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.
Many pivotal cases have been released at domestic and international level and in many countries equal marriage is probably the most significant – and symbolic – achievement in a long series of piecemeal victories of LGBT movements in the last fifteen years, ranging from decriminalization of sexual acts, to family and parental rights, to the right to have relationships legalized, to social and workplace benefits.
Although in many countries, especially in Europe, these victories were mostly the result of legislative reforms, courts – especially supreme and constitutional courts and the European Court of Human Rights (ECtHR) – have played a key role in forging the legal debate over sexual equality.
Against this background, in my book (Constitutional Courts, Gay Rights and Sexual Orientation Equality, Oxford, Hart Publishing 2017) I aim at analysing, in a comparative perspective, the legal arguments and rationales that constitutional (and supreme) courts developed in their judgements about the rights of gays, lesbians and same-sex couples. Focusing in particular on four main themes (decriminalization of sexual acts, recognition of same-sex couples as ‘families’, same-sex marriage and, finally, parental rights) I analyse how courts expounded fundamental rights to liberty, dignity, privacy, equality and non-discrimination of gays and lesbians. The early cases on decriminalization of sexual acts between consenting adults of the same-sex address discussed in particular the right of privacy and personal liberty of homosexuals. Later cases focused instead on the ‘social dimension’ of homosexual relationships, expounding rights of equality, dignity and liberty of same-sex couples.
I analyse differences and analogies in human rights discourses, but I also show the importance that courts attached to arguments of tradition and nature and how they replied to objections infused with prejudice against same-sex couples.
In same-sex marriage cases, for instance, all the courts addressed opponents’ objection that legal tradition mandates gender difference in marriage. The issue at stake went well beyond the proper definition of marriage: it required the courts to answer the objection that recognition of equal marriage was the consequence of ‘a judicial revolution’ – ie of judicial activism breaking up with traditions and established definitions of family law institutions – and to take position on the opposite argument considering recognition of equal marriage as the ‘inevitable’[1] result of application of constitutional rights of equality, dignity and privacy.
Therefore, the constitutional cases on gay rights analysed in this book also offered me the opportunity to discuss the role of constitutional and supreme courts in promoting constitutional change and responding to public opinion and minorities’ demands. Through a narrative describing the path towards legal recognition of same-sex civil unions or equal marriage in many different jurisdictions, I examine the relationships between some constitutional courts and legislators, arguing that constitutional cases on the rights of same-sex couples both shape and are influenced by the prevailing sentiments of public opinion and politics, in a virtuous circle for the advancement of sexual equality. This is true even when cases do not result in an immediate victory for homosexuals and same-sex couples because courts contribute to dismantle prejudice and to forge legal arguments.
Nonetheless, I do not intend to deny the differences in the role of legislatures and courts in promoting and protecting the human rights of gays and lesbians: Parliaments – for instance, as Eskridge stresses – tend to address equality issues ‘in smaller steps and only after most voters have come to support or acquiesce in it’.[2] Conversely courts, especially constitutional and supreme courts, usually exercise caution in promoting constitutional change, due to their concern for the consequences of backlash on their legitimacy.
At the same time, constitutional and supreme courts should not be assimilated to lower ordinary courts: I argue that in a centralized judicial review system – the prevailing model in Europe – constitutional courts are frequently reluctant to determine radical constitutional changes through their judgements, especially when the issue at stake involves traditional family law institutions. Conversely lower courts tend to address controversial issues. Furthermore, I show that the outcome of constitutional litigation also depends on the specific procedural and institutional arrangements governing the judicial review of legislation in each jurisdiction.
The extensive case-law on sexual orientation equality issues forced me to make a selection of topics and jurisdictions. As far as the choice of the topics is concerned, this book focuses, as mentioned earlier, on four main themes: the decriminalization of sexual acts between consenting adults of the same sex (chapter 2); the recognition of the social value of same-sex relationships and their inclusion within the definition of ‘family’ (chapter 3); same-sex marriage [in particular, the role of constitutional courts in promoting marriage equality and their institutional dialogue with legislators (chapter 4, part 1); constitutional courts and the value of tradition in the definition of marriage (chapter 4, part 2); arguments of equality, dignity and liberty in same-sex marriage constitutional cases (chapter 4, part 3)]; parental rights of gays, lesbians and same-sex couples and the procreative purpose of marriage (chapter 5).
In the last decades, many constitutional and supreme courts have been asked to decide on the constitutionality of differences based on sexual orientation in those four fields. Courts have addressed quite similar human rights issues, with a large similarity of arguments put forward by parties and amici curiae.
Nonetheless my choice is not only justified by the simple commonality of subjects and arguments among the cases. The notions of ‘family’ and ‘marriage’, ‘parent’ and ‘spouse’ have been left largely undefined in many jurisdictions. For instance, as I illustrate in chapter 4, most of the constitutions and international documents do not define marriage in heterosexual terms or they do not even mention marriage. Definitions are instead mostly expressed in civil codes, family law statutes, judicial precedents and all those sources of the law contribute, as traditionalists argue, to the longstanding legal tradition of marriage. Against this legal background, courts undertake the difficult task of interpreting vague (or silent) constitutional provisions and they need to justify their option between endorsing an evolutionary interpretation of marriage and family or leaving the matter to the discretion of the political branches. Therefore, as illustrated earlier, the four subjects also offer me the opportunity to situate the constitutional cases in a broader terrain and to address issues concerning, for instance, the interpretation of the different sources of law, the role of courts and their relationship with legislators.
The selection of the main themes has also influenced the selection of relevant jurisdictions. Within Europe, in particular, I analyse constitutional and supreme courts’ cases from France, Germany, Italy, Spain and Portugal and from Ireland and the United Kingdom. Outside Europe, I mainly focus on the United States, but in many points also discuss cases from Canadian courts and the South Africa Constitutional Court. Finally, as mentioned earlier, I devote great attention to many judgements of the European Court of Human Rights, which largely contributed to promoting sexual equality in Europe, exerting great influence even outside the Council of Europe.
Throughout the book I often look at the experience of my country, Italy, lagging behind many democracies of western constitutional tradition in sexual orientation equality issues. I hope that the Italian legal and political debate could benefit from comparative law for further advancement of the rights of LGBT people and same-sex couples.
Posted by Professor Angioletta Sperti (Univesita di Pisa)
[1] LH Tribe, ‘The Constitutional Inevitability’ of Same-Sex Marriage (2012) 71 Maryland Law Review 471.
[2] WN Eskridge, ‘Backlash Politics: How Constitutional Litigation Has Advanced Marriage Equality in the United States’ (2003) 93 Boston University Law Review 275, 297.
British Association of Comparative Law 