The opposition to (and support for the) legalisation of same-sex of marriage is, in my view, shaped more by an ideological or cultural attitude towards same-sex relationships. There is a problem here. All these people mix up the regulation of sexual relationships with that of marriage.
What kind of sexual relationships can be permitted or legally discouraged is an issue and it is the goal of regulation of sex. The criminalisation of sex with children is an example. In that sense, the decriminalisation of same-sex relationships in India is an important positive step as far as the regulation of sex is concerned.
The purpose of regulation of marriage is different. It may help in (a) ensuring the rights of partners in a marital relationship. Such protection of rights is more important for the less powerful partner, and there are other cases where the rights of both partners are important; (b) There may be a need to consider marital family as a distinct unit in the case of state policies. For example, there can be tax concessions with certain purposes; and (c) there may be a need to regulate or define rights of inheritance of assets which are accumulated through the (joint) effort of marital partners. Societies may prefer to facilitate reproduction of human beings. Usually this happens within the marriage or marriage as an institution has certain advantages in reproduction. Hence marital families may get policy support to facilitate the bearing and caring of children.
Though the marriage can be viewed as an implied contract, its peculiarities (privacy, intangibility in services and certain outcomes, power structure, unequal consequences of the breaching of contract, difficulty to monitor by a third party, etc.) may require a legal intervention which is beyond the contract law. That is one justification for a law on marriage.
However, the regulation of marriage as a whole may need changes and it may have to reflect the needs of socioeconomic contexts. When we say that the sexual relationship without consent within marriage is to be criminalised, it indicates the need for reforming marriage and here we consider the rights of individuals and that these rights cannot be suppressed in the name of marital family. Financial incentives which are offered by the state may also change depending on the changing importance of services provided within marital families (for example, taking care of children). The importance of regulating the inheritance of assets created within a marital family also depends on the gender division of labour and the inability of partners to arrive at a negotiated agreement on this count.
A conventional justification for state intervention in marriage is to ensure the rights of less-powerful partner. These structural differences in `power’ may not be that relevant in the case of same-sex couples and hence the need for the state to address these may not be severe. There is a growing preference to live together (without marriage), which indicates a reluctance to enter into a formal legal agreement called marriage. There are a number of changes all over the world. People live together and have sexual relationships with or without having children. There can be non-sexual relationships between two people, and they can take care of adopted children. What if two women who are not in a lesbian relationship wanting and willing to adopt and bring up a child together? Children can be born without a sexual relationship between those parents who take care of them. These relationships need not be that of people belonging to opposite sex in the conventional sense. Separated couples can also share responsibilities in bringing up children. People adopt and take care of children, and this may be attempted by those who can or cannot have biological children. In that sense, there is nothing wrong for two people who don’t have a sexual relationship among themselves to adopt and bring up children. If children are not considered an important part of relationships, then all kinds of living together are possible. Universal marriage and child-bearing are disappearing in many developed societies.
Moreover, when people are capable to choose different kinds of relationships, and couples (including same-sex couples) live together without formalising marriage, the role of marriage as an instrument to protect the rights one or both partners is less important.
In these contexts, my argument is that if the additional protection through the regulation of marriage is needed, such protection is to be offered to all couples who are in a marriage-like relationship (whether they are married or not). They too need support and incentives if society thinks that taking care of children is an important task to be encouraged. Then these incentives need not be connected to the nature of sexual relationship between parents.
Same-sex couples may have a symbolic or ideological interest in getting into a formal marriage. The kind of wedding ceremonies that even such couples go through shows the symbolic importance of marriage. There may be a yearning for the social recognition of their living together. This may be reflecting in the demand for the legalisation of same-sex marriages. Tax incentives which are available to married couples may be an attraction. Or the demand for the legalisation of same-sex marriage could be a political project (which is genuine). To a great extent, the opposition to the legalisation of marriage is not against state-intervention but is also due to the perception that such a legal sanction may lead to a higher level of social recognition and acceptance of such relationships.
If we take a rational approach to the role of the state in marriage, then it is to be extended to different kinds of marriage-like relationships and not only those of either couples of opposite or same sex.