Constitutional Courts, Gay Rights and Sexual Orientation Equality

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