The question of same-sex marriage should be left to citizens’ initiatives to resolve, rather than to the state

 The question of same-sex marriage should be left to citizens’ initiatives to resolve, rather than to the state

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.

Supreme Court’s neutrality

This critique highlights a difficulty in any attempt to sort out the issue of same-sex marriage within a liberal framework of individual rights.

For, if the Court were to adjudicate फै़सला सुनाना on the right to marry it would have

1 to break its neutrality on moral questions about the desirability of marriage, 

2 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.

3 In fact the idea of constitutional morality has been used by the Supreme Court in many cases to maintain neutrality on moral issues.

4 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.

5 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 / theory of neutrality.

The idea that the state should be neutral to moral concerns about institutions like marriage is what Sandel calls “bracketing” समानता के आधार पर दो या अधिक व्‍यक्तियों या वस्‍तुओं को एक ही वर्ग में रखना 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.”

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  / internal value or social importance of the practice”, one avoids the alienation / separate feelings that gives rise to fundamentalist tendencies.

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 / propertise of marriage.

 In the American context, the Court only had to choose between whether marriage is about “procreation /  reproduction ” 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 निर्वाह करना even after the death…”

Citizens’ initiatives

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.

homosexuality was decriminalise 

1 Understandably, there were no social rumblings / voice when homosexuality was decriminalised. It reflected the society’s shared values. 

2 Can the same be said about homosexual marriage? 

3 Have we, like some western societies, accepted “romantic-love” or companionship and nothing else to be the basis of marriage?

4 Can the honorific / respect 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.

source the hindu