Consentia on Multidisciplinary Research



Same-sex marriage (also known as gay marriage) is marriage between two persons of the same biological sex and/or gender identity. Legal recognition of same-sex marriage or the possibility to perform a same-sex marriage is sometimes referred to as marriage equality or equal marriage, particularly by supporters. The legalization of same-sex marriage is characterized as redefining marriage by many opponents. State legislatures and voters have made sweeping changes over the past two decades in laws defining whether marriage is limited to relationships between a man and a woman or is extended to same-sex couples.  Thirty-three states currently define marriage as a relationship between a man and a woman and prohibit same-sex marriages, while sixteen states and the District of Columbia allow same-sex marriage.  These contrasting state laws concerning same-sex marriage reflect sharp divergence in the views toward marriage and same-sex marriage across the country.


The topic of same sex is not new to the society; it has been there since the very ancient age. The history of the same sex marriage has been dealt here country wise:

Ancient India-

Since 1987, when the national press carried the story of two policewomen who married each other by Hindu rites in central India, the press has reported many same-sex marriages, all over the country, mostly between lower middle class young women in small towns and rural areas, who have no contact with any gay movement. Family reactions range from support to disapproval to violent persecution. While police generally harass such couples, Indian courts have uniformly upheld their right, as adults, to live with whomever they wish. In recent years, some of these couples have appeared on television as well. There have also been numerous joint suicides by same-sex couples, mostly female. Throughout Hindu and Vedic texts there are many descriptions of saints, demigods, and even the Supreme Lord transcending gender norms and manifesting multiple combinations of sex and gender.[1] There are several instances in ancient Indian epic poetry of same sex depictions and unions by gods and goddesses. There are several stories of depicting love between same sexes especially among kings and queens. Kamasutra, the ancient Indian treatise on love talks about feelings for same sexes. Transsexuals are also venerated e.g. Lord Vishnu as Mohini and Lord Shiva as Ardhanarishwara (which means half woman).[2] In “Same-Sex Love in India readings from Literature and History”, author Ruth Vanita analyses dozens of such marriages and suicides that have taken place over the last three decades, and explores their legal, religious, and historical aspects.

Ancient Celts

According to Aristotle, although most “belligerent nations” were strongly influenced by their women, the Celts were unusual because their men openly preferred male lovers.[3] H. D. Rankin in Celts and the Classical World notes that “Athenaeus echoes the comment and so does Ammianus. It seems to be the general opinion of antiquity.”[4] In book XIII of his Deipnosophists, the Roman Greek rhetorician and grammarian Athenaeus, repeating assertions made by Diodorus Siculus in the 1st century BC, wrote that Celtic women were beautiful but that the men preferred to sleep together.

Ancient Israel and West Asia

The ancient Law of Moses (the Torah) forbids men lying with men (intercourse) in Leviticus 18 and gives a story of attempted homosexual rape in Genesis in the story of Sodom and Gomorrah, the cities being soon destroyed after that. The death penalty was prescribed.

Middle Assyrian Law Codes dating 1075 BC states: “If a man has intercourse with his brother-in-arms, they shall turn him into a eunuch.

Ancient Rome

The “conquest mentality” of the ancient Romans shaped Roman homosexual practices.[5] “Homosexual” and “heterosexual” were not categories of Roman sexuality, and no words exist in Latin that would precisely translate these concepts.[6] A male citizen who willingly performed oral sex or received anal sex was disparaged, but there is only limited evidence of legal penalties against these men, who were presumably “homosexual” in the modern sense.[7] In courtroom and political rhetoric, charges of effeminacy and passive sexual behaviors were directed particularly at “democratic” politicians (populares) such as Julius Caesar and Mark Antony.[8]

Papua New Guinea

In Papua New Guinea, same-sex relationships were an integral part of the culture until the middle of the last century. The Etoro and Marind-anim for example, even viewed heterosexuality as sinful and celebrated homosexuality instead. In many traditional Melanesian cultures a prepubertal boy would be paired with an older adolescent who would become his mentor and who would “inseminate” him (orally, anally, or topically, depending on the tribe) over a number of years in order for the younger to also reach puberty.[9]


Sexual activity between consenting adults and adolescents of a close age of the same sex has been legal nationwide since 2003, pursuant to the U.S. Supreme Court ruling in Lawrence v. Texas. Age of consent in each state varies from age 16 to 18; some states maintain different ages of consent for males/females or same-sex/opposite-sex relations.

