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 In fact, while the U.S. federal courts have withdrawn from a period of rights-based activism and have been applauded by scholars of both the political left and right, high courts in other countries have picked up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.1 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.2 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.3
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.4 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