By John Lewis and Stuart Gaffney–
On September 6, 2018, India, the world’s largest democracy, finally shed the British colonial-era law that for over a century and a half has been used to criminalize and denigrate the lives of LGBTIQ Indians. In a 495-page ruling that included four separate opinions, the Supreme Court of India declared the law, known as Section 377, unconstitutional. The 1.3 billion citizens of India no longer live in a country where for LGBTIQ people “the physical manifestation of their love is criminal.” Instead, love may manifest itself “unhindered.”
Many passages of the Justices’ opinions sing both in their eloquence and their insight. We are not Indian law experts, and the Indian Supreme Court differs significantly in structure from the U.S. Supreme Court, e.g. panels of 3 to 5 or more Justices out of 31 total Justices hear different cases. Instead of in-depth legal analysis, we share with you highlights from the opinions that stood out for us. As we read the words of the Indian Supreme Court, we couldn’t help but reflect on the current confirmation hearings for the U.S. Supreme Court, and ways in which the words of supreme courts can either affirm or deny the truth of our very lives:
The Indian Constitution is an “organic and breathing document with senses which are very much alive to its surroundings”—“a living, integrated organism having a soul and consciousness of its own and its pulse beats … can be felt all over its body.”
“Section 377 (the ’unnatural offences’ statute), is based on a moral notion that intercourse which is lustful is to be frowned upon. It finds the sole purpose of intercourse in procreation. In doing so, it imposes criminal sanctions upon basic human urges, by targeting some of them as against the order of nature.”
“The natural identity of an individual should be treated to be absolutely essential to his being. What nature gives is natural.”
“Homosexuality has been documented in almost 1500 species,” and a recent article “notes that ‘no species has been found in which homosexual behavior has not been shown to exist, with the exception of species that never have sex at all, such as sea urchins … .'”
“‘What makes life meaningful is love. The right that makes us human is the right to love. To criminalize the expression of that right is profoundly cruel and inhumane.'”
Quoting queer poet Vikram Seth:
“To sneer at love, and wrench apart
The bonds of body, mind and heart
With specious reason and no rhyme:
This is the true unnatural crime.”
“Denial of self-expression is inviting death … . Identity is equivalent to divinity.”
“[O]nly when each and every individual is liberated from the shackles of … bondage and is able to work towards full development of his/her personality that we can call ourselves a truly free society.”
“We have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination.”
Section 377 has turned LGBT people into social “pariahs” and “has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment.”
A person may choose to live alone, “but no one, and we mean, no one, should impose solitude on him/her.”
Section 377 has “subjugated” LGBT people “to a culture of silence and into leading their lives in closeted invisibility.”
This forced “closeting” produces “the ‘hegemonic heterosexual’—the ideological construction of a particular alignment of sex, gender and desire that posits itself as natural, inevitable and eternal.”
“What links LGBT individuals to couples who love across caste and community lines is the fact that both are exercising their right to love at enormous personal risk and in the process disrupting existing lines of social authority.” The struggle to overcome “limits imposed by structures such as gender, caste, class, religion and community makes the right to love not just a separate battle for LGBT individuals, but a battle for all.”
“By attacking … gender roles,” LGBT people “build communities and relationships premised on care and reciprocity” and thus challenge “the idea that relationships, and by extension society, must be divided along hierarchical sexual roles in order to function.”
“The choice of sexuality is at the core of privacy. But equally … the public assertion of identity founded in sexual orientation is crucial to the exercise of freedoms.” “If one accepts the proposition that public places are heteronormative, and same-sex sexual acts partially closeted, relegating ‘homosexual’ acts into the private sphere, would in effect reiterate the ‘ambient heterosexism of the public space.'”
“The right to privacy may be construed to signify that not only are certain acts no longer immoral, but that there also exists an affirmative moral right to do them.”
“An individual’s sexuality cannot be put into boxes or compartmentalized; it should rather be viewed as fluid, granting the individual the freedom to ascertain her own desires and proclivities.”
“The Constitution protects the fluidities of sexual experience. It leaves it to consenting adults to find fulfillment in their relationships … in infinite shades of love and longing.”
“For people to attain the highest standard of health, they must also have the right to exercise choice in their sexual lives and feel safe in expressing their sexual identity.”
“The right to health is not simply the right not to be unwell, but rather the right to be well.”
“The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons.'”
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”
“For those who have been oppressed, justice … committed to human freedom, has the power to transform lives.”
At this pivotal time in American jurisprudence, we hope that the members of the U.S. Supreme Court read and heed the wisdom of the Indian Supreme Court.
Stuart Gaffney and John Lewis, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.
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