relationships.
There have been some medieval prayer books which include heterosexual weddings rituals which were contentiously translated as 'rites of the same-sex marriage’, which included all the key contemporary ceremonies associated with Christian marriage, like kissing before the altar, citations given by the priest on the love, blessings by the priests, an open gospel on the altar and the reception of the Eucharist. In the 19th century United States, two women living together, sexually or otherwise, were said to have a "Boston Marriage". Till the 18th century "molly houses" in Britain often had chapels attached in which homosexual couples would undergo illegal marriage ceremonies. We'wha, a Native American emissary to the American government in the late 19th century, and his community's spiritual leader were himself married to a man within his own culture. Homosexuality in monasteries was widely registered. To attack the monasteries. Therefore. the idea that marriage culturally has no past homosexual links is false.
RECOGNITION OF SAME-SEX MARRIAGE:
Marriage requires both social and legal approval. It is said when marriage is given the hallmark of social approval, it becomes a legal contract. But the question arises how far has same-sex marriage been recognised in this society or around the world.
Legal Recognition to Same-Sex Marriage:
The governments around the world have started considering whether legal recognition to the same-sex marriage shall be granted. With the abolition of religious courts, decriminalisation of homosexuality began with France in the year 1791. The Netherlands was another country who followed decriminalisation of homosexuality under the Napoleonic Code in 1811. Catholic Poland decriminalised in 1932. Anti-gay laws which were enacted by the Nazis were followed in West Germany until 1969. Following the Wolfenden report which recommended for laws controlling sexual behaviour, Great Britain decriminalised same-sex marriage in the year 1967. Ireland finally decriminalised in 1993.
A report in 2019, showed so far a total number of 30 countries and territories have approved national laws allowing marriage between the same sex which includes most parts of Europe and America.
The countries which have legally recognised same-sex marriage are listed under:
During December 2000, the Dutch parliament by a 3-2 margin passed the landmark bill for allowing the practice, making the Netherlands the first country to legalize same-sex marriage. This legislation provided same-sex couples with the right to marry, right to divorce and also adopt children. A single sentence in the existing civil marriage statute was changed which is now read as a marriage which can be contracted by two individuals of different or the same sex. It has been widely accepted but the Christians and conservative Muslims opposed the law.
The Spanish parliament legalised same-sex marriage in the year 2005 where ideal rights were guaranteed to all the married couples despite any sexual orientation. After the law came into force, the constitutional court had rejected challenges from the judges of the municipal court who refused to marriage licenses to the same-sex couples. The high court said that the judges of the lower courts lacked legal status.
In the year 2010, Argentina became the first Latin American country to legalise same-sex marriage. There were strong oppositions by the Protestant churches and the Catholic churches but it passed both the houses of Argentine Legislature and was signed by President Cristina Fernandez to turn it into law.
State and federal laws regarding same-sex marriage began with the first lawsuit in 1971 and ended with the decision of the Supreme Court legalizing same-sex marriage in 2015. In Baker vs. Nelson [310,191 N.W. 2d185(1971)], On May 18, 1970, Richard Baker and James Michael McConnell who were students of the University of Minnesota applied for the marriage license. The District Court Clerk rejected the application of the couple because they were both men. On October 10, 1972, Baker and McConnell appealed to the U.S. Supreme Court. They also had sued the county officer as there was discrimination couple’s application to be rejected. On October, 17 its was held that the Court denied their claim. It stated that the issue did not directly relate to Federal laws. The change started coming in was Massachusetts, in 2003, which was the first state to legalize same-sex marriage through a court ruling. After 11 years of the Massachusetts ruling, in the year 2015 in Obergefell vs. Hodges [135 S. Ct. 2584 (2015)], the court gave the final ruling that laws of Michigan, Kentucky, Ohio, and Tennessee were to be held invalid because they excluded same-sex couples from civil marriages where the same rights were served to the opposite-sex couples.
