Ruminations after Colombo Pride: Why Queer Interest Litigation is Public Interest Litigation

Photo courtesy SALGBT Network

Part I

Exactly a month ago from today, the US Supreme Court’s holding, in Obergefell v. Hodges, seemed to give cause for celebration to many individuals, most of whom expressed solidarity through their profile picture on Facebook. Newsfeeds were abuzz with reports of how “gay marriage” had been legalised in America. However, the actual holding, in fact, amounted to an affirmation of two, far less controversial propositions of law regarding liberty and equality. Despite their simplicity, both those propositions are of incredible significance to ideals of democracy.

The first proposition, regarding liberty, is summarised as follows: the guarantee of liberty to all individuals includes the freedom of all individuals to enter into intimate relationships with any consenting adult of their choosing. “…[Matters] involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the [idea of] liberty … At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Marriage constitutes a “keystone of […] social order” from which flow both “symbolic recognition” and “material benefits”. That social recognition, and those material benefits, are an important part of protecting and nourishing the intimate union between two individuals.

The proposition on equality extends from the proposition on liberty: refusing some individuals access to the benefits accruing to their relationship from the legal status of marriage, simply on the basis that the majority disapproves those individuals’ private choice to love and be intimate with their chosen partner, not only demeans that relationship, but also destabilises its future. These injuries are compounded by the discrimination also falling on the children resulting from such an intimate relationship: by the prohibition on same-sex couples from marrying each other, children of those relationships are forced to accept a second-grade status for their family. Though their parents love each other, though they themselves love their parents, the state denies to their family the legal benefits of being a family.

After considered analysis of how same-sex marriage bans deprive liberty and demean equality in these ways, the Court held them to be unconstitutional.

To many, the holding did not come as a surprise. In fact, commentators predicted the outcome in Obergefell long before it was handed down one month ago. An important cornerstone of the integrity of the judiciary is the consistency of its decisions: like cases, after all, must be decided alike. Thus, for commentators correctly predicting the Obergefell outcome, one of the main sources of certainty was the 1967 landmark Supreme Court decision, Loving v. Virginia, where the Court struck down a racially motivated ban against interracial marriages. In both cases, despite the fifty years between them, the Court relied more or less on the same core understanding of liberty and equality.

The term “gay marriage” is almost always used ironically by proponents of queer rights, most of whom prefer the more accurate expression, “marriage equality”. In Obergefell, the Court, drawing inspiration from its previous holdings in other marriage-related cases, explained the fallacy inherent in the term “gay marriage”:

Loving did not ask about a ‘right to inter-racial marriage’; Turner did not ask about a ‘right of inmates to marry’; and Zablocki did not ask about a ‘right of fathers with unpaid child support duties to marry.’ Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right … That principle applies here. If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”

The most important observation that deserves notice, here, is the reality that neither Obergefell nor Loving was decided in a vacuum: they involved the extrapolation of general principles on liberty and equality that the Court has been developing in its jurisprudence for decades. In fact, two of the cases most frequently cited by the Court as a starting point of its modern jurisprudence on liberty, deal with two 1930s laws that sought to deprive minority communities their language and religious rights.

The first case, Meyer v. Nebraska, involved restrictions on parents and schools’ right to choose the language of instruction for their children’s education. (These laws were known, uncannily, as “English-only laws”.) The second case, Pierce v. Society of Sisters, involved an effective ban on parochial schools, which compelled all parents to send their children to public schools, even if those schools did not conduct their affairs according to the religious interests of the parents. In both cases, the Supreme Court warded against the tyrannies of the majority by holding that parental decisions involving children were entitled to a degree of liberty that could not be encroached upon, without a compelling reason to justify such encroachment.

The above two cases are but a sampling from the plethora of cases that develop the American jurisprudence on liberty. This partial catalogue composed by former Chief Justice William Rehnquist, in 1997, is informative:

“In a long line of cases, we have held that … the “liberty” specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia; to have children, Skinner v. Oklahoma ex rel. Williamson; to direct the education and upbringing of one’s children; to marital privacy, Griswold v. Connecticut; to use contraception, ibid.; Eisenstadt v. Baird; to bodily integrity, Rochin v. California … We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted life saving medical treatment, Cruzan v. Director of Dept. of Health.”