LGBT rights related laws including family, marriage, and anti-discrimination laws vary by state. Eighteen states plus Washington, D.C. currently offer marriage to same-sex couples; these marriages are recognized by the federal government, but not by most other states. Additionally, some states offer civil unions or other types of recognition which offer some of the legal benefits and protections of marriage.

Twenty-one states plus Washington, D.C. and Puerto Rico outlaw discrimination based on sexual orientation, and seventeen states plus Washington, D.C. and Puerto Rico outlaw discrimination based on gender identity or expression.[10] Hate crimes based on sexual orientation or gender identity are also punishable by federal law under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. In 2011 and 2012, the Equal Employment Opportunity Commission ruled that job discrimination against Lesbians, Gays, Bisexuals and Transgenders classified as a form of sex discrimination and thus violated Title VII of the Civil Rights Act of 1964.[11]

Adoption policies in regard to gay and lesbian parents also vary greatly from state to state. Some allow adoption by same-sex couples, while others ban all unmarried couples from adoption.

Civil rights for LGBT people in the United States are advocated by a variety of organizations at all levels and concentrations of political and legal life, including the Human Rights Campaign,[12] Lambda Legal, Gay & Lesbian Advocates & Defenders (GLAD), American Civil Liberties Union (ACLU), and the National Center for Lesbian Rights.


Lesbian, gay, bisexual, or transgender (LGBT) persons in Russia face legal and social challenges, as well as discrimination not experienced by non-LGBT citizens. Although same-sex sexual activity between consenting adults in private was decriminalized in 1993,[13] there are currently no laws prohibiting discrimination on the basis of sexual orientation or gender identity and expression, and households headed by same-sex couples are ineligible for the legal protections available to opposite-sex couples. The age of consent has been the same for same-sex relations as for heterosexual relations since 2003, and homosexuality was declassified as a mental illness in 1999. Transsexuals have been able to change their legal gender since 1997.

Russia has recently received criticism from around the world and across the international community for enacting a law that bans the distribution of “propaganda of non-traditional sexual relations” to minors.[14] Since the passage of the anti-gay propaganda law, the media has reported the arrest of a gay rights activist[15] as well as a surging incidence of hate crimes motivated by homophobia,[16] including hate crimes perpetrated by neo-Nazi groups against gay minors.[17] A law prohibiting gay pride parades in Moscow for one-hundred years has also recently been enacted.[18] International rights groups have described the current situation as the worst human rights climate in the post-Soviet era, while Russian human rights activist Lyudmila Alexeyeva has called passage of the law against gay propaganda “a step toward the Middle Ages.”[19] Russia has been described as being socially conservative on issues of LGBT rights,[20] with recent polls indicating that a large majority of Russian citizens oppose the legal recognition of same-sex marriage and support the laws enacted against its LGBT citizens.[21] Regardless, larger cities such as Moscow and Saint Petersburg have been described as being more tolerant in accepting homosexuals and transsexuals and are also known to have a thriving LGBT community.


Before and during the formation of the UK, Christianity and homosexuality clashed. Same-sex sexual activity was characterised as sinful and, under the Buggery Act 1533, was outlawed and punishable by death. LGBT rights first came to prominence following the decriminalisation of same-sex sexual activity across the UK between 1967 and 1982.

Since the turn of the 21st century, LGBT rights have increasingly strengthened in support. Some discrimination protections had existed for LGBT people since 1999, but were extended to all areas under the Equality Act 2010. In 2000, Her Majesty’s Armed Forces removed its ban on LGBT individuals serving openly. The age of consent was equalised, regardless of sexual orientation, in 2001. Transgender people have had the right to change their legal gender since 2005. The same year, same-sex couples were granted the right to enter into a civil partnership, a similar legal structure to marriage, and also to adopt in England and Wales. Scotland later followed on adoption rights for same-sex couples in 2009, and Northern Ireland in 2013. Following the passage of the Marriage (Same Sex Couples) Act 2013, same-sex marriage will come into effect in England and Wales on 29 March 2014[22] and there is a bill to propose to have it introduced in Scotland by 2015, but will remain unrecognised in Northern Ireland.

