Last week, the supreme court of India issued a controversial decision upholding the country’s ban on sodomy, and the debate surrounding this decision has been downright disturbing in that it shows a fundamental misunderstanding in the role of courts. Many of the arguments that have been written have focused on public policy instead of legality.
Our understanding of this in America has been broken down by decades of judicial activism, but the purpose of any court is not to make policy. The purpose of the court is to interpret the law. Did the anti-sodomy law violate the literal text of the Indian constitution? Did the law violate other laws that superseded it? If not, then it is not the business of the Indian supreme court to throw it out. That should be done by the legislative branch.
A similar decision in the United States is the Supreme Court’s decision last summer that the Defense of Marriage Act (passed by Congress and signed by President Clinton) is “unconstitutional” – despite the fact that the Constitution had never been interpreted to prohibit the federal government from recognizing marriage as only the union of one man and one woman for 220 years since the document was ratified, and that this “interpretation” of the Constitution would have been shocking to the men who actually wrote the document.
The United States is supposed to be a nation of laws, not the whims of men. To my understanding, the same is true in India. By making arguments about the “constitutionality” of DOMA or anti-sodomy laws based on public policy preferences instead of the text of the Constitution itself, the news media, political pundits and activists on both sides continue to undermine this basic principle. It is a dangerous path that leads to tyranny.