Just a few days before the Supreme Court of India commenced hearings on the same-sex marriage issue, one of the world’s leading philosophers, Michael Sandel, was in India to take part in a media group’s conclave.
Introduced as a “rockstar” during the event and prodded to make comments on banal local politics, the significance of his ideas for deeper moral questions facing Indian society remained lost on most.
Supreme Court’s neutrality
For example, while arguments based on the various strands of liberalism were being marshalled before the Supreme Court, Sandel’s critique of contemporary liberalism should also have been part of the repertoire for consideration.
This critique highlights a difficulty in any attempt to sort out the issue of same-sex marriage within a liberal framework of individual rights.
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For, if the Court were to adjudicate on the right to marry it would have to break its neutrality on moral questions about the desirability of marriage, what fits into the institution and what it means to people – a neutrality mandated by its jurisprudence on equal concern for all irrespective of social or personal morality.
In fact the idea of constitutional morality has been used by the Supreme Court in many cases to maintain neutrality on moral issues.
Following this neutrality would mean the Court should stop at ensuring that people’s legal rights are protected just like how it held that those in live-in relationships are entitled to legal protection irrespective of the societies’ moral view on such relationships.
But to mandate the state to recognise a particular kind of marriage on the basis of equality is to recognise marriage as a social honour and pronounce on its moral worth. It would be violating the liberal tenet of neutrality.
So even for an ardent votary of same-sex marriage like the philosopher Martha Nussbaum, state intervention in the matter is only the second best option- “[S]o long as the state is in the marrying business, concerns with equality require it to offer marriage to same-sex couples-but. . . it would be a lot better, as a matter of both political theory and public policy, if the state withdrew from the marrying business” [emphasis added].
The idea that the state should be neutral to moral concerns about institutions like marriage is what Sandel calls “bracketing” of moral issues. It assumes human ability to detach oneself from his/ her “stories” or “social and historical roles and statuses.”
Equality or privacy
In the context of same-sex marriages, the Court will be following this approach if it were to decide in favour of the petitioners only on the basis of equality or privacy. Sandel says “if…social and economic rights are required as a matter of equal respect for persons (only), the question remains why these persons…have a claim on my concern that others do not.”
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In other words, citizens who see and value marriage as a heterosexual institution would be asked to recognise same-sex marriages, through their state of course, not as a matter of shared understanding but as “a duty we owe to strangers.”
On the other hand if the matter were to be decided on the basis of “intrinsic value or social importance of the practice” one avoids the alienation that gives rise to fundamentalist tendencies.
This now takes us to the more important question as to whether the Court, or for that matter even a centralised State, is capable of deciding on or resolving moral issues in society.
Sandel cites the example of Massachusetts Supreme Judicial Court’s decision in Goodridge v. Dept. of Public Health (2003) which legalised same-sex marriage not just on grounds of equality and freedom of choice but by pronouncing on the virtues of marriage. In the American context, the Court only had to choose between whether marriage is about “procreation” or “loving relationships”.
In India, the significance of marriage for those who look at it in traditional terms is much more than both. The significance was captured by the Calcutta High Court in 1901 as follows- “it is a ‘union of flesh with flesh, bone with bone’… the union is a sacred tie and subsists even after the death…”
Citizens’ initiatives
Yale Professor Helen Landemore says “compared to liberal court decisions imposed on a reluctant public, with the potential for backfiring… the most radical and ultimately sustainable changes to have come for gay rights … were forced on parties and electoral assemblies by ad hoc citizens’ assemblies (Ireland) and the pressure of citizens’ initiatives (Finland)” [emphasis added].
It has been noted by scholars that historically Indian society has not shared the same sense of disgust or hatred with which homosexuals were treated in other parts of the world.
Understandably, there were no social rumblings when homosexuality was decriminalised. It reflected the society’s shared values. Can the same be said about homosexual marriage? Have we, like some western societies, accepted “romantic-love” or companionship and nothing else to be the basis of marriage?
Can the honorific value of marriage be sustained without a heterosexual couple? Ideally these questions should be left for citizens’ assemblies or citizens’ initiatives like in Ireland or Finland. In India too one could look for equivalents. Reviving Gandhi’s “little republics” could be a good starting point.
(The author is an advocate practising in the Madras High Court)