Today, LGBT citizens have most of the same legal rights as non-LGBT citizens and Britain provides one of the highest degrees of liberty in the world for its LGBT communities. In ILGA-Europe’s 2013 review of LGBTI rights, Britain received the highest score in Europe, with 77% progress toward “respect of human rights and full equality.”[23]

LGBT rights organisations and very large LGBT communities have been built across the length and breath of Britain, most notably in Birmingham, Blackpool, Brighton, Leeds, Liverpool, London, Manchester and Newcastle, which all host annual pride festivals.


After the exhaustive Penal Code review in 2007, oral and anal sex were legalised for heterosexuals and female homosexuals only. The changes meant that oral and anal sex between consenting heterosexual and female homosexual adults were no longer offences but section 377A, which dealt with gross indecency between consenting men, remained in force. Kumaralingam Amirthalingam a Professor of Law at the National University of Singapore has argued that it may not apply to anal sex between males.[24]

In his concluding speech on the debate over the repeal of Section 377A , Prime Minister Lee Hsien Loong told MPs before the vote that “Singapore is basically a conservative society…The family is the basic building block of this society. And by family in Singapore we mean one man, one woman, marrying, having children and bringing up children within that framework of a stable family unit.”

Legislations in Singapore:

Section 377A of the Penal Code (Outrages on decency)

Section 354 of the Penal Code (Outrage of Modesty)

Section 294A of the Penal Code (Obscene Act)

Miscellaneous Offences (Public Order and Nuisance) Act


Lesbian, gay, bisexual, and transgender (LGBT) rights in Africa are limited in comparison to many other areas of the world. The International Gay and Lesbian Association estimated in 2008 that homosexuality was outlawed in 38 African countries, and in at least 13 African countries, homosexuality was legal or there were no laws pertaining to it.

Since 2011, some first world countries have been considering or implementing laws that limit or prohibit general budget support to countries that restrict the rights of homosexuals.  In spite of this, many African countries are continuing to breach international human rights laws, refusing to consider increasing LGBT rights, and in some cases drafting laws to increase sanctions against LGBT lifestyles.  Many African leaders feel that gay rights are against their cultural and religious value systems and believe they have a sovereign right to reject what is seen as an imposition by mainly Western nations, which attempts to affect national sentiment via aid.


Lesbian, gay, bisexual and transgender (LGBT) people in India may or may not have certain rights on the basis of their sexual orientation. Homosexual intercourse is a criminal offence under section 377 of the Indian Penal Code, 1860.

In Naz Foundation v. Govt. of NCT of Delhi, the Delhi High Court ruled Section 377 and other legal prohibitions against private, adult, consensual and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution. However, the Supreme Court of India overturned the decision of the lower court on 11 December, 2013 and upheld the primacy of section 377.[25]

In a landmark ruling, three judges in the 9th US Circuit Court of Appeals, have done away with the ban that was imposed on same-sex marriages in the state of California. US President Obama, who once believed that marriage could only be between a man and a woman, has now backed civil unions for gay and lesbian couples. In India, though, it’s been four years since the Delhi HC made a historic ruling, which decriminalised homosexuality. The Supreme Court is yet to approve the same. Samuel Konnur, a business promotion manager and an active member of the LGBT community, says, “Various countries have come out in different ways to show their acceptance of homosexuality and I hope India does it too. It will help a lot in terms of business. For example, in the case of same-sex marriages, the spouse doesn’t get insured and that is a primary reason why a lot of people don’t like to travel to India for business.” Hence, Same sex marriage is felt to be a distant reality in India.

