Marriage, Courts, and Substantive Equality: A Transformative Interpretation

Kushagr Bakshi* December, 2024

Courts in various jurisdictions have relied on either the right to privacy or the right to equality to offer protections to the LGBTQ+ community. The use of different rights to achieve similar ends may seem like an empty distinction. But the differences in the nature and function of each right evince the differences in the construction of rights across jurisdictions. In the traditional liberal method of conceptualizing rights, privacy is typically a negative right, restricting the state from interfering in intimate relationships between individuals. Courts operating within a transformative framework of rights interpretation, however, rely on the positive right to equality to impose duties upon the state to guarantee equal moral membership to all individuals in society. This is not a mere theoretical distinction: The remedies granted by these courts vary based on their conceptualization of constitutional rights guarantees. This Note examines various legal regimes’ divergent applications of the two frameworks through the right to privacy and the right to equality, specifically within the context of the legalization of same-sex marriage. It shows that courts using the transformative prism have interpreted equality to abandon default verticality, that is, the legal tradition of situating private relationships and community conventions outside of the constitutional mold. Using the transformative prism, courts have instead subjected societal mores to constitutional morality. In doing so, these courts have been able to offer better remedies to LGBTQ+ people, allowing them to exercise their rights and freedoms in a substantive—and not merely formal—manner.

Introduction

In Supriyo v. Union of India, the Supreme Court of India heard petitions seeking legal recognition for same-sex marriages.¹ Heard in April 2023, Supriyo marked the latest episode in the decades-old struggle for LGBTQ+ rights in the country.² Although efforts at legislative and social reform have proved to be laborious and unsuccessful, Indian courts have emerged as a venue for the LGBTQ+ community³ to defend their rights.⁴ Decades of protracted litigation have resulted in decisions vindicating the rights of LGBTQ+ persons, such as National Legal Services Authority v. Union of India, where the Supreme Court of India found a constitutional right to a third gender identity, ⁵ and Navtej Johar v. Union of India, where the same court decriminalized same-sex sexual acts. ⁶ Relying on these judgments, the petitioners in Supriyo demanded legal recognition for same-sex marriage and all its concomitant benefits under Indian law.

In reaching its decision, the Indian Supreme Court canvassed judicial opinions and commentary from various jurisdictions. Many courts—specifically those in the United States, Europe,⁷ Brazil, and South Africa—had previously issued decisions legalizing same-sex marriage or civil unions grounded in rights-based claims. But the rights in question in each of those cases differed. While some courts relied on the right to privacy, others grounded their decisions in the right to equality. The Supriyo petitioners—perhaps predictably—sought legal recognition for same-sex marriage by grounding their demands in both these rights.

The right to privacy has found favor with many courts seeking to protect LGBTQ+ rights. The U.S. Supreme Court, for example, relied on the right to privacy when it struck down Texas’s sodomy laws.⁸ The European Court of Human Rights (ECtHR) held that member states must provide legal recognition to civil unions of same-sex couples as part of their privacy rights guaranteed by Article 8 of the European Convention on Human Rights.⁹ Prior to Supriyo, the Indian Supreme Court too, had ruled that the right to privacy encompassed sexual decisional autonomy.¹⁰ Drawing on Indian and comparative case law, the Supriyo petitioners argued that the right to privacy, which encompassed decisional autonomy, must guarantee same-sex couples the freedom to choose a partner and to have that partnership legally recognized by the state.

Alternatively, other courts have often relied on the right to equality to protect LGBTQ+ rights. The South African Constitutional Court and the Brazilian Federal Supreme Court, for example, have formulated a substantive right to equality that includes access to marriage.¹¹ Similarly, when considering the constitutionality of a colonial-era legislation, namely Section 377 of the Indian Penal Code, which criminalized sexual acts of a “carnal” nature,¹² the Indian Supreme Court articulated its vision of substantive equality. Holding that the impugned provision institutionalized decades of discrimination against the LGBTQ+ community, the court declared the statute unconstitutional, thereby decriminalizing same-sex acts.¹³ Relying on these conceptions of equality, the petitioners in Supriyo argued that the sex specific provisions of India’s marriage laws discriminated against people based on both their sexual orientation and gender identity and therefore violated the equality guarantee of the Indian Constitution.¹⁴

Is this a distinction without difference? Does it matter which right these courts rely on, so long as they issue a positive declaration vindicating the interests of LGBTQ+ people? As we have seen, various courts across different jurisdictions have relied on either of these two rights to come to the same conclusion—that is, a finding in favor of legalizing same-sex marriage. The facial similarities in outcome, however, disguise a fundamental conceptual difference between the right to privacy and the right to equality as constructed by courts.

The right to privacy, as judicially constructed, is predicated on default verticality—the legal tradition of situating private relationships and community conventions outside of the constitutional mold.¹⁵ Courts in the United States, Europe, and India—where they have struck down intrusive statutes—have typically held that privacy creates a shield against undue state intrusion into private relationships and acts. Such a construction of privacy has enabled these courts to hold unconstitutional laws restricting same sex intimacy¹⁶ and laws restricting the definition of “marriage” to a union between one man and one woman,¹⁷ on the basis that they violate privacy rights and individuals’ concomitant liberty interests. So too, though, this conception of privacy fails to require the state to positively substantiate the content of an individual’s privacy right, even in private settings. For instance, in Harris v. McRae, the U.S. Supreme Court denied a challenge to the Hyde Amendment, which restricts federal funds from being used to pay for abortions.¹⁸ In McRae, the Court held that although the government may not interfere with a person’s choice to pursue an abortion, it need not remove obstacles, like poverty, to the procedures that are not of its own creation.¹⁹ Therefore, the Court held that the state did not have an affirmative duty to ensure that pregnant people could effectively access their constitutional right to abortion,²⁰ only that they technically had the right in the first place. “It is apparently a very short step from that which the government has a duty not to intervene in to that which it has no duty to intervene in.”²¹ By situating institutions like the family in the private domain, and therefore outside the domain of the state and its constitutional regime, these courts do not provide any positive protections to individuals seeking them. This might also explain why in Obergefell v. Hodges, the U.S. Supreme Court had to step outside of the privacy framework and rely on the dignity of marriage to find a positive obligation upon the state to recognize same-sex marriages.²² Privacy, as interpreted by these courts, is thus a negative right which imposes no duty upon the state to act.

Courts relying on equality, on the other hand, have rejected this vision of principled distance from the private domain. By rejecting default verticality, these courts have subjected discriminatory societal mores to constitutional tests of equality.²³ Hence, when ruling that the common law criminalization of sodomy was unconstitutional, the Constitutional Court of South Africa considered the position of the applicants in society to evaluate the effects of the law’s discriminatory regime.²⁴ Complying with the applicant’s request, the court held that gay men had been discriminated against in society and that the sodomy provisions institutionalized this discrimination by penalizing those who failed to conform to society’s heteronormative moral and religious views. In doing so, it articulated a vision of substantive equality—as opposed to formal equality—that accounts for social realities. By using substantive equality,²⁵ these courts pierce domains traditionally considered private to offer a greater degree of constitutional protection for LGBTQ+ individuals. Courts in Brazil,²⁶ Namibia,²⁷ and India²⁸ have similarly relied on substantive equality, recognizing indirect discrimination and social realities when adjudicating cases involving protections for LGBTQ+ people. To protect substantive equality guarantees, these courts tend to craft remedies which impose positive obligations upon the state to take material steps to solve social inequities.

This difference in remedies, visible through the difference in the obligations imposed by courts upon the state, flows from differing interpretations of the nature of the right of privacy and the right of equality. How should we understand these divergent judicial choices? This Note argues that the conceptual difference in the interpretive choices made by courts between privacy and equality arises from their paradigmatic understandings of rights and the role of the state in their jurisdictions. While constitutionalism in the United States, Europe, South Africa, Brazil, and India can be understood as belonging to the liberal tradition,²⁹ there are critical differences in the judicial interpretations of rights and remedies offered by courts in these jurisdictions. This Note contends that, in the context of same-sex marriage, courts relying on a traditional liberal vision of rights use a negative-rights interpretation of privacy to conclude that they cannot impose duties upon the state to interfere with society. Courts that interpret their constitutional rights guarantees through a transformative lens, however, use a positive-rights interpretation of equality to enjoin the state to take action. By analyzing the majority and minority opinions in Supriyo v. Union of India in a comparative context, this Note shows how the underlying judicial conception of rights and the role of the state influences the interpretation of constitutional rights guarantees and leads courts to offer remedies of varying efficacy.

