Large majority ratifies ‘family code’ legalising gay marriage; Cuba

Cubans approved the 100-page "family code" legalizes same-sex marriage and civil unions, allows same-sex couples to adopt children, and promotes equal sharing of domestic rights and responsibilities between men and women.

CubaImage courtesy: Getty Images

In a Sunday referendum (September 25), Cubans approved gay marriage and adoption overwhelmingly backed by the government that also boosted rights for women, the national election commission said on Monday.More than 3.9 million voters voted to ratify the code (66.9%), while 1.95 million opposed ratification (33%), Alina Balseiro Gutierrez, president of the commission, said on state-run television on Monday. 

“Justice has been done,” Cuban President Miguel Diaz-Canel wrote in a tweet. “It is paying off a debt with several generations of Cuban men and women, whose family projects have been waiting for this law for years,” he said. 

Media reports including one on Reuters explained that the 100-page “family code” legalizes same-sex marriage and civil unions, allows same-sex couples to adopt children, and promotes equal sharing of domestic rights and responsibilities between men and women. An analysis of the preliminary findings of the results from the electoral commission showed 74% of 8.4 million Cubans eligible to vote participated in the Sunday referendum.

Official Twitter accounts showed the room erupting in applause and the president leaning back and smiling at the news. It was the Cuban president himself who led the campaign for the adoption of the code. Sunday’s turnout in the referendum by Cuban standards was relatively modest, and a 33% ‘no’ vote relatively large in the communist-run country, where previous referendums have seen the government position receiving near unanimous approval.

The dissent is an indication of both how Cuba is changing and the current dire economic circumstances, which have seen long power outages and lines for food, medicine and fuel.

Sunday’s vote was also the first of its kind since most residents have had access to the internet, which has let dissenting views spread more widely. 

India and same sex marriage 

As of 2022, same sex marriages are not legally recognised in India by the law though several couples do co-habit together. In the pathbreaking 2018 judgement, Navtej Singh Johar v/s Union of India, the Supreme Court that upheld an earlier landmark judgement of the Delhi High Court de-criminalises homosexuality, also ruled that same sex couples would be granted the basic right of companionship so long as it is consensual, without coercion and force. The issue of legal marriage lies pending in the courts. In 2020, Delhi HC issues notice to Union in a plea to recognise same sex marriage

The court is slated to hear the matter on marriage equality of same sex couples under Hindu Marriage, Special Marriage and Foreign Marriage Act The Delhi High Court has issued a notice to the Union of India in a plea seeking registration of marriage of same sex couples under the Hindu Marriage Act.  The petition was filed by members of the Lesbian Gay Bisexual Transgender+ (LGBT+) community and activists Abhijit Iyer Mitra, Gopi Shankar M, Giti Thadani and G. Oorvasi, as reported by The Hindu. 

The plea submits that under The Hindu Marriage Act, Section 5 clearly lays down that marriage can be performed between ‘any two Hindus’ under the Act. Since the language in the legislation is gender neutral, it should apply to same sex marriages. While there is no statutory bar under the Hindu Marriage Act and Special Marriage Act against gay marriages, they were not being registered throughout the country. “As a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them,” the plea added.

Further, the prohibition of same sex marriage on the basis of sexual orientation and gender identity was violative of the principle of equality guaranteed under the Constitution of India, stated the plea citing examples of Australia, Germany, Canada, Spain, South Africa, Brazil and England, where same-sex marriages are legal. Apart from this petition, the High Court noted that two other similar petitions are pending before the court. One petition was filed by two women seeking a direction to be issued to the Marriage Officer, South East Delhi to solemnise their marriage under the Special Marriage Act. The second petition has been moved by two men, who got married in the United States but their marriage registration was denied under the Foreign Marriage Act (FMA) as it excluded same-sex marriages.

Since, the petitions deal with the same issue under the Hindu Marriage Act, Special Marriage Act and Foreign Marriage Act, the court has clubbed the pleas.

Taiwan, became 1st Asian Country to Legalize Gay Marriage (2017) 

In a landmark judgement delivered on May 23, 2017 judges from Taiwan’s Highest Court ruled in favour of Chi Chia-wei, legalizing gay marriage, making the small, island nation the first in Asia and setting a precedent for other Asian countries.

The court has given the country’s parliament two years to amend existing laws or create new ones to ensure equal treatment of individuals with respect to marriage laws.

Back home in India, the Delhi High Court, in the case of Naz Foundation V. Government of NCT Of Delhi And Others, had ruled in favour of the LGBT community in 2009. The Court had asked the Indian parliament to amend laws according to the recommendations of the 172nd Law Commission of India Report. The report may be read here. Despite this and the 2018 SC judgement, progress has been slow. The LGBT community still suffers from exploitation, discrimination and denunciation.

Just like India, in Taiwan the fight for rights of the LGBT community, is not recent. The issue of same-sex marriage has been a source of contention for decades in Taiwan. The key plaintiff, Chi Chia-wei, a gay-rights activist, has been fighting for gay rights since the 1980s and first sought a gay marriage license 16 years ago according to Focus Taiwan Reports. Chi Chia-wei’s suit claims that the prohibition against same-sex marriage violates the rights guaranteed in the Constitution by Article 7 which declares that all citizens, irrespective of sex, religion, ethnic origin, class or party affiliation, to be equal before the law, and Article 22, which states that all other freedoms and rights of the public that are not detrimental to social order or public welfare are guaranteed under the Constitution.

The obiter dicta of the Grand Justices reflect their liberal, reformist outlook.The Justices called sexual orientation an “immutable characteristic that is resistant to change.” This, in our opinion is the most logical definition of the sexuality of an individual, knowing that it is internal and natural and not an externally developed sentiment. The court further said that, “Allowing single people to have the autonomy to decide whether to marry and whom to marry, is vital to the sound development of personality and safeguarding of human dignity, and therefore is a fundamental right.”

The alliance of Taiwan Religious Groups for the Protection of the Family and representatives from Buddhist, Taoist, Christian and Lamaist groups, rallied against this decision of the Court. However, it was the key campaign issue for President Tsai Ing-wen, who took office one year ago, and the legislature has been weighing a change to Taiwan’s Civil Code.

Taiwan, in 2017, joined 20 other countries from across the world which have legalised same-sex marriage. Netherlands was the first to legalise same-sex marriage(2000), followed by Belgium (2003), Spain and Canada (2005), Finland, Ireland and United States (2015) and now Taiwan (2017). India, certainly has a lot learn from this international reform. The first step in the right direction was taken by the Delhi High Court in 2009 as discussed above, but the Supreme Court took a U-turn in 2013, when it overruled the order of the Delhi High Court. This was then set aside in 2018.

The Supreme Court Judgement may be read here.

Contradiction in Indian law 

While Section 377 of the Indian Penal Code, 1860 criminalised homosexuality primarily on the basis of the form of sexual intercourse till 2009 and then 2018, the Constitution of India – the supreme law of the land, protects and promotes diversity, ensures an egalitarian society where freedom should no longer be a privilege. Although Part III of the Constitution provides certain rights to the citizens, it only covers those citizens who form part of the ‘popular morality’.  The LGBT community does not form part of this ‘popular morality’ and hence is neglected. It is the right of each member of the LGBT community to be treated equally like other citizens, to live with dignity as enshrined in A 15 (1), (2), Part III, Constitution of India. As given, “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

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