By Aman Chain

Abstract

Marriage should not be a privilege, but rather a right to which everyone, regardless of gender identity or sexual orientation, has access. This article will shed light on the social, cultural, and religious understandings of marriage, the foundations of this institution, and how history has shaped our understanding of it. In light of the ongoing debates on same-sex marriage, this article will explore the ideas of ‘purity’ and ‘pollution’ in Hinduism and ‘sodomy’ in  Christianity associated with same-sex relations to trace the existence of homosexuality in ancient societies. This article aims to investigate pressing questions concerning marriage and same-sex relations. 

Introduction

There has long been a debate about marriage rights and marriage equality. Recently, the Supreme Court of India reserved its decision after hearing a batch of petitions seeking legal recognition of same-sex marriage. The debate around marriage is not limited to India. On June 28, the Nepal Supreme Court issued an interim order directing its government to temporarily register same-sex marriages. This is being viewed as a historic step towards making the institution of marriage more egalitarian, and it comes at a time when India is anxious about what the country’s highest court will rule. Marriage should not be a privilege, but rather a right to which everyone, regardless of gender identity or sexual orientation, has access. This article lays special attention on the historical dimension and investigates the perceivability of same-sex relations in the past. 

What is Marriage?

Marriage can be defined in a variety of legal, social, cultural, and religious contexts. The Cambridge Dictionary defines marriage as the “legal relationship between two people in which they live together, or the official ceremony that results in this.” In a strict heteronormative sense, marriage is understood as a legal relationship or a legal contract between a man and a woman performed in conformity with the traditional rites and ceremonies of the parties involved. Inter-caste marriage, inter-race marriage, widow remarriage, and same-sex marriage have all been frowned upon and even outlawed in various societies. This demonstrates how socially influenced our understanding of marriage is; we have not only set a filter of two opposite sexes eligible for marriage, but also sub-filters such as same race, caste, and class. Same-sex marriage is no exception. The term “gay marriage” is a misnomer.  No marriage is gay, straight, lesbian, or black, even if two or more partners in the marriage identify as gay or straight. Sexuality, caste, or race are only a few aspects of a person’s identity, and marriage encompasses the entire person. Not all same-sex marriages around the world are ‘gay.’ Thus, the right to marry does not include a person’s sexuality; rather, social orthodoxy and prejudice make it appear so.

Sexual relationships between people of the same sex can be traced back to ancient times in many societies such as ancient Greece, Western Europe, ancient and medieval India, Rome, Egypt, China, and Japan, to name a few. Same-sex marriages began long before the laws started to recognize them. Interracial and inter-religious marriages have gradually gained acceptance as time and democracies progressed, with Hindu and Judeo-Christian law requiring monogamy. Though polygamy was permitted in ancient Hindu society, it was subsequently prohibited by the Hindu Marriage Act of 1955 for a variety of reasons, one of them was the issue of ‘surplus women’. However, not all traditions like Hinduism require partners to vow to spend their present and next seven lives together. Mut’a marriage is a type of marriage that is common in several Muslim Shia law jurisdictions, including India. This type of marriage lasts for the duration specified in the marriage contract, which can range from one day to several years. Contrary to popular belief, historical acceptance of such marriages to an extent demonstrates the ancient liberal approach towards the understanding of marriage, and the same holds true for same-sex marriages.

The Raison D’etre of Marriage

The sole purpose behind marriage in premodern societies was closely linked to the idea of procreation. A girl’s requirement to marry before puberty was not only limited to Abrahamic tradition but was also mandated by Hindu law. These laws have recently undergone significant changes. People can now legally marry when they are adults with the choice to marry even past their biological reproductive age. With the widespread availability of contraception, having or not having children too is now a personal choice. Incest is also legal in a few traditions. Marriage is thus no longer “inseparably” linked to the idea of procreation. Every time these legal changes were implemented in society, an uproar was created. People from every sect, politicians, and religious gurus claimed that these changes were dismantling the sanctimonious institution of marriage, destroying the pious fabric of family, and corrupting civilization. These sects are opposing the demand for same-sex marriage as well.

Homophobia, “dislike” or “prejudice” against gay people, is manifested in several inhumane ways today. The queer community faces discrimination, abuse, harassment, murders, and lynching all around the world. This degree of homophobia is a product of modernity. This is not to say that premodern or ancient societies openly accepted same-sex relationships, however, it did not take the form of phobia as we see now. Certain types of relationships and sexual acts were condemned but rarely prosecuted as crimes. This attitude changed with the Renaissance, which marked the beginning of modernity in the Western world, making homosexuality a crime from a sin. Ancient Indian societies were historically more tolerant of same-sex relationships, but their cultures were clobbered by that of colonizers. Censorship in various forms was implemented. Even though the Enlightenment did away with religious differences, at least in the US Constitution, it failed to enlighten the lawmakers about homosexual relations, which were made illegal in the eighteenth and nineteenth centuries. Homophobia was legalized through the torturing and execution of ‘sodomites.’ It is important to note that, unlike the West, South Asia has no historical persecution of people for same-sex relations. So, a valid question arises: how did homophobia become so deeply entrenched in  Indian society?

