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India's Supreme Court Rules Only Parliament Can Legalize Same-Sex Marriage

'This court can’t make law. It can only interpret it and give effect to it,' wrote Chief Justice DY Chandrachud

The Supreme Court of India has ruled that only Parliament can legalize same-sex marriage.

In a 3-2 decision, the country’s highest court declined to legalize same-sex marriage to the disappointment of LGBTQ activists. Over 20 petitions were brought to the court in April and May requesting a revision to the nation’s current marriage laws. 

The court released four separate opinions wherein different justices explained their ruling.

In his written opinion, Chief Justice DY Chandrachud found that the court cannot rewrite or strike down the Special Marriage Act that was passed in 1954. Petitioners were seeking a gender-neutral interpretation of the law, which was passed to regulate inter-caste and inter-faith marriages.

“This court can’t make law. It can only interpret it and give effect to it,” wrote Chandrachud.

He added that people who identify as gay, bisexual, or queer have the right to enter “unions” and that the state inflicts adverse outcomes on LGBTQ couples by not providing them a pathway toward legal marriage. 

“Choosing a life partner [is] integral to right to life,” Chandrachud wrote, per The Hindu. He also noted that “homosexuality or queerness is not an urban concept or restricted to the upper classes of the society.”

“To say that queer people exist only in urban and elite spaces is to erase them,” wrote the justice. “It is not an English-speaking man with a white-collar man who can claim to be queer but equally a woman working in an agricultural job in a village.”

Three other justices – Justice Kaul, Justice Bhat and Justice Narasimha – all offered their own opinions on the issue. Justice Hima Kohli, the only woman on the court, did not. 

Mario da Penha, one of the plaintiffs involved in the 21 petitions, told reporters that the ruling marked “a day to be disappointed, but not to lose hope.”

“There’s been tremendous work that has gone into these petitions, and many hopes and dreams of the queer community attached to them — to lead lives that most other Indians take for granted,” he said, according to AP News. The fact that the dream could not come to fruition today is a disappointment for all of us.”

The Supreme Court previously struck down a law over 150 years old that made same-sex sexual encounters punishable by up to 10 years in prison. 

“Any discrimination on the basis of sexual orientation violates fundamental rights,” said then-Chief Justice of India Dipak Misra, per Al Jazeera. “The constitution is a living organic document … pragmatic interpretation has to be given to combat rigorous inequality and injustice. Social morality cannot be used to violate the fundamental rights of even a single individual. Constitutional morality cannot be martyred at the altar of social morality.”

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