Monday, May 19, 2008

Living on the fringes

The California Supreme Court ruled on May 15th that same-sex couples should be permitted to marry, rejecting state marriage laws as discriminatory. The California ruling is considered monumental by virtue of the state's size — 38 million out of a U.S. population of 302 million — and its historic role in the vanguard of the many social and cultural changes that have swept the country since World War II. In San Francisco, the reaction was reported to be jubilant. On 18th May, a popular newspaper daily reports that two women in Tiruvottiyur, Chennai who were very ‘intimate’ had set themselves ablaze, clasped to each other, unable to cope with their relatives’ opposition to their intimacy. There is still a sense of revulsion among the Indian community about accepting several ‘other’ types of human relationships which are gaining legitimacy across the globe. The California judgment was not a one-off dispensation but a culmination of widely held public debates, Supreme Court judgments of various States and of USA and legislative interventions.

The Congress at first took a conservative role. In 1996 it enacted the Defense of Marriage Act ("DOMA") to empower the States to deny the legitimacy of same sex marriages. But the constitutionality of measures denying recognition of same-sex marriage was suspect, especially in light of the U.S. Supreme Court's apparent shift in its consideration of gay and lesbian rights. The Court had earlier found that a state sodomy statute enforced only against homosexuals violated no constitutionally protected rights (Bowers v. Hardwick, 478 U.S. 186, 191 (1986). In contrast, in 1996 in Romer v. Evans, 517 U.S. 620, 623 (1996), the Court found that a state constitutional amendment that barred anti-discrimination measures that protected lesbians and gay men violated the U.S. Constitution's Equal Protection Clause by subjecting one group to a disadvantage that no other group had to suffer. In so doing, the Court took the remarkable step of invoking the landmark dissent in Plessy v. Ferguson (163 U.S. 537, 559 (1896) (Harlan, J., dissenting), in the opening paragraph of its decision: The Constitution "neither knows nor tolerates classes among its citizens." Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Court made clear that it would not countenance a legal distinction that raised the "inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."

These laws have immediate relevance to maintenance rights, claims to custody of children born through donors and surrogates outside the bonds of marriage, rights to succession and all property rights connected with them. We have not had any public debate of any serious nature in this area. Not merely this, another boundary untouched by legislation or public concern has been the rights of transsexuals. A NGO having close links to the ruling establishment appears to have prevailed on the state government to undertake a census of the numbers and needs of the transgender community in Tamil Nadu, The government is also reported to have started work through the Welfare Board for the Transgender community to address the problems of AIDS prevalence among the community and the problems caused by Section 377 (the antisodomy law), IPC. Another problem intimately connected is recognizing their gender status for employment.

There has been no legislative initiative and NGOs have done little to espouse their cause. It is surprising that the affected persons have not complained about the discriminatory practices in the job market through litigation route. The problem lies just here. They have not worked for their rights within the legal system but look for avenues to indulge in humiliating practices. The gender stereotypes are almost accepted as the only communities that deserve social concern, and by our apathy we are derailing large sections of ‘other people’ to take to degrading life styles. There are discriminatory practices employed against so many other people living along the fringes. A private airline company advertising for jobs in India bars entry to persons who have tattoos on any visible part of the body. Any number of advertisements could be shown to make explicit statements of preferences to physical appearances for prospective employees. Perhaps, we need legislation like the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 or expand the definition of disability to include persons who belong to the above categories as well.

In Part 6 of the ‘Voice Divine’ (Deivathin Kural), Kanchi Paramaacharya, while explaining the subtle meanings of Adi Sankara’s Soundarya Lahari extols the beauty of the Divine Mother, who has profusion of love for all Her children. He recalls at the same breath the example of Ashtavakrar who was ugly but even the Gnanis looked only to him for spiritual guidance for the depth of his learning and felt attracted to him by his beauty of erudition. The ability to love fellow beings brings an intense quality of beauty to the person who can practice it in all forms of interactions. What is love in the context of human relationships is societal concern through legislation in the legal context. The Law Commission of India is recommending a change of law for deleting attempt to suicide as an offence. Will the Law Commission also look into the human rights angle and the need for assimilating people in the fringes into the vortex of legislative concern through non-discriminatory laws?


balaji said...

The theory of marriage is essentially a man- woman relationship to create an off-spring and thus the perpetuation of the race. The seed and the soil have a purpose, i.e, to create a new life... saying that same sex marriage is legal is nothing but a stupid arrogance to deviate from the laws of nature. A bag of sand mixed with another will only be sand and not life..likewise a bottle of seed mixed with another will only be two bottles of seed and not life... life needs the sand and the seed together.. that is marriage. While a group of male hunting animals or a group of female nursing animals may live, they do choose to be a pair to create an off spring at the time chosen by nature. Even to get an appliance run the male plug must be plugged into female socket and that makes a pair....both male or both female, even the stupid appliance wont run.

There are same sex tendencies amongst some animals of higher intelligence as research now proves, but it can only be an unusual sexual behaviour at the spur of the moment and nothing more, like may be the non-availability of the opposite sex.

A man being close to another man without sexual relationship was called a good friend all these years.. but suddenly it seems that they would also sleep together and have some unnatural abberation in their sexual urges and that gives a right to marriage.. funny..

I have heard that the ancient Hindu Dharmashastras have accepted this unnatural sexual abberation and had not condoned it and said that a cleansing, that is a bath is all that is needed to purify onself after such a sin. I think their reasoning would be that it would not be a permanent behaviour but only an abberation for some reason like the non-availability of legitimate partner of the opposite sex, and therefore no punishment. But in contrast, Same sex relationship was condemned by the symantic politico military doctrines that later became to be known as religions emanating from West Asia, vehemently and finds a place in their holy books as great sins. Thus naturally the practioners of these religions must not think of any same sex abberation at any time otherwise they would be infedels !

Without prejudice to the close relationships shared by many man-man, women-women, man-women affairs ( not husband and wife)- sexual life indeed needs man and woman together in love and lust. While lust is the starter coil, love is the engine that would run the vehicle on the long journey called life.

The Shiva- Shakthi concept of Bharath and the Ying-Yang concept of the chinese civilization would look foolish if juxtaposed with such relationship abberations..isnt it not ? The legal acceptance of such marriages is also an abberation. Courts should first learn to respect the Universal Laws of nature and not behave as though they are taking man kind ahead by legitimizing such fleeting abberations. It would ruin the global population of human race in the long run at a faster rate.

So, for life to survive on this planet, all men kindly love women.. and all women kindly love men.. and say a big no to such stupid judgments that demean nature.

K.Kannan said...

The point that man-woman relationship alone could sustain the contnuity of human race is well taken. My point was that aberrations do exist, chromosomally or for other causes. Dont frown upon such deviance. One swallow does not make summer. Such relationships are not going to stop the growth of human race. Accept them also as respectable inheritors of one world. Do not assume exclusivist postures!