Thus, it is clear that the victory of queer liberty and equality, in Obergefell for instance, was not an isolated result of queer agitation: rather, the road to their victories were decades in the paving, fought for as much by Catholic school missionaries as by women’s rights advocates in cases like Roe v. Wade. In other words, the deprivation of queer liberty and equality intersects with, arguably, all other forms of such deprivation. The victory desired, then, in the domain of queer liberty, is but a piece in a much larger puzzle for victory in liberty, generally.

Part II

Today, one month later, is a day of mild significance to the Sri Lankan queer community: it marks the final day of Colombo Pride, a ten-year-old, week-long initiative annually organised by EQUAL GROUND, which returned this year for its eleventh instalment.

The new, second decade of LGBT Pride in Sri Lanka opened at the cusp of one of the most significant victories of queer activism in the world. Granted, the United States is only the twenty-first country in the world to affirm marriage equality to same-sex couples. In fact, Ireland legalised the same, mere weeks before the US did. Yet, it’s futile to dispute America’s place of influence in the domain of fundamental rights jurisprudence. This is especially so, when a number of the most satisfactory judgments of the Sri Lankan Supreme Court, too, have frequently drawn inspiration from American jurisprudence – particularly in the era before the Eighteenth Amendment.

In Sri Lanka, liberty and equality issues extend far, far beyond the sphere of queer activism. Shortcomings in our Constitution, particularly its non-recognition of the right to privacy, the significant limitations on the judiciary to review laws for consistency with the Constitution, the power of the Parliament to enact unconstitutional laws with a two-thirds majority, contribute to the rooted belief in the hearts and minds of individuals and minorities that neither the Constitution nor the judiciary resembles an institution that can ameliorate their current state of being a Sri Lankan citizen.

For instance, though Article 4(d) of the Constitution provides for the grand proposition that “the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied…”, the Constitution also provides the following provisions in Article 16:

(1) All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of [the Fundamental Rights Chapter].

(2) The subjection of any person on the order of a competent court to any form of punishment recognized by any existing written law shall not be a contravention of the provisions of this Chapter.

With one hand, the constitution gives, and with the other, it takes. The requirements of liberty and equality guarantees pervade all of law, but all laws (written and unwritten) cannot be held invalid by a court, even if they unfairly deprive liberty or equality, if the government can point to the date of the given law’s enactment. The older the law, the more draconian its provisions, the safer it is from invalidation on constitutional grounds.

Written law, at least, is what emanates from Parliament. Unwritten law is crafted by judges themselves, over decades, in piecemeal fashion. We speak of the independence of the judiciary, but Article 16, on its face, affords no space to the judiciary to review at least those laws that are within its provenance to make. The words of Article 4(d) seem superfluous, when law neither made by parliament nor by judges can be brought in line with the reasonable dictates of liberty and equality.

The Constitution is a joke that laughs at its own citizens. The freedom from torture and inhuman punishment, for instance, is afforded the status of being “non-derogable”. This means that there are no conceivable justifications for the violation of this right. Yet, if a law allowing torture or inhuman punishment had been enacted before the Constitution, the right to implement such torture, in effect, becomes non-derogable. (See article 16(2)).

Constitutions are meant to be instruments of social transformation. By 1978, a motley mix of laws existed in Sri Lanka that she received from the Dutch, the British, and successive post-Independence and post-autochthony governments. The draconian and infamous Public Security Ordinance, abused to its fullest extent during the final stages of the war, is but an example. There exists a carte blanche of legality to all these draconian laws in our constitution. The only recourse individuals and minorities have against them is the right to take their grievances before the most majoritarian of all organs of government, the leviathan of the Parliament. Such individuals and communities are invited, by the Constitution, to convince the Parliament that its own inaction gives rise to the continuing violation of the complainants’ fundament rights. Does the Constitution expect them to prevail? These provisions, read facially, indicate the worthlessness afforded to individual liberty and minority freedom in our country, under our Constitution; even the deepest matters of private intimacy are still left susceptible to the will of a faceless majority.

