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Source– The post is based on the article “Same-sex marriage: Morality vs equality” published in “The Hindu” on 13th June 2023.
Syllabus: GS2- Vulnerable sections of the population. GS2- Judiciary
Relevance- Issues related to LGBT
News- Just a few days before the Supreme Court of India commenced hearings on the same-sex marriage issue.
What questions arises when SC follows a liberal approach in deciding the same-sex marriages?
The Court should be neutral on moral questions about the desirability of marriage, meaning of marriage. This neutrality is mandated by its jurisprudence on equality for all irrespective of social or personal morality.
Constitutional morality has been used by the Supreme Court in many cases to maintain neutrality on moral issues.
Following this neutrality would mean that people’s legal rights are protected irrespective of the societies’ moral view.
But to mandate the state to recognise a particular kind of marriage based on equality is to recognise marriage as a social honour. It would be violating the liberal tenet of neutrality.
As per liberal theory, state intervention in the matter is only the second-best option. The idea of liberalism is that the state should be neutral to moral concerns about institutions like marriage.
What is the basis of an equality based and privacy-based approach for deciding same sex marriages?
Citizens who see and value marriage as a heterosexual institution would be asked to recognise same-sex marriages, not as a matter of shared understanding but as a duty we owe to strangers.
If the matter were to be decided based on “intrinsic value or social importance of the practice”, one avoids the alienation that gives rise to fundamentalist tendencies.
What is the best way forward to decide about same-sex marriages?
Compared to liberal court decisions imposed on a reluctant public, ultimately sustainable decisions were forced on parties and electoral assemblies by ad hoc citizens’ assemblies in Ireland and the pressure of citizens’ initiatives in Finland.
Ideally these questions should be left for citizens’ assemblies or citizens’ initiatives like in Ireland or Finland. In India, there is a need to look for equivalents. Reviving Gandhi’s “little republics” could be a good starting point.
