Constitutional Principles in US v Windsor in the Indian Context

July 23, 2013

This is a guest post by Darshan Datar, a 4th-year student of the Jindal Global Law School, who is currently an intern at CLPR.


The US Supreme Court’s decision last month in US v Windsor has been celebrated around the world as a progressive step in gay rights and legalizing same-sex marriages. Even in India, it is anticipated that this judgment will be able to leave an impact on the pending Naz appeal decision in the Supreme Court. Although Naz and Windsor deal with different issues (decriminalization of homosexual acts in Naz and, recognition of same-sex marriages in Windsor), the fundamental concern is to stop discrimination on the basis of sexual orientation.


The facts of US v Windsor are simple: Windsor and Spyer were a homosexual couple and had registered as domestic partners in New York (their place of residence) in 1993. In 2007, Spyer and Windsor married in Canada, as the law in New York at that time did not allow for same-sex marriages. Spyer passed away in February 2009, leaving Windsor as her widow and the sole executor of the estate. Under the laws of the state of New York, Windsor was recognized as Spyer’s spouse. However, under the federal statute – section 3 of the Defense of Marriage Act (DOMA), only unions between heterosexual couples were recognized as marriages. This resulted in Windsor being denied a spousal deduction on the tax of $363,053 for the inherited estate under the federal tax law. Had the union between Windsor and Spyer been heterosexual in nature, Windsor would have been able to claim a deduction on the monumental figure imposed on her. Aggrieved by this fact, Windsor filed a suit challenging section 3 of DOMA and the matter reached the Supreme Court in July 2012.


The issue before the Supreme Court was whether Section 3 of the DOMA, which defines the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,” deprives same-sex couples who are lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States. In short, the judgment held that Section 3 of DOMA is unconstitutional as it deprives the equal liberty of persons that is extended under the protection of the Fifth Amendment.


Justice Kennedy, who delivered the majority opinion, relied mainly on the principles of equality and dignity. Drawing a parallel with Naz, it can be seen that similar arguments were raised in India as well.


The bench noted in Naz that in the Indian Constitution, the right to live with dignity and the right of privacy both are recognized as dimensions of Article 21. He found that Section 377 IPC denies a person’s dignity and criminalizes his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution.[1] In Windsor, Justice Kennedy was of the opinion that the DOMA puts same-sex relationships in an unstable “second tier” position to the heterosexual couples, affecting their right to live with dignity.  In his own words, ” The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignity. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question (DOMA) makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” It is interesting to note that the bench in Windsor was not only concerned about the dignity of the couple but also of the children being raised by same-sex couples. In another part of the majority judgment, Justice Kennedy remarked: “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children that their marriage is less worthy than the marriage of others”.


In the US, a three-tier approach has been formed to weigh statutes and government actions against the equal protection in the Constitution– strict scrutiny, intermediate scrutiny, and rational basis. Even in the Naz judgment, the American constitutional principles of strict scrutiny and suspect classification were raised while adjudging the applicability of Article 15 and the court was of the opinion that a provision of law branding one section of people as criminal based on the State’s moral disapproval of that class goes against the equality guaranteed under Articles 14 and 15 under any standard of review.


Naz also raised the test of permissible classification[2] under Article 14, in which it was found that there is no rational nexus to the purpose that the IPC wishes to achieve. In addition, Section 377 IPC targeted the homosexual community as a class and the discrimination caused to homosexuals was unfair and unreasonable and breached Article 14.  In Windsor, the majority noted that DOMA singles out a class of persons and deprives them of the recognition and liberty that is otherwise granted by the State legislation.


It is still a long way to go before same-sex marriages can be legalized in India. Unlike the US, where marriage has been defined under a single federal statute to be applied to everyone, in India, there are several legislations that govern marriage for different cultural/religious. In addition, there is still a social stigma attached to homosexuality and it requires a change in the mindsets of people which will not happen overnight.  We have just taken the first step to decriminalize homosexuality and our first hurdle will be crossed if the Naz appeal is upheld in the Supreme Court.


[1] Para 48

[2] to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that the differentia must have a rational relation to the objective sought to be achieved by the statute in question.