Courts interpreting rights guarantees through a traditional liberal prism ground their decisions in the notion of negative rights. Specifically, these courts interpret rights guarantees to prohibit the state from interfering in society and actively discriminating amongst individuals. This conception of privacy as a negative right has led courts to issue remedies that limit the reach of the judicial protection of the exercise of rights and freedoms by LGBTQ+ people to only private spaces. By refusing to impose any obligations upon the state, these courts perpetuate the cycle of social and legal inequities that deny LGBTQ+ people access to public spaces and institutions. In Supriyo, the Indian Supreme Court, relying on privacy, exemplified this limited construction by refusing to grant same-sex couples access to marriage and its related privileges and benefits.³⁰

Courts using transformative rights interpretations, however, conceptualize these rights as imposing positive obligations on states. They require states to protect the fundamental freedoms of individuals and promote constitutional values, often referred to as constitutional morality.³¹ By privileging constitutional morality over social morality,³² courts in a transformative constitutional project seek to order relations not just between the state and the individual, but also between individuals. The minority opinions in Supriyo and decisions from the courts of other states show that courts enforcing rights guarantees in transformative constitutional projects eschew legal formalism in favor of interpretations that respond to the reality of hierarchical structures and power relationships within society. In doing so, they craft remedies that enable LGBTQ+ people to access the substantive content of their constitutional freedoms, even in public spaces.

This Note proceeds in three Parts. Part I explores the development of the right to privacy as a tool to protect the rights of LGBTQ+ people. It explains how the usage of the right to privacy exemplifies the traditional liberal interpretation of rights. Grounded in the notion of preventing the state from interfering with the private sphere, courts have successfully used it to guarantee the LGBTQ+ community the right to be left alone from undue state intervention. This interpretation, however, continues to subject LGBTQ+ people to patterns of discrimination and subjugation in their attempts to access public spaces and institutions. Concluding that the reliance on this interpretation of privacy is unsatisfactory, in Part II this Note argues that the substantive-equality jurisprudence of courts in the transformative constitutional paradigm is a better interests-protecting choice. Developing a comparative vision of substantive equality, Part II shows that these courts have not only constructed equality as a positive right to recognize indirect discrimination³³ and social hierarchies but have also crafted remedies that impose duties upon the state to rectify these inequalities and their inequitable effects on LGBTQ+ people. Ultimately, this Note contends that courts which conceptualize rights through the transformative lens have interpreted equality guarantees to abandon default verticality and subject societal inequities to constitutional morality. In doing so, they have been able to craft remedies which impose duties upon the state to remedy this discrimination and open access to public spaces and institutions. These interpretations have better guaranteed LGBTQ+ people the ability to substantially enjoy their constitutionally guaranteed freedoms. Part III of this Note thus considers if and how such transformative interpretations might be transplanted into legal cultures which regularly privilege traditional liberal conceptions of rights to ensure broader rights protections for LGBTQ+ people and other marginalized groups.

I. The Inadequacy of Privacy

A. Privacy, Negative Rights, and Traditional Liberal Rights Interpretation

Courts across various jurisdictions have regularly relied on the right of privacy and its concomitant liberty interests to vindicate the rights of LGBTQ+ people.³⁴ Most of these decisions are predicated on courts using the right to privacy to restrain the state from interfering in the private sphere. For instance, privacy doctrine in the United States, which stems from cases concerning the use of contraceptives³⁵ and abortion rights,³⁶ embodies judicial restriction of state power by demarcating the threshold of state intrusion into domains traditionally considered free, namely the private sphere. This conception of privacy as a limitation on the state was explicitly articulated by the U.S. Supreme Court in Lawrence v. Texas, where the Court struck down Texas’s antisodomy law, stating that the petitioners were entitled to respect from the state for their private lives.³⁷ Holding that the liberty interest inherent in the right to privacy gave the petitioners the full right to engage in private conduct without government interference, the Court ruled that the state could not advance any legitimate interest that justified its intrusion into the petitioner’s private sphere. Thus, using privacy to demarcate the limits of state authority, the Court held that “[i]t is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”³⁸

The ECtHR has relied on similar liberty-protecting conceptions of privacy to guarantee LGBTQ+ rights. In Dudgeon v. United Kingdom, for example, the ECtHR adjudicated the validity of indecency laws in Northern Ireland that criminalized male intimacy.³⁹ It held that private sexual acts were well beyond the scope of a member state’s regulatory authority. According to the court, the impugned law violated the liberty interests guaranteed by the right to privacy that were enshrined in the European Convention of Human Rights.⁴⁰

This conception of the right to privacy protects personhood—the individual’s freedom of self-definition.⁴¹ But the judicial enforcement of the ability to define one’s own identity tends to only protect one’s liberty interest. Essentially, courts understand privacy as the right of an individual to not have an identity imposed upon them by the state.⁴² This interpretation of privacy is best captured in the U.S. Supreme Court’s decision in United States v. Windsor.⁴³ There, the Court considered the constitutionality of section three of the Defense of Marriage Act (DOMA), which defined marriage as the legal union between one man and one woman.⁴⁴ According to the Court, the Act—and thus the state—demeaned individuals’ moral and sexual choices, which were protected by the Constitution.⁴⁵ Because the liberty interest in the Fifth Amendment “withdr[ew] from Government the power to degrade or demean” individuals on the basis of these choices, the Court held the Act unconstitutional.⁴⁶ Drawing from Lawrence, the Court prevented the state from interfering or imposing itself in the private domain thereby crystallizing the individual’s liberty interest and another value—autonomy.⁴⁷

The Indian Supreme Court’s use of the right to privacy as a shield to protect LGBTQ+ people rests on this value of individual autonomy. Although the Indian Constitution does not explicitly guarantee the right to privacy, the Indian Supreme Court has read privacy into the right-to-life and due process guarantees of the Indian Constitution.⁴⁸ The most emphatic assertion of the right to privacy came in 2017 when the Indian Supreme Court unanimously held that privacy was a standalone fundamental right guaranteed by Article 21 of the Constitution.⁴⁹ In a plurality opinion, Justice Chandrachud observed that sexual orientation, as a function of decisional autonomy, was a core aspect of the right to privacy.⁵⁰ In a subsequent case, relying on this conception of decisional autonomy as the core of the right to privacy, the court declared that section 377 of the Indian Penal Code, which criminalized consensual “unnatural” sex, was unconstitutional.⁵¹ The court reasoned that a restriction on one’s expression of sexuality infringed an individual’s liberty interest inherent in the right to privacy. According to the court, an individual’s right to privacy encompassed the autonomous liberty of queer persons to navigate spaces on their own terms, free from state interference.⁵² Evident from this conception of privacy is the restriction on the state from unjustly intervening in the private lives of its citizens.

