It was a bad week for human rights. And that’s probably an understatement. Not only did the Indian Supreme Court strike down an earlier decision to legalise homosexual activity, causing the 10-year prison sentence to once again come into effect, but on top of that, just one day later, the Australian High Court struck down equal marriage in the Australian Capital Territory. The first was a complete shock, the latter was rather predictable, but either way, it has certainly not been a good week. Still… did these courts really make the wrong decision?
Homophobes are generally quite closed-minded, something the average gay rights proponent always tries to make abundantly clear. I’d agree, and since the gay rights movement prides itself for being more open-minded than those who oppose equal rights, I figured this was a topic I could easily discuss. After all, this is not a title you’d expect from someone who sees himself as a fierce proponent of gay rights, but that’s what being open-minded is about. So let’s see how well this will go.
India, Australia and let’s just add the US and the UK to that list as well, have a legal system called common law. Basically, what this means is that there’s this piece of writing somewhere out there which dictates the law. This piece of paper is never replaced, so even after a couple of centuries, these countries are, in the very core of the system, still using the same laws. It is up to the courts to decide whether or not these laws are still being adhered to, and if a newly made law goes against one of the decisions made in colonial times, then it is up to the court to strike that new law down.
This means that, for example in the US, this one piece of paper was proof that gay marriage was wrong for about two centuries, and then earlier this year, that very same piece of paper was proof that gay marriage was fine. The same went for India, which had a law against homosexual activity for a few centuries, and then a supposed “objective” court decided that it could be re-interpreted, regardless of the fact that this had not been the case in the centuries before that, and now another “objective” court made the exact opposite decision, once again based on that same piece of paper.
Now… is anyone in these countries truly under the illusion that these courts are objective? Does anyone actually believe that pure objectivity is possible, or have we just collectively decided to pretend like we don’t notice this? I already learned in secondary school that the time at which someone from the Supreme Court resigned was very important, because the president in power at that time was able to choose a judge he liked, yet still people seem to pretend like these people are impartial. Earl Warren is seen as a hero, but at the same time he just did what the law commanded him to do (and what, oddly enough, that same law did not command his predecessors to do).
It’s ridiculous. These people are at one point running for president and the next they’re expected to have no personal opinion. Major decisions should never be based on such flawed thinking, and it is definitely not democratic. So when the Indian Supreme Court stated that they felt it was not up to the court, but up to the parliament to change these laws, I couldn’t help but think they had a point.
That doesn’t mean that I’m not incredibly happy that gay marriage was allowed in quite a number of US states due to a court decision. However, aside from the fact that it is incredibly pathetic that something like this isn’t just an easy governmental decision that can be made without any real debate (as it was with the first countries that adopted equal marriage), it is just ridiculous that this sort of thing is considered fair by so many. It is not democratic, and even if those judges happen to have the right biases to make the desired decision, it still doesn’t make any sense.
All in all, I would say that the common law system is extremely flawed, because this assumption that people can actually be completely objective is just not true. That doesn’t make it any less sad that terrible laws are upheld by these courts, but it might be an explanation for why these countries are so incredibly conservative. After all… is it really a coincidence that many of these countries with common law are more conservative than most developed nations? I’m not too sure…
Ultimately, it’s about time these anti-gay laws are changed in a democratic way. It’s 2013. Surely we should be able to do that by now…
This post was inspired by one of John Green’s Crashcourse videos, and I would definitely advise you to go check it out! It’s history in a very enjoyable way, and although it’s not perfect, it’s definitely a good way to learn something basic while still having fun.
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