Gay Marriage: An Indian Perspective On the Obergefell Decision

By Sandeep Suresh

The decision in Obergefell v Hodges re-ignited the debate surrounding the United States Supreme Court (SCOTUS) and the extent of its authority. Many, including some Supreme Court Justices, argued that the Court has been overstepping its constitutional authority by legislating from the bench. [1] The sensitivity of the subject matter in Obergefell, the legality of same-sex marriage, enhanced the intensity of the debate, triggering questions of religion, traditions, separation of powers, and state autonomy.

The petitioners in the case, several same-sex couples, had filed suits in Federal District Courts in Ohio, Michigan, Kentucky, and Tennessee challenging the constitutional validity of the state laws banning same-sex marriage. The US Court of Appeals for the 6th Circuit ruled that the bans on same-sex marriages did not violate the petitioners’ rights under the 14th Amendment’s Equal Protection and Due Process clauses. The appeal against this decision in SCOTUS resulted in Obergefell.

As anticipated, the Court was sharply divided both in numbers and reasoning. Justice Anthony Kennedy authored the opinion for the 5-4 majority that included liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, and Elena Kagan. Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito, and Clarence Thomas wrote separate minority opinions, pointedly criticizing the majority Court.

The majority ruled that the Due Process Clause of the 14th Amendment guarantees the right to marriage as a fundamental liberty. Therefore, the bans on marriage between same-sex couples violated the Equal Protection Clause, denying a fundamental right to persons based on their sexuality.

Critics state that the trend of ‘legislators in robes’ making laws from the bench oversteps the Constitutional authority given to SCOTUS. In his minority opinion, the Chief Justice wrote,

"It is not about whether, in my judgment, the institution of marriage should be changed to include same sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes under the law".

Not surprisingly, Justice Scalia also wrote that the legality or criminality of same-sex marriage is a political issue to be left to the democratically elected State Legislatures and not to the nine unelected SCOTUS judges.

In my opinion, these Justices’ dissenting opinions are not legitimate criticisms of Obergefell. The minority opinions attach unnecessary social and political connotations to the issue of same sex marriages. I do not deny that the Obergefell ruling constitutes a great societal change. However, the issues in Obergefell rely on core legal and Constitutional principles that are within the Court’s jurisdiction to interpret. Whether laws banning same-sex marriages are constitutionally valid involves interpretations of the concepts that are fundamental principles embedded in the US Constitution, liberty, equality and Due Process. . If a group of people claims that certain legislation discriminates against them, violating their  14th Amendment rights, isn’t it the duty of a Constitutional Court to assess whether those laws do violate f the Constitution?

In his opinion, Justice Anthony Kennedy affirmed the Court’s power to rule in such cases.

“Thus, when the rights of persons are violated, ‘the Constitution requires redress by the courts,’ notwithstanding the more general value of democratic decision making.... This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity. The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.... An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.”

In addition, the minority judges opined that since the Constitution does not explicitly address the issue of same-sex marriage rights, it is outside the Court’s authority to create that right. This is an unreasonable extension of the Originalist school of thought. Originalism refers to the preservation of basic fundamental principles and true purpose of the Constitution. As the late Professor Robert Bork, a revered legal scholar, wrote in his book, The Tempting America,

"It is the task of the judge in this generation to discern how the Framers' values, defined in the context of the world they knew, apply to the world we know." [2] The creation of new rights by reading words not written in the Constitution must not be confused with the interpretation of the real meaning of Constitutional principles, like liberty and equal protection, to guarantee new rights. Interpretation of the Constitution in light of societal changes is a necessary power of the Court as the needs of American society evolve. Justice Kennedy aptly describes this function of SCOTUS in writing that, “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to further generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning”.

Justice Kennedy’s interpretation of the rights and protections ensconced in the Constitution’s intent it is not an outright rejection of Originalism. Accommodating new rights and principles that arise with time does not diminish the integrity of the Constitution, as long as the new interpretation is in consonance with the core principles embedded in the Constitution. In 1987, former SCOTUS Justice Thurgood Marshall delivered a lecture in which he referred to the US Constitution as a ‘Living Document’ that can accommodate new constitutional principles to meet the challenges of a changing society.

In India, the Constitution is similarly considered to be a living organism. The Supreme Court of India (SCI) has interpreted the Constitution over time to include various fundamental human rights that the original Constitution of 1950 did not explicitly prescribe. The SCI’s judicial activism has come a long way in guaranteeing Indians the most basic rights, rights indispensable for dignified life.

The majority court  in the Obergefell case importantly separated religious and traditional standards of marriage from their interpretation of the Constitution. Opponents argued that this decision was handed down without the slightest regard for the Constitution or the Rule of Law, that it was based on ideology or personal feeling. However, the Obergefell decision in fact honors the principles of Equal Protection, protecting same-sex couples from discrimination based on individuals’ ideologies or personal feelings derived from religious beliefs. The majority Court investigated the laws that banned same-sex marriage and applied the 14th Amendment’s fundamental concepts of equality, dignity, and liberty to the case, expanding their influence to accommodate the issues of today’s society.

In a decision that similarly dealt with the intricacies of religion and legislation,  on July 6th 2015, in ABC v State (NCT of Delhi), while advocating the need for Uniform Civil Code in India, the SCI ruled that religion could not be merged with law. [3] Justice Vikramajit Sen wrote, “India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with legislative intent and prevailing case law.”

In the historic case of Lawrence v Texas, SCOTUS ruled that laws criminalizing same-sex intimacy demeaned the lives of homosexual persons. [4] 12 years to the day, after the Lawrence decision, the Court took a bigger leap in promising full liberty for LGBTQ society with the Obergefell decision.

Unfortunately in India, even though the principles of liberty and equality have been interpreted expansively by the SCI, the laws regarding homosexual relationships remain oppressive. In 2013, the SCI upheld the constitutionality of Section 377 of the Indian Penal Code, 1861 which criminalized gay sex in Suresh Kumar Koushal v NAZ Foundation. [5] Until another case challenging the criminalization of gay sex arises, the SCI is helpless to legalize homosexuality. Therefore, it is my hope that Indian lawmakers will take note of Obergefell and decriminalize homosexuality in India.

Prejudices and discrimination against any minority group in society must not be tolerated in any country built on the principles of equality, dignity, and the rule of law. Obergefell is a positive decision in the pursuit to curb inequalities in modern societies.



[1] 576 U.S. ___ (2015); decided on June 26, 2015
[2] Robert Bork, The Tempting America (Simon and Schuster, 2009), p.168
[3] SCI Civil Appeal No. 5003; decided on June 6, 2015
[4] 539 U.S. 558 (2003)
[5] 2014 (1) SCC 1; decided on December 11, 2013

Photo Credit: Flickr User Robert Cheaib 

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