Ruminations after Colombo Pride:

Why Queer Interest Litigation is

Public Interest Litigation

Ph
oto courtesy SALGBT Network

by Michael Mendis on 07/29/2015

Part I
Exactly a month ago from today, the US Supreme Courts holding,
inObergefell 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 ones 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 childrens
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 ones
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 womens 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, weeklong 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, its futile to dispute Americas 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 nonrecognition 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 laws 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
toimplement 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 legallyappointed attorney. Both those options were, by the mechanics of death,
unavailable to the deceased victim. However, the Supreme Court, upon the
instance of the victims 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 Courts reversion to its past
days of careful judicial activism: striking a fair balance between respecting
the separation of powers and being overgenerous to the Parliaments
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 democracys 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 judiciarys
commitment to the advancement of those ideals.
#causelawyersftw
Posted by Thavam