The group saw the legal battle against Section 377, and the particular shape it had taken, as mostly driven from an upper-class male standpoint that was increasingly constructing it as the proverbial Damocles sword that threatened the legitimacy of their private sexual expressions. That this upper class gay-identified male vision was being directed through the language of human rights and was offering the hijra community as one which would be saved by these particular legal reforms was seen as problematic, given that repealing Section 377 was not a primary demand of the community. This particular problem is also reflected in the way that a section of LGBT rights activists have been demanding that rape laws be made gender neutral, again under the pretext of giving hijras recourse to justice against rape and sexual assault. Given the new law’s recommendation to widen the existing definition of rape through the idea of sexual assault that included within its ambit acts such as sexual propositioning through touch and exposure of private parts, there is a high possibility that gender- neutral laws could more easily be used against hijras by the police, with help from male complainants, on two accounts. First, that the hijra’s mode of navigating public places includes acts of shaming men who ridicule her through a display of the castrated sexual organ. Second, that their livelihoods were also dependent on an overt sexual flirting with male bodies in the public space. Here, too, LGBT activism has ignored various other possibilities, such as demanding a Prevention of Atrocities Against Hijras Act, akin to the SC/ST Prevention of Atrocities Act, to offer real justice against violence.

Law regarding same-sex sexual activity

Homosexual intercourse was made a criminal offence under Section 377 of the Indian Penal Code, 1860. This made it an offence for a person to voluntarily have “carnal intercourse against the order of nature.” In 2009, the Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution.

Decisions of a High Court on the constitutionality of a law apply throughout India, and not just to the territory of the state over which the High Court in question has jurisdiction.[26]  However, even there have been incidents of harassment of homosexual groups. [27]

However, on 23 February 2012, the Union Home Ministry of the UPA government replying to a Supreme Court observation, told the Supreme Court that it was opposed to the decriminalisation of homosexual activity. “This is highly immoral and against the social order.” It said that India’s moral and social values were different from other countries, and therefore, the state should not be guided by them.[28]  The Central Government reversed its stand on 28 February 2012, asserting that there was no error in decriminalising homosexual activity. This resulted in the SC reprimanding the central government for frequently changing its stand on the issue. “Don’t make a mockery of the system and don’t waste the court’s time,” an apex court judge told the government. [29]

On 11 December 2013, the Supreme Court set aside the 2009 Delhi High Court order decriminalising consensual homosexual activity within its jurisdiction.[30] The bench of justices G. S. Singhvi and S. J. Mukhopadhaya however noted that parliament should debate and decide on the matter.[31]  In explaining the ruling the bench said: “While reading down Section 377, the High Court overlooked that a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders, and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that Section ultra vires Articles 14, 15 and 21.” [32]

Human rights groups expressed worries that this would render homosexual couples vulnerable to police harrassment, saying: “The Supreme Court’s ruling is a disappointing setback to human dignity, and the basic rights to privacy and non-discrimination”[33]  The Naz Foundation (India) Trust stated that it would file a petition for review of the court’s decision.[34]

Recognition of same-sex relationship

Same-sex marriages are not legal in India. But that did not stop a Gurgaon court in 2011 from effectively recognising a marriage between two women.[35]  Since marrying, the couple started receiving threats from friends and relatives in their village.

Their lawyer said the court had served notice on 14 of Veena’s relatives and villagers who had threatened them with “dire consequences”. Haryana has been the centre of widespread protests by villagers who believe their village councils, or khaps should be allowed to impose their own punishments on those who disobey their rulings or break local traditions – mainly honour killings of those who marry within their own gotra or sub-caste, regarded in the state as akin to incest. Deputy Commissioner of Police Dr. Abhe Singh told The Daily Telegraph: “The couple has been shifted to a safe house and we have provided adequate security to them on the court orders. The security is provided on the basis of threat perception and in this case the couple feared that their families might be against the relationship.”[36]

The couple did win family approval eventually.

