Last month, the United States Supreme Court made same-sex marriage legal in all 50 states of the Union and the District of Columbia, adding the US to the list of nearly two dozen countries, mostly in Europe and the Americas, that recognise marriage between a man and a man and between a woman and a woman. The decision, which is nothing short of historic, made waves around the globe, including in Bangladesh, and is a cause for celebration for everybody who believes in equal human dignity.
The argument for same-sex marriage, at its core, is about equality. If there is to be state-sanctioned marriage at all, it must be open to all adult couples, regardless of sex, gender identity, or sexual orientation. Denying the right to marry to a particular group of people, for no good reason, while granting it to all other members of society, is wrongful discrimination. In that regard, a ban on same-sex marriage falls into the same category as a ban on interracial marriage. Both fail to adequately take into account the equality of persons.
Equality is not just an American value. It is a universal value, which is also enshrined in the Constitution of the People’s Republic of Bangladesh (Article 27): “All citizens are equal before law and are entitled to equal protection of law.” Yet, right now, there is no prospect of Bangladesh recognising same-sex unions in any form, and only a little more hope for the repeal of Section 377, the section of the Penal Code that still criminalises homosexuality.
Homophobia runs deep in Bangladeshi society, fueled by conservative interpretations of religion, misinformation, and prejudice. But attitudes can change quickly, in a matter of just a few decades, sometimes even faster, and I have faith that, eventually, the good people of Bangladesh will come around. Remember that just 12 years ago, homosexuality was still a crime in parts of the United States.
There is another inequality in Bangladeshi marriage law that arguably has better prospects of being eliminated in the near future, as it concerns couples that enjoy a slightly higher degree of societal acceptance than same-sex couples -- not much higher, but still. I have not been able to find any official statistics, but every reader probably knows, or has at least heard of, a person who has married outside his or her religion, which suggests that this is not a totally uncommon occurrence.
Needless to say, such unions, while accepted in certain circles, are generally frowned upon in Bangladesh. A public opinion survey, conducted by the Pew Research Centre between 2008 and 2012, found, for example, that only 10% of Muslims in Bangladesh would be comfortable with a daughter marrying a Christian. Interestingly, the number of Muslims who would be comfortable with a son marrying a Christian, at 14%, is not much higher, even though such an arrangement, unlike the former, is allowed in traditional Islamic law.
If a Hindu and a Muslim want to get married in Bangladesh, they cannot do so under personal law, which governs most marriages in Bangladesh and only allows for certain kinds of interfaith marriage -- such as between a Muslim man and a Christian or Jewish woman. But Bangladesh being a secular country, one would think that there must be another way. There is, and there is not. A Hindu and a Muslim can get legally married under the Special Marriage Act of 1872, but only if they first renounce their respective religions.
The same condition applies to all other combinations of different religions, with the only exception being cases where the couple is some combination of Hindu, Buddhist, Sikh, and Jain. In effect, that means that a Hindu and a Muslim -- or a Buddhist and a Muslim, etc -- cannot marry under any law in Bangladesh, and hence are denied their constitutional right to equal treatment.
The Special Marriage Act further contradicts Article 16 of the Universal Declaration of Human Rights, which states that “[m]en and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and to found a family,” and provides insufficient protection to those married under it.
For example, as Mohammad Moin Uddin points out in an excellent 2008 article in the Chittagong University Journal of Law: “It contains no provision on maintenance of wife and children, legitimacy of children, [and] custody and guardianship of children,” leading to certain disadvantages in inheritance.
Like Bangladesh, India inherited both the Special Marriage Act and Section 377 from its former colonial rulers. In a controversial decision in 2013, the Supreme Court of India overturned an earlier decision by the High Court of Delhi that had declared Section 377 unconstitutional. Homosexuality, hence, remains a crime in India. However, already more than 50 years ago, India replaced the Special Marriage Act of 1872 by another law that significantly strengthens interfaith marriage.
In particular, there is no requirement to renounce one’s religion in the new law. It is time for Bangladesh to finally follow suit. Bangladeshis will then be able to celebrate their very own stride towards more marriage equality.