South Africa to Slovenia, a look at countries that recognise same-sex marriages & role courts played

While legislation and cultural change have shaped recognition and rights of same-sex marriage in some countries, others like China and Indonesia are yet to recognise such unions.

Representative image | Photo: Reuters

New Delhi: The five-judge bench led by Chief Justice of India D.Y. Chandrachud that Tuesday ruled against legalising same-sex marriage, has heard a series of petitions seeking protection for such unions since April.

The 2018 landmark decision in the Navtej Singh Johar case decriminalised homosexuality and recognised the right of homosexuals to engage in sexual relations. While live-in relationships are recognised under law, they lack essential protections, such as employment and retirement benefits.

The key questions raised before the Supreme Court through the hearings included whether members of the LGBTQIA+ community have a right to marriage and the power of the apex court to make a declaration to this effect. The petitioners also sought an answer to whether non-inclusion of the LGBTQIA+ community amounted to discrimination under the Constitution.

The stance on same-sex marriages varies globally. ThePrint looks at the position of other jurisdictions on the matter.

Recognition of marriages, removal of bans

In 2001, the Netherlands became the first country to legalise and recognise same-sex marriages by law. Previously, cohabiting couples enjoyed limited social benefits — like they were recognised for the purpose of rent and inheritance taxes — and now enjoy complete recognition.

For nearly two decades, Canada has recognised the rights of same-sex couples to marry. Its Civil Marriage Act (2005) legalised same-sex marriage nationwide, building upon earlier court rulings that acknowledged as early as 1999, financial and legal benefits for such couples, which come with marriage.

In the United Kingdom, through legislative acts, England & Wales (since the 2013 Marriage Act), Scotland (since 2014), and Northern Ireland (since 2020) recognise same-sex unions. Notably, several prominent figures in these countries have reportedly married their same-sex partners, including the Prime Minister of Luxembourg Xavier Bettel, the Head of Ireland Government Leo Varadkar, Governor of Massachusetts Maura Healey, among others. 

Judges lead the way

Courts have taken the lead in such cases across the world by increasingly recognising that the non-recognition of same-sex marriages amounts to discrimination.

In the United States, same-sex marriages were legally recognised not through a statute, but a decision of the judiciary. In a 2015 judgment, the US Supreme Court struck down all state bans on same-sex marriage, legalised it in all 50 states, and required states to honour out-of-state same-sex marriage. 

Respect for Marriage Act was signed into law on 13 December 2022, requiring the US federal government and all US states and territories to recognise the validity of same-sex and interracial marriages.

The top court had struck down bans across states on same sex marriage, holding that both by the “due process” and “equal protection” clauses of the US Constitution, the ban did not stand constitutional scrutiny. 

In fact, the US decision had recognised the right to marriage as a fundamental right inherent in the “liberty of the person” and the reasons why marriage is fundamentally applied with “equal force” to same-sex couples.

In 2018, the European Court of Justice granted full residency rights and freedom of movement to spouses in same-sex marriages where at least one spouse is an EU citizen.

In South Africa too, constitutional courts in 2006 have held that same-sex couples have a constitutional right to marry on par with the entitlements and responsibilities enjoyed by same-sex couples. 

Similarly, courts in Slovenia last year recognised the ban on same-sex marriages as discrimination and gave six months to Parliament to pass appropriate law to remedy the defect of non-recognition.

Not marriage, but ‘almost’

Some states have also found another way to accord limited legal recognition to same-sex couples in the form of civil unions and registered partnerships, while not recognising it as marriage in a strict sense.

In Japan, while there is no formal recognition of same-sex marriage, municipal corporations issue what is known as “partnership certificates”. These accord limited rights to such couples, allowing renting of apartments, hospital visits, etc. 

Similarly, in Greece, this is recognised as a “civil partnership” where persons enjoy rights at par with marriage except the right to adoption.

In other EU countries, including Croatia, Cyprus, Czech Republic and Estonia, among others, marriage is not recognised explicitly, but other socio-legal rights are recognised.

As of March 2023, 10 out of 19 G20 countries recognise same-sex marriages. These include Argentina, Australia, France, and South Africa. However, countries like China, Indonesia, and Saudi Arabia within the G20 continue to deny legal recognition of same-sex marriages and socio-legal rights to such couples.

(Edited by Richa Mishra)