Part III: Conclusion

Who reads the Constitution, and how do they read it?

If a person suffers a violation of her fundamental right, Article 126(2) of our Constitution once required that the victim must invoke the Supreme Court for redress either herself, or through an attorney-at-law. In the celebrated case of Sriyani Silva v. Iddamalgoda, the question to be answered was whether an individual who had been killed by the acts that violated his fundamental rights, had any recourse to redress, if the Court could only hear his case if he had brought it to Court himself or through his legally-appointed attorney. Both those options were, by the mechanics of death, unavailable to the deceased victim. However, the Supreme Court, upon the instance of the victim’s wife, chose to read 126(2) “expansively”, which meant reading the provision sensibly, fairly, justly – even to the point of stretching its literary meaning beyond the boundaries of language and semantics. In a Constitution such as ours, one could hardly expect of a judge any less.

The judiciary cannot possibly be so completely excluded from resolving disputes that are clearly intrinsic to fundamental rights. Indeed, the reason that fundamental rights are provided in a Constitution, as opposed to by ordinary legislation, is because fundamental rights need to be immune from the vagaries of populist politics. Populist politics, especially when it comes to the domain of post-colonial insecurity, provides a hotbed for minority oppression. Requiring the Parliament to intervene to correct its most prominent weakness – and voluntarily at that – places our Constitution at the precipice of reason. On the other hand, it would abnegate the purpose of requiring all organs of government to respect their fundamental rights obligations, if all organs of government did render themselves voluntarily powerless to the will of the simple parliamentary majority.

Can Article 16 be read restrictively? Does it command the dismissal of all cases challenging the fairness of a pre-1978 law, in limine? The peculiar structure of our separation of powers, and the pro-democratic mandate that won the Sri Lankan people a more independent judiciary through the Nineteenth Amendment, counsel the Supreme Court’s reversion to its past days of careful judicial activism: striking a fair balance between respecting the separation of powers and being overgenerous to the Parliament’s prerogrative to retain arbitrary, colonial laws. The Court may craft creative judicial remedies, based on the judidical power devolved to it, in the pursuit of protecting individual and minority group interests, without the need for declaring unfair laws invalid.

US law demonstrates that queer law cases, once decided, become the zeitgeist of liberty jurisprudence, suggesting that the guarantee of queer liberty may, in fact, be the Plimsoll Line of any democracy’s ability to protect liberty and equality in general. But, in Sri Lanka, expecting to advance only in the specific area of queer liberty, in isolation, is unrealistic. The constitutional and institutional setbacks are far too many and far too complex to questioned, for the first time, by queer arguments for liberty. In any case, as was shown above, queer interest litigation depends on a robust jurisprudence of liberty and cannot, therefore, hope to be the starting point of such a body of work. In this sense, the advocacy of liberty and equality in less contentious topics than queer issues becomes a necessary ingredient of queer activism itself – as a way of orchestrating the context in which queer claims for liberty can be made with more hope for success. In any case, the advocacy for liberty and equality in our Constitution must pervade all forms and subjects of activism. The intersectionality of oppression demands that there is more dialogue and collaboration among all interest groups.

In a context where actual public discourse on queer issues is obstructed either by state failure or because of the encouragement by it, a battle for justice is justifiably fought in the most democratic of all alternatives: the courts. The recognition in the Constitution that it guarantees to all its citizens something more than mere majoritarian prejudices is a cause of action that lay in the interest of the public. The determined advancement of that belief in the forum of the judiciary, provided all other requirements of standing are satisfied, would not make a mockery of the judicial system, but would be an invitation to its wardens to take themselves seriously. But this battle is not to be fought only by the particular interest group aggrieved by the state at a given time, but all interest groups variously and severally victimised by the state at different times. Liberty and equality pervades all law. Thus all subjects of law must agitate for the requisite recognition of those principles in our Constitution, and agitate also for the judiciary’s commitment to the advancement of those ideals.