SC’s marriage equality judgment unpacked: Two views on four key issues

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Source: The post is based on the article “SC’s marriage equality judgment unpacked: Two views on four key issues” published in Indian Express” on 18th October 2023

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A five-judge Constitution Bench of the Supreme Court has refused to grant legal status to same-sex marriages by 3-2 majority.

What are the views of the judges on the four key questions related to same-sex marriages?

Source: Hindustan Times

On Fundamental Right to Marry: The petitioners argued that there exists a fundamental right to marry a person of one’s own choice under the Constitution and that the court must address the denial of that right:

– Minority View: The marriage is not inherently a fundamental right as it has been shaped by state regulation.

– Majority View: It agreed with the minority view.It said that personal importance doesn’t automatically make something a fundamental right.

Interpretation of Special Marriage Act: SMA was enacted in 1954 to enable marriage between inter-faith or inter-caste couples without them giving up their religious identity or resorting to conversion.

The petitioners had asked the SC to interpret the word marriage as between “spouses” instead of “man and woman”.

The petitioners had asked for striking down provisions of the SMA that are gender-restrictive.

– Minority View: It opposes expansive interpretation of the Special Marriage Act, fearing it could infringe on legislative powers.

– Majority View: It stated that the court could not interpret the SMA to include same-sex couples since the objective of the legislation is not to include same-sex couples within the realm of marriage.

Queer couples’ right to adopt a child: The petitioners had argued that the guidelines of the Central Adoption Resource Authority (CARA), which does not allow unmarried couples to jointly adopt children is discriminatory against queer couples who cannot legally marry.

CARA guidelines allow only a couple who have been in at least two years of a stable marital relationship to be eligible to adopt.Individually, queer persons can adopt as single people. 

However, a single male is not eligible to adopt a girl child  even though a single female is eligible to adopt a child of any gender.

– Minority View: It strikes down certain CARA regulations emphasizing that preventing unmarried couples, including queer ones, from adopting isn’t in the child’s best interests.

– Majority View: It largely agrees with the discrimination against queer couples but suggests only the legislature can change the adoption criteria.

Civil unions for queer couples: The judges had discussed recognising civil unions for queer couples as a halfway approach during the hearing.

In US, before full marriage rights were recognised for same-sex couples by the US Supreme Court, several states had allowed civil unions.

– Minority View: It held that the right to form civil unions falls within the fundamental right to freedom of speech and expression.

– It also noted the Solicitor General’s statement that a committee chaired by the Cabinet Secretary would be constituted to set out the rights which would be available to queer couples in civil unions.

– Majority View: It disagreed with the view that the court can prescribe a “choice” of civil unions to queer couples.It recommended that the state can facilitate this option if the community desires it.

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