Central Idea

• In a recent media conclave held in India, Michael Sandel, a renowned philosopher, emphasized the importance of his ideas on deeper moral questions facing Indian society. His critique of contemporary liberalism, particularly in the context of same-sex marriage, went largely unnoticed. As the Supreme Court of India began hearings on this issue, it is crucial to consider Sandel’s perspective, which challenges the application of a liberal framework of individual rights.

Concept of Bracketing Moral Issues

• The concept of bracketing moral issues, as introduced by philosopher Michael Sandel, refers to the act of setting aside personal or societal moral beliefs and perspectives when engaging in public discourse or decision-making processes.
• It involves temporarily suspending one’s moral convictions and adopting a neutral stance to promote fairness and inclusivity in deliberations.
• When applied to the context of same-sex marriage, bracketing moral issues would require individuals to put aside their personal moral views on marriage, such as considering it solely as a heterosexual institution, and approach the discussion from a broader perspective that prioritizes equal rights and fairness for all individuals, irrespective of their sexual orientation

Supreme Court’s Neutrality and Constitutional Morality

• Neutrality: The Supreme Court of India is expected to maintain a position of neutrality when it comes to moral questions. It is required to approach cases without bias or favoritism towards any particular moral viewpoint, ensuring equal concern for all individuals, irrespective of their social or personal morality.
• Impartiality: The Court’s neutrality means that it does not take sides on moral issues or make judgments on the desirability or moral worth of certain practices or institutions, such as marriage. Instead, it focuses on the legal rights and protections afforded to individuals within the framework of the Constitution.
• Constitutional Morality: The concept of constitutional morality refers to interpreting the Constitution in a manner that aligns with its fundamental values and principles. The Supreme Court relies on constitutional morality to guide its decisions and ensure that they are consistent with the spirit of the Constitution, rather than being influenced by personal or societal moral beliefs.
• Equal Concern for All: The Court’s commitment to equal concern for all individuals means that it strives to treat everyone equally under the law, regardless of their sexual orientation. This principle is essential in cases related to same-sex marriage, as it emphasizes the importance of upholding the rights and dignity of all individuals, irrespective of their sexual identity.
• Upholding Individual Rights: Neutrality and constitutional morality guide the Supreme Court in protecting and upholding the individual rights of citizens. In the context of same-sex marriage, the Court’s role is to ensure that the rights of individuals to marry and have their relationships recognized are not infringed upon due to their sexual orientation.
• Balancing Societal Values: The Court faces the challenge of balancing societal values and perceptions surrounding marriage with the principles of equality and individual rights. It must navigate the tensions between recognizing the rights of same-sex couples to marry and the societal understanding of marriage as traditionally heterosexual, while remaining neutral and upholding constitutional morality.
• Decision-Making Process: The Court’s approach to neutrality and constitutional morality influences its decision-making process. It requires a careful examination of legal and moral principles, considering the impact of the decision on individual rights and societal values, to arrive at a just and balanced outcome.

Challenges to Neutrality

• Moral Dilemmas: Neutrality becomes challenging when the Court is faced with cases that involve deep moral and ethical considerations. Same-sex marriage is one such issue where the Court must balance individual rights and societal values.
• Public Opinion and Backlash: Neutrality can face challenges when public opinion and societal attitudes strongly favor or oppose a particular moral viewpoint. In cases like same-sex marriage, where societal norms and traditional values may be at odds with equal rights for LGBTQ+ individuals, the Court’s neutral stance may face resistance, backlash, or criticism from various sections of society.
• Judicial Activism vs. Restraint: Neutrality can sometimes be perceived as judicial restraint, where the Court refrains from actively engaging in shaping social or moral norms. However, critics may argue that neutrality should not limit the Court’s ability to address societal issues and promote social justice.
• Interpretation of Constitutional Morality: The concept of constitutional morality itself can be subject to different interpretations. Different judges may have varying understandings of what constitutes constitutional morality, leading to diverse perspectives on how neutrality should be applied in moral questions.
• Maintaining Consistency: Consistently applying neutrality across different cases and contexts can be a challenge. The Court must ensure that its decisions do not appear to be arbitrary or influenced by external factors.
• Balancing Individual Rights and Societal Values: The Court must navigate the delicate balance between protecting individual rights and respecting societal values. Determining the point at which societal values may infringe upon the rights of individuals is a complex task that requires careful consideration and analysis.

