The Obergefell v. Hodges decision by the U.S. Supreme Court on June 26, 2015, was a landmark ruling that declared same-sex marriage bans unconstitutional nationwide, including in Michigan, Kentucky, Ohio, and Tennessee. The Fourteenth Amendment of the United States Constitution, which protects individuals from oppressive state actions and guarantees equal protection under the law, was invoked in this decision.
One notable aspect of this ruling was the shift in public opinion, particularly within the Democratic Party, toward support for same-sex marriage by the time the case reached the highest court. While in 2008, only 50% of Democrats favored legalizing same-sex marriage, support increased to 65% by 2012. Meanwhile, among Republicans and politicians, there was a steady albeit smaller increase in support for same-sex marriage.
MARIKINA, PHILIPPINES – JUNE 29: Filipinos participate in the monthly Pride March on June 29, 2019, in Marikina, south of Manila, Philippines. The organizers of the march announced a record turnout of over 50,000 people at this year’s Pride March, more than double the size of the previous year. This year’s march focused on educating the public on gender identities, particularly those of LGBTQ communities, as well as addressing the nation’s social issues like human rights, under the theme of #ResistTogether. (Photo by Jes Aznar/Getty Images)This broader societal shift is reflected in the evolution of then-President Barack Obama’s stance on same-sex marriage. Obama initially supported civil unions in 1998 but later advocated for legal unions and came out in support of same-sex marriage publicly as president in May 2012. In contrast, while some Republican-led legislatures maintained their staunch position against marriage equality, Democratic-led legislatures actively embraced marriage equality.
This narrative underscores the significance of robust advocates for LGBTQ+ rights, particularly within political parties, in overcoming legislative opposition. By the time the marriage equality conversation reached the Supreme Court, the Democratic Party in the United States had largely rallied behind LGBTQ+ rights. However, the situation in India presents a stark contrast. When the Supreme Court of India began hearing appeals for marriage equality, the Solicitor General of India, Tushar Mehta, and individual states released their respective positions on the issue. Unfortunately, none of the states expressed support for marriage equality. In fact, three states—each governed by different parties—displayed rare unanimity in opposing the cause. The state governments of Assam (BJP), Rajasthan (Congress), and Andhra Pradesh (YSR Congress) all opposed legalizing same-sex marriage. Additionally, the governments of Maharashtra (Shiv Sena), Uttar Pradesh (BJP), Manipur (BJP), and Sikkim (Sikkim Krantikari Morcha) requested more time to formulate their responses.
The BJP, Congress, and YSR Congress presented similar arguments in their positions opposing same-sex marriage, primarily rooted in traditional values, procreation, religious beliefs, and societal norms. They argued that historically, marriage served the purpose of procreation and ensuring fertility for future generations, making same-sex unions incompatible with this essential function. Additionally, they cited legal frameworks such as the Hindu Marriage Act, Muslim Law, and Special Marriage Act, contending that recognizing same-sex marriage would contravene these established legal statutes. Consequently, they prioritized preserving traditional values, religious doctrines, and cultural traditions, without considering how such positions may infringe upon the fundamental rights of LGBTQ+ communities and contravene principles of equality.
The BJP anticipated these arguments due to its conflicting and indifferent stance on homosexuality, but it was surprising to see the Rajasthan Congress adopt a position aligned with its own. In response, the proposal in the 2024 Congress Manifesto to legalize civil unions for LGBTQ+ couples raises questions about the party’s sincerity and whether it is merely posturing for queer votes ahead of the 2024 Lok Sabha elections.
The Congress Party’s stance on marriage equality: hollow promises or genuine commitment?
Even in states where they control the majority of seats, the Congress Party has the authority to enact laws governing marriage equality without waiting for the central government’s transition. Writing for the minority in the Supriyo v. Union of India case, Justice D. Y. Chandrachud held that the state had a duty to legally recognize LGBTQ+ couples, even if they did not have the constitutional right to marry. However, because the other three justices on the constitutional bench delivered the majority verdict, this declaration was not binding, as they believed it was up to the legislature to pass laws governing LGBTQ+ relationships at both the state and national levels. The outcome of this ruling was a total abdication of responsibility to the legislature and no real relief for LGBTQ+ couples.
This judgment, read in conjunction with Entry 5 of List 3 of the Constitution, empowers both state and central governments to enact laws governing marriage and divorce, including same-sex marriage. Thus, the consultation process promised by the Congress in its manifesto could have begun in 2018, shortly after the Supreme Court of India’s decision in Navtej Singh Johar v. Union of India; doing so would have made the Congress party the first party in Indian history to recognize LGBTQ+ union status at the state level. However, the party’s top leadership chose to maintain a stoic attitude both after the verdict was announced and during the Supriyo hearings. The Rajasthan government even went one step further by opposing legalization in the state. This disparity between the promises made by the Congress in the Manifesto and its actual actions on the ground demonstrates a lack of conviction and ideological coherence.
The Congress Party has already foreclosed the possibility of ensuring equal marriage rights through law, which is surprising given its readiness to consult relevant stakeholders to pass legislation favoring LGBTQ+ couples. A civil union, as the minority in Supriyo clearly held, is not equivalent to marriage. The Congress Party has the advantage of learning from LGBTQ+ people’s struggles throughout history, just as the Democrats in the US did. The sooner they acknowledge that denying full equality to the LGBTQ+ community contradicts their purported liberal stance, the better. They need not repeat the mistakes of the Democrats.
This discrepancy between the promises made by the Congress in the Manifesto and its actual actions on the ground demonstrates a lack of conviction and ideological coherence.
This is imperative, particularly because the party emphasizes its commitment to progressiveness, secularism, and liberal values. For example, soon after the marriage equality verdict, a senior congressman and Rajya Sabha Member of Parliament asserted that the party had ‘always’ stood with its citizens to safeguard their freedoms, choices, liberties, and rights. He emphasized that the Congress party was a ‘party of inclusion’ and that it was firmly committed to non-discrimination across all levels of society. In light of the party’s inaction on marriage equality at the state level and its failure to support the passage of necessary legislation if elected at the center, these statements come across as insincere.
Promoting equality through legislative reform
As the United States also heads to the polls this year, voters have a keen interest in abortion rights. Since the Supreme Court’s ruling in Roe v. Wade, governors in Democrat-led states immediately took action, passing a slew of laws and constitutional amendments to both expand abortion access and protect it at the state level. A win for Democrats would safeguard abortion rights, as their message was unmistakably clear.
Abortion is proving to be a winning issue for them because they have backed their rhetoric with action. Despite polls indicating that Joe Biden has a low approval rating for his handling of the conflict in Gaza, the LGBTQ+ community in India needs similarly committed political allies. On one hand, they have a leading opposition party that is prepared to pass a law on civil unions but refuses to grant full marriage rights. On the other hand, they face a conservative government vehemently opposed to their right to marry and establish a family.
The likelihood of LGBTQ+ couples receiving relief in the next five years seems slim, as the majority of polls indicate that the BJP-led NDA coalition government will win comfortably in the upcoming elections. However, activist groups now have the opportunity to persuade Congress and other opposition parties to take a more firm stance on marriage equality and translate words into action.
It is crucial for all opposition parties, particularly the Congress, to differentiate themselves from the BJP and uphold their commitment to liberalism and secularism.
It is crucial for all opposition parties, particularly the Congress, to differentiate themselves from the BJP and uphold their commitment to liberalism and secularism. By championing the cause of marriage equality, they not only stand to be on the right side of history but also align with the principles of equality and justice enshrined in the Indian Constitution. One can only hope that the Congress acts sooner rather than later.
