Constitutional Courts, Gay Rights and Sexual Orientation Equality

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

...it 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.

• 1. Introduction I. Setting the Landscape II. The Aims of this Book III. The Comparative Method IV. Some Remarks on Courts’ Use of Foreign PrecedentsV. Outline of the Book 2. The Private Dimension of Homosexuality: Courts and Decriminalisation of Sexual Acts I. Dudgeon v UK as a Global Landmark CaseII. 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 LawrenceVI. The Legacy of Dudgeon in Lawrence VII. The Supreme Court of South Africa’s Case in National Coalition and the Influence of DudgeonVIII. 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 ChapterII. 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............ 71VII. 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 RightsI. 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