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Constitutional Courts, Gay Rights and Sexual Orientation Equality

Constitutional Courts, Gay Rights and Sexual Orientation Equality

Author: Angioletta Sperti
Publisher: Hart Publishing
ISBN: 9781782256427

Published In: May 2017
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509932115

List Price: HKD 1,300.00

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In the last fifteen years constitutional issues regarding the rights of homosexuals and same-sex couples have emerged on a global scale, and the political and social debate about the recognition of LGBT rights has become so widespread that it should be regarded as the civil rights frontier of our time.

This book considers a wide-range of decisions by constitutional and international courts relating to LGBT rights, including the path from decriminalization of sexual acts to recognition of same-sex marriage, and the topical subject of adoption for homosexual couples.

It explores analogies and differences between judicial arguments and ratios, paying particular attention to the development of human dignity, privacy, equality and non-discrimination in judicial thinking. It argues that courts are major exporters of models and principles on the recognition of homosexual rights, and that judicial cross-fertilization helps courts increase the acceptability of "new 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 those changes. Furthermore, by promoting the achievements of foreign gay movements in their own jurisdictions, courts play an essential role in breaking the political stalemate.

The book will be of interest to those working on constitutional, public and human rights law, as well as judicial studies.

1. Introduction

I. Setting the Landscape

II. The Aims of this Book

III. The Comparative Method

IV. Some Remarks on Courts' Use of Foreign Precedents

V. Outline of the Book

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

I. Dudgeon v UK as a Global Landmark Case

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

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

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

V. The 'Multi-Faceted' Notion of Privacy in Lawrence

VI. The Legacy of Dudgeon in Lawrence

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

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

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

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

I. Different Models of Regulation of Family, the Public–Private Dichotomy and the Purpose of this Chapter

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

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

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

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

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

VII. Some Final Remarks and a First Conclusion

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

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

I. Courts and Constitutional Change

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

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

5. Addressing the Reality of Family Life: Parental Rights

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

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

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

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