By Somasekhar Sundaresan

The recent ruling on same-sex marriage in the US shows that Supreme Courts are necessarily always right because they are final. They are not final because they are always right. There is no other way to oversee a society’s evolution.

Never before has the role of a Supreme Court come under such scathing attack in any country – from within and without. The United States, a society rooted in deep-seated traditional Christian morality woke up towards the end of last week to find that its Supreme Court had ruled that samesex marriage deserved equality of the law across the country (not all states in the US recognised such marriages). The court also ruled that refusal by any state to recognise same-sex marriages lawfully performed and recognised in another state constituted a deprivation of life and liberty.

The ruling was a sharply divisive one: five “liberal” judges for, and four “conservative” judges against. Unlike India, where there are arguably many supreme courts, with multiple benches comprising two or three judges to hear appeals, in the US Supreme Court, all nine judges hear all appeals jointly and have a say in every case. Each of the four dissenting judges wrote their own dissents. Two judges – Justices Antonin Scalia and Clarence Thomas not only wrote their own dissents but also signed up on every other dissenting judgement.

Justice Anthony Kennedy who wrote the majority decision had also authored the earlier US Supreme Court decision holding that laws banning homosexual intimacy between consenting adults would be unconstitutional. Clearly he and his majority colleagues are giving meaning to the adage about constitutions being living documents, reinventing and evolving their coverage with the changes and evolution of society.

The dissenting judges are biting in their critique of the majority. One has argued that treating the right to marry a person of one’s choice is not a fundamental right. Another has said it is never the state’s obligation to provide dignity. One dissenter has argued that such a decision should rest with the people who may elect representatives to pass laws to this effect. In the same breach another judge has gone into how the judges of the Supreme Court who went to Ivy League colleges and come from the elitist eastern and western coasts of the US are not representative of the aam aadmi’s thinking on the subject.

The peeved minority took the battle straight into the majority camp, arguing that recognition of gay marriages is only a step towards eventual recognition of the right to marry more than one spouse. “Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not,” argues Chief Justice John G Roberts. “Indeed, from the standpoint of history and tradition, a leap from opposite sex marriage to same sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world…It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”

Governor of Louisiana Bobby Jindal, who is hoping to become US President, struck the most strident note. “Marriage between a man and a woman was established by God, and no earthly court can alter that,” he thundered. “The Supreme Court is completely out of control….and has become a public opinion poll instead of a judicial body…If we want to save money, let’s just get rid of the court.”

Supreme Courts administering constitutions often face such critique. When a ruling resonates with a section of society, that segment would applaud. Sections that find the same ruling jarring would allege judicial overreach. The same critic who says the court seeks popularity could argue that the court is not representative of the populace.

Supreme Courts are necessarily always right because they are final. They are not final because they are always right. There is no other way to oversee a society’s evolution. The politicians who look to God and not “earthly courts” should learn from the Vatican’s elected incumbent. Pope Francis not only asked “Who am I to judge” but also recently welcomed and met a delegation of homosexual Catholics. Little wonder the right-wing Christian politicians in the US are facing an existential crisis.

Tweets @somasekhars

(This piece was published in the July 3, 2015 editions of Mumbai Mirror, Bangalore Mirror, Ahmedabad Mirror and Pune Mirror)

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