Constitutional Courts, Gay Rights and Sexual Orientation Equality

by Angioletta Sperti

Overview

In the last fifteen years constitutional issues regarding the rights of gays, lesbians and same-sex couples have emerged on a global scale. The pace of recognition of their fundamental rights, both at judicial and legislative level, has dramatically increased across different jurisdictions, reflecting a growing consensus toward sexual orientation equality.

This book considers a wide-range of decisions by constitutional and international courts, from the decriminalization of sexual acts to the recognition of same-sex marriage and parental rights for same-sex couples. It discusses analogies and differences in judicial arguments and rationales in such cases, focusing in particular on human dignity, privacy, liberty, equality and non-discrimination.

It argues that courts operate as major exporters of models and principles and that judicial cross-fertilization also helps courts in increasing the acceptability of gays' and lesbians' rights in public opinions and politics. Courts discuss changes in the social perception of marriage and family at national and international levels and at the same time confirm and reinforce them, forging the legal debate over sexual orientation equality. Furthermore, by promoting the political reception of the achievements of foreign gay movements in their own jurisdictions, courts play an essential role in breaking the political stalemate.

Product Details

ISBN-13:	9781509932115
Publisher:	Bloomsbury Academic
Publication date:	09/19/2019
Series:	Hart Studies in Comparative Public Law
Pages:	256
Product dimensions:	6.14(w) x 9.21(h) x 0.53(d)

About the Author

Angioletta Sperti is Associate Professor of Comparative Public Law at the University of Pisa.

Table of Contents

Dedication v

Acknowledgements vii

Table of Cases xiii

Table of Legislation xxi

1 Introduction 1

I Setting the Landscape 1

II The Aims of this Book 4

III The Comparative Method 6

IV Some Remarks on Courts' Use of Foreign Precedents 8

V Outline of the Book 15

2 The Private Dimension of Homosexuality: Courts and Decriminalisation of Sexual Acts 19

I Dudgeon v UK as a Global Landmark Case 19

II Dudgeon and the Recognition of Homosexuality as 'An Essentially Private Manifestation of Human Personality' 21

III The Notion of Privacy in Dudgeon and the Perpetuation of the "Sexual Closet' 26

IV Lawrence v Texas and the Liberty of all Individuals in their Personal Relationships 30

V The 'Multi-Faceted" Notion of Privacy in Lawrence 33

VI The Legacy of Dudgeon in Lawrence 36

VII The Supreme Court of South Africa's Case in National Coalition and the Influence of Dudgeon 41

VIII The Right to Privacy in National Coalition: A Common Thread 43

IX The 'Boomerang Pattern Influence' of Dudgeon at International Level 45

3 Out of the Closet: Courts and the Same-Sex Couple as 'Family' 49

I Different Models of Regulation of Family, the Public-Private Dichotomy and the Purpose of this Chapter 49

II The Supreme Court of Canada and the Inadequacy of 'Unexamined Consensus' in the Definition of 'Family' 56

III 'Private Life' v 'Family Life' in the European Court of Human Rights' Early Cases 61

IV Schalk and Kopf v Austria and Recognition of the Same-Sex Couple as 'Family' 65

V From the 'Perception of the Ordinary Man' to a Functional Definition of 'Family': The Fitzpatrick Case 67

VI Same-Sex Couples as 'Spouses' in Ghaidan v Godin-Mendoza 71

VII Some Final Remarks and a First Conclusion 74

VIII A Digression on a Narrow Interpretation of 'Family' 76

4 Same-Sex Marriage: Judicial Revolution or Constitutional Inevitability? 80

I Courts and Constitutional Change 80

A From Civil Partnerships to Same-Sex Marriage: Courts, Constitutional Change and Judicial Backlash 80

B The Path Towards Equal Marriage: On the Dialogue Between Courts and Legislators in Some European Countries 86

i Spain (2005) 86

ii Portugal (2010) 89

iii France (2013) 92

iv Germany (2001) 97

C The Different Roles of Constitutional and Ordinary Courts in Promoting Equal Marriage in Europe 102

II Arguments in Same-Sex Marriage Cases: Tradition v Constitutional Change 109

A The Argument of Tradition in Constitutional Cases. Introductory Remarks 109

B What is 'Tradition'? 115

i Legal Tradition and the Difficult Identification of an 'Essential Core' of Marriage 115

ii Cultural and Religious Tradition, its Indeterminacy and the Vicious Cycle that Perpetuates Discrimination 119

C The Debate on Unenumerated Rights in the United States and its Teachings on the Normative Value of Tradition 122

D The Normative Value of Tradition and the Risk of a 'Circular Reasoning' 132

E Progressive Interpretations of Constitutional Clauses on 'Marriage' and Separation of Powers Concerns 134

F 'A New Image of Marriage' and Judicial Cross-Fertilisation 137

III Arguments in Same-Sex Marriage Cases: Equality, Liberty and Human Dignity 140

A Equality and Diversity in the Present Debate over Civil Rights 140

B Equality and its Implications in Same-Sex Marriage Cases 141

i Equality and the 'Expressive' Value of Marriage 142

ii Equality of Rights and Responsibilities Flowing from Marriage 146

C Dignity as Synthesis of Liberty and Equality 149

D The Different Meanings of Dignity in Same-Sex Marriage Cases 154

i Dignity as a 'Claim of Recognition' and Equality 156

ii From Exclusion to Inclusion: Dignity as Equal Value 158

iii Dignity as Liberty and Self-Determination 161

E The Different Purposes of Dignity in Same-Sex Marriage Cases 164

5 Addressing the Reality of Family Life: Parental Rights 171

I The Debate over Parental Rights and the Principle of the Best Interests of the Child 171

II The Constitutional Courts and the 'Procreative Nature' of Marriage 176

III The Optimal Parenting Argument and the Child's Right to a 'Normal' Family Life 182

A The Early Cases on Child Custody and Single-Parent Adoption 182

B Second-parent Adoption 187

C Joint Adoption 192

6 Concluding Remarks 196

Bibliography 197

Index 209

Editorial Reviews

...it is impressive how the author manages at the beginning and at the end of each chapter to guide the reader through her sophisticated reconstruction of the legal arguments, the reasoning of courts, and the explanation of certain trends emerging from the comparison...another great value of the volume is the ability to provide a detailed analysis of gay rights and sexual orientation equality by offering a massive diachronic and synchronic comparison of constitutional provisions, legislation and case-law encompassing a variety of countries with different legal traditions.
Rivista di Diritti Comparati

Angioletta Sperti's new book is published at an excellent time...In addition to explaining recent legal developments related to "sexual orientation equality, +? she wishes to uncover and use recent sexual orientation legal developments to elucidate insights about transnational constitutional borrowing and inter-branch dialogue in constitutional democracies. The pleasant surprise of this book is that Sperti accomplishes both, and does so insightfully and convincingly.
I-CONnect Blog

Comparative and equality law scholars will surely appreciate many aspects of this work, which engages with an impressive range of courts' decisions and foreign domestic and international material and proposes a comprehensive legal analysis of the issue. Sperti also brings to the table a very nuanced understanding of how constitutional law can address and correct social prejudices, and how courts interact with cultural changes and socially accepted notions of sex, family and marriage.
International Journal of Constitutional Law

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