Will Constitutional Scholar Obama Catch Up With Indian High Court-- Before It's Too Late?

American gays don't expect much help from the ultra-right Roberts Court and fewer and fewer are optimistic about the all talk and no action Obama Administration but at least everyone can cheer for Indians and India. Their High Court just ruled in favor of millions of gay men and women in the second most populous place on earth. Homosexuality has now been decriminalized. Let's hope Roberts, Scalia, Alito, Thomas and Kennedy-- as well as Obama and Emanuel-- all read the opinion of the Indian High Court: “Discrimination is the antithesis of equality. It is the recognition of equality which will foster dignity of every individual,” the decision said. Obama? What are you waiting for? Because in 2010 there are going to be millions of pissed off gay people who will not pull any levers for any Democrats and that'll be the end of you and all your talk about Hope.

JUST TO CLARIFY --

This ruling was handed down by the High Court of the state of Delhi, not the Supreme Court of India, and so applies only to citizens of the state of Delhi, not to the country. Although... Indian media is now urging the national government to get rid of all vestiges of Victorian-era, non-Indian homophobic laws.

RECORRECTION: APPARENTLY THE DELHI COURT'S RULING
DOES APPLY THROUGHOUT INDIA (AT LEAST FOR NOW)

Rex Wockner says we've all got it wrong, that the ruling by Delhi state's High Court stands until it's either challenged by an Indian court of equal jurisdiction or is overruled by the Supreme Court ("which is where this case is going to end up anyway," says his Indian source, Vikram Doctor).

Several major Western media outlets got this wrong, reporting that the ruling applied only in New Delhi. Erroneous reports appeared in The New York Times, The Washington Post, the Los Angeles Times, on the Associated Press and elsewhere.

A correct Times of India story here. A correct Reuters story here.

I also got on the phone tonight with Vikram Doctor of India's Queer Media Collective. Vikram said: "Every major media outlet in the world got this wrong because they don't understand how the Indian courts work. It will apply nationally until somebody challenges that at the Supreme Court, which is where this case is going to end up anyway."

My indispensable factchecker guy, Bill Kelley, who also happens to be a lawyer, says that most common-law courts work thusly: "The decision of an appellate court binds lower courts within its territorial jurisdiction but also (a) it acts as the 'last' word on the subject nationally unless a court of equal authority elsewhere makes a contrary decision or the supreme court reverses the decision and (b) it binds the parties to the case (e.g., the Government of India) regardless of where they may 'go' within the country. For these two reasons, the Delhi High Court decision appears to have nationwide application."

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