The Hindu Marriage Act and the Special Marriage Act in India don't specify the gender of those getting married. Did our framers make it easier for same-sex marriage in India?

India, it turns out, is a closet progressive when it comes to same-sex marriage.

While the US Supreme Court mulls the Defense of Marriage Act (DOMA) that tried to put down in stone that marriage had to be between a man and a woman, the wily framers of the Indian constitution were thinking way ahead.

As Dhananjay Mahapatra writes in The Times of India:

Though marriage laws – the Hindu Marriage Act (HMA) and the Special Marriage Act (SMA) – were framed nearly 60 years ago, the framers had shown great vision by keeping it gender neutral and saving the ruling party of the headache to garner enough support in Parliament to pass an amendment to the definition of marriage.

One would love to think that the framers were showing “great vision.” Chances are they just didn’t imagine there could be marriage that was not of the heterosexual, opposite-sex kind. They were not thinking about our ancient traditions where gender is a spectrum and Vishnu becomes Mohini who then couples with Shiva. Ayyappa is the result of that union, born of Mohini’s thigh because she does not really have a womb.

In 1989 Lesléa Newman created a huge stir in America with her illustrated children’s book – Heather has Two Mommies. Indians can pat themselves on the back that they'd done it centuries before – Ayyappa Has Two Daddies. The name Ayyappa is known by, actually acknowledges his two fathers – Hariharaputra, the son of Hari (Vishnu) and Hara (Shiva).

But our framers probably were not thinking about Hariharaputra when they were framing marriage laws. They were grappling with other problems – child marriage, marriage between close cousins, marriage across religions. All that is reflected in the conditions they put on marriage. The fact that they left a gender loophole is really an amusing oversight, not foresight.

The fight for same-sex marriage, when it is fought in India, will have to take on many of the same arguments we are hearing in the US Supreme Court now about why marriage must be the exclusive preserve of opposite-sex couples.

The strongest argument for DOMA is actually the one they cannot use any more - state-sanctioned homophobia. In 1996 when the US Congress passed DOMA (and passed it overwhelmingly), it said in the House Report that Congress “decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

Now even the lawyer defending DOMA in court, will not defend that line of argument. Lawyer Paul Clement told the court, “Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive… And so sure, the House Report says some things that we are not – we’ve never invoked in trying to defend the statute.”

Basically he’s saying let's put aside those bad apples, the homophobic ones. But without the moral panic of that argument, Defense of Marriage Act is almost impossible to defend.

Judge Sonia Sotomayor asked lawyer Charles Cooper, “Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits? Or imposing burdens on them?”

“Your Honor, I cannot,” Cooper said. “I, I do not have, uh, uh, any, uh, anything to offer you in that regard.”

So then the defenders of DOMA are left with the uncomfortable question: Why is marriage such a sacred cow that it needs DOMA to protect it?

Cooper tried one track – procreation. He told the court, “The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus the purpose of marriage and the definition of marriage away from raising of children and to the emotional needs and desires, of adults, of adults couples.”

First off, as noted before, the 200 US census showed 22 percent of male gay couples and 33 percent of lesbian couples in America already have at least one child under 18 at home. Secondly, as Justice Elena Kagan countered, “Well, suppose a State said, Mr. Cooper, suppose a state said that, because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?”

OK, if it’s not about procreation, and it cannot be about homophobia, could it be about making sure the same standards apply to everyone? So the federal government didn’t have to treat couples married in a state that allowed same-sex marriage differently when it came to taxes than it did couples in states that did not allow same-sex marriage. But as Solicitor General Donald Verrilli told Chief Justice John Roberts, “this statue is not called the Federal Uniform Marriage Benefits Act; it’s called the Defense of Marriage Act.”

It is clear to everyone in court, in the name of uniform standards, it’s creating more discrimination. So a woman who is married to another woman in the US army, could not be notified as next of kin, when her spouse was killed in Afghanistan because of DOMA.

As Judge Ruth Bader Ginsburg memorably put it, DOMA had created two classes of marriage in the US – “the full marriage and then this sort of skim-milk marriage.” The US understands full well this separate-but-equal ultimately does not work. Ultimately marriage equality advocates hope that the US Supreme Court, even if it does not legalise same-sex marriage, will at least repeal DOMA which refuses to recognise it.

Our Supreme Court is yet to rule on the repeal of the anachronistic Section 377 that criminalized sex against the order of nature. That is the first order of business. Once the basis for discrimination against homosexuals is removed, then one can question all the institutions they are barred from. When the day for that argument for same-sex marriage finally comes in India, we can say that our marriage laws are already “same-sex marriage-ready.” But to imply from that that India is ready for same-sex marriage would be putting the cart well before the horse. Let’s not fool ourselves. There’s a long way to go there, Hariharaputra notwithstanding.