Why US ruling on same-sex marriage has shifted focus away from LGBT rights
In 1958, acting on an anonymous complaint, police arrested a black woman and a white man in the US state of Virginia for sharing a bed. At the time, this was a crime “against the peace and dignity” of the state, punishable by a prison sentence of up to five years. Mildred and Richard Loving had married in Washington DC, where a law against interracial marriage did not exist, but lived in Virginia, where the anti-miscegenation statute was by then more than 30 years old.
In 1987, acting on similar leads, police confined and later dismissed two female police officers in Madhya Pradesh for sleeping on the same bed. Leela Namdeo and Urmila Srivastava had married each other in Bhopal by exchanging garlands after which whispers about their intimacy degenerated into a sensational scandal in the Indian media. In both cases, the dignity of a state, or a state institution was defended through an act of exclusion: the Lovings were ordered to leave Virginia, and Namdeo and Srivastava were intimidated out of Bhopal.
The desire of both of these couples to live unhindered lives of respect propelled them into conflict with the laws and social conventions of their times. These are yearnings for dignity shared by many others such as Jim Obergefell who sued his home state Ohio in order to be recognised as the spouse of his then terminally ill and later deceased partner of 21 years. There were relatively minor social security and disability benefits at stake. Yet what drove Obergefell to drag the state to court was not the cornering of monetary benefit but an inclination far more fundamental to the human condition.
On June 26, the Supreme Court of the US recognised this inclination when the majority opinion of Justice Anthony Kennedy stated that same-sex couples had sought “equal dignity in the eyes of the law”. The decision in the Obergefell versus Hodges case extends that honour to more than 200 million Americans and all same-sex couples. US President Barack Obama characterised the dawdling progress towards this judgement as one where “slow, steady effort (was) rewarded with justice that arrives like a thunderbolt”.
Yet, the story is not so simple. Among some queer activists, there remains considerable dissatisfaction with the limited gains that the marriage equality movement brings. Some, such as Chicago’s Yasmin Nair, suggest that this struggle has “ravaged the economic landscape of queer organising”, by channelling cash out of other important causes. The range of such runner-up causes for limited resources is wide. To take just one example: A 2012 nationwide survey by the Williams Institute at the UCLA School of Law reports that 40 per cent of homeless youth identify as lesbian, gay, bisexual, or transgender. A plurality of these LGBT youth cite family rejection because of their sexual and/or gender identities as the primary reason for their homelessness.
Some believe the significance of the Supreme Court judgment lies in reinforcing marriage as the dominant axis on which rights may be fought for and won. As Jeff Redding, associate professor of law, St Louis University, tells me, the Obergefell decision has heightened the legal and social distinctions between married and unmarried people. “It seems marriage is the be-all and end-all of mature citizenship in the US,” he says. “To be unable or unwilling to marry is to be left in the political wilderness.”
Some of these debates around LGBT activist priorities also occur in India as the struggle to overturn Section 377 was defeated in the Supreme Court in 2013. As attention from Obergefell travelled to New Delhi, law minister DV Sadananda Gowda denied reports that the government was planning to scrap the statute. BJP leader Subramanian Swamy went a step further, terming homosexuality a “genetic disorder”.
When it emerged, many queer people in India cheered the Obergefell judgment: Atanu, an Assamese gay man from Delhi, who married his American partner of five years in New York in 2013, says that “every citizen deserves equal protection, rights and freedom”. Yet several other queer Indians have suggested that the blueprint for equal protection of the law lies not with marriage rights, but with comprehensive anti-discrimination legislation for LGBT people and the removal of Section 377.
Some progress on this blueprint has emerged from judicial and legislative favour for transgender civil rights. In 2014, the Supreme Court of India delivered a verdict that called for affirmative action for the transgender population. Further, bipartisan political support for a new transgender civil rights bill ensured it cleared the Rajya Sabha this year. Yet even with transgender citizens, real progress has been much slower. While lawmakers may seem zealous about ensuring that transgender citizens come under India’s reservations regime, a spate of violence against the same citizens has gone unchallenged.
So while one recognises that yearning for dignity that moved Obergefell to fight for his rights, the battles in India remain more fundamental — around preventing violence and ensuring basic rights and entitlements that, ironically, both precede and are beyond the question of marriage.