Transgender rights

In India one group of transgendered people are called Hijras. They were legally granted voting rights as a third sex in 1994.  Due to alleged legal ambiguity of the procedure, Indian transgender individuals do not have access to safe medical facilities for SRS.[37]

A transgender applicant was able to sit for the Tamil Nadu civil services exam after a court order allowed her sit for the exam under a self-described gender choice category. Tamil Nadu is the first province of India to offer the option of gender choice instead of the ubiquitous “third gender”.[38]



Last year, President Barack Obama announced that he now supports same-sex marriage, setting off a new round of debate in the U.S. over the issue. His support came on the heels of North Carolina voting to implement a state constitutional ban on same-sex marriage.

The U.S. Supreme Court heard oral arguments in two cases that will have major implications for gay rights in America. One case looks at whether voters can block same sex marriage, as was the case with California’s Proposition 8. The other looks at the constitutionality of the Defense of Marriage Act, passed in 1996, which defined marriage as between a man and a woman. That act was signed into law by former President Bill Clinton, who said recently that he regretted the decision. Former Secretary of State Hillary Clinton, meanwhile, has announced her support for gay marriage, saying “gay rights are human rights, and human rights are gay rights.”

But where around the world is same-sex marriage legal, where is legislation likely to happen next – and where is it criminalized?

The first same-sex couples walked down the aisle in the Netherlands in 2001. Since then, almost a dozen countries have followed in passing laws allowing same-sex marriages and domestic partnerships, including Argentina, Brazil, Canada, South Africa, Belgium and Spain. Nearly 20 other countries offer some rights to same-sex couples but stop short of marriage – including France, Germany and the U.K.

After becoming the first country to legalize same-sex unions in 1989, Denmark last June backed a gender neutral bill allowing gay marriages through church weddings or civil registry. In February of this year, meanwhile, British members of parliament offered resounding support for same sex marriage, voting 400 to 175 in support of a bill on its second reading in the House of Commons

In a number of places, homosexuality – let alone same-sex marriage – is considered illegal. Some countries, meanwhile, allow gay marriage in certain jurisdictions.

Here’s the full list of where same-sex marriage is legal (and year the law passed):

Argentina – 2010

Belgium – 2003

Canada – 2005

Iceland – 2010

Netherlands – 2001

Norway – 2008

Portugal – 2010

South Africa – 2006

Spain – 2005

Sweden – 2009

Denmark – 2012

Canada –  2005

Sweden –  2009

Mexico – 2010

Caribbean Netherlands – 2012

New Zealand – 2013

France – 2013

Brazil – 2013

Uruguay – 2013

India – Still Ilegal



It shouldn’t require global paradigms on LGBT rights to establish that the Supreme Court’s astounding ruling reinstating a controversial Victorian era decree criminalizing homosexuality, is a regressive and diffident verdict, and a ‘U-turn’ for India’s civil rights jurisprudence. The Indian SC’s ruling on Section 377 gives us the dubious distinction of joining the likes of Iran, Mauritania, Saudi Arabia, Sudan, Yemen, Cameroon and Nigeria on a list of countries who practice anti-homosexuality laws. Not too surprising a list, if you compare who keeps us company on the World Bank’s ‘doing business’ rankings. India’s record on LGBT rights matches its abysmal score on the ease of doing business, infrastructure, red tape etc.

Consequently a  lot of Indian corporations seem to be waking up to the need for a compassionate workplace. Infosys, for instance, has started the Infosys Gay Lesbian employees and You (IGLU) initiative, which creates a safe and respectful work environment for employees in the LGBT community. Similarly, Google and Goldman Sachs have set up LGBT networks in India while, in the gender column, “Wipro Technologies decided to have ‘I do not wish to specify’ and ‘Others’ as options, in order to address a wider set of talented applicants in their Bangalore and Mumbai offices” according to a report from the Society for Human Resource Management.

Adding to the voices, even the godmen spoke out. The twitter handle of Sri Sri Ravi Shankar insisted that “homosexuality has never been considered a crime in Hindu culture. In fact, Lord Ayyappa was born of Hari-Hara (Vishnu & Shiva).

Hence, the same sex marriage has been legalized in and around the world and now its high time that India should legalise it as well.

[1] ritiya-Prakriti: People of the Third Sex, p. 40

[2] “Gay and Lesbian Vaishnava Association, Inc”. Retrieved 2013-11-02.