Britishers in India, as in most of their colonies, passed legislation criminalizing any type of sexual activity other than peno-vaginal penetrative sex. In India, this law, Section 377 of the Indian Penal Code (“Unnatural offenses”) prohibits carnal intercourse ‘against the order of nature.’ However, this expression is not defined, which causes a lot of confusion and leaves room for misinterpretation. This section has generally been interpreted to refer to anal or oral sex between men or between a man and a woman, including imitative sex and sexually perverse acts. Because these sexual acts are penile-non-vaginal and thus non-procreative, they are against the order of nature. Going by this flawed and highly orthodox logic, even penile-vaginal penetrative sex with the use of contraceptives such as condoms, which prohibit procreation, can be said to violate Section 377 of the IPC. Reducing same-sex relationships to the notion of ‘disgust’ which has now taken the form of homophobia, has to do with the Western Christian idea of ‘sodomy’ and its fetishism against anal and oral sex, regardless of gender, which has reduced people to sexual beings and relationships to mere erotic sexual acts, disregarding non-sexual and sexual ‘love’ between homosexuals. Section 377 of the IPC is very similar to “anti-sodomy” laws that were overturned by the US Supreme Court in Lawrence vs. Texas in 2003.

Even though, in India, Section 377 was read down in the Naz Foundation Case, where the court held that criminalization of consensual sexual acts of adults in private was violative of Articles 21, 14 and 15 of the Constitution, ‘homophobia’ today is confused with ‘nationalism’. Homosexuality and same-sex marriages are equivocally condemned by both the right and the left, calling it a disease that threatens the moral fabric of Indian society.

‘Purity and Pollution’: Same-Sex Relations and Hinduism

Ascetic Hindu traditions view every type of sexual act with distaste, which too is linked with the ideas of ‘purity’ and ‘pollution,’ with non-procreative sex being frowned upon. And women are conventionalized as having more lustful and erotic desires than men. According to  Hindu law as well, the purpose of marriage or the object of Dampatya is a child. However, these traditions and beliefs contradict each other when we look at ancient philosophy and literature. We find gods represented as “erotic beings” and “Kama” (desire) as one of the four aims of life, inspired by Lord Kama, ‘God of Love’. According to  Hindu philosophy, the almighty is omnipresent, residing in all living and non-living things. Similar to the idea of the Bible, nothing is completely bad or good, the sun shines on the good and the evil alike. As a result, we see contradictory views on sex in the same Hindu texts. The Padma Purana, for example, simultaneously encourages and condemns female erotic sex and pleasure. 

Hindu laws consider ayoni sex or non-vaginal intercourse as impure, which includes inter alia, anal sex, sex with animals, masturbation, and a man having sex with a man or a woman ‘in a cart drawn by a cow, in water or in the daytime.’ Prima facie, ayoni sex may appear to be similar to the Western idea of ‘sodomy’, but that’s not the case. Sodomy was considered a sin of the highest degree in the European societies which could be punished with torture and even death. Whereas that was not the case with ayoni sex, Manusmriti provides for a minor punishment/fine: ‘to bathe with clothes on,’ which is comparable to the degree of punishment for minor crimes. Unlike sodomy, which later became a legal crime and a sin ‘never to be spoken of,’ ayoni sex saw no such developments. As previously stated, Hindu laws on sex, including ayoni sex, frequently contradict other sacred texts and Vedic/puranic stories, because the Hindu religion is highly diversified and allows for the existence of several different cultures and what may be impure for one culture may be sacred and part of a ritual for another culture within the folds of Hinduism.

Marriage and Oppression: Arguments in the Right Direction

Several queer theorists and feminists, including LGBT activists, argue that marriage is a patriarchal institution not worth reclaiming because, by doing so, the queer community is feeding into the same heteronormative ideology of oppression and discrimination. This argument is inherently patriarchal and problematic. It is based on the radically flawed premise that every ‘type’ of marriage in every culture is historically oppressive and unequal. Without taking into account the existence of love, mutuality, and consent. If claiming the right to marry is heterosexist, we should boycott and opt out of all patriarchal institutions that we have successfully reclaimed. Universities, offices, schools, media and entertainment industries, markets, corporate houses, and the list goes on. This is not to completely reject the radical feminist idea of ‘consent’ and choice being always unfree and influenced by patriarchy, but it should not be used to deny gay people their legal right to marry. Boycotting and abolishing the institution of marriage is not a solution to heterosexism, in fact, empowering and giving the LGBTQ community and women the right to choose is a step in the right direction in countering and dismantling the patriarchy.

Conclusion

After analysing the meaning and understanding of marriage, its colonial interpretation and religious contradictions we can conclude that the historical understanding of marriage has evolved into a modern institution that is now exclusive to a specific class of people, heterosexuals. This debate over same-sex marriage is not new, but is the culmination of years of struggle. Those hiding homophobia behind the garb of nationalism must be cognizant of the historic evolution of marriage which entails the traces of same-sex relations in the pre-modern era. This completely rebuts the idea of homosexuality being a foreign concept. In reality, it’s not homosexuality but homophobia which is an alien notion wreaking havoc on our society and culture. Same-sex marriage must be legalised in India as there lies no prudent reason to not do so.

Author’s Bio

Aman Chain is a second-year law student at Jindal Global Law School. His areas of interest are Constitutional law, queer studies and intersections of religion and law.

Image Source: https://www.deccanherald.com/opinion/panorama/time-to-destigmatise-homosexuality-1152092.html