Tracing the unequal path to marriage equality worldwide

This year, an ex-Soviet State and a tiny European nation legalised same-sex marriage. The Pope suggested that the Catholic Church could be open to blessing same-sex couples, and several Asian nations strengthened the protection afforded to persons belonging to the LGBTQIA+ community.

Now, all eyes are on the largest democracy on the planet, in anticipation of what could possibly be the most significant leap in marriage equality in the world.

The Supreme Court of India's verdict in a batch of over 20 petitions seeking legal recognition of same-sex marriage is awaited.

A Constitution Bench comprising Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha reserved its verdict in the matter after a ten-day marathon hearing. The judgment is expected to be pronounced before before October 20, as one of the member judges, Justice Bhat, will demit office by that date.

35 countries across the world already recognise same-sex marriage. If the Supreme Court verdict legalises same-sex marriage in India, it would bring marriage equality to over a quarter of the world's population .

Internationally, the rights of LGBTQIA+ persons have been key issues in politics, culture and society for a long time. However, with the movement taking root in the global south and with the rise of far-right politics, the debate has become more polarising and volatile than ever before. 

This uncertain, non-linear path is typical of the one taken by all other nations that have legalised or is in the process of not just legalising same-sex marriage, but also of expanding rights to those who do not conform to heterosexual and gender binary norms. 

Since the first legally recognised same-sex marriages took place in Netherlands in 2001, 34 countries took different paths to legalisation. It is worthwhile to take a look at the journies taken by countries that delivered marriage equality to its citizens over the last couple of years.

Estonia 

In 2023, Estonia became the first Baltic country and the first ex-Soviet State to legalise same sex marriage when it approved a law with a 55-vote majority in its 101-seat parliament. Estonia already recognized same-sex partnerships, but it was expanded by an amendment to the Family Law Act, 2016.  Once new legislation comes into force on January 1, 2024, same-sex couples will have the option to marry and adopt children.

Andorra

In 2022, the parliament of the small European country with a population of less than 80,000 voted to extend civil marriage rights to same-sex couples, who until then could only enter civil unions. The move came into effect in early 2023.

Cuba

Same-sex marriage was legalised following a national referendum in September 2022. Cubans voted in favor of a family code that increased protections for minorities in the country.

Slovenia

In July 2022, the Constitutional Court of Slovenia ruled in a 6-3 vote that bans on same-sex marriage and adoption were unconstitutional. The court’s decision took effect immediately and the parliament passed an amendment codifying same-sex marriage in October the same year.

Chile

Chile’s President signed a bill to legalize same-sex marriage in the Latin American country in 2021. The bill was first introduced in 2017 and came into effect in March 2022.

Mexico

Same-sex marriage first became legal in 2009 in Mexico City, the country’s capital. In 2015, Mexico’s Supreme Court ruled that state bans against same-sex marriage were unconstitutional, but it was only in 2022 that the last of Mexico's states codified same-sex marriage

The onus of legalisation - Executive or judiciary?

Before the Supreme Court of India, the most overarching theme of the arguments was whether ensuring marriage equality was in the domain of the legislature or the judiciary.

The history of legalising same-sex marriage shows that a majority of countries did indeed change the laws through legislation. Among these, Cuba, Switzerland and Ireland conducted a national referendum and Australia conducted a postal survey prior to legalisation.

Only 10 nations legalised same-sex marriage through the decision of a court or with legislative action following a court verdict. These are Austria, Brazil, Colombia, Costa Rica, Ecuador, Mexico, Slovenia, South Africa, Taiwan and the United States of America.

Historical and present day context across the globe

Same-sex relationships have been documented throughout history. In some cultures, such relationships were not seen as abnormal and was even encouraged. Historical accounts of ancient India, Greece, China, Japan and indigenous peoples of the Americas indicate that there was at least some level of tolerance and acceptance of such relationships.

However, homophobia has also existed for just as long, and it took even stronger roots in the world during the colonial era. Over 60 countries, including a majority of Commonwealth nations, still have laws that criminalise homosexuality.

In many places - mostly in the Middle East and Africa - indulging in any sort of homosexual activity is punishable by long prison sentences and even by death in some countries.