The Indian Supreme Court has relied on this conception of privacy in other cases concerning marriage, framing it as an exercise of an individual’s decisional autonomy. In Shafin Jahan v. Asokan,⁵³ the court heard an appeal arising from the decision of the Kerala High Court, which had granted custody of an adult, competent Hindu woman to her father. The High Court had annulled her marriage to a Muslim man because, the court reasoned, she had been brainwashed into getting married, despite her explicit statements to the contrary.⁵⁴ Finding that the woman did not suffer from mental incapacity or coercion, the Indian Supreme Court reversed the High Court’s decision. It held that her decisional autonomy—an essential component of her privacy right—had been restricted by the High Court.⁵⁵ As the Supreme Court has articulated, this individual-autonomy-centric view of privacy, which protects the individual’s liberty interests, functions to the exclusion of a collective. By exclusion, it prevents third parties, notably the state, from interfering with marriage or sexual acts without a legitimate aim.⁵⁶

Such conceptions of the right to privacy have played a significant role in cases which involve decriminalization of same-sex acts, across various jurisdictions, primarily because they have enabled courts to limit the state from interfering in private acts. Privacy as a restriction upon the state functionally rests on courts privileging an individual’s liberty interest.⁵⁷ Simply put, a liberty interest does not obligate a third party (in this case, the state) to intervene. Rather, it imposes a duty upon the third party to refrain from intervening, thereby ensuring the liberty of the right holder. The protection of a liberty interest requires nothing of the state except inaction.⁵⁸ By interpreting privacy as protecting an individual’s liberty interest, these courts have constructed it as a negative right that shields against the state.⁵⁹

This conception of privacy as a negative right points to an underlying conception of constitutionalism and the function of rights. By constructing privacy, among others, as a negative right, courts envision a legal structure in which rights act as exclusions.⁶⁰ Inspired by a Lockean fear of an overawing state,⁶¹ courts interpret rights guarantees as demarcating the boundary between state and society. Under the presumption of default verticality, these rights are conceptualized as anti-statist. That is, they are meant to protect the private sphere (where the liberty interest of the individual is at its strongest) by deeming that the public interest (operationalized through the state) should not pierce this domain. Sometimes termed the structural-liberal approach to constitutionalism or reactive constitutionalism,⁶² rights constructed through this traditional liberal prism protect the liberty interests of an individual from the state. Although this approach originated in the United States,⁶³ it has been adopted by many other courts operating around the world.⁶⁴ Legal cultures which have developed based on this underlying approach engender judicial interpretations of rights as protecting liberty interests, that is, as negative rights.

Spurred on by this legal culture, courts that interpret constitutional rights guarantees through this traditional liberal prism react to infringements of liberty interests by the state, but are usually loath to impose obligations upon the state to interfere in society to guarantee these liberty interests.⁶⁵ In its most powerful form, the judicial argument in favor of such a negative rights interpretation emphasizes an individualistic conception of a just society: By limiting the scope of government action to the public sphere, liberal states encourage the preservation of a heterogenous private sphere that enhances the autonomy of citizens.⁶⁶ The interpretation of privacy as a negative right—that is, a limitation on state action—embodies this justification and is meant to guarantee the autonomy of LGBTQ+ individuals.

B. The Impoverishment of Traditional Liberal Rights Interpretation

Negative rights have their limits. Courts viewing rights through this traditional liberal prism use negative rights to protect the autonomy and liberty of the right holder. But this conception of autonomy is an abstracted, a priori one that does not account for the lived reality of the individual. By focusing on the absence of coercive state power,⁶⁷ courts using this interpretive method do not interrogate whether the individual enjoys autonomy in a meaningful way even when left alone by the state. Instead, this conception of autonomy leads courts to privilege formalist interpretations of rights that take the existing conditions of liberty as natural, thereby reproducing the existing conditions of social inequity.⁶⁸ This gives rise to a tension between the restriction on governmental intrusion on one hand and the substantive content of the right on the other. Restricted from interfering in the private sphere, the state is rendered incapable of securing the autonomy that is purportedly guaranteed within the content of the right, especially for groups facing social inequities in hierarchically organized societies (which almost all societies are). This dichotomy does not represent two facets of the same right but rather a tension in the conception of the right itself.

This tension presents itself when courts use the right to privacy to secure for individuals an inviolable personality by ensuring that they have autonomy over their intimacy.⁶⁹ To do so, courts regularly instruct the state to “center its self-restraint on [the] body and home,” most notably the family and the bedroom.⁷⁰ By instructing the state to stay out of the private sphere, through this construction of privacy, courts seek to guarantee an individual’s bodily integrity, personal exercise of moral intelligence, and freedom of intimacy. But if one asks whether a marginalized group’s access to these values has been guaranteed by courts in material terms, it is evident that the law of privacy translates traditional social values—in this case, heteronormative standards and expectations—into the rhetoric of individual rights as a means of restricting queer people’s access to those rights. In doing so, such an interpretation of privacy reproduces patterns of heterosexual dominance over LGBTQ+ people.⁷¹

A negative privacy right, by only acting as a restraint on the state, has failed to guarantee LGBTQ+ individuals autonomy or liberty in a substantive sense, even within the private space that courts claim to protect.⁷² For instance, in an early case concerning LGBTQ+ rights, the European Commission of Human Rights⁷³ held that a gay couple’s relationship did not fall within the scope of “family” under Article 8 of the European Convention on Human Rights and was instead a purely private matter.⁷⁴ Although the state could not interfere with the couple’s private relationship, it was not obligated to provide them the same material support it owed heterosexual couples. That material support, however, was a necessary predicate for couples to effectively exercise the decisional autonomy protected by their right to privacy. The Commission upheld the United Kingdom’s refusal to permit a Malaysian-national man to remain in the United Kingdom with his U.K.-national male partner.⁷⁵ Because of its reliance on a negative-rights interpretation of privacy, the Commission did not require the United Kingdom to ensure that the two men could exercise their autonomy in any substantive sense.

In addition to not guaranteeing autonomy, this reliance on negative privacy rights reduces LGBTQ+ identities to mere acts of sexual intimacy, thereby relegating these identities to the private sphere. Since the state is not expected to intervene to correct social inequities, queer individuals are subjected to dominant heterosexual imperatives in their attempts to access public spaces and institutions. Their attempts to exercise their liberty interests are subjugated to social imperatives.⁷⁶ Take the institutions of marriage and family, for example.⁷⁷ The ECtHR has regularly privileged dominant, heteronormative interpretations of family when considering claims brought by same-sex couples demanding legal recognition of their relationship.⁷⁸

Initially, the court denied LGBTQ+ partners recognition by restricting the definition of family on the basis of gender essentialism: that is, marriage as only between a man and a woman.⁷⁹ Recently, though, the ECtHR has changed its view to account for changes to the social character of the institution of family and marriage.⁸⁰ But even this “evolved” interpretation subjects the attempts of LGBTQ+ individuals to exercise their liberty interest in accessing public institutions to heteronormative social standards. In the context of marriage, the ECtHR rejects such attempts by relying on consensus-based analysis and the doctrine of “margin of appreciation.”⁸¹ According to the court, marriage as an institution has “deep-rooted social and cultural connotations” that differ from one member state to another.⁸² Hence, the court defers to national assessments of whether access to such an institution as a matter of right can extend to same-sex couples. By relying on this socially constructed definition of marriage, the ECtHR does not scrutinize the legitimacy of government aims in restricting access to marriage. Instead, the court presumes they are valid expressions of local social and cultural norms, and therefore within the state’s margin of appreciation.⁸³ For instance, in Schalk v. Austria, the ECtHR found that there was no overwhelming European consensus favoring same-sex marriage.⁸⁴ Consequently, the ECtHR held that Austria was justified, within its margin of appreciation, in offering same-sex couples access only to registered partnerships, an institution legally inferior to marriage.⁸⁵ However, in Oliari v. Italy,⁸⁶ the Court compelled Italy to offer some form of recognition to same-sex couples. Here too, it relied on public sentiment and morality, albeit differently. Whereas in Schalk, the court had widened its focus to examine the existence of a consensus (or lack thereof) amongst member states, in Oliari the court zoomed in to examine the social consensus within Italy.⁸⁷ Observing that a majority of the Italian population expressed popular acceptance of same-sex couples, the court found that there were no valid community interests that restricted Italy from offering such protections.⁸⁸ Even if one finds the outcome laudable, it is evident that—under the privacy doctrine—LGBTQ+ people’s access to the values sought to be guaranteed by the right of privacy is subordinated to heterosexual social imperatives.⁸⁹

The decision of the Indian Supreme Court in Supriyo exemplifies the failure of courts that conceptualize privacy through this traditional liberal rights prism to provide LGBTQ+ people meaningful access to the values of liberty and autonomy.⁹⁰ While hearing oral arguments, the court asked the petitioners to restrict their pleadings to the recognition of same-sex marriages under the Special Marriage Act of 1954 (SMA).⁹¹ The SMA, explicitly framed as a secular law, sets up a separate marriage regime outside the realm of religious personal laws.⁹² By limiting the constitutional challenge to the SMA, the court essentially restricted the case to operate within the existing state-created secular marriage regime. Through this restriction, the question before the court shifted from whether the state had an affirmative duty to grant the petitioners access to marriage as a public institution to whether there was a fundamental right to marriage and consequently, whether the state had infringed upon the petitioners’ liberty interests by denying them access to marriage. By changing the question before it, the court limited the petitioners’ arguments to the contours of the right to privacy and the permissible scope of state intrusion.⁹³

Therefore, restricted to privacy to make a case for the right to marry, the petitioners set out to argue that the right to privacy encompassed the autonomy of same-sex couples to enter into intimate relationships. Drawing from American and European jurisprudence, particularly the U.S. Supreme Court’s decision in Windsor, the petitioners argued that the SMA’s restrictively gendered definition of marriage imposed a heteronormative regime upon LGBTQ+ people.⁹⁴ By doing so, the SMA interfered with the liberty interests and autonomy of LGBTQ+ people and violated their right to privacy.