Two primary approaches: equality and intrinsic value in terms of same sex marriage

1. Equality:

• Equal Rights: The equality approach argues that denying same-sex couples the right to marry is a form of discrimination. It emphasizes that all individuals, regardless of their sexual orientation, should have equal access to the institution of marriage.
• Anti-Discrimination: Advocates of equality argue that restricting marriage to heterosexual couples perpetuates unfair and unequal treatment. They believe that marriage should be based on the equal respect and dignity of individuals, regardless of their sexual orientation.
• Human Rights: The equality perspective frames same-sex marriage as a matter of human rights and civil liberties. It asserts that denying same-sex couples the right to marry infringes upon their fundamental rights to equality, privacy, and freedom of expression.
• Legal Protection: Recognizing same-sex marriage as a matter of equality would provide legal protections and benefits to same-sex couples, such as inheritance rights, access to healthcare, and parenting rights. It aims to ensure that same-sex couples are afforded the same legal and societal benefits as heterosexual couples.

2. Intrinsic Value:

• Social Importance: The intrinsic value approach focuses on the social importance and significance of the institution of marriage. It argues that marriage serves as a foundation for family, procreation, and the stability of society.
• Cultural and Traditional Values: Proponents of intrinsic value emphasize the cultural and traditional understanding of marriage as a union between a man and a woman. They argue that preserving the traditional understanding of marriage is crucial for maintaining societal values and norms.
• Stability and Well-being: The intrinsic value perspective asserts that the traditional institution of marriage contributes to stability, social order, and the well-being of individuals and families. It suggests that deviating from this traditional understanding may have societal consequences.
• Preservation of Honorific Value: Those advocating for intrinsic value argue that the honorific value associated with marriage may be compromised if it is extended to same-sex couples. They contend that the unique significance and cultural meaning of marriage may be diluted or lost if expanded to include non-traditional unions.

Way ahead: Citizen Initiatives and Engagement

• Grassroots Mobilization: Citizen initiatives provide a platform for grassroots mobilization, enabling individuals to come together and advocate for social change. Grassroots movements can create awareness, build support, and drive public opinion towards progressive ideas such as same-sex marriage.
• Public Discourse and Dialogue: Citizen engagement fosters open and inclusive public discourse on moral questions. It encourages individuals from diverse backgrounds to participate in conversations, share their perspectives, and engage in constructive dialogue to find common ground and mutual understanding.
• Deliberative Democracy: Citizen assemblies or initiatives can embrace the principles of deliberative democracy, where participants engage in thoughtful discussions, consider different viewpoints, and make informed decisions collectively.
• Education and Awareness: Citizen initiatives provide opportunities for education and raising awareness about LGBTQ+ rights, dispelling stereotypes, and challenging discriminatory attitudes
• Influencing Policy and Legislation: Citizen engagement can influence policy and legislative processes. By organizing campaigns, lobbying, and working in collaboration with like-minded organizations and individuals, citizens can advocate for legal changes that recognize and protect the rights of same-sex couples to marry.
• Strengthening Democracy: Citizen initiatives contribute to the overall strengthening of democracy by fostering civic participation, engagement, and active citizenship. By actively participating in discussions and decision-making processes, citizens can shape a more inclusive and equitable society.
• Learning from International Examples: Learning from successful citizen initiatives in countries like Ireland and Finland, where significant progress has been made on LGBTQ+ rights through citizen engagement, can inspire and inform similar efforts in the context of same-sex marriage in India.

Conclusion

• As the Supreme Court of India deliberates on the issue of same-sex marriage, it is essential to recognize the limitations of a purely liberal framework and engage in a broader societal dialogue. Embracing citizen engagement and fostering inclusive conversations will help ensure sustainable and progressive changes that align with the evolving values and aspirations of Indian society.

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