Dear Ex-Judges Opposing Same-Sex Marriage, 7 Reasons Why You Got It Wrong

Ahead of the Supreme Court hearing same-sex marriage pleas, a group of former Indian judges have issued a statement.

5 min read
Hindi Female

(This story was originally published on 1 April 2023. It has been republished from The Quint's archives in light of the Supreme Court hearing the final arguments in the same-marriage petitions on 18 April 2023.)

(Trigger Warning: This article contains mentions of queerphobia, marital rape, and domestic abuse)

Ever since the Supreme Court took a slightly more proactive stance in hearing same-sex marriage pleas, there has been a rise in cisgender-heterosexual people sharing their two cents on an issue that doesn't concern them.

The latest addition: a group of 21 retired judges who have issued a statement opposing queer marriage, ahead of the Supreme Court's five-bench hearing.

Apart from the usual ignorance-fueled homophobia, the four-page statement is riddled with misinformation, harmful stereotypes, and laughable correlations.

As a queer person who is tired of this constant homophobic chatter, I initially decided not to engage. But the statement posited such unscientific claims that I had to call it out.

So, here are eight scientific, gentle (not) reminders for everyone opposing queer marriage:

1. Not a Western Construct

Time and again, a large and largely homophobic section of the population has assumed that homosexuality is not only a choice but also one that is informed by Western influences. Well, this statement was no different.

The former judges have referred to queerness, or same-sex marriage, as a "Western-tinted outlook that is being superimposed on Bharatiya society." But that's simply untrue.

From sculptures in the Khajuraho temple to texts of cultural consequence, there is enough evidence that acknowledges the existence of homosexual and genderqueer folks in the Indian culture.

In fact, the criminalisation of homosexuality under the now-redressed Section 377 of the Indian Penal Code was implemented in 1862, under the rule of the British Raj. So, if anything, opposing queer unions can be deemed somewhat of a colonial hangover!

2. Heterosexual Marriage Is a Not Perfect Institution

The notion that legalising same-sex marriage will destroy the so-called "family system" is not only unfounded, but it is also a dangerous claim to make. The statement says, "Legalising same-sex marriage will strike at the very root of the family system and thus will have a devastating impact on the society."

This claim not only makes a traditional family system sound like an idealistic unit devoid of any problems but also holds up heterosexual marriages as the yardstick. The truth, however, is far from that.

According to the National Family Health Survey 5 (2019-21), a staggering 83 percent of married Indian women aged 18-49, who have ever experienced sexual violence, report their current husband as the perpetrator. Thirteen percent report a former husband as the perpetrator.

If these numbers point to anything, it is the already-crumbling nature of the traditional family system – the root of which is unbridled misogyny, not same-sex unions.


3. Why Queer Marriage

On a lighter note, the statement repeatedly referring to the supporters of same-sex marriage as "vested interest groups" was laughable, at best.

We are queer in a country that not only treats us as subpar citizens but also deprives us of our fundamental rights and civil liberties – the "vested interest" we have is not secretive.

Let's make one thing clear: Queer petitioners advocating for same-sex marriage are not doing so because of an ulterior motive or for "sexual pleasure".

Legally recognised union comes with several protections and liberties that are inaccessible to queer folks. From adopting a child together and buying a residential property to making decisions during a medical emergency, there are serious reasons why we advocate for queer marriage.

And none of them include pleasure.

4. Zero Correlation Between Same-Sex Marriage and AIDS

As an openly queer person who has been exposed to various manifestations of queerphobia, I can vouch that most arguments against homosexuality follow a clichéd template.

But the former judges did get creative with this claim.

Legalising same-sex marriage might lead to an exponential rise in the number of HIV-affected.

Scientific evidence, however, suggests the contrary. A 2022 report by The Guardian indicates that "the HIV epidemic in England is changing shape, with 49% of new diagnoses among straight people compared to 45% for gay and bisexual men." This marks the first time in a decade that diagnoses among heterosexuals are higher.

These findings demonstrate that HIV/AIDS is not a disease that affects only the LGBTQ+ community. Heterosexual couples are also susceptible to the virus, and the claim that same-sex marriage will increase the spread of HIV is simply untrue.

It is also important to acknowledge that AIDS is a serious health issue that can affect anyone, from any walk of life. The only way to combat the spread of this disease to raise awareness through comprehensive sex education, not spreading misinformation and fear-mongering.


5. Wins of Queer Parenting

A severely unverified claim in the statement reads, "...there are studies to state that legalising homosexual marriage will have negative consequences over the children adopted by such couples, including their emotional and psychological development as well as on their nurturing in an environment devoid of balanced parenthood."

While no source was mentioned for one of the most common opposing arguments for queer parenting, let me provide one: A recent study not only busted the myth that children in same-sex households don't fare as well but also discovered that in some cases, they are raised better, compared to heterosexual families.

Contrary to popular belief, researchers found similar results between sexual-minority families and heterosexual families. In some areas, outcomes were even better in queer families, such as children's psychological adjustment (especially among preschoolers) and parent-child relationships.

Published in the journal BMJ Global Health, the research was conducted by researchers from Guangxi Medical University in China and Duke University School of Medicine in the United States.

6. There's No Risk of Population Decline

Another laughable part of the statement was when the former judges noted that allowing same-sex marriages would lead to "the risk of severe population decline."

Firstly, queer marriages are in no way going to reduce the rate at which heterosexual couples procreate. At the current rate, the national population is expected to exceed 1.5 billion by 2030, and 2 billion by 2050.

Besides, positing this as an argument against same-sex marriage implies that the group would rather prefer queer folks being forced into heterosexual marriages, just so they can fulfill their duties of procreation.

Is this the 'Bharatiya' family unit they were referring to?

7. Queer Folks Are Inextinguishable

And the most creative yet homophobic argument goes to:

"In the long run, there are serious concerns that the gene pool is also going to be weakened affecting the entire human race especially in terms of collective herd immunity and progressive evolution."

Let's get one thing clear: Prohibiting same-sex marriages doesn't mean queer folks will stop existing; neither does this automatically restrict them from forming long-term unions.

On 22 July 2011, Savita and Beena stood before a court in Gurgaon and became the first recorded lesbian couple in India to be 'legally married', defying death threats from their disapproving families and strict laws penalizing homosexuality.

Even now, in the face of daily queerphobic violence and discrimination, the LGBTQ+ community is still standing strong in their fight.

We're falling in love, raising children, and building our own queer families. Our lives are just exponentially harder without the dignity or socio-political protections that are extended to our heterosexual counterparts.

Mere human existence cannot "weaken gene pools" or "affect collective herd immunity". But it can, and will be a testament to our resilience.

Irrespective of what verdict the Supreme Court's five-judge panel comes to, queer folks cannot be extinguished. Even in the most oppressive, homophobic countries, LGBTQ+ citizens still exist in the shadows. Refusal to acknowledge our civil liberties will not make us disappear.

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