Moreover, they argued, the state ought to be neutral as to its regulation of various forms of intimate relationships and their diverse arrangements.⁹⁵ Hence, the petitioners urged the court to find the gendered provisions of the SMA unconstitutional and grant them access to marriage.⁹⁶ In opposition, the Indian Government argued that privacy jurisprudence only recognizes the validity of same-sex intimate relationships and could not compel any state to offer public recognition of marriage.⁹⁷ In its majority opinion, which is riddled with questionable legal arguments, the Indian Supreme Court agreed with the government, refusing to obligate the state to grant the petitioners access to marriage.⁹⁸

In the majority opinion, the court reiterated the findings of Indian and foreign courts regarding the fundamental privacy interests that guaranteed an individual the right to choose a partner. Denying the existence of a fundamental right to marry, however, it held that marriage, as an institution, was rooted in personal and religious customs and therefore preceded the state.⁹⁹ Its status was not conferred by the state. Accordingly, although the state had a legitimate interest in regulating marriage, the state’s permissible scope of regulation was limited by the traditional purposes and perceptions of marriage. According to the court, though the right to privacy protects the right of an individual to choose a partner, it does not impose a positive obligation on the state to legitimize such a choice by opening up access to a social institution—marriage—which preceded the state itself.¹⁰⁰ Ultimately, for the court, the right to privacy entailed the grant of liberty for individuals to be left alone to choose the partner they desire; yet, it did not entail the imposition of an obligation upon the state to “create” a social institution to consecrate such a choice.

The court also refused to grant the petitioners’ alternate request, which was to read gender-neutral language into the SMA. It held that the object of the SMA was to regulate heterosexual marriages and thus it could not accommodate a gender-neutral provision.¹⁰¹ According to the court, if gender-neutral provisions were to be read into the SMA, the SMA would end up denying women the protection it provides.¹⁰² In doing so, the court reinforced the heteronormative standard and definition of marriage, closing off LGBTQ+ people’s attempts to access it. The court’s imposition of the heteronormative standard becomes visible when one notices that the court actually upheld the rights of transgender individuals to marry under the SMA because they conformed to the gender binary.¹⁰³ The only relief the court provided was to issue a directive to Parliament to form a committee to re-evaluate the legal framework for marriage. Since, however, the Indian government is elected based on the number of seats held by political parties in Parliament, it was in effect Parliament that had chosen to oppose this petition. Thus, this was a nonremedy for all practical purposes.¹⁰⁴ They formed a committee for consultations. They sat, they talked, they dispersed.

By choosing a negative-rights interpretation of privacy, the court subjected the rights of LGBTQ+ people to social standards. In relegating queer identities to private spaces, the court effectively refused to allow them substantive autonomy, even in those private spaces.¹⁰⁵ The court refused to even find a negative obligation upon the state to not impose any identity upon the individual.¹⁰⁶

But that is not the Supriyo court’s most egregious error. The court fundamentally erred in its threshold determination that limited the challenge to the existence of a fundamental right to marriage and the SMA, thereby limiting itself to the privacy doctrine. This initial decision—and it was a decision—to stay out of the social domain of marriage laws limited its ability to provide any substantive relief. That would have been true even if the court would have legalized same-sex marriage under a privacy framework, for even if the court had legalized same-sex marriage, it would have been confronted with the SMA’s structural issues.¹⁰⁷ Additionally, by restricting its marriage analysis to the purely secular law, the court was precluded from ensuring access to the benefits and privileges of marriage that flow from personal religious laws.¹⁰⁸ The framing of the constitutional challenge as a negative privacy-rights case ensured that the court would not have been able to impose any positive duties upon the state (i.e., direct it to take action) to remedy these issues, even if it had legalized same-sex marriage.

The decision of the Indian Supreme Court in Supriyo, exemplifies the conceptual flaws in attempts by courts adopting the traditional liberal prism to interpret privacy to defend the rights of LGBTQ+ people. Due to the structural constraints imposed by negative-rights conceptions of privacy, these courts fail to provide any substantial guarantee of liberty or autonomy to the LGBTQ+ community to enjoy their rights. These courts end up subjecting the exercise of freedoms by LGBTQ+ people to public morality. Guided by the incorrect assumption that the life of law is abstracted logic and not experience,¹⁰⁹ courts’ subsequent restrictions on states reproduce social hierarchies and leave LGBTQ+ people without their full bouquet of freedoms. This leaves but one question: If not privacy, then what?

The U.S. Supreme Court offered an example of another route out, by augmenting the right of privacy to compel the state to offer legal recognition to same-sex marriages. In its landmark judgment in Obergefell v. Hodges affirming the right of same-sex couples to marry, the U.S. Supreme Court stepped outside of its traditional negative privacy-rights framework to rely on an affirmative claim of dignity.¹¹⁰ Like the ECtHR, the Court held that marriage was intimately tied to social and cultural norms as a bedrock of American society.¹¹¹ But that is where the similarities end. Diverging from the ECtHR, the U.S. Supreme Court held that the value of forming an intimate, two-person union lies in the dignity accompanying public recognition of the union: that is, the Court recognized a dignity inherent to the institution of marriage.¹¹² The Court therefore held that excluding same-sex couples from the institution of marriage had the effect of teaching those couples and their children that they were unequal in important respects.¹¹³ Hence, the Court ruled that all couples otherwise eligible were entitled to the dignity of marriage, regardless of their gender makeup.¹¹⁴ It was only by relying on dignity that the Court was able to move beyond the traditional negative-rights conception of privacy and impose a positive obligation on the state to guarantee same-sex couples access to marriage.¹¹⁵ That said, this reliance on dignity has been critiqued extensively. The dissenting opinions and subsequent commentary explore the contested terrain of dignity rights and the specific issues with the Court’s use of dignity to deify the institution of marriage.¹¹⁶ Therefore, instead of dignity, the next Part draws from the equality jurisprudence of courts in South Africa and Brazil, used to guarantee the substantive content of rights to the LGBTQ+ community.

II. The Reach of Equality

A. A Substantive Vision of Equality and Transformative Rights Interpretation

Many courts around the world have often looked to equality provisions in their constitutions when seeking to protect LGBTQ+ rights. In doing so, these courts have moved beyond the negative-rights interpretation of privacy. Importantly, these courts have crafted a substantive conception of equality—instead of a merely formal one—that acknowledges the lived reality of LGBTQ+ individuals and, as a result, imposes positive obligations upon the state to intervene.