[3] Percy, William A. (1996). Pederasty and Pedagogy in Archaic Greece. University of Illinois Press. p. 18. ISBN 0-252-06740-1. Retrieved 2009-09-18.; Rankin, H.D. Celts and the Classical World, p.55

[4] Rankin, p. 55

[5] Eva Cantarella, Bisexuality in the Ancient World (Yale University Press, 1992, 2002, originally published 1988 in Italian), p. xi; Marilyn B. Skinner, introduction to Roman Sexualities (Princeton University Press, 1997), p. 11.

[6] Craig Williams, Roman Homosexuality (Oxford University Press, 1999, 2010), p. 304, citing Saara Lilja, Homosexuality in Republican and Augustan Rome (Societas Scientiarum Fennica, 1983), p. 122.

[7] Williams, Roman Homosexuality, pp. 214–215; Richlin, “Not before Homosexuality,” passim.

[8] Catharine Edwards, The Politics of Immorality in Ancient Rome (Cambridge University Press, 1993), pp. 63–64.

[9] Herdt, Gilbert H. (1984), Ritualized Homosexuality in Melanesia, University of California Press, pp. 128–136, ISBN 0-520-08096-3

[10]  “Employment Non-Discrimination Laws on Sexual Orientation and Gender Identity”. Retrieved April 26, 2011.

[11]  “Facts about Discrimination in Federal Government Employment Based on Marital Status, Political Affiliation, Status as a Parent, Sexual Orientation, or Transgender (Gender Identity) Status”. United States Equal Employment Opportunity Commission. Retrieved July 31, 2013.

[12]  “What We Do”. Human Rights Campaign. Retrieved May 21, 2012.

[13]  “Russia: Update to RUS13194 of 16 February 1993 on the treatment of homosexuals”. Immigration and Refugee Board of Canada. 29 February 2000. Retrieved 21 May 2009.

[14] Elder, Miriam (11 June 2013). “Russia passes law banning gay ‘propaganda'”. The Guardian.

[15]  “Arrested By His Parents, Gay Russian Activist To Be First Person Convicted Under Propaganda Law”. Queerty. 2013-09-04. Retrieved 2013-09-24.

[16] Luhn, Alec (1 September 2013). “Russian anti-gay law prompts rise in homophobic violence”. The Guardian.

[17] “Russian Neo-Nazis Allegedly Lure, Torture Gay Teens With Online Dating Scam”. Huffington Post. 2013-08-07.

[18] “BBC News – Gay parades banned in Moscow for 100 years”. 2012-08-17. Retrieved 2013-11-07.

[19] Miriam Elder in Moscow. “Russia passes law banning gay ‘propaganda’ | World news”. Retrieved 2013-11-07.



[22] Pink News Retrieved 10 December 2013.

[23] “Rainbow Europe”. ILGA-Europe. Retrieved 27 May 2013.



[26] Kusum Ingots v. Union of India, (2004) 6 SCC 254: “An order passed on a writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.”

[27] Pervez Iqbal Siddiqui (28 December 2010). “Crackdown on gay party in Saharanpur, 13 held”. The Times of India. Retrieved 20 January 2011.



[30] “Supreme Court sets aside Delhi High Court judgment in Naz Foundation; Declares S.377 to be constitutional”

[31] “Homosexuality is criminal offence: Supreme Court”. Economic Times. 11 December 2013. Retrieved 11 December 2013.

[32] J Venkatesan. “Supreme Court sets aside Delhi HC verdict decriminalising gay sex”. Retrieved 12.12.2013.

[33] Harmit Shah Singh. “India’s Supreme Court declares homosexual sex illegal”

[34] “Naz Foundation to file review petition against SC order on section 377”

[35] “In a first, Gurgaon court recognizes lesbian marriage”, Times of India

[36] “India’s first married lesbian couple given 24-hour protection”

[37] “Crystallising Queer Politics-The Naz Foundation Case and Its Implications For India’s Transgender Communities”. NUJS Law Review. 2009.



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