Other countries including England and Wales (2014), Ireland (2015), Greenland (2015), South Africa(2006), Australia (2017) and many others have legalised same-sex marriages. In Mexico, only some jurisdictions have legalised same-sex marriage. On September 7, 2018, a landmark judgement in the case of Navtej Singh Johar vs. Union of India, [2018 (10) SCALE 386] by the Supreme Court of India scrapped off Section 377, the 158-year-old colonial ban which criminalised gay sex.
One thing which stayed common even after the legal recognition of same-sex marriage was the criticisms and oppositions faced due to the ethnic institutions, social norms and stereotypes. Another point arises that how much has the concept of same-sex marriage been socially accepted.
Social Acceptance to Same-Sex Marriage:
With the increase in the acceptance of same-sex marriage, it has emerged to become a strong and powerful social topic. There has been much intense and vocal interpretation and reactions to this topic, but many opinions have holds little factual knowledge about same-sex marriage. Most of the time, the public opinion is filled with prejudice, misconception and apprehensions. In western countries, especially in the United States, there has been seen steady support after the 205 Supreme Court ruling. In 2016, a survey showed that 55% of the Americans support same-sex marriage while the rest 37% oppose the idea of same-sex marriage.
In a 2011 United Nations General Assembly declaration of LGBT right, there were mixed reviews. Countries like Armenia, South Korea, Japan, Mongolia, Nepal, Thailand showed their support. On the other hand, countries like Malaysia, Indonesia, North Korea, Bangladesh, Iran, Iraq, Turkmenistan, Qatar, Syria and many other countries opposed to these rights. Some countries neither showed support nor opposition.
In India, a survey was made across eight Indian states including Jharkhand, Andhra Pradesh, Rajasthan, Maharashtra, and Telangana where the participants were asked to give their opinion on whether the sexual relationships of two women or two men should be accepted in the society. A total of 28% agreed with the statement whereas 46% disagreed to the statement and the rest had no opinion. This shows that in society, even after the legal recognition of same-sex, people feel uncomfortable to answer or ignore the topic. The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) in 2016 found that 35 per cent of Indians and 30 per cent of Pakistanis believed that same-sex marriage should be legal. A total of 12 per cent stood in favour of same-sex marriage in Kazakhstan.
HOW MUCH HAS SAME-SEX MARRIAGE BEEN RECOGNISED?
Where there are countries who have started becoming liberal and especially after the legalisation of same-sex marriage, still, same-sex marriage remains banned in so many countries, and the expansion in LGBTQ+ rights is uneven around the world. Many countries have not even accepted the concept of homosexuality. The concept of homosexuality is punishable among major schools of Islamic Law. On June 12, 2016, there was a recent killing of around 49 people at a gay night club in Orlando in the State of Florida of United States. Afghan Law penalizes homosexual relations with five to 15 years in prison. A Human Rights report by the State Department in 2015 showed routine harassment by the police, detaining and using violence against gay people. Iran has been notorious for hanging men who are accused of homosexual behaviour. The Associated Press reported that since 2014 that ISIS had executed at least 30 people in Syria and Iraq, following three men dropped from the top of the 100-foot building in Mosul in 2015. Countries like Yemen, Sudan, and some provinces of Somalia have the death penalty as a punishment to same-sexual act. There have been very few information recorded based on public attitudes towards the concept of homosexuality in Central and South Asia. In Bermuda after the legal recognition of same-sex marriage in 2017, the government of the country has been fighting to re-issue a ban. In 2019, just after a few hours of inauguration, President Jair Bolsonaro removed the ability of the Human Rights for considering LGBTQ+ concerns. In Philippine, the President raised support to recognise same-sex union but not same-sex marriage. It was seen that in a poll done in2019 that only 22 per cent of were expressive about the legalisation of same-sex marriage.
thus, the studies and survey show where many countries and groups of people have started to accept the concept of same-sex marriage, the larger population still oppose and restrict such rights to legalise.
The development in and around the world is broad. There have been many changes in legislation, rules and orders towards a positive side. But even after the decimalisation of the laws, the social acceptance of LGBTQ has a long way to go. Same-sex marriage as well as homosexuality remains a taboo for most of the world.
