Examining Same-Sex Marriage: A Comparative Analysis

Abstract

Marriage remains one of society’s most significant institutions, representing a union grounded in companionship, stability, emotional support, and legal recognition. Across centuries, its meaning has evolved from a rigid, procreative framework toward one that emphasizes autonomy, equality, and mutual respect between partners. Globally, same-sex marriage has emerged as a defining human rights concern, highlighting the ongoing struggle of marginalized communities to obtain legal protection and social legitimacy. In India, the decriminalization of homosexuality through Navtej Singh Johar v. Union of India (2018) marked a historic turning point by affirming the constitutional identity and dignity of LGBTQ+ individuals. Despite this progression, the absence of marital and familial rights continues to deny them complete citizenship under the law. This article adopts a comparative and constitutional lens to examine the legal treatment of same-sex marriage across various jurisdictions, analyzes the gaps within Indian statutory frameworks, and explores social and cultural narratives surrounding queerness. Drawing upon recent scholarship from 2018 to 2024, it argues that acknowledging same-sex marriage is not contrary to Indian tradition, but instead reflects the Constitution’s moral commitment to equality, nondiscrimination, and human dignity.

Introduction

Marriage is widely perceived as the foundation of social order, offering emotional security, economic interdependence, and legal certainty to couples. As societies evolve, their interpretation of marriage must similarly progress to align with contemporary values of equality and justice. The debate surrounding same-sex marriage therefore extends beyond religious or moral boundaries; rather, it reflects society’s willingness to embrace diversity and individual autonomy. Following the Supreme Court’s ruling in Navtej Singh Johar, which declared sexual orientation an intrinsic aspect of identity protected under Articles 14, 15, and 21, many believed that marriage equality would soon follow. Yet, despite affirmations of dignity, privacy, and intimacy, same-sex couples remain excluded from marital protections. They lack access to adoption, inheritance, medical decision-making, pension benefits, and tax concessions routinely available to heterosexual couples. This legal void creates social invisibility and reinforces stigma. Consequently, extending marriage equality is not merely a legislative preference but a constitutional duty that seeks to transform both law and society.

Understanding Gender, Sexuality, and Identity

Human sexuality is not confined to a binary but encompasses various identities including homosexual, bisexual, pansexual, and asexual orientations. Likewise, gender identity extends beyond the traditional male-female dichotomy, recognizing transgender, intersex, and non-binary individuals. Distinguishing biological sex from gender identity and sexual orientation forms the foundation of contemporary human rights discourse. Historically, Indian society acknowledged diverse gender expressions. Ancient temples portray same-sex intimacy, while mythological narratives reference gender fluidity. Folklore surrounding figures such as Shikhandi in the Mahabharata illustrates India’s long-standing engagement with such identities. These examples contradict claims that LGBTQ+ rights are Western inventions. Legal recognition of same-sex marriage validates identity, protects relationships from arbitrary discrimination, and ensures that intimacy, affection, and companionship receive equal respect. Such recognition signals a shift away from outdated heteronormative structures and reflects evolving constitutional morality.

Comparative Legal Frameworks

Countries around the world have advanced toward marriage equality through legislative reform, constitutional interpretation, or judicial mandate. The Netherlands pioneered legal same-sex marriage in 2001, inspiring jurisdictions such as Canada in 2005, Spain in 2005, Argentina in 2010, and New Zealand in 2013. In the United States, the landmark case of Obergefell v. Hodges (2015) held that denying marriage licenses to same-sex couples violates due process and equal protection, emphasizing that marriage safeguards profound personal choices, dignity, and stability. Taiwan’s legalization in 2019 marked a milestone in Asia, illustrating how courts and legislatures can collaborate to expand rights. Conversely, countries such as South Africa recognized same-sex marriage constitutionally, underscoring that prohibitions constitute unfair discrimination. Empirical research reveals that legal recognition correlates with reductions in suicide attempts among LGBTQ+ youth, improved mental-health outcomes, increased workforce retention, and stronger civic engagement. Marriage equality reinforces commitment structures and strengthens societal trust, rather than destabilizing traditional family systems.

The Indian Legal and Constitutional Context

The Indian Constitution guarantees liberty, equality, nondiscrimination, and free expression, collectively obligating the State to protect intimate personal choices. In Navtej Singh Johar, the Supreme Court characterized sexual orientation as an intrinsic attribute of personhood. Following this judgment, many expected the law to evolve toward granting marriage and family-based rights. The 2023 case of Supriyo Chakraborty v. Union of India revisited the question of marriage equality. Although the Court acknowledged the discrimination faced by queer individuals, it refrained from modifying statutory definitions, directing Parliament to take necessary action instead. This decision reflects the ongoing tension between judicial deference and constitutional urgency. Currently, personal laws concerning Hindu, Muslim, Christian, and Parsi marriages define unions heteronormatively. Consequently, same-sex couples remain excluded from adoption, guardianship, maintenance, succession, medical consent, and pension benefits. Reforming the Special Marriage Act, 1954, by substituting gendered terms such as “husband” and “wife” with gender-neutral expressions such as “spouses” or “persons” could offer an inclusive pathway without infringing upon religious personal laws.

