Emulating the U.S.’s rainbow moment

The lessons from the reasoning behind the verdict in the U.S. on same sex marriage, if correctly applied, ought to reverberate across the world, including in India, where gay people are still denied their most basic freedoms

Updated - May 12, 2016 06:08 am IST

Published - June 30, 2015 01:39 am IST

The decision in Obergefell will go down in the annals as a culmination of decades of struggle by gay rights activists for equal treatment. Photo shows the White House illuminated in rainbow colours on Friday.

The decision in Obergefell will go down in the annals as a culmination of decades of struggle by gay rights activists for equal treatment. Photo shows the White House illuminated in rainbow colours on Friday.

In a historic verdict rendered on Friday, the U.S. Supreme Court, through a five-to-four vote, >declared laws that prohibit same-sex marriages in the country as unconstitutional. Justice Anthony Kennedy’s opinion, written on behalf of the majority, is not only evocatively worded, but it also presents a dazzling defence of human dignity and individual autonomy. There is, in the 14th Amendment to the U.S. Constitution, Justice Kennedy wrote in Obergefell v. Hodges , an implicit right to marry, which requires states to compulsorily licence a marriage between two individuals of the same sex.

The opinion is a victory for civil liberties in America, and the lessons from its reasoning, if correctly applied, ought to reverberate across the world, including here in India, where we continue to unconstitutionally — and unconscionably —deny gay men, women and transgenders even their most basic freedoms.

Right to equality This decision in Obergefell will go down in the annals as a culmination of decades of struggle by gay rights activists for equal treatment. It was only in 1986, after all, in Bowers v. Hardwick , that the court had found nothing unconstitutional about laws penalising consensual sex between homosexuals. To argue that sodomy was “implicit in the concept of ordered liberty,” as the petitioners did, wrote Justice Byron White in Bowers , was, “at best, facetious.” It took 17 years for Bowers to be formally overruled (in Lawrence v. Texas ), but, today, the court deserves credit for moving, in less than three decades, from viewing arguments in support of autonomy of gay individuals as frivolous to recognising their rights to be treated as equal beings.

There were, in all, 16 petitioners in Obergefell , which included 14 same-sex couples and two men, whose same-sex partners were now deceased. Their cases emanated from the states of Michigan, Kentucky, Ohio and Tennessee, each of which recognised marriage solely as a union between man and woman. The first petitioner, Jim Obergefell, wanted the state of Ohio to recognise him as the surviving spouse of John Arthur, whom he had legally married in Maryland. As Justice Kennedy recounted, Obergefell and Arthur had been in a committed relationship for more than 20 years, when they discovered, in 2011, that Arthur was suffering from amyotrophic lateral sclerosis (Lou Gehrig’s disease), which causes a progressive degeneration of the body. Knowing that Arthur’s life was in immediate peril, he and Obergefell decided to wed, travelling from Ohio to Maryland, where same-sex marriages were permitted. Arthur’s condition was so poor that the wedding ceremony was conducted on the tarmac in Baltimore, where the medical transport plane that had brought Arthur was stationed. Arthur died three months later, but, in spite of their lawful marriage, the state of Ohio refused to recognise Obergefell as Arthur’s surviving spouse.

The other petitions in the case also comprised, as Justice Kennedy wrote, equally compelling stories. None of them represented, as some of the justices in the minority contended, any erosion of societal norms, and all of them revealed, with stark clarity, why the denial of a right to marry an individual of the same sex struck at the core of one’s essential freedom.

On dignity and liberty The 14th Amendment to the U.S. Constitution, under which these appeals ultimately succeeded, provides, among other things, that the state shall not “deprive any person of life, liberty, or property, without due process of law,” and that the state shall not deny to any person “the equal protection of the laws.” Although Justice Kennedy’s reasoning is occasionally rhetorical — a flourish, which albeit reads lyrically — he specifically relies both on the due process and the equal protection clauses in recognising a right to same-sex marriage.

The thrust of Justice Kennedy’s reasoning lies in giving recognition to the fundamental dignity of gay people, and their autonomy to make ethical choices about their lives, a liberty that ought to accrue equally to individuals regardless of their sexuality.

