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Constitutional Courts, Gay Rights and Sexual Orientation Equality

By: Angioletta Sperti
Media of Constitutional Courts, Gay Rights and Sexual Orientation Equality
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Published: 04-05-2017
Format: EPUB eBook (?)
Edition: 1st
Extent: 256
ISBN: 9781782256434
Imprint: Hart Publishing
Series: Hart Studies in Comparative Public Law
RRP: £31.50
Online price : £25.20
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Loren Epson

About Constitutional Courts, Gay Rights and Sexual Orientation Equality

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.

Table Of 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............ 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


“ 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.” –  Cristina Fasone, 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.” –  Eric C. Christiansen, Professor of Law, Golden Gate University School of Law, San Francisco, 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.” –  Ivana Isailovic, Harvard University, International Journal of Constitutional Law

“The author of this lucid examination of the use of constitutional challenges to advance lesbian, gay and bisexual rights provides an expert, detailed and wide-ranging exploration of the field.” –  Brian Dempsey, University of Dundee, SCOLAG Legal Journal

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