Courts that rely on the traditional liberal prism to interpret their constitutional rights guarantees often use a conception of formal equality to defend LBGTQ+ rights.¹¹⁷ Formal equality functions on the abstract precept of “treating likes alike and unalikes unalike”—or, in a word, “sameness.”¹¹⁸ Based on this precept, courts using the traditional liberal conception of rights rely on identity characteristics to differentiate between people and justify findings which in effect lead to discrimination.¹¹⁹ To explain the inadequacy of “sameness” in the context of sex, Professor Catharine MacKinnon demonstrates how courts perceive different sexes as unalike, therefore justifying their discriminatory treatment. Essentially, reliance on this abstracted conception allows courts to find, for example, that criminal sodomy laws do not violate equality because they equally restrict homosexual and heterosexual conduct. Courts in the liberal-democratic paradigm relying on formal equality have concluded

that a gay marriage [prohibition] law does not discriminate against gay men and lesbian women based on sex because both men and women equally cannot marry persons of their own sex, and that it does discriminate against them based on sex because each person who wishes to marry a person of their own sex could do so but for their sex.¹²⁰

When defending LGBTQ+ rights, some courts have repudiated this vision of formal equality—that is, equality in name only—to instead articulate a vision of substantive equality. An early example of this vision of substantive equality comes from the jurisprudence of the Constitutional Court of South Africa. When determining the constitutionality of the statutory and common law criminalization of sodomy, the court laid down the first brick in its vision of substantive equality in the queer-rights space.¹²¹ Moving beyond the formal equality doctrine of “suspect classification,” the court paid particular attention to the position of LGBTQ+ people in society.¹²² Finding that gay men were a permanent minority in society and had suffered repeated discrimination, the court held that sodomy laws only served to subject the identity and acts of gay men to the moral and religious views of the discriminatory majority. By shifting the focus from the sameness or difference of an individual to the lived reality of the individual because of their identity, the South African Constitutional Court moved beyond formal equality to articulate an anti-stereotyping principle. The court recognized that the discrimination in question was not a mere prohibition on a private sexual act; rather, such criminalization, impermissibly based on sex stereotypes, harmed a group by permanently relegating them to an inferior societal status. As Justice Sachs stated, “Only in the most technical sense is this a case about who may penetrate whom where. At a practical and symbolic level it is about the status, moral citizenship and sense of self-worth of a significant section of the community.”¹²³

The Indian Supreme Court took this vision of substantive equality further in Navtej Johar v. Union of India, where the court decriminalized same-sex sexual acts.¹²⁴ In addition to applying the South African Court’s anti-stereotyping principle,¹²⁵ Justice Chandrachud’s plurality opinion also moved beyond the discriminatory-intent test for legislation by rejecting the reasonable-classification doctrine.¹²⁶ Examining the classification doctrine, Justice Chandrachud argued that equating the content of equality with the reasonableness of a classification detrimentally enabled legal formalism by elevating form over substance.¹²⁷ Instead, he searched for the substantive content of equality by examining the effects of the at-issue provision on people’s lives, in their socioeconomic context. Like the judges of the South African Constitutional Court, Justice Chandrachud found that the effect of the impugned provision was to criminalize behavior that did not conform to the heterosexual expectations of society.¹²⁸ That is, the challenged provision was a part of a homophobic legislative regime predicated upon traditional gender stereotypes—that is, the societal conviction that certain behavior is not appropriate for members of a sex.¹²⁹ The effect of this legislation was decades of discrimination, prejudice, and harassment predicated on this stereotype, which obliterated queer identities by outlawing their expression.¹³⁰ Therefore, for Justice Chandrachud, the provision was emblematic of an indirectly discriminatory law: neutral in form but discriminatory in effect.¹³¹ By holding it unconstitutional because of its real-world, indirect effects, the Indian Supreme Court expanded the vision of substantive equality.

This judicial construction of substantive equality recognizes the discriminatory effects of laws that reinforce social stereotypes. Absorbing this vision, courts—predominantly in the Global South—have arrived at vastly different conclusions from the American and European courts discussed above when considering similar questions. For instance, in the context of immigration law, the Namibian Supreme Court was asked to consider whether the term “spouse” encompassed a same-sex partner to whom one had been lawfully married in a foreign jurisdiction.¹³² The court held that denying the recognition of same-sex marriages under immigration law was proscribed discrimination, falling afoul of the constitutional guarantee of equality. In the context of adoption, the South African Constitutional Court read the right to equality as protecting LGBTQ+ rights.¹³³ It held that the denial of second-parent adoption rights¹³⁴ was a violation of the equality provisions of the constitution. Its reasoning rested on the anti-stereotyping principle, expressed through its holding that such a denial of parenthood perpetuated a fiction of family homogeneity encompassing the one-father-one-mother model. It relied on the same principle when dealing with the situation of guardianship of children born via artificial insemination.¹³⁵ The South African Court ruled that partners who were not biological parents were to be regarded as natural parents and guardians, imposing an obligation upon the state to register both partners as parents. Evidently then, courts relying on a substantive vision of equality have been able to offer better protections to LGBTQ+ people than courts relying on the right to privacy.

Critically, these courts have regularly interpreted substantive equality to impose obligations upon the state to take steps to correct social inequities. Instead of ordering the state to not intervene, they have imposed upon the state the duty to ensure that individuals are able to enjoy the substantive content of their rights. In a case concerning immigration law, the Constitutional Court of South Africa held that those in same-sex relationships could form intimate relationships much like heterosexual individuals and that differentiating between the two amounted to unfair discrimination.¹³⁶ The court thus held that LGBTQ+ people in long-term partnerships were entitled to the same immigration protections as those in heterosexual relationships. In its ruling, instead of reading the challenged provisions so as to deny both individuals in different- and same-sex couples immigration benefits, the court cured the impugned law to impose a positive obligation upon the state to provide partners of South African citizens in same-sex relationships the same immigration benefits as those available to their heterosexual peers.¹³⁷ Similarly, in the context of employment benefits, the court imposed a positive obligation upon the state to provide same-sex partners of South African judges the same employment benefits as those provided to judges’ different-sex spouses.¹³⁸ The court found it unsatisfactory to merely grant piecemeal relief to members of the LGBTQ+ community when aspects of queer relationships would have remained prejudiced by the discriminatory legislation.¹³⁹ Instead, it directed the state to imbue the equality provisions of the South African Constitution with positive content.¹⁴⁰ Thus, recognizing that substantive equality requires state intervention to correct the discriminatory effects of social stereotypes, these courts have regularly imposed obligations upon the state to take steps to correct social inequities.

This conception of substantive equality functionally enables the right holder to impose a duty upon a third party.¹⁴¹ Interpreted against the state, these courts have entitled the right holder to impose obligations upon the state to provide mechanisms such that the right holder is able to enjoy the right’s substantive content. In the context of socioeconomic rights, these rights are also commonly called positive rights.¹⁴² Beyond imposing obligations upon the state to act, positive rights may even impose duties upon private individuals to act, thereby transcending the traditional barrier of verticality.¹⁴³ The positive-rights framework of substantive equality has played a significant role in cases concerning the social status and conditions of LGBTQ+ individuals as courts have used it to obligate the state to alleviate discriminatory impacts.

Through this judicial construction of substantive equality, courts have guaranteed LGBTQ+ people access to the substantive content of the rights they are entitled to. The distinction between the usage of the right to privacy and the right to equality arises from an underlying difference in nature and function of rights as constructed by these courts. Instead of relying on the demarcated boundaries between state and society, these courts interpret the fundamental rights guarantees of their constitutions as obligating the state to intervene in society to secure a substantial measure of autonomy and liberty for the people of the state.

To an extent, this distinction arises from the way in which courts interpret their underlying constitutional project. These courts have regularly interpreted their constitutional texts as providing a roadmap to a particular vision of society and as obligating the state to work towards this vision. When considering the constitutionality of the provisions criminalizing sodomy in National Coalition for Gay and Lesbian Equality v. Minister of Justice, the South African Constitutional Court’s Justice Sachs summarized what was at stake: “At a more general and conceptual level, [National Coalition] concerns the nature of the open, democratic and pluralistic society contemplated by the Constitution.”¹⁴⁴ Put differently, these courts have interpreted their constitutional rights guarantees as imposing positive obligations upon the state to take steps toward creating new societies. Such constitutional projects are often referred to as transformative constitutionalism.¹⁴⁵

Transformative constitutionalism has so far escaped attempts to be captured in a single, cohesive comparative theory. Although the underlying political projects of and paths to transformative constitutionalism vary,¹⁴⁶ they all envision a transition to a democratic society,¹⁴⁷ or, as Professor Etienne Murienik posited, they are all bridges from a culture of authority to a culture of justification, the latter being a normative commitment for a democratic society.¹⁴⁸ But the transition to a democratic society is not, and cannot be, what sets this project apart from the traditional liberal constitutional project. Change is a commitment of any transitional project, and most constitutional projects aim to entrench some version of democratic society as a foundational block.¹⁴⁹ The core of transformative constitutionalism, then, lies in the nature of the change envisioned.