Relying upon precedent, Obergefell reiterated that the right to marry, to establish a home and to bring up children is protected by the Due Process clause of the 14th amendment. By virtue of their exclusion from the institution of marriage, “same-sex couples are denied the constellation of benefits that the States have linked to marriage,” wrote Justice Kennedy. “This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.” What’s more, in denying people a right to marry individuals of the same sex, the States also violated, in Justice Kennedy’s opinion, the right to equal protection of the laws, “which can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution.”

Voice of dissent In a sharply worded, and astonishingly blinkered, dissenting opinion, Justice Antonin Scalia wrote, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” Justice Kennedy’s style, in Justice Scalia’s words, was “as pretentious as its content is egotistic.” It’s hard to miss the irony. Justice Scalia’s dissent is vitriolic, constituting a personal attack on Justice Kennedy, and is also embedded in a unique and unjustifiable philosophy of textual originalism, which is backed neither by the Constitution nor by good reason. As Justice Kennedy pointed out, “in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”

Chief Justice Roberts however, in a more principled dissenting opinion than Justice Scalia’s, asks a telling question: ought it to be the prerogative of nine unelected justices to determine whether a democratically enacted law violates what in their notion constitutes a fundamental right? To this, too, Justice Kennedy has a good response. “The Nation’s courts are open to injured individuals,” he wrote, “who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.” The court, he opined, is tasked simply with the job of determining a legal question: whether laws denying a right to same-sex marriage violate the Constitution. The answer, in the majority’s opinion, was a resounding yes.

Indian context The curve of constitutionalism in India no doubt differs significantly from the development of American constitutional law. Also, foreign judgments do not always lend themselves well to constitutional interpretation. But, where they are relevant, and where genuine parallels can be drawn, it’s always valuable to heed to and to understand the reasoning behind a foreign decision. No doubt, not every aspect of Justice Kennedy’s opinion in Obergefell would apply in the Indian context. But a reading of his decision ought to serve as an important reminder of the deep damage wreaked by the Indian >Supreme Court’s decision in December 2013 , in Suresh Kumar Koushal v. Naz Foundation .

Here, in a judgment authored by Justice G.M. Singhvi, the court obdurately dismissed the relevance of foreign authorities in upholding the validity of Section 377 of the Indian Penal Code, which, among other things, effectively criminalises homosexual acts. In what turned out to be a harmful and flawed opinion, there was no discussion whatsoever on how the Indian Constitution insofar as it applied to Section 377 was different from its American equivalent and its application to laws discriminating against gay people. Well-reasoned arguments questioning the inequality of a classification based on sexuality were dismissed with equal flippancy. Instead, the court offered a strange deference to supposed parliamentary wisdom.

In Obergefell , Justice Kennedy refutes precisely the kind of undemocratic intransigence shown by the Indian Supreme Court in Koushal . Justice Kennedy points out why judicial review in matters such as this, where fundamental rights are at stake, is central to an apposite functioning of a democracy. What’s more, he forcefully tells us why discrimination against homosexuals is a matter that travels to the very root of human dignity. The sexuality of an individual is fundamental to the person’s autonomy, and it is an ethical choice that goes beyond a realm where the state can lawfully operate.

These precepts are applicable as much to the guarantee of equal protection under the Indian Constitution as they are to the 14th amendment of its U.S. counterpart. In India, much like in the United States, the power of the courts to judicially review acts of legislature derives itself from principles of democracy, properly understood. In fact, the Indian people have additionally been bestowed with a specific fundamental right to approach the Supreme Court directly to question laws, which violate their basic liberties, guaranteed in Part III of the Constitution. Therefore, it ought to be a matter of shame to us that the Indian Supreme Court, in Koushal , chose to dismiss issues of such grave constitutional concern with facile neglect.

When the court ultimately hears a curative petition filed against its decision in Koushal , it must reflect profoundly on the concerns that Justice Kennedy’s opinion in Obergefell highlights. It must seek to understand why Section 377 disturbs choices, which are central to the personal liberty expressly guaranteed by our Constitution. It must regard, with greatest respect, the protection, which our Constitution provides to gay persons, of a right to be treated as equal individuals.

(Suhrith Parthasarathy is an advocate practising at the Madras High Court).

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