Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada

Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada

Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada

Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada


In the courts, the best chance for achieving a broad set of rights for gays and lesbians lies with judges who view liberalism as grounded in an expansion of rights rather than a constraint of government activity.

At a time when most gay and lesbian politics focuses only on the issue of gay marriage, "Courts, Liberalism, and Rights "guides readers through a nuanced discussion of liberalism, court rulings on sodomy laws and same-sex marriage, and the comparative progress gays and lesbians have made via the courts in Canada.

As debates continue about the ability of courts to affect social change, Jason Pierceson argues that this is possible. He claims that the greatest opportunity for reform via the judiciary exists when a judiciary with broad interpretive powers encounters a political culture that endorses a form of liberalism based on broadly conceived individual rights; not a negative set of rights to be held against the state, but a set of rights that recognizes the inherent dignity and worth of every individual.


In increasing numbers of nations, courts are significantly involved in the making of public policy. Particularly given the rise in the status of rights in modern liberal discourse, courts have been able to apply legal reasoning and decision makingtoareasofpublic policy that have traditionally been the province of more “political” branches of government. Judicial review, while largely originating in the United States, has spread to other liberal democracies in recent decades. In fact, while the U.S. federal courts have withdrawn from a period of rights-based activism and have been applauded by scholars of both the political left and right, high courts in other countries have picked up where the American courts have left off, often surpassing the Americans in their level of aggressive judicial policy making.

This phenomenon can be clearly seen with the issue of the legal status of sexual minorities. Many of the most groundbreaking and aggressive decisions concerning gays and lesbians have come from courts outside the United States. In the case of M. v. H. the Canadian Supreme Court held that a statute defining a spouse as only a member of the opposite sex was impermissible under Section 15(1) of the Canadian Charter of Rights and Freedoms. This resulted in direct policy changes. The federal and provincial governments have amended scores of statutes to include same-sex couples where benefits are given for common law marriages, which include many of the same rights given for solemnized marriages, and two provinces, Quebec and Nova Scotia, have adopted Vermont-style civil union laws. Building on M. v. H., courts in several provinces and one territory have recognized same-sex marriages, and the federal government is poised to extend this policy to the entire nation.

It is difficult to envision the U.S. Supreme Court handing down such a ruling. As recently as 1986, the Court ruled in Bowers v. Hardwick that there is no right to privacy for same-sex sex acts in the Constitution. Although some activists and commentators see the decision in Lawrence v. Texas, which overturned Bowers, as a step in the direction of court recognition of same-sex marriage, this appears unlikely in the short term. U.S. federal courts have been generally unresponsive to aggressive gay rights adjudication. In fact, state courts, rather than federal courts, have handed down the bulk of decisions favorable to lesbians and gay men. In the past decade, the high courts of several states have struck down sodomy laws, and three state supreme courts and several lower state courts have ruled that prohibition of the recognition of same-sex relationships is unconstitutional. Both developments will be examined in later chapters.

Ultimately, this book attempts to address the following questions: What accounts for the differences in the approaches of national courts systems in the . . .

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