By Siddharth Dalabehera
For the past century, gay rights have been debated and fought over in hope to give equal rights to all people. Although gay relationships and feelings were recognized as far into history as the 7th Century BC, the true activism has increased since the beginning of the 20th century.
As time has progressed, gay rights have become a widely spread issue across many countries. Gays are subject to human rights abuse in countries in every region of the world. The violations they face include killing as well as imprisonment, torture, and abuses aimed specifically at sexual minorities, such as practices aimed at forcibly changing their sexual orientation.
The researcher here focuses on a comparative study of constitutional rights, the gays have in three countries; U.S.A., South Africa, and India.
GAY RIGHTS IN U.S.A.
The Supreme Court has recently only heard gay rights cases. Moreover, the plaintiffs in 1986 suffered a big defeat in the first case, Bowers v. Hardwick. The Court has since overruled Bowers but its gay rights jurisprudence is still muddled.
Indeed, gay marriage rivals abortion as one of the most controversial constitutional issues in the United States even though the U.S. Supreme Court has not decided the question. In the United States, same-sex marriage is recognized by the Federal Government and has been legalized in 36 U.S. states. But in states of Mississippi, Missouri, Arkansas, South Dakota, Nebraska, and Texas still, don’t recognize same-sex marriage. Such states have passed laws or constitutional amendments specifying that marriage is between a man and a woman.
American Courts have split on gay marriage while increasingly upholding other rights for gay people. American cases focus more on privacy because the equal protection clause provides no special protection for gay people. Indeed, the U.S. Supreme Court’s greatest victory for gay people was substantive due process case, Lawrence v. Texas.
Bowers v. Hardwick
In 1986, the Supreme Court in Bowers v. Hardwick ruled that there was no fundamental right to engage in homosexual sodomy. The majority opinion, written by Justice Byron White, argued that the Constitution did not confer “a fundamental right to engage in homosexual sodomy.” A concurring opinion by Chief Justice Warren E. Burger cited the “ancient roots” of prohibitions against homosexual sex, quoting William Blackstone’s description of homosexual sex as an “infamous crime against nature”, worse than rape, and “a crime not fit to be named.”
Burger concluded: “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” The issue in Bowers involved the right to privacy. Since 1965’s Griswold v. Connecticut the Court had held that a right to privacy was implicit in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In Bowers, the Court held that this right did not extend to private, consensual sexual conduct, at least insofar as it involved homosexual sex.
The dissent, authored by Justice Harry Blackmun, framed the issue as revolving around the right to privacy. Blackmun’s dissent accused the Court of an “overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases.” In response to invocations of religious taboos against homosexuality, Blackmun wrote: “That certain, but by no means all, religious groups condemn the behaviour at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine.”
Romer v. Evans
In 1996, the Court in Romer v. Evans struck down a Colorado constitutional referendum nullifying state or local laws protecting gay people. Justice Anthony Kennedy said the referendum reflected animosity toward gay people, depriving them alone of discrimination protections received by others, and thus amounting to a per se violation of the constitution. The majority opinion in Romer stated that the amendment lacked “a rational relationship to legitimate state interests”. The state constitutional amendment failed rational basis review. In dissent, Justice Antonin Scalia reasoned that if homosexual sodomy could be barred, removing legal protections from the group that engages in that activity was rational.
Lawrence v. Texas
In 2003, Kennedy authored Lawrence, which overruled Bowers. In the 6–3 ruling the Court struck down the sodomy law in Texas and, by extension, invalidated sodomy laws in 13 other states, making same-sex sexual activity legal in every U.S. state and territory. Kennedy reasoned that Bowers mischaracterized the issue as for whether gay people could engage in sodomy. The question was more general, namely whether gay people can make intimate personal choices without state interference.
Interestingly he emphasized the Fourteenth Amendment’s liberty provision more than the right to privacy. Kennedy found support for his Lawrence opinion in the post- Bowers trend of state repeal of anti-sodomy laws. Kennedy also relied on international institutions, such as the European Court of Human Rights, which said that laws against sodomy violate evolving notions of personal freedom.
Kennedy underscored the decision’s focus on consensual adult sexual conduct in a private setting:
“The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”
Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too narrowly. The Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the 14th Amendment.
