Supreme Courts Around the World: A Spring of Equal Rights
17 Thursday Apr 2014
A month today sees the 60th anniversary of the US Supreme Court’s 1954 landmark ruling in Brown v Board of Education, in which the Court declared racially segregated schools to be unconstitutional. To mark this anniversary, South Carolina has unveiled a life-sized monument to honour Judge Waties Waring in the garden of its federal courthouse in Charleston. The federal judge issued a fiery dissent in 1951 in Briggs v Elliott, the first case that challenged racial segregation in schools, and this dissent formed the foundation of the US Supreme Court’s ruling in Brown a few years later. Judge Waring’s work also includes introducing black jurors to juries in Charleston and mandating equal pay for black and white teachers. 60 years on, the critical work of Waring is ongoing, which is highlighted by several recent cases from supreme courts around the world in which individuals’ civil rights have been upheld.
In a landmark decision earlier this week on 15 April 2014, the Indian Supreme Court recognised transgender as the third category of gender. In its decision in National Legal Services Authority v Union of India and Others, the court directed the state government to take essential steps to bring the community into the mainstream by providing adequate healthcare, education and employment. “It is the right of every human being to choose their sex” read the judgment, adding “transgenders are also citizens of India [who must be] provided equal opportunity to grow.” Earlier this month the Australian High Court also recognised a third category of gender, permitting the registration of a person’s sex as “non-specific.”
However, despite this progression in civil rights in the Indian Supreme Court, on 11 December last year the same court overturned the Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi, and held that sex with the same gender is an offence punishable by law. The Indian Supreme Court ruled the decision of the Delhi High Court to be unconstitutional and reinforced that it was a position that needed to be legislated for the purposes of clarity.
Elsewhere, same-sex marriage is still the issue of the day. Federal courts in the US are currently being flooded with cases seeking to overturn same-sex marriage bans following last summer’s US Supreme Court showdown in US v Windsor, which struck down a portion of the Defence of Marriage Act (the Supreme Court held that the restriction in section 3 of DOMA of the terms “marriage” and “spouse” to heterosexual unions only is unconstitutional). Since the US Supreme Court gave its decision in US v Windsor on 26 June 2013, five states (Utah, Oklahoma, Texas, Virginia, and Michigan) have struck down bans on same-sex marriage. Recent decisions, such as the order made by the federal court in Indiana last Thursday in Baskin v Bogan to the effect that the state was to recognise immediately out-of-state same-sex marriage, are joining a raft of US decisions that are pushing the issue closer to the steps of the US Supreme Court.
Earlier this month, the US Supreme Court declined to consider an appeal from a photography studio in New Mexico that refused to photograph a lesbian couple’s commitment ceremony. In so doing, the US Supreme Court said that it would not review the decision of the New Mexico Supreme Court that refusing to photograph the same-sex ceremony was a violation of New Mexico’s public accommodations law, which prevents discrimination by those who offer their services to the public.
Closer to home, the same-sex marriage debate is on-going in the UK. Northern Ireland is now the only remaining part of the UK where marriage rights for same-sex couples have yet to be granted, and UK Supreme Court judge Lord Wilson recently made a strong case in favour of gay marriage. Speaking in February at Queen’s University, Belfast, he commented that “far from destroying marriage, I think that to allow same sex couples into it strengthens it” and wondered how long Northern Ireland would “be able to hold back the tide in favour of same-sex marriages”.