[Note: In this installment of I•CONnect’s Book Review Series, Eric C. Christiansen reviews Angioletta Sperti’s “Constitutional Courts, Gay Rights and Sexual Orientation Equality” (Hart Publishing, 2017).]
—Eric C. Christiansen, Professor of Law, Golden Gate University School of Law, San Francisco, California USA and Visiting Fulbright Professor, University of Valencia, Spain.
Angioletta Sperti’s new book is published at an excellent time. Recent years have seen a wave of conspicuous legal victories for gays and lesbians as well as a marked increase in legislation addressing LGBT rights both expansively and restrictively. It is rare for so many jurisdictions to take up such closely related constitutional issues on such a compressed timeline. In less than two decades, nearly every European and North (and South) American jurisdiction has addressed the rights of gays and lesbians generally and the issue of marriage equality specifically. While progressive change is far from universal even in those geographic regions—and regressive responses dominate the remainder of the globe—it is an exceptionally good time to pause and closely evaluate these developments from the perspective of comparative constitutional law.
In her book, Constitutional Courts, Gay Rights and Sexual Orientation Equality, Sperti engages deeply in such investigation. Moreover, Sperti and her book have an even more ambitious agenda. In addition to explaining recent legal developments related to “sexual orientation equality,” she wishes to uncover and use recent sexual orientation legal developments to elucidate insights about transnational constitutional borrowing and inter-branch dialogue in constitutional democracies. The pleasant surprise of this book is that Sperti accomplishes both, and does so insightfully and convincingly.
Sexual Orientation Equality focuses on four distinct legal issues: decriminalization of same-sex sexual activity, the inclusion of same-sex couples in a legal understanding of “family;” marriage equality; and parenting rights for gay and lesbian persons and couples. This relatively modest scope allows for greater depth of analysis and raises the quality of the contribution to comparative constitutionalism.
The decriminalization of same-sex sexual activity is the focus of the first substantive chapter in Sperti’s work. Judicially-mandated legalization of “an essentially private manifestation of human personality,” as the European Court of Human Rights called it in Dudgeon, was the vital, inaugural step in modern gay equality jurisprudence. Indeed, the initial chapter focuses heavily on the ECHR and gives Dudgeon and its progeny the attention they merit. While these cases are not constitutional court cases technically, the rulings are important—historically, and in this work—because they represent the earliest affirmative gay rights cases and their results and reasoning had an inordinate and positive influence on later jurisprudential developments.
While Dudgeon is indispensably important, it also gave rise to a potentially rights-limiting “private-public dichotomy” that the author addresses in her second substantive chapter, focusing on the legal definition of “family” for several constitutional courts. This requires Sperti to examine the more social, public, and functional elements of gay and lesbian experience, i.e., the reality of “lived lives,” and the judicial evaluation of them. She illuminates the disappointing protection of family-related rights that result from the ECHR’s reliance on “private life” and the U.S. Supreme Court’s focus on “personal liberty” in this era.
In its strongest section, Sexual Orientation Equality critically examines the significant legal developments that led to the marriage equality victories for same-sex couples in the early decades of this century. Here, Sperti’s work is at its most rigorous and most discerning; “analyzing, in a comparative perspective, the legal arguments and rationales that constitutional (and supreme) courts developed in their judgments about the rights of gays, lesbians and same-sex couples.”
The author uses the timing judicial and legislative actions, a close reading of numerous court decisions and statutes, and contextual and other evidence to support several compelling socio-legal arguments. For Sperti, the impact of institutional context upon constitutional court decisions and judicial influence on legislatures and public opinion are central to the advancement of sexual orientation equality. While the author’s critical evaluation of legal arguments in marriage litigation is a valuable contribution to comparative sexual orientation law, her more novel and valuable insights address the role, capacity, and influence of judicial institutions as illuminated by those cases.
Regarding institutional context, Sperti concludes that lower courts are more responsive to progressive justice claims than final review constitutional courts. Capstone courts are more sensitive to risks to their institutional legitimacy. Nevertheless, Sperti asserts, the higher courts wield significant influence in shaping and even guiding public debate about sexual orientation equality. Such guidance occurs through indirect means, like the use of “constitutionally conforming interpretation” in progressive ways, and through more obvious forms, such a judicial signaling of the constitutional possibility of gay-inclusive marriage laws. The former empowers the judiciary to make affirmative change through unobtrusive means and the latter provides a cover for the legislative branches. Sperti’s institutional claims are adroitly supported with recent historical examples.
Concerning inter-branch dynamics, Sperti is a strong believer in the “virtuous circle” of legislative-judicial cross-influence and its dynamic interrelation with public opinion. Understanding the means by which constitutional cases influence and are influenced by politics and public opinion, is an essential component of understanding the success of gay and lesbian rights claims in recent years. This dynamic further enriched notions of equality because of the cross-pollination of constitutional norms among courts of various nations
It is Sperti’s conclusion that “in cases concerning sexual orientation equality, use of comparative materials, especially of foreign precedents, often plays an evidentiary and confirmatory role.” Domestic review of foreign case law is used to identify legal trends, to demonstrate alignment with transnational norms, or to support domestic rulings by showing alignment with additional authorities. Of course, academic inquiry into the nature and significance of transnational conversations among constitutional courts and dialogue between judicial and legislative actors is important but commonplace in comparative constitutional study. But in Sperti’s book, we encounter these common questions answered with richly substantiated insight.
Sperti also offers lessons into evolving transnational dignity norms, which are increasingly central to sexual orientation rights claims. As Sperti notes, the rise of dignity and the legal potential of marriage equality for same-sex couples are historically contemporaneous occurrences. Rather than generalizing about the meaning of dignity from disparate cases, Sperti derives new (or at least newly justifiable) findings about the adjudicatory uses of dignity norms. Her rigorous evaluation of the utility of dignitarian norms in these cases is rich with insight. It is one of the many strengths of her central marriage chapter.
The author’s final chapter, and the only less-than-satisfactory one, focuses on the recognition of parental rights for gay individuals and same-sex couples. This shorter chapