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

12. Conclusion

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. Althoughmanyofthetenetsofthisperspectivewerereflectedingayrightslitigation (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 196 CHAPTER 12 driving force. Certainly, arguments from these other perspectives have created an environment that facilitated the success of liberal arguments in court, particularly by drawing attention toward those at the margins of society and by illuminating the influence of a wide variety of power structures. However, since courts respond most to liberal rights claiming, the liberal framing of gay politics most directly led to positive outcomes. Additionally, the criticism of liberalism from these perspectives is challenged by the developments outlined in this book. Rights are not simply hollow tools usable only for status quo reinforcing or oppression. They instead serve as tools of liberation. LAWRENCE V . TEXAS AND THE POSSIBLE “CANADIANIZATION” OF U.S. GAY RIGHTS JURISPRUDENCE Differences in political culture explain much of the difference between the United States and Canada on the question of gay rights. The dominant libertarian ethic in the United States, combined with a powerful moralistic politics, has clearly inhibited the polity’s ability to move strongly in the direction of relationship equality. The nation known for its embrace of rights does not always embrace the fullest range of rights. Canada, with its new constitution and tradition of embracing a broader liberalism, provided a more accommodating atmosphere for arguments in favor of relationship equality for same-sex couples. Increasingly, the United States is the outlier among Western liberal democracies on this issue. However, Lawrence reflects a significant shift in U.S. jurisprudence. The historically gay rights–hesitant Supreme Court looked more like its northern counterpart . Indeed, one of the striking elements of the Lawrence decision was the Court’s citation of international gay rights jurisprudence. Although Antonin Scalia cited Canadian same-sex marriage precedents disapprovingly, the majority was clearly influenced by them, applying a richer liberalism to U.S. gay rights jurisprudence. This is not to say that the U.S. Supreme Court will automatically rule in favor of same-sex marriage anytime in the...