Revisiting Obergefell v. Hodges: Has Love Won?

NEW DELHI, INDIA - DECEMBER 15: LGBT (lesbian, gay, bisexual and transgender) activists protest against Supreme Court's judgement on Section 377 that upheld section 377 of the Indian Penal Code that criminalizes homosexuality at Jantar Mantar on December 15, 2013 in New Delhi, India. India's Supreme Court last week reversed a landmark 2009 lower court order that had decriminalized gay sex. (Photo by Mohd Zakir/Hindustan Times via Getty Images)

Two years ago, on the 26th of June, 2015 the Federal Supreme Court of the United States of America held in Obergefell v. Hodges that state level bans on same-sex marriages is unconstitutional. Until then, the legality of same-sex marriages was different in different states. Obergefell, by proclaiming the unconstitutionality of banning same-sex marriages, created a new common pattern throughout all state jurisdictions of the United States apropos same sex marriages. Soon after this decision came out, Facebook, Twitter and other social media was abuzz with slogans and celebrations claiming ‘love wins’ and there was a sudden upsurge of rainbow edited profile display pictures throughout social media. The celebration and hullabaloo was not limited to the United States, but spread across far and wide throughout the World, with a heavy predominance in India as well.

Two years later, it is time to revisit the celebration post Obergefell, and to enquire whether love has, indeed, won or not. While same-sex marriage equality is great for those who desire marriage, it is far from the reality in many countries (especially the Middle East and South Asian countries). Forget same-sex marriages, same sex relationships or even same sex intercourse is heavily penalized in many countries still, which extend even to lashing, pelting stones and death. In 2006, the number of countries that had same sex marriages criminalized was somewhere around 96. The number dropped to 72 by 2016. The struggle is still ongoing and massive, but very far away from claiming and rejoicing that love has won.

Even recently, reports of flagging in Sharia law dominated regions of Indonesia, persecution of gay men in Chechnya and judicial killing of gay men in Saudi Arabia have captured the news. Mass and widespread persecution of gay men, corrective rapes of lesbian women and systematic and structural harassment and drudgery of Trans-individuals is still part and parcel of the age and time that we live in. Heteronormativity is still heavily regarded as the natural recourse of societal order, and is guarded heavily in order to prevent the delinquent sexual “other”. (Foucault, 1976).

India has had a rich culture of alternative sexuality and acceptance to alternative sexuality. For those that quote tradition and Indian culture as vices against queerness, have the least bit of understanding of what indeed entailed tradition, culture and religion. In Shikhandi and other Tales, Devdutt Patnaik goes to great analytical length to unravel the mysteries behind queer identities, eroticisms and relationships spread far across Hindu mythology. In Same-sex love in India, SaleemKidwai and Ruth Vanita show a trajectory of same sex relationships and the intolerance that rose against it through the Victorian morality of the British raj, which slowly percolated through the country. Ignorance, and blind percolation, trumps historical and sociological facts yet again. In a Trump-Modi post-truth era, it is closely held prejudices and bigotry that takes the forefront, militating against and encapsulating reason.

In a Facebook post recently, I came out as a bisexual man to all my friends, family and relatives for the first time. Although I did receive a great deal of support, encouragement and motivation from friends and acquaintances, it was family that reacted in a very troubled manner. While the aunts and uncles considered me as a boy that has lost his way and engaging in unwarranted behaviour, parents couldn’t take it too well either. There I was, on the one hand receiving a great deal of support and encouragement from friends and acquaintances, whilst on the other hand receiving censure and reprehension from family. Which side do I listen to? Which episteme do I engage with? Both? None? Either one?

Although the modern Indian society proclaims to be tolerant and accepting, there lies a great deal of hypocrisy and irony within it as well. People whom I considered and looked up to as tolerant and wise of accepting uninitiated ideas, were surprised with the idea of alternative sexualities. Heteronormativity is deeply embedded in various institutions around us from religious institutions to legal institutions. Yes, even the Supreme Court of India was accepting of the idea that queer relationship/ queer sex is unnatural and against the tradition of the country. Whilst the United States Supreme Court held banning of same sex marriages unconstitutional throughout the country, the Indian Supreme Court has held that decriminalization of same-sex relationships/ intercourse is illegal and outside the purview of the Court.

Unless and until every individual is capable of expressing their sexuality, sexual preference and orientation in a free and open environment, with an utmost cohesive society conducive to the growth of free thinking and decision making of individuals, love has not won. Although many claim that baby steps is the way forward and celebrating every small victory is important, the judgment of Obergefell cannot be considered a victory for all of us outside the purview of the United States and the first world, where same-sex relationship and intercourse is still a crime, an abomination. It is pertinent to take note of strategies and mechanisms employed to challenge heteronormativity elsewhere, but it would not be wise to compromise the context of the criminalized world with that of the non-criminalized one. Of course, the reason I have shared my person story in this piece is but only to show that legal change proves nothing and there ought to be a radical change in the mind in accepting alternative sexualities. Unless and until the society and people within it come together for social transformation and change, change is difficult to achieve. The law may criminalize casteist oppression, but the country is still facing the wrath of savarna oppression. Similarly, decriminalization and legal challenges (albeit important) must not be the only goal in challenging heteronormativity. For we are living in a society where mob-justice and lynching (judicial and extra-judicial) is the norm of the day. In such a problematic state of affairs, let us always remember the words of one of my most favourite authors- Jiddu Krishnamurthy:

It is no measure of good health to be well adjusted to a profoundly sick society.

Sabarish Suresh is a law student at the O.P Jindal Global University, Haryana. He is interested in Criminal Law and Human Rights and also actively writes on gender and sexuality.


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