First and foremost, there’s been some sloppy reporting, and lots of sloppy blogging, on this issue: The “Delhi High Court” is not the Supreme Court of India. It’s more like a state supreme court in the U.S. So the news that the DHC has essentially “pulled a Lawrence” and ruled that the country’s barbaric (i.e., Victorian) criminalization of same-sex intercourse violated several core constitutional provisions:
The court concluded that the challenged provision, infringes the right to privacy guaranteed by Section 21 of India’s Constitution as well as Section 14 (equality before the law) and 15 (discrimination on the basis of sex) of the Indian Constitution.
So this is clearly an “end of the beginning” situation rather than a “beginning of the end” (not even the U.S. can claim that status).
Meanwhile, let’s not lose sight of how this landmark (if local) decision is serving to unite and inspire the entire nation of India — in religiously commanded hatred and bigotry:
“This Western culture cannot be permitted in our country,” said Maulana Khalid Rashid Farangi Mahali, a leading Muslim cleric in the northern city of Lucknow.
…
Religious leaders in the capital and in other parts of India argued that gay sex should remain illegal and that open homosexuality is out of step with India’s deeply held traditions.
“We are totally against such a practice as it is not our tradition or culture,” said Puroshattam Narain Singh, an official of the Vishwa Hindu Parishad, or World Hindu Council.
In New Delhi, Rev. Babu Joseph, a spokesman of the Roman Catholic Church, told New Delhi Television that while homosexuals should not be treated as criminals, “at the same time we cannot afford to endorse homosexual behavior as normal and socially acceptable.”
Progress? That’s a relative concept.
“I like your Christ. I do not like your Christians. They are so unlike your Christ.”
–Mohandas Gandhi
The case is Naz Foundation v. Government of NCT of Delhi (PDF – 105 pages).
Previously:
–Global Christians Race to the Bottom on Gay Bigotry
–Naked Bigotry Update: Pope Urges Anglicans to Reject Gays
As I tweeted when the case was handed down, I was pleasantly surprised by the 8-1 decision in Safford Unified School District #1 v. Redding, in which the court decided that a strip search is a strip search, a school is not a prison, and that “OMG drugs!” is not a “Get Out of the Fourth Amendment Free” card.
Contrast the commendable ruling in Safford with the outrageous decision in Morse v. Frederick, in which the Court held that an adult student, not enrolled in school that day and not on school grounds, essentially has no First Amendment rights, because — “OMG drugs!”
What I found disappointing in the decision, however, was the total failure to critically review the claim that there was any legal basis to search the 13-year old girl at all — let alone by strip search.
The only basis for school officials to suspect Redding was because a fellow student — already caught with contraband “OMG drugs” (i.e., ibuprofen), therefore already in trouble, and with a prior disciplinary record that surely negates any credibility she might have, fingers a classmate (”they must be hers“).
How is that “probable cause” to conduct any search, let alone a strip search? How does a busted delinquent trying to dig herself out of a disciplinary hole satisfy the “totality of the circumstances” test of Illinois v. Gates?
(Recall also that Gates lays down the criminal standard for basing probable cause on an unreliable witness. Safford was not a criminal case, but only a “school policy” case. If the police could not have strip-searched Redding based only on a non-credible fellow student’s account, then how could school officials possibly do so?)
The Court got it exactly right in its recognition that “strip searches ought to be different.” What it got wrong is its refusal to recognize that “school searches ought not be different.”
Finally, another tweet of mine:
Thomas, whom the stupid wing of the libertarian movement adore for some reason, again opines that children have no rights in school. kthxbye
In loco parentis might — might — not be an insane educational policy if — if — school were voluntary.
But to compel government-run, or at least government-regulated, education (i.e., to negate parental control), and then turn around and suggest, as Thomas does, that schools should be allowed to exercise full parental control, is so overtly self-contradictory that it is hardly surprising that no other Justice even bothers to respond to it.
The case is Safford Unified School District #1 v. Redding, No. 08–479 (June 25, 2009) (PDF – 44 pages).
Previously:
–Linkfest: Two “School as Prison” Anecdotes
–Linkfest: Supreme Court Roundup
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Regarding Ricci v. DeStefano, yet another tweet:
It’s a funky day indeed when I agree wholeheartedly with Justice Scalia. Not since Kyllo perhaps.
The Court resolved the reverse discrimination case under Title VII of the Civil Rights Act of 1964, rather than under the Equal Protection Clause. Which is to say that the Court ignored the pesky fact that Title VII, as invoked in this case at least, is patently unconstitutional.
As Justice Scalia put it:
The Court’s resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how — and on what terms — to make peace between them.
The best “peace” would of course be to acknowledge the plain language of the Fourteenth Amendment and concede that overt reverse racial discrimination in the name of eliminating (real or imagined) covert racial discrimination is — ahem — racial discrimination and therefore proscribed under the Equal Protection Clause. Disparate impact can never be the justification for disparate treatment — it’s downright Kafkaesque. Two statutory wrongs do not make a constitutional right.
Finally, this was too long for me to tweet, so I had to post it to my Facebook instead:
Ginsburg’s claim that there was no discrimination, because “everybody’s score was equally discarded” is as disgraceful and disgusting as saying that there is no anti-gay marriage discrimination, since gays can equally marry someone of the opposite gender. Absolutely outrageous. Shame on her.
More on that today from George Will.
The case is Ricci v. DeStefano, No. 07–1428 (June 29, 2009) (PDF – 93 pages)
Previously:
–No Gender Left Behind