Kennedy’s opinion, however, never declared a level of scrutiny or whether a fundamental right was involved. These omissions may have been necessary to retain the votes of other Justices, but they left doctrinal puzzles.
Prof. Laurence Tribe has written that Lawrence “may well be remembered as the Brown v. Board of Education of gay and lesbian America”. 10 Jay Alan Sekulow of the American Center for Law and Justice has referred to the decision as having “changed the status of homosexual acts and changed a previous ruling of the Supreme Court… this was a drastic rewrite”.
Watkins v. United States Army
In Watkins v. United States Army, the court held that homosexuals constitute a “suspect class” and that the court must apply “strict scrutiny” to determine whether there is a compelling state interest that justifies a statute or regulation that distinguishes homosexuals as a category.
Using that analysis, the panel held that the exclusion of homosexuals from military service violated the equal protection clause of the Fourteenth Amendment. It specifically addressed only exclusion based on someone’s sexual orientation (homosexuality as status), not exclusion based on behaviours associated with one’s sexual orientation (homosexuality as conduct).
Goodridge v. Dept. of Public Health
Goodridge v. Dept. of Public Health, is a landmark state appellate court case dealing with same-sex marriage in Massachusetts. The November 18, 2003, decision was the first by a U.S. state’s highest court to find that same-sex couples had the right to marry. the opinion said: “We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution.”
The misconception that “‘marriage is procreation, confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.” The marriage of a man and a woman as the “optimal setting for child rearing”, is irrelevant and denying marriage licenses to one class of persons does not affect the marriage patterns of the other class.”
The Court concluded that:
“It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation.
The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual….
Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.”
In re Marriage Cases
In re Marriage Cases, was a California Supreme Court case where the court held that laws treating classes of persons differently based on sexual orientation should be subject to strict judicial scrutiny, and that an existing statute and initiative measure limiting marriage to opposite-sex couples violate the rights of same-sex couples under the California Constitution and may not be used to preclude them from marrying.
“Under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.”
The Supreme Court of California joined the Supreme Judicial Court of Massachusetts as the second state to have its highest court rule prohibitions on same-sex marriage unconstitutional, although for somewhat different reasons and later on a series of such judgments followed in many states until the recent historic judgment of United States v. Windsor was passed by the US Supreme Court in 2013.
United States v. Windsor
This is a landmark civil rights case in which the United States Supreme Court held that restricting U.S. federal interpretation of “marriage” and “spouse” to only to heterosexual unions, by Section 3 of the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment.
Justice Kennedy wrote:
“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.
The particular case at hand concerns the estate tax, but DOMA is more than a simple determination of what should or should not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws which equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”
GAY RIGHTS IN SOUTH AFRICA
One of the most important areas of the South African Constitutional Court’s jurisprudence is gay rights. The court has ruled for the plaintiffs in several cases, even invalidating same-sex marriage restrictions. Given the racist legacy of apartheid, it is surprising that these cases are more prominent than the Court’s racial discrimination cases. It raises the question of why the South African Court made this area a cause cause célèbre.
The unique feature of the South African Constitution is that it was the first to recognize sexual orientation discrimination as presumptively unfair.15 During the constitutional drafting, gay advocacy groups played an active and successful role pressing for discrimination protections.
Since the adoption of the South African Constitution, gay rights advocates have promoted their cause through political activism and a strategic litigation campaign waged by the National Coalition for Gay & Lesbian Equality (NCGLE).
Now we need to analyze certain landmark cases in South African Gay Rights Jurisprudence:
The Sodomy Case
The first Constitutional Court decision on gay rights struck down statutory and common law restrictions on homosexual male sodomy. The Court in 1998 in National Coalition for Gay and Lesbian Equality v. Minister of Justice ruled that these laws violated principles of equality, dignity, as well as the rights to privacy.
The Court explained that such laws reinforces already existing societal prejudices and severely increases the negative effects of such prejudices. The Court further held that such a law was a ‘dignity violation’. The Court relied for support on decisions from the European Court of Human Rights (ECHR) and the Supreme Court of Canada.
The Court rejected the application of Bowers case as the South African Constitution contains an express prohibition of unfair discrimination on grounds of sexual orientation and express privacy which is absent in the United States’ Constitution. Moreover, the Court pointed out that American scholars had harshly criticized the Bowers decision.
