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

By Jason Pierceson | Go to book overview

12

Conclusion

THE PAST FEW YEARS have brought some remarkable developments on the gay rights front in the United States and Canada. Canadian courts mandated same-sex marriage in nearly the entire country and some U.S. courts have ruled in a similar fashion, adding momentum for the legal attainment of marriage equality in the United States. Additionally, the U.S. Supreme Court, long an outlier on gay rights, handed down the dramatic Lawrence v. Texas decision, which could have been handed down by a Canadian court, given its reliance on rich notions of liberalism. In this final chapter, I discuss the implications of these developments and refocus the main themes of the book: the ability of courts to achieve social change, especially in the context of rights claiming; the differences in outcomes in the two nations that stem from differences in their liberal traditions; and the need to, especially in the United States, refocus on courts as vital institutions for the promotion and preservation of social justice.


REASSESSING COURTS AND SOCIAL CHANGE

Recent developments concerning the political and legal status of sexual minorities provide us with an opportunity to challenge the assumptions of the realist/political jurisprudence assumptions that have so dominated public law in recent decades. Although many of the tenets of this perspective were reflected in gay rights litigation (the role of public opinion as a constraint on courts, institutional deficiencies of courts for broad policymaking, etc.), constitutive insights help explain other developments. The ability of courts to set new agendas, frame political conflicts in liberal legal language that empowered sexual minorities, the leverage that litigation provided this minority, and the radiating effects of these arguments all have led to significant, thought not complete, social change. Certainly, the backlash in the United States is real, given ideological parameters, but, over the course of ten years, public attitudes and policies have changed markedly. These changes are difficult to imagine in the absence of litigation. Recall the resistance to policy change in the United States on both sodomy law reform and relationship equality absent the cover of litigation. In addition, this litigation also allows us to continue the reconsideration of the role played by cause lawyers. The lawyers examined here were politically astute and chose their forums carefully (perhaps being too hesitant initially on the issue of relationship equality), but legal considerations were paramount once litigation commenced. And it was the legal arguments that most directly propelled the successful outcomes.

This change occurred not because of communitarian, feminist, or queer arguments. Rather, a rich, rights-based liberalism was the primary philosophical

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

Table of contents

  • Title Page iii
  • Contents v
  • Acknowledgments vii
  • 1: Introduction 1
  • 2: U.S. Federal Courts and Gay Rights a History of Hesitancy 21
  • 3: Liberalism and Gay Politics 33
  • 4: Toward a Better Liberalism 49
  • 5: Sodomy Laws, Courts, and Liberalism 62
  • 6: Lessons from Continued Sodomy Adjudication 77
  • 7: Courts and Same-Sex Marriage in the United States 104
  • 8: Courts and Same-Sex Marriage in the United States 130
  • 9: Developments After Vermont 144
  • 10: Canada 165
  • 11: Courts, Social Change, and the Power of Legal Liberalism 187
  • 12: Conclusion 195
  • Notes 199
  • Index 247
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