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Courts Liberalism And Rights: Gay Law And Politics In The United States and Canada

Jason Pierceson

Publication Year: 2005

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.

Published by: Temple University Press


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1. Introduction

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pp. 1-20

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 making to areas of public policy that have traditionally been the province of more ''political''

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2. U.S. Federal Courts and Gay Rights: A History of Hesitancy

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pp. 21-32

THE ACTIVITY OF the U.S. Supreme Court and other federal courts demonstrates the influence of political culture on courts, in that even they are often unable to transcend the barriers of a dominant political discourse. The Supreme Court has been generally unwilling to view gay rights claims in a way that extends beyond a negative conception of freedom and rights (and has not even been willing to apply this negative conception in some cases) and has been, until quite recently, ...

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3. Liberalism and Gay Politics: Rights and Their Critics

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pp. 33-48

MY ARGUMENT in this book is that liberalism is an ideology capable of accommodating claims of lesbian and gay equality, particularly the claims associated with same-sex marriage, and that courts can be effective vehicles for promoting this equality. But liberalism is, and continues to be, under attack. Queer and critical theorists view liberalism as a mask for power and oppression of minorities, while communitarians, both left and right, see liberalism as a thin ideology, overly...

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4. Toward a Better Liberalism

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pp. 49-61

IN CHAPTER 3, I critiqued opponents of liberalism and examined why their approaches may not be useful for gay rights claims. In this chapter, I outline the version of liberalism most able to sustain a full range of gay rights claims. I will present an alternative approach to liberal thought grounded in the strain of U.S. political thought articulated by Abraham Lincoln. I also discuss the liberalism of Andrew Sullivan, arguing why his approach to liberal politics is limited and is an...

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5. Sodomy Laws, Courts, and Liberalism

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pp. 62-76

STARTING IN THE EARLY 1990s, many state courts began to question the constitutionality of sodomy laws, generally using a libertarian defense of privacy. This has been, in large part, in response to litigation strategies of gay rights groups to eliminate sodomy laws. These events have particular relevance for this discussion: First, when courts have struck down sodomy laws, there has been little political backlash. But when courts are less aggressive, political battles between...

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6. Lessons from Continued Sodomy Adjudication

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pp. 77-103

AS LITIGATION EFFORTS spread to other states, a mixed record developed. Some state high courts went the way of Kentucky and Tennessee, while others were more hesitant, not wishing to challenge political and legal moralism. However, sodomy law repeal efforts without litigation achieved even fewer results for reformers. This demonstrates the significant power of courts to achieve change, especially when that change is framed in a way that reinforces powerful strains of...

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7. Courts and Same-Sex Marriage in the United States: Hawaii and Alaska

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pp. 104-129

THE DYNAMICS SURROUNDING same-sex marriage litigation are quite different from the litigation concerning sodomy laws. Unlike sodomy law cases, the political reaction to gay marriage cases has been significantly more pronounced. In the 1990s, courts began to find in favor of same-sex marriage claims. Yet, the political reaction to legal rulings favorable to same-sex marriage has provoked a tremendous national political response. Why has this been so different from...

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8. Courts and Same-Sex Marriage in the United States: Vermont

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pp. 130-143

SHORTLY AFTER the Hawaii Supreme Court declared that the people of Hawaii had overruled its decision, the Supreme Court of Vermont handed down another landmark same-sex marriage case. In Baker v. State of Vermont, the court maintained that limiting marriage only to opposite-sex couples violated the Vermont Constitution, and the court compelled the legislature to remedy the situation.1 This chapter examines this litigation, the political response that resulted in significant...

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9. Developments after Vermont: An Evolving Jurisprudence and Its Backlash

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pp. 144-164

INDEED, AFTER VERMONT, the process continued. Legal and political developments especially accelerated in 2003 with a decision by the Massachusetts Supreme Judicial Court mandating the recognition of same-sex marriages. This was followed by litigation in other states that resulted in decisions favorable to same-sex marriage advocates, legislative policy change in some states granting rights and recognition to same-sex couples, as well as a continued backlash in...

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10. Canada: Rethinking Courts, Rights, and Liberalism

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pp. 165-186

THE PAST HALF DECADE has seen remarkable developments in Canada concerning gay rights claims, particularly with same-sex marriage. Same-sex marriages have been legalized in a majority of provinces and the government will likely make this national policy. This chapter examines these developments and contrasts them to the United States. Most notably, I argue that the differences stem primarily from the combination of a richer liberalism in Canadian political culture and...

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11. Courts, Social Change, and the Power of Legal Liberalism

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pp. 187-194

THIS CHAPTER directly addresses Gerald Rosenberg's argument that courts are quite ineffective at achieving social change and that minority groups that look to the courts for change will be disappointed. In connection with same-sex marriage litigation, he has argued that litigation has had very little effect and has, in fact, led to a strong political reaction against it. Indeed, Rosenberg points out that nearly a decade after the litigation began, no right existed for same-sex...

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12. Conclusion

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pp. 195-198

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...


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pp. 199-246


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pp. 247-256

E-ISBN-13: 9781592134021

Publication Year: 2005