On the Supreme Court's Judgment on Same-Sex Marriage
Institutions are downstream of politics, not arbiters of normative contests
There is palpable disappointment among LGTBQ+ rights campaigners and liberals on the Supreme Court’s refusal to grant their prayer for legal protection for same-sex marriage. The Court cited “institutional limitations” to hold that same-sex marriage was a subject matter for the legislature.
I am personally unequivocally in favour of same-sex marriage and would have celebrated with my gay friends if the Supreme Court would have ruled otherwise. However, I also disagree with the liberal proclivity of using the Supreme Court and other elite institutions to fight political battles instead of slugging it out in the court of public opinion. These victories - especially those pertaining to big social changes - when achieved through institutional intervention without the requisite public mobilisation have a tendency of backfiring.
Institutions are downstream of politics. Politics is downstream of culture. We shouldn’t lose sight of this.
I am linking below two articles on this below, one wherein I argue that institutions are downstream of politics and thus cannot be used to change normative consensus; and the second, wherein I argue that the Supreme Court is not the site to fight political battles
Institutions are downstream of politics
In a democracy, power is derived directly or indirectly from The People. The source of political power is thus the organisation of public opinion. However, most institutions in a democracy are downstream of politics - their role is to enforce not build political consensus. Institutions thus do not have an independent source of political power and rely instead on the backing from political intermediaries for their mandate. Institutions may be tasked to produce “truth” in line with defined processes such as investigating agencies. Other institutions may be required to adjudicate between competing claims in line with the existing normative consensus. Examples include the judiciary which applies laws passed by state and central legislatures or the election commission which is mandated to ensure a level-playing field for all political parties and candidates. Still other institutions may be empowered for oversight of fixed functions like the RBI for monetary policy and so on. In each of these instances, the institution and its role is an outcome of political consensus wherein the political intermediaries have agreed to delineate some function of governance and bequeath to this institution.
Supreme Court is not a site for political battles
The inadvisability of taking political issues to the court extends to questions pertaining to societal norms as well. Using the court to ram one particular perspective (however evolved) without developing wider political consensus can often backfire. In the United States, the conservative majority Supreme Court overturned abortion rights in a landmark conservative victory. However, the decision became a major voting issue leading to a record-breaking performance by the Democrats in midterm elections. This indicates that in a democracy, mainstream public opinion will ultimately find a way of asserting itself, even if with a lag. In India, there has been a larger reliance on intermediary and gatekeeping institutions to impose liberal values on society without supporting political mobilisation or political capital.