SC to hear pleas on same sex marriages from April 18: Which countries allow such unions, & through what routes?

The Centre, in its affidavit opposing the pleas for legal recognition of same-sex marriages, had told the Supreme Court on March 13 that the “legislative understanding of marriage in the Indian statutory and personal law regime” refers only to marriage between a biological man and biological woman — and any interference “would cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values”.

Urging the court to leave the issue to Parliament, the Centre said that any “recognised deviation…can occur only before the competent legislature”. It also said that “despite the decriminalisation of Section 377 of the Indian Penal Code (IPC), the Petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country”.

However, out of the 32 countries in the world that recognise gay marriage, at least 10 countries have recognised same-sex marriages by court rulings, whereas the remaining 22 countries allowed it through legislation, Human Rights Campaign, a US-based LGBTQ advocacy group said.

Countries that allowed same-sex marriages after court rulings

UNITED STATES: On 26 June 2015, the US Supreme Court in a 5:4 ruling in ‘Obergefell v. Hodges’ allowed marriage equality to become the law of the land and granted same-sex couples in all 50 states the right to full, equal recognition under the law.

The court reasoned that limiting marriage solely to heterosexual couples violates the 14th Amendment guarantee of equal protection under the law. However, 32 states had already recognised gay marriage before the ruling. In 2003, Massachusetts became the first state in the United States to legalise same-sex marriage, following a ruling by the state’s Supreme Court in ‘Goodridge v. Department of Public Health.’

TAIWAN: In 2019, Taiwan became the first Asian country to recognise same-sex marriage. A law was introduced following a court ruling and on May 17, 2019, Taiwan’s parliament passed a bill legalising same-sex marriage. The vote in Taiwan’s Legislative Yuan or parliament came after the 2017 ruling of the Constitutional Court, striking down the traditional definition of “marriage” between a man and a woman. In its ruling, the court gave the legislature close to two years to change the country’s marriage laws.

COSTA RICA: On May 26, 2020, Costa Rica became the first country in Central America to legalise same-sex marriage following a ruling by the country’s top court in 2018, declaring the law banning same-sex marriage as “unconstitutional”. A caveat was also added that the ban would be nullified in 18 months unless the legislature acted before this. However, it did not, which led to the court’s ruling assuming significance.

SOUTH AFRICA: One year after South Africa’s highest court ruled that its marriage laws violated the constitution’s guarantee of equal rights, the South African parliament legalised same-sex marriage on November 30, 2006. However, the new law allows religious institutions and officers the freedom to recuse from conducting marriages, amidst wide criticism.

AUSTRIA: The Constitutional Court of Austria, in 2017 held the denial of marriage equality to be discriminatory and legalised same-sex marriages. From January 1, 2019, same-sex marriages were allowed.

Countries that allowed same-sex marriages through legislation

AUSTRALIA, IRELAND, SWITZERLAND: Following a nationwide referendum in 2017, Australia’s Parliament passed a law recognising same-sex marriage. The referendum showed majority support — 62 per cent — in favour of the law. In Ireland and Switzerland too, a popular vote led to the formal recognition of LGBTQ marriages.

ARGENTINA: On July 15, 2010, Argentina became the first Latin American country and the 10th country in the world to allow same-sex marriages nationwide. Even before a national law was passed, several cities and local units had allowed civil unions for gay couples.

CANADA: Same-sex couples in Canada have enjoyed the legal benefits of marriage since 1999 when the federal and provincial governments extended marriages under the Common Law to LGBTQ couples. Following this, a string of legislation on the subject commenced in 2003, making same-sex marriage legal in nine of Canada’s 13 provinces and territories. This was formally recognised on July 20, 2005, by Canada’s Parliament, which passed nationwide legislation to this effect.

GERMANY: On June 30, 2017, Germany became the 15th European country to bring in legislation allowing same-sex couples to wed. The 393 to 226 votes in the nation’s Bundestag after Chancellor Angela Merkel allowed the members of her ruling Christian Democratic Union to vote according to their conscience, leading to more than 70 members of Merkel’s conservative bloc voting for the Bill to pass.