Just in the last year, Uganda's President signed into law the world’s harshest anti-LGBTQ+ bill, which prescribes the death penalty for homosexual acts.

The move drew widespread and harsh criticism. The USA considered imposing sanctions and the World Bank suspended new funding to the African nation.

Nigeria arrested over 60 people for allegedly attending a gay wedding and released them on bail only after a month.

In Kenya, the Supreme Court allowed the nation's National Gay and Lesbian Human Rights Commission to register as an NGO, but religious leaders took to the streets in protest.

Some "developed" countries, especially those with more vocal far-right movements, saw a constriction in the rights that LGBTQIA+ communities had enjoyed thus far.

In Spain, LGBTQIA+ rights were at the forefront of the right-wing party's election bid in the snap polls held in July this year. They failed to secure a majority, but the close election revealed a "divided nation".

In Italy, Prime Minister Giorgia Meloni vowed to combat what she called the ‘LGBT lobby’. Lawmakers proposed an anti-surrogacy law that would make it harder for same-sex couples to be legal parents.

The United States Supreme Court ruled with a 6-3 majority that the constitutional right to free speech allows certain businesses to refuse to provide services for same-sex weddings. The dissenting judges termed the decision a ‘license to discriminate’.

One among them, Justice Sonia Sotomayor, wrote,

"Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class."

With a conservative US Supreme Court for the foreseeable future, it is not far-fetched to imagine a situation where its 2015 ruling affording legal status to same-sex marriages could be rolled back, as was done with reproductive rights in Roe v. Wade. Conservative candidates of the 2024 presidential race have made it clear that the LGBTQIA+ "culture war" would be one of their focal points.

Asia presents a mildly encouraging picture, even though only Taiwan recognises same-sex marriage at present.

Courts in Japan, the only G7 country to not fully recognise same-sex marriage, came to opposing conclusions on whether not allowing same-sex marriages is unconstitutional. However, they all agreed that same-sex couples need to be afforded some form of legal protection. Some municipalities introduced partnership certificates, but the country's leadership has struggled to pass effective nationwide reforms.

Hong Kong's top court dismissed a man's plea for legal recognition of his marriage to another man, but asked the government to create new legal protection for same-sort of couples.

Most significant is perhaps the fact that the Supreme Court of Nepal allowed same-sex couples to register their marriages, albeit provisionally. The court is considering a petition moved by gay rights activists and issued an interim order allowing registration, pending the final verdict.

In South Korea, the Seoul High Court in February ruled that the State's health insurer should provide spousal coverage to a same-sex couple.

All eyes on the Supreme Court of India

In India, the lead petition in the Supreme Court was moved by a gay couple, Supriyo Chakraborty and Abhay Dang, who have been together for almost 10 years. They had a wedding-cum-commitment ceremony on their 9th anniversary in 2021 to celebrate their relationship. However, despite the same, they do not enjoy the rights of a married couple.

The hearings in the matter were equal parts encouraging and disheartening to all, especially to India’s LGBTQIA+ community. 

The Central government argued against legalisation based on a wide range of grounds - from preserving traditional family values to the dubious argument that legalisation would lead to a case for lifting the prohibition on incest. The Solicitor General also made a submission that gender fluidity would be impossible to accommodate in statutes. He had said,

"A person who does not identify with any gender is called agender, genderless...it is impossible to reconcile through a judgment...they refuse to be categorised in any gender identity...there are also people who change gender as per surroundings...Then there is gender as per mood swings...There is amicagender, where gender is changed as per the friends they have...anogender where gender identity fades in an out with intensity and comes back with another gender identity..."

At the same time, the hearing, which was live-streamed by the Supreme Court, saw heartfelt arguments from the counsel representing the petitioners. 

They argued that the right to marry is an extension of the right to 'privacy' and the right to 'cohabit' and since the right to family is recognised under Article 21, the right to marry also has to be granted to same-sex couples. Their arguments highlighted that sexual orientation and gender were innate characteristics of a person, and to discriminate on the basis of this would fall foul of the fundamental right to equality.

The world's eyes are now on India as the Supreme Court prepares to pronounce its judgment

Regardless of what the verdict will be, for achieving equality for all, true community acceptance remains the goal.