In India, even the people residing along the metropolitan cities or urban areas have a very low same-sex marriage or relationship acceptance. The low acceptance is seen more in the southern part of the country. Survey also shows that the rate of recognition of same-sex marriage or relationships is found more in women than men. Thus, it could be said that even though the countries have legalised or de-criminalised same-sex marriage, it has a long way from de-stigmatising of the concept of same-sex marriage as compared to the opposite-sex or heterosexual marriage.
· The chapter on Marriage (page 327) from C.N. Shankar Rao;
· The chapter on Marriage from D.C. Bhattacharya;
· K.D. Gaur- textbook on Indian Penal Code for the study of Homosexuality
· Baker vs. Nelson [310,191 N.W. 2d185(1971)] from https://www.docsteach.org/documents/document/supreme-court-order-baker-v-nelson and https://www.nytimes.com/interactive/2015/05/13/us/document-baker-vs-nelson-case.html?mtrref=www.google.com&assetType=REGIWALL&mtrref=www.nytimes.com&gwh=5BED3E56AE79DF9076B49FF3F3701A80&gwt=pay&assetType=REGIWALL;
· Obergefell vs. Hodges [135 S. Ct. 2584 (2015)] from https://www.lexisnexis.com/community/casebrief/p/casebrief-obergefell-v-hodges https://www.psychologicalscience.org/publications/observer/obsonline/supreme-court-ruling-on-gay-marriage-changed-perception-of-norms-despite-stable-personal-beliefs.html#:~:text=Research%20conducted%20before%20and%20after,personal%20attitudes%20on%20the%20subject., and https://family.findlaw.com/marriage/same-sex-marriage.html
· Navtej Singh Johar vs. Union of India, [2018 (10) SCALE 386] from https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/
· https://www.dictionary.com/browse/traditional-marriage for the definitions of traditional Marriages;
· https://www.cfr.org/backgrounder/same-sex-marriage-global-comparisons for the study of LGBTQ + rights;
· https://www.irishtimes.com/opinion/concept-of-same-sex-marriage-has-a-long-history-1.1037816 for the study of the history of same-sex marriage;
· https://www.pewresearch.org/fact-tank/2019/06/24/same-sex-marriage/ for the facts of same-sex marriage;
· http://docs.manupatra.in/newsline/articles/Upload/B07BDF52-0AA4-4881-96AC-C742B9DB217D.pdf for the study of legal recognition of sex marriage in India;
· https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1066&context=njlsp for the study of same-sex jurisprudence around the world;
· https://family.findlaw.com/marriage/same-sex-marriage.html for the study of same-sex marriage in the United States;
· https://www.businessinsider.in/politics/the-25-countries-around-the-world-where-same-sex-marriage-is-legal/articleshow/61707572.cms for the study of same-sex marriage around the world;
· https://www.psychologicalscience.org/publications/observer/obsonline/supreme-court-ruling-on-gay-marriage-changed-perception-of-norms-despite-stable-personal-beliefs.html#:~:text=Research%20conducted%20before%20and%20after,personal%20attitudes%20on%20the%20subject. for the study of changing perceptions of norms related to gay marriage;
· https://www.pewforum.org/fact-sheet/changing-attitudes-on-gay-marriage/ for the attitudes of same-sex marriage;
· https://www.pewforum.org/fact-sheet/gay-marriage-around-the-world/; https://www.jstor.org/stable/23036054?seq=1 for the study of social perspectives on same-sex marriage
· https://www.hindustantimes.com/india-news/social-acceptance-of-same-sex-relations-remains-low-survey/story-kI9JHEGEx2hzcdmQQvYjOI.html for the survey of social acceptance of same-sex marriage;
· https://economictimes.indiatimes.com/industry/miscellaneous/heres-list-of-countries-where-same-sex-marriages-are-legal-and-illegal/articleshow/61165415.cms for the study of same-sex marriage;
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