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Constitutional Courts, Gay Rights and Sexual Orientation Equality (eBook)


ISBN13: 9781782256434
Published: May 2017
Publisher: Hart Publishing
Country of Publication: UK
Format: eBook (ePub)
Price: £33.29
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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.

Subjects:
Constitutional and Administrative Law, Human Rights and Civil Liberties, eBooks
Contents:
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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