At its core, transformative constitutionalism entails a fundamental constitutional commitment to social and political change aimed at ensuring a more equitable and just society. It entails a commitment to a radical reimagination of a society that is freed from every form of legally prescribed social hierarchy. These hierarchies and, consequently, the specific constitutional commitments, vary by jurisdiction. For instance, in South Africa, transformative constitutionalism entails a commitment to a way of looking at the world wherein debate and dialogue are truly possible.¹⁵⁰ In India, the change envisioned is a large-scale transformation of a society marred by divisions on the lines of class, caste, religion, gender, and creed.¹⁵¹ In Brazil, it entails a commitment to improving socioeconomic rights and alleviating poverty through institutional measures.¹⁵² But common to each form of transformative constitutionalism are the ideas of material redistribution and symbolic recognition. Importantly, it envisages a state that actively pursues these changes.¹⁵³

Within this broader emancipatory project, courts take on a role of heightened significance. While they remain arbiters of legal questions, they also become interpreters of this transformative project and are charged with the duty of pointing to the new society envisioned by their respective constitutions.¹⁵⁴ Their jurisprudence of positive constitutional rights, operationalized through new and old constitutional tests, offers the means to and justifications for this new society.¹⁵⁵ These courts have interpreted their constitutional projects, operationalized through fundamental rights jurisprudence, as imposing positive obligations upon the state to create a more equitable society. This interpretation of rights guarantees offers us a paradigmatically different prism through which to understand the nature and function of rights when compared to rights interpreted through the traditional liberal prism, that is, a transformative method of rights interpretation.

The transformative method of rights interpretation is best reflected in the proportionality analysis conducted by these courts. Proportionality analysis is a constitutional test, globally used to assess the validity of legislative and executive acts that purportedly infringe on the rights of an individual or of a class.¹⁵⁶ Generally, proportionality analysis consists of the following factors: whether (1) the purpose of the challenged law is legitimate, (2) the means of the challenged law bear a rational nexus to its purpose, (3) the law uses the least restrictive means available, and (4) the harms of the challenged law outweigh its benefits.¹⁵⁷ In the context of same-sex-marriage cases, the first factor in this test shows the critical difference between the traditional liberal method and the transformative method of rights interpretation. While courts in the former paradigm are content to accept the preservation of the existing social mores as a legitimate purpose for refusing to permit same-sex marriage, courts in the latter paradigm subject that stated purpose to review based on constitutional morality. Transformative courts, therefore, check whether the stated purpose—in the case of same-sex marriage, the preservation of the social order¹⁵⁸—aligns with the transformative projects their constitutions mandate. Those courts subsequently refuse to hinge LGBTQ+ rights on unquestioned, dominant, and discriminating social mores, instead subjecting these mores to judicial review based on constitutional values.

For instance, the Indian Supreme Court deployed the proportionality test to this effect in Navtej Johar. When considering a law criminalizing consensual sexual acts between individuals of the same sex, the Court held that the purpose of the Indian Constitution was to supplant a hierarchical society (undergirded by private social relations and norms, or social morality) by a new value system envisioned by the constitution.¹⁵⁹ Therefore, the legitimacy of the state’s purpose could not be measured merely against precepts of social morality. Rather, it had to be measured against the new value system envisioned by the Constitution (constitutional morality).¹⁶⁰ This constitutional morality, as articulated by the Court, was a guarantee of equal concern and respect for all citizens to ensure the heterogeneous fiber of society.¹⁶¹ Measured against this guarantee, the Court found that the law discriminated against LGTBQ+ people based on their “intrinsic and core” individual traits to further the majority’s discriminatory aims.¹⁶² The Court determined that protecting majority norms that are at odds with constitutional morality was not a legitimate aim and hence such laws could not stand constitutional scrutiny.¹⁶³

At its core, then, this use of proportionality enables courts using the transformative prism for rights interpretation to secure the promise of an equitable society as envisioned by their constitutions—a promise that cannot be defended under a negative-rights-infused liberal-democratic interpretation. Considered cumulatively, substantive equality as an exemplar of transformative rights interpretation entails four aspects, namely, an affirmation of the anti-stereotyping principle, a recognition of indirect discrimination, the rejection of social morality in favor of constitutional morality, and the imposition of a positive obligation upon the state. The salient difference from the traditional liberal interpretation of rights guarantees arises from the nature of remedies these courts have crafted.

B. Rights and Remedies Through a Transformative Prism

The differences between the traditional liberal interpretation of the right to privacy and the transformative interpretation of the right to equality, visible through the remedies, are both symbolic and material. These differences, along with the operationalization of all the four aspects of substantive equality as a transformative right, are best illustrated in Minister of Home Affairs v. Fourie, where the Constitutional Court of South Africa issued a landmark judgment legalizing same-sex marriage.¹⁶⁴

The Fourie Court considered the impact of statutory and common law provisions that restricted marriage to only heterosexual couples.¹⁶⁵ According to the court, such legislation had the effect of telling same-sex couples that, by law, they were outsiders whose capacity to love, commit and accept responsibility was by legal definition less worthy of respect than that of heterosexual couples. It further reinforced the wounding notion that queer individuals are, and ought to be treated as, “biological oddities” who are undeserving of the Constitution’s full moral concern and respect.¹⁶⁶ The Court held that this exclusion of same-sex couples carried symbolic harms, as it ultimately reinforced harmful stereotypes of gay and lesbian people by classifying and reducing them to beings exclusively defined by their sexuality.¹⁶⁷

The South African Constitutional Court also recognized the material damage the law caused to the LGBTQ+ community. By excluding same-sex couples from the institution of marriage, it deprived them of the material benefits of marriage, including state protection, adoption benefits, inheritance and tax benefits.¹⁶⁸ For the Court, it was evident that the denial of the status, entitlements, and responsibilities of marriage to same-sex couples constituted a denial of their right to substantive equality under the law.¹⁶⁹ It went on to hold that the right to equality could not be so thinly construed as to only protect their private lives.¹⁷⁰ Instead, the Court emphasized the right of same-sex couples to be acknowledged and embraced as equals under the law. This conception of substantive equality therefore obligated the state to take all necessary steps to ensure that the substantive content of their right was provided to them.¹⁷¹

Finally, when considering whether there were legitimate justifications for limiting the rights of same-sex couples,¹⁷² the South African Constitutional Court dismissed arguments drawing from social mores. For example, the South African government argued that it is a central pillar of the country’s society that marriage be defined as the union between one man and one woman. The Court determined that this ran afoul of the values of the South African Constitution.¹⁷³ As such, these arguments were not legitimate justifications.¹⁷⁴ The Court concluded that the at-issue provisions—insofar as they failed to offer same-sex couples the option to enjoy the same status, entitlements, and responsibilities accorded to heterosexual couples through marriage—were unconstitutional. It went on to direct the state to issue new legislation that offered same-sex couples access to the institution of marriage.

Comparing the decision in Fourie to Oliari brings to the fore the differences in the nature and operationalization of the traditional liberal interpretation of the right to privacy and the transformative interpretation of the right to equality. Importantly, this comparison shows us the judicially constructed position of an individual in their respective constitutional paradigms. In the context of marriage, a traditional liberal negative-rights conception only allows individuals to maintain their position within the existing social hierarchy. The promise of the transformative interpretation lies in positive-rights interpretations that guarantee and affirm the equal moral membership of each individual in society. Through material and symbolic transformations, courts entrust the state with the project of erasing social hierarchy and affirming this equal moral membership in a substantive sense.

