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.
Angioletta Sperti is Associate Professor of Comparative Public Law at the University of Pisa.
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............ 71 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