Cultural Dimensions and Social Acceptance

Indian culture’s engagement with sexuality has historically been fluid. Temple iconography in Khajuraho and Konark portrays diverse sexual expressions, while Sufi traditions romanticize same-gender devotion. Over the centuries, colonial rule imposed Victorian moral codes that criminalized queerness as “unnatural” and introduced rigid gender norms. Urban India increasingly demonstrates acceptance driven by higher education, globalization, and media representation. Yet, many queer individuals continue to face familial pressure, conservative religious beliefs, and social ostracization. Legal recognition often serves as a catalyst for cultural transformation. When the State acknowledges same-sex unions, it communicates legitimacy, challenges prejudice, and encourages inclusivity. In numerous countries where marriage equality has been legalized, public acceptance improved considerably within a few years, demonstrating that law can effectively guide cultural evolution.

Need for Legislative Reform

Legislation must operationalize equality. While courts can interpret constitutional rights, Parliament possesses the authority to implement enforceable legal protections. Comprehensive reform would grant same-sex couples access to essential civil privileges including joint property ownership, pension and insurance benefits, inheritance parity, legal parenthood and adoption rights, and guardianship during medical emergencies. These rights are not privileges, but necessary safeguards that prevent social and financial exploitation. Expanding adoption eligibility could also address India’s alarming orphan population, offering stable homes through regulated, loving households. From a public-policy perspective, marriage equality aligns with principles of social justice, mental health, and family welfare. Studies from jurisdictions that legalized same-sex marriage demonstrate decreases in depression rates, social exclusion, and homelessness among queer youth. Marriage equality can enhance financial planning and foster long-term stability among partners, ultimately strengthening the economic fabric of society.

Intersectional Challenges

Class, caste, and regional disparities often compound discrimination against queer individuals. Those residing in rural areas frequently encounter violence, forced heterosexual marriage, and lack of institutional support. Transgender persons experience multiple layers of marginalization across employment, housing, and healthcare systems. Marriage equality alone cannot dismantle such deeply entrenched barriers, but it can symbolize a structural commitment to equity. Institutional awareness, inclusive curricula, and social sensitization programs are essential to dismantle the stigma associated with non-normative identities. Policy reforms must also recognize the unique vulnerabilities faced by transgender and intersex individuals to ensure their safety and participation in society.

Judicial Perspectives and Constitutional Morality

Indian constitutionalism distinguishes between constitutional morality and social morality. The Supreme Court, in Navtej Singh Johar, emphasized that majoritarian sentiment cannot override fundamental rights. Similarly, in Shafin Jahan v. Asokan K.M. (2018), the Court reaffirmed that the right to marry a partner of one’s choice is integral to personal liberty. Constitutional morality demands protection of autonomy, privacy, and equality, even when such protection challenges prevailing cultural norms. Judicial pronouncements consistently acknowledge intimacy as central to human flourishing. Marriage equality therefore becomes the natural extension of jurisprudence protecting privacy, identity, and personhood.

Economic and Developmental Considerations

Inclusive legal frameworks promote tourism, increase foreign investment credibility, and support workforce diversity. Corporations that implement nondiscrimination policies consistently report higher productivity, stronger employee retention, and healthier workplace culture. Recognizing same-sex marriages would reduce litigation concerning dignity harms, improve beneficiary nomination systems, and support pension and insurance claims. Equality is therefore not only morally compelling but economically strategic. Nations that promote diversity are better positioned to participate in global markets, attract innovation, and foster sustainable development.

The Way Forward

India’s path toward marriage equality need not be abrupt. A phased approach could involve recognition of civil unions or registered domestic partnerships as interim measures while broader reforms evolve. Anti-discrimination statutes should be enforced across employment, housing, and education. Law enforcement agencies require training to prevent harassment, and medical institutions must update consent protocols to acknowledge queer partners. Educational reforms should introduce gender-sensitive modules to challenge misconceptions, and media representation can play a critical role in normalizing diverse identities. The State’s responsibility is not to affirm popular sentiment but to uphold constitutional promises that protect minorities from majoritarian pressures.

Conclusion

Recognizing same-sex marriage is a vital step toward fulfilling India’s constitutional guarantees. Although decriminalization removed criminal stigma, equality remains incomplete without affirmative rights. Marriage equality embodies democratic values of liberty, dignity, and justice central to India’s constitutional ethos. Legal recognition would protect vulnerable citizens, strengthen family structures, and reaffirm India’s commitment to pluralism. The law must defend love rather than restrict it. As the maxim warns, justice delayed is justice denied, and for countless individuals awaiting acknowledgment and legal security, the time for equality is now.

References

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