It follows that substantive equality as used in a transformative constitutional paradigm offers courts a better route to ensure that LGBTQ+ people are able to exercise their freedoms. One only needs to look again at Supriyo—the case for legalizing same-sex marriage in India—to see some of this reflected. The minority opinions of Justice Kaul and Justice Chandrachud, at the very least, espouse the significance of the state’s legal recognition of marriage as offering symbolic transformations.¹⁷⁵ Fundamentally, these minority opinions rejected the characterization of marriage as a static heterosexual institution and held that recognizing only heterosexual marriages reaffirmed harmful sex stereotypes. For Justices Kaul and Chandrachud, marriage enforces and reinforces the link between gender and power through the categories of husband and wife, which track social power imbalances between men and women.¹⁷⁶ Therefore, in line with transformative commitments, they argued that the state is obligated to remodel society and the institution of marriage according to the constitutional values of equality. Specifically, the justices believed that the legal recognition of non-heterosexual unions could challenge these culturally ordained gender roles and contribute toward dismantling this power imbalance by emphasizing alternative norms in partnerships.¹⁷⁷

These minority opinions also focused on material remedies, especially the concomitant benefits flowing from the institution of marriage. Marriage, for instance, determines one’s ability to access benefits, including inheritance and adoption.¹⁷⁸ They showed the material discriminatory effects of the gendered marriage laws by noting that the provisions restricted adoption, inheritance, and other benefits and privileges of the institution to only heterosexual couples. For Justices Kaul and Chandrachud, in denying recognition to same-sex couples, the effect of such facially neutral provisions was to indirectly discriminate against same-sex couples.¹⁷⁹ The restriction on same-sex couples from enjoying the benefits that flowed from marriage pointed to the underlying structural nature of the discrimination faced by LGBTQ+ individuals in society.¹⁸⁰ Finding such restrictions to be discriminatory, Justices Kaul and Chandrachud considered the legitimacy of the state’s purpose in violating the petitioners’ right to equality. Emphasizing that the legitimacy of any such purpose had to be tested against constitutional morality and not social morality, they found that there was no legitimate state aim that justified the differing treatment of same-sex couples.¹⁸¹ Furthermore, they would have imposed a duty upon the state to take affirmative steps to remedy the discrimination.

To be sure, the majority opinions also recognized discriminatory impact in the provisions restricting adoption to only married couples.¹⁸² But due to the majority opinions’ use of a negative-rights lens, they held that privacy interests do not warrant the imposition of a “positive obligation” on the state to recognize marriage or civil unions and, consequently, confer the concomitant benefits upon same-sex couples.¹⁸³ It is therefore the minority opinions’ focus on substantive equality that allowed them to diverge sharply in the remedies offered. They rejected the notion of the state withdrawing from private spaces because such a withdrawal would leave marginalized individuals unprotected.¹⁸⁴ Instead, they found the restriction on adoption by same-sex couples to be constitutionally invalid.¹⁸⁵ In line with transformative commitments, the minority opinions, through substantive equality imposed affirmative duties upon the state to recognize same-sex civil unions and to remedy the discrimination and disadvantages faced by same-sex couples.

The minority opinions fail, however, by primarily focusing on the right to marry and, consequently, the privacy doctrine.¹⁸⁶ Like the majority opinions, they denied the existence of a right to marriage. They also found the challenged provisions of the SMA constitutional and therefore, failed to offer any substantial remedy to same-sex couples by allowing them access to marriage. Instead, they were satisfied to reiterate the remedy proposed by the majority opinions: that is, to ask a High Powered Committee of Parliament to consider changes to the laws of marriage.¹⁸⁷ Justice Kaul argued that reading down or reading up words in the SMA would present numerous interpretive difficulties.¹⁸⁸ Given the interconnected nature of the SMA with succession laws and other personal statutes, the minority justices held that “tinkering with the scope of marriage under the SMA [would] have a cascading effect,”¹⁸⁹ resulting in the Court encroaching into the legislature’s realm and violating separation-of-powers principles.¹⁹⁰ This is where the initial emphasis on the right to marry and, consequently, privacy causes the minority opinions to miss the mark: They found a violation of the right to equality due to the effects of discrimination but refused to offer a remedy.

It is here that the difference in the remedies granted by courts relying on positive rights and courts relying on negative rights becomes clear. The approach of the South African Constitutional Court offers guidance. In Fourie, after finding the common law and statutory restriction of marriage to be unconstitutional, the Court issued a suspended declaration of invalidity, meaning its order was suspended for a year to give the parliament time to cure the law’s deficiencies.¹⁹¹ To ensure substantive equality, the South African Court ordered parliament to level up marriage laws and issued two mandatory guidelines to parliament. The first prohibited parliament from ending the state’s role in marriage, and the second prohibited the state from curing the constitutional violation by making a separate-but-equal formulation of marriage, like a civil union, available to same-sex couples.¹⁹² The Court held that erasing the state’s role in marriage or offering queer individuals recognition at a lower status would simply reproduce the marginalization of same-sex couples. This focus on substantive equality required the South African Court to impose obligations upon the state that would ensure that LGBTQ+ people enjoyed the full content of their freedoms. In contrast, by restricting themselves to privacy, the Indian Supreme Court failed to protect LGBTQ+ rights.

The minority opinions of the Indian Supreme Court in Supriyo, however, hinted at the creation of an enforceable regime of horizontally applicable positive rights. Horizontally applicable positive rights impose duties upon not only the state but also on other private individuals.¹⁹³ In this case, such duties entail affording equal concern and respect to members of the LBGTQ+ community. When laying down directions for the High-Powered Committee, the Supriyo minority opinions asked the committee to consider drafting an anti-discrimination law.¹⁹⁴ They enumerated some guiding principles for the committee to follow in its task of drafting such a law. Justice Kaul recommended that the committee recognize intersectional discrimination and impose positive duties upon the state and other private actors to redress the harms of discrimination by formulating material redistribution policies.¹⁹⁵ Implicit in these principles is a recognition of substantive equality, guaranteed through horizontally applicable positive rights.

Such horizontally applicable positive-rights interpretations have been used by courts using a transformative method of rights interpretation. In 2019, the Federal Supreme Court of Brazil confronted the rising discrimination against LGBTQ+ people.¹⁹⁶ Declaring homophobic hate crimes to be crimes akin to racist hate crimes, the Court relied on the concept of full citizenship, or equal moral membership. Writing for the Court, Justice De Mello argued that discrimination based on sexual orientation denied the affected individuals the substantive content of their rights to equality and autonomy. By criminalizing such discrimination, the Court imposed a duty upon all Brazilians to create social conditions allowing LGBTQ+ people to enjoy the substantive content of their rights. This criminalization functionally created a horizontal positive right because it imposed a duty upon all members of society to treat all individuals equally.

Thus, in cases concerning the rights of LGBTQ+ people, the use of substantive equality offers courts a route to both acknowledge and remedy the reality of hierarchical structures and power relationships within society and ensure that LGBTQ+ people are able to exercise their freedoms. Substantive equality requires courts to abandon default verticality and to instead subject societal mores to constitutional morality. In doing so, courts can pierce domains traditionally considered private by interpreting the content of rights guarantees to issue remedies which impose positive obligations upon the state, and sometimes even impose horizontally applicable duties, thereby ensuring a greater degree of constitutional protection for LGBTQ+ individuals. The judgment of the Indian Supreme Court demonstrates that ignoring a transformative interpretation of equality, and instead relying on a negative-rights conception of privacy and legal formalism led to it failing to ensure that LGBTQ+ people were able to enjoy the full range of their rights and freedoms.