The Immigrant Same-Sex Partner Case
In 1999, the Court examined whether the government could treat the government an immigrant spouse better than the immigrant same-sex partner of a South African in National Gay and Lesbian Coalition for Gay and Lesbian Equality v Minister of Home Affairs.
Justice Ackermann ruled that this unequal treatment constituted illegal discrimination. The Court said that the law only ” affords protection only to conjugal relationships between the heterosexuals and excludes any protection to a lifetime protection to a life partnership which entails a conjugal same-sex relationship open to gays and lesbians in harmony with their sexual orientation”
The Court added that South African statutes have increasingly recognized same-sex partnerships. The Court said that “procreative potential is not a defining characteristic of conjugal relationships.” The Court also said that changing the law would not endanger traditional marriage.
Judges and Their Same Sex- Partners
In July 2002, the Court decided Satchwell v. Republic of South Africa, ruling in favor of a judge who claimed that her same-sex partner should receive identical benefits to those received by the spouses of her married colleagues. One interesting aspect of the decision is the Constitutional Courts’ emphasis on African culture. “
In certain African traditional societies, woman-to-woman marriages are not unknown.” The Court said that the Constitution cannot impose obligations towards partners where those partners have themselves failed to take up obligations. The Court said that the “partner in a permanent same-sex life partnership” should also receive benefits where “such partners…have undertaken and committed themselves to reciprocal duties of support”.
Adoption by Gay Couples
Later in 2002, the Court in Du Toit v. Minister of Welfare ruled unconstitutional a statute that banned gay couples from being guardians for children. This overturned a lower court decision holding that only one member of same-sex couples could be a guardian. The constitutional court emphasized on the importance of “family life” in South Africa as well as the “child’s best interests”.
The Court further added that the statute “surely defeats the very essence and social purpose of adoption which is to provide the stability, commitment, affection and support important to a child’s development, which can be offered by suitably qualified persons,” including gay couples. The law’s “non-recognition of the first applicant as a parent, in the context of her relationship with the second applicant and her relationship with the siblings, perpetuates the myth of family homogeneity based on one father/one mother model.
It ignores developments that have taken in the country, including the adoption of the Constitution. The Court also addressed the absence of a regulatory mechanism to protect these children if same-sex partnerships were to break up.
The Constitutional Court’s 2005 endorsement of gay marriage in Minister of Home Affairs v. Fourie may be the most internationally prominent ruling. There were two issues in Fourie. First, the common law defined marriage as the “union of one man with one woman , to the exclusion, while it lasts , of all others. Second, the Marriage Act 25 of 1961 (“Marriage Act”) required the marriage officers to ask the marrying parties a question that was worded in a way that excluded same-sex couples (e.g. the question assumed that a man was marrying a woman).
Both the judges of the appeal bench agreed that the common law discriminated on the basis of sexual orientation but they disagreed on what to do with the Marriage Act. Justice Edwin Cameron pointed out that the gay people should aim for domestic partnership recognition and that marriage could remain the paradigm for heterosexuals.
In contrast, Judge Farlam argued that the court should address the Marriage Act question because it was inseparable from the common law issue. Moreover, nothing in the Marriage Act endorsed the common law definition of marriage. He held that both that the common law should be developed and that the Marriage Act could and should be read there and then in updated form so as to permit same-sex couples to pronounce the vows.
Justice Sachs explained that marriage provides security, and its unavailability forces gay couples to “live in a state of legal blankness”. He then rejected several arguments against same-sex marriage. First , marriage is not about procreation as many heterosexual couples do not have children. Indeed that argument demeans older married heterosexual couples and those with physical limitations. Second, any religious objection to gay marriage can’t undermine secular government policy. But, he surprised many by suspending the implementation of gay marriage for one year to allow Parliament to establish a regulatory scheme.
Sachs cited separation of powers concerns and the goal of preventing legal chaos. This was criticized by many jurists who believed that chaos would occur by legalizing gay marriage and said that any risks were outweighed by a continuing rights violation. Sachs actually knew that the altering an important institution; like marriage, with all of its bureaucratic, governmental, and religious dimensions, would require changes in paperwork, procedures, social expectations, and more. He was trying to provide time for those changes.