III. Coda: Transplanting Transformative Interpretations

Courts which use the traditional liberal prism to interpret constitutional rights guarantees do sometimes use equality to defend the rights of LGBTQ+ people. But even in those cases, they do so only in a formal sense.¹⁹⁷ For example, although the Canadian Supreme Court has held that discrimination based on sexual orientation is unconstitutional, it predicated that finding on the formal equality principle of “sameness.”¹⁹⁸ Decisions like this expand the purview of personal characteristics—in these cases, sexual orientation—that cannot serve as a basis for differential treatment by the state.¹⁹⁹ They are not, however, concerned with imposing positive obligations or responsibilities upon the state or private individuals. As Ran Hirschl argues, “[T] he decisions simply amount to a status quo principle, merely redefining an individual’s sexual preference as an extension of his or her private sphere that should therefore enjoy the same protection from the public, the state, or one’s employer as any other personal chattel.” ²⁰⁰ This has led some to contend that these formalist traditional liberal interpretations of privacy and equality as negative rights arise due to structural limits imposed upon courts by their respective constitutional texts.²⁰¹

But a closer analysis of the nature of bills of rights and interpretative methods suggests that courts are not constrained to traditional liberal conceptions of rights due to the form or structure of their constitutional texts. Structurally, most bills of rights do not naturally obligate judges to arrive at any one particular conclusion. Instead, the substantive content of these texts is often open-ended or indeterminate.²⁰² Interpreting the content of a bill of rights, then, often requires judges and courts to look beyond formalist interpretations of rights in search of the principled or moral content of rights.²⁰³ There is no textual imposition of any particular interpretation of this moral content, rather, contextual reasons that engender particular interpretations. As scholars and the Supriyo decision have shown, transformative interpretations are not the only available interpretations of the Indian or South African constitutional texts.²⁰⁴ Similarly, negative-rights interpretations of privacy are not mandated by the text of the U.S. Constitution or the European Convention on Human Rights. Essentially, constitutional catalogues of rights are vaguely worded and there is value to this vagueness in as much as it leaves space for judges to make interpretive choices.²⁰⁵

The difference in the construction of rights arises from these interpretive choices made by judges and courts.²⁰⁶ The factors influencing these choices vary from legal cultures to the influence of neoliberal economics. While constitutional culture in the United States values some version of stasis, constitutional cultures in India, Brazil, and South Africa privilege an anti-hierarchical society.²⁰⁷ But these cultures and interpretive choices are not immutable and should not create a presumption of a static and unwieldy conception of rights ordained by constitutional texts. Textual rights guarantees which have so far been interpreted through the traditional liberal prism can be interpreted in a transformative manner and vice versa. The constitutional texts provide ample space for such changing interpretations while maintaining interpretive fidelity to the state’s constitutional project. For instance, German constitutional doctrine—while mostly relying on traditional liberal interpretations—has embraced the values of transformative interpretations while making the necessary alterations to maintain fidelity to the country’s legal culture.²⁰⁸ Similarly, the judiciary in Australia has interpreted various rights regimes to give effect to large scale social transformation.²⁰⁹

As these attempts indicate, courts are indeed capable of using transformative rights interpretation to transcend the barrier of default verticality and impose positive obligations upon the state, while still maintaining fidelity to their constitutional texts. In the context of LGBTQ+ rights, courts can, and must, evaluate their claims through the lens of transformative positive rights and substantive equality to ensure queer people are afforded the ability to exercise their rights in a meaningful way.

In fact, U.S. courts and the ECtHR have taken tentative steps in this direction. For example, in Loving v. Virginia, when evaluating the constitutionality of laws prohibiting interracial marriages, the U.S. Supreme Court held that anti-miscegenation statutes employed a suspect classification that subjected interracial couples to degradation, thereby violating the constitutional guarantee of equal protection.²¹⁰ The most emphatic declaration of substantive equality in the context of marriage and LGBTQ+ rights came in Romer v. Evans, in which the U.S. Supreme Court held unconstitutional an amendment to the Colorado Constitution that blocked the state and its local government from providing anti-discrimination protections based on sexual orientation.²¹¹ In a brief yet powerful opinion, the Court in Romer moved away from the traditional rational basis test to present a modified three-stage review when judging whether the challenged law fell afoul of the Equal Protection Clause of the U.S. Constitution. It asked (1) if the challenged law implicated a classification based on a group’s identity or conduct, (2) if the group was unpopular or lacked functional access to the political process, and (3) if the impugned act was solely motivated by animus.²¹² By setting forth this test, it recognized and operationalized the anti-hierarchical principle that undergirds substantive equality. To some extent then, courts in the United States have embraced anti-stereotyping, recognized indirect effects, and even broken through the tradition of default verticality to impose positive obligations upon other actors.²¹³

The ECtHR has also recently applied equality provisions of the Convention in defense of LGBTQ+ rights. In dissenting opinions in Fedotova v. Russia, Judges Pavli and Modoc noted that law could serve to shape a society’s moral views.²¹⁴ According to them, national legal regimes that discriminate on impermissible grounds reinforce prejudice and social segregation.²¹⁵ Providing equal recognition to same-sex couples would have signified acceptance of same-sex couples and validated them as equal members of society. In Maymulakhin and Markiv v. Ukraine, the ECtHR emphasized the intrinsic value of recognition as a symbol of inclusion and equality of same-sex couples.²¹⁶ It held that allowing same-sex couples access to legal recognition and state protection through marriage undeniably served the Convention’s ideals and values, for this conferred legitimacy on same-sex couples and promoted their inclusion in society, regardless of sexual orientation. ²¹⁷ According to the ECtHR, a democratic society within the meaning of the Convention must reject any stigmatization based on sexual orientation and must instead be built on the equal dignity of individuals, sustained by diversity. Furthermore, the ECtHR noted that the core of the applicants’ grievance was “to be treated with equal dignity” and that “the State would confer a sense of legitimacy on their relationship by legally recognising its existence and by ensuring its adequate protection.”²¹⁸ While the ECtHR did not go so far as to impose positive obligations upon the state, it advocated for a transformative rights interpretation of substantive equality.

So, the dichotomy—commonly conceived as strict—between these two methods of rights interpretations is not so strict after all. As evidenced through the rulings of the ECtHR and the U.S. Supreme Court, courts which generally construct rights through the traditional liberal negative-rights lens can use substantive equality interpretations to voice transformative commitments and offer better protections to LGBTQ+ people. When they fail to do so, therefore, it is a judicial choice. While the transformative substantive equality interpretation has not yet been completely transplanted to these jurisdictions,²¹⁹ these early signs show promise.²²⁰ Transplanting substantive equality as a means of protecting LGBTQ+ rights offers a route to a constitutional revolution²²¹—the establishment of such a new legal paradigm can offer better, and needed, protections for the LGBTQ+ community specifically, and to marginalized groups writ large.

Conclusion

When confronted with questions regarding LGBTQ+ rights, specifically access to marriage, courts rely on either the right to privacy or the right to equality. By examining comparative jurisprudence, this Note demonstrates that these judicial choices are a product of courts privileging differing interpretive paradigms. These jurisdictional differences between a negative-rights conception of privacy and a positive-rights conception of substantive equality have varied the content of the freedoms and remedies offered to LGBTQ+ people. This Note unpacks the limits of privacy, as constructed through the traditional liberal prism and advances a transformative conception of substantive equality to ensure material and symbolic remedies for LGBTQ+ people. Ultimately, it argues that transformative interpretations, operationalized through substantive equality, contain the promise of equal moral membership in society for LGBTQ+ people.

*S.J.D Candidate, University of Michigan Law School, U.S.A. kushagrb@umich.edu
The ideas developed in this Note originated from my discussions with Professor Catharine MacKinnon to whom I’m eternally grateful. Much of this piece was written during my tenure as Foreign Law Clerk at the Constitutional Court of South Africa. I gratefully acknowledge the generosity of the Clara Belfield and Henry M. Bates Overseas Fellowship for supporting my stay in South Africa. My sincere thanks to two Justices of the Constitutional Court of South Africa (former and present) for their thoughtful comments on earlier drafts of this piece as well as my coclerks whose insights have been invaluable. My thanks also to Rehan Abeyratne, Eric Christiansen, Daniel Halberstam, and Daniel Deacon for their insightful questions and critiques. The suggestions and feedback of Michigan Law Review’s Notes Office were excellent and have sharpened the focus of this piece. I presented these ideas at the European Human Rights Law Conference at the University of Cambridge in September 2023. The views represented herein, and all errors are, as always, my own. For K, whose unwavering optimism in the face of relentless prejudice has always been inspiring.