The Civil Union Act
With the Fourie decision , it looked as if South Africa would join Belgium, Canada, the Netherlands, Spain and Massachusetts as the only governments in the world legalizing gay marriage. But things didn’t go as gay marriage advocates planned. Parliament’s initial civil union bill only authorized civil partnerships for same-sex couples, not marriage.
Gay marriage advocates said that allowing only civil unions would perpetuate their status as second-class citizens and the bill being equivalent to “separate but equal”. Ultimately the bill was amended to allow adult couples of any type to marry or enter into civil partnerships.
The court’s boldness in these gay rights cases is striking and this forms the very basis of the gay rights jurisprudence of South Africa.
GAY RIGHTS IN INDIA
In contrast to U.S.A and South Africa, the scene of Gay rights in India is very bleak or we can also say non-existent. Homosexuality is mostly a taboo subject in Indian civil society and for the government as homophobia is very prevalent in India. Public discussion of homosexuality in India has been inhibited by the fact that sexuality in any form is rarely discussed openly.
Homosexual intercourse was made a criminal offence under Section 377 of the Indian Penal Code, 1860. So there is no question for other rights like marriage, adoption etc to exist in such a scenario.
Section 377 of the Indian Penal Code which was enacted during the British administration in India in 1860. Section 377 created an offence of voluntarily having carnal intercourse “against the order of nature” with any man, woman or animal, punishable by up to ten years imprisonment or a fine. The section seems neutral in that it criminalizes certain sexual acts and not people and their identities.
However, it has never been used against consenting heterosexual persons and has been misused against homosexual persons. The primary problem with the provision of law is that it does not take into consideration age or consent. Therefore, it criminalizes adult consensual same sex acts. The fight against section 377 has been going on since 2001 before the courts. It started with the petition by Naz Foundation before the High Court of Delhi.
Naz Foundation v. Govt. of NCT of Delhi
In its 2009 decision, the High Court found in favour of the NAZ Foundation and accepted its arguments that consensual same-sex sexual relations between adults should be decriminalised, holding that such criminalisation was in contravention of the Constitutional rights to life and personal liberty, equality before the law and non-discrimination.
In reaching its decision, whilst the court placed a great deal of emphasis on domestic judgments, the court also relied on comparative law in reaching its decision, referring to judgements from various jurisdictions including the European Court of Human Rights, the United Kingdom, the Republic of Ireland, South Africa and the USA.
The Court also held that Section 377 offends the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class. Public animus and disgust towards a particular social group or vulnerable minority, it held, is not a valid ground for classification under Article 14.
Article 15 of the Constitution forbids discrimination based on certain characteristics, including sex. The Court held that the word “sex” includes not only biological sex but also sexual orientation, and therefore discrimination on the ground of sexual orientation is not permissible under Article 15. The Court also noted that the right to life under Article 21 includes the right to health, and concluded that Section 377 is an impediment to public health because it hinders HIV-prevention efforts.
The Court did not strike down Section 377 as a whole. The section was declared unconstitutional in so far it criminalises consensual sexual acts of adults in private. The Court concluded that:
“Section 377 criminalises the acts of sexual minorities, particularly men who have sex with men. It disproportionately affects them solely on the basis of their sexual orientation. The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution”.
Suresh Kumar Koushal v. NAZ Foundation
The Supreme Court, in this case, reversed the judgment of the Delhi High Court and held that Section 377 does not violate the constitution and is therefore valid. The Supreme Court reasoned its judgment on several grounds.
First, it held that all laws enacted by Parliament are presumed to be valid under the Constitution. This means that in order to hold a law to be invalid, it must be shown, through evidence, that the law is violating the Constitution. The Supreme Court held that there is not enough evidence to show that S.377 IPC is invalid under the Constitution. The Court held that there is very little evidence to show that the provision is being misused by the police. Also, just because the police may be misusing a law, does not automatically mean that the law is invalid. There must be something in the nature of the law itself that is unconstitutional.
According to the Supreme Court, the law can be implemented without misuse. It was also argued before the Supreme Court that because S.377 applies to certain sexual conduct, it essentially means that all forms of sexual expression by LGBT people would be unnatural. This would mean that any sexual conduct by such people would be illegal. Therefore, S.377 prohibits all sexual expression of LGBT persons.
The Supreme Court disagreed with this argument and held that S.377 speaks only of sexual acts and does not speak about sexual orientation or gender identity. This would mean that even heterosexuals indulging in acts covered under S.377 would be punished. Therefore, the section does not target LGBT persons as a class.
Further, the Supreme Court held that the Delhi High Court in its anxiety to uphold the so called rights of LGBT persons had relied on cases from other countries. They are of the opinion that cases from other countries cannot be directly used in the context of India. Therefore, important cases from South Africa, Fiji, Nepal, USA etc. where homosexuality was decriminalized was not taken into account by the Supreme Court.
Laws are presumed to be valid therefore the responsibility of changing laws is with the parliament. In this case, parliament is free to consider deleting or changing S.377. The Supreme Court also said that despite so many years the Parliament has not changed the law in spite of having ample opportunities to do so.
In reviewing the reading down of the Section 377 by the High Court, the Supreme Court stated that the High Court had overlooked the fact that “a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders” and that over the last 150 years, fewer than 200 persons had been prosecuted under Section 377, concluding from this that “this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.” In light of the above factors considered, the Supreme Court reversed the decision of the Delhi High Court and upheld section 377.
It concluded that “Section 377 does not suffer from the vice of unconstitutionality” with no further elaboration. The judges noted that whilst the court found that Section 377 was not unconstitutional, the legislature was still free to consider the desirability and propriety of deleting or amending the provision.
Criticisms of SC Judgment
The decision of the Supreme Court was received by a wave of protests spanning across the country. The decision of the Supreme Court is wrong because of several reasons.
The Supreme Court held that the LGBT community is an extremely tiny and insignificant minority. This is wrong on the basis of data as well. However, even if the population of LGBT people is in fact tiny, it does not affect the question of harassment or constitutional rights. The violation of the right of one person is as serious as that of millions of people.
The Supreme Court has failed in its decision to understand the scale of misuse of S.377 by the police against people of the LGBT persons. However, this is wrong because it does not include the number of police complaints, arrests or harassment on the basis of this Section. There are several well-known instances of abuse and harassment by the police which the Supreme Court fails to consider.
The Supreme Court is wrong in its application of laws from other countries. It does not consider the fact that same-sex acts have been decriminalized in a lot of countries, including the UK and the USA. The Supreme Court should have considered the decisions from other countries as it always has been doing. In this case, the Supreme Court ignored foreign decisions.
The Supreme Court held that the law applies only to certain acts and not to the identities of people. However, this is wrong because it means that for members of the LGBT community, any way in which they could express themselves sexually becomes a criminal act. This is not so for heterosexual people who can have sexual intercourse without violating the law.
The Supreme Court held that the law should be changed by Parliament and not the Court. However, the Supreme Court was never asked to change the law! It is the duty of the Court to restrict or strike down a law which is against the Constitution. The Supreme Court had to do that in this case, which it failed to do.
When we compare the three jurisdictions we see that the gay rights jurisprudence is in a nascent stage in India. India has to take a note of the landmark decisions from both the jurisdictions in order to develop its own regime of rights for gays. Gay rights are the new facade of human rights and the Indian constitution which has provisions for equality needs to give equal rights to gays as well.
The Indian society is still not ready to accept gays but if Section 377 excludes consensual sex then definitely the gays won’t be considered to be criminals in their own country.
Formatted on February 14th, 2019.
- MARK S. KENDE, Constitutional Rights in Two worlds South Africa and the United States,( 1st Ed., 2009), Cambridge University Press.
- PAUL BREST, STANFORD LEVINSON, JACK M. BALKIN, AKHIL REED AMAR, REVA B. SIEGEL, Processes of Constitutional Decision Making, (5th Ed.,2006), Aspen Publishers.
- DONALD P. KOMMERS, JOHN E. FINN, GARY J. JACOBSON, American Constitutional Law, (3rd Ed., 2010), Rowman & Littlefield Publishers Inc.
- MASSEY, American Constitutional Law Powers and Liberties (2nd Ed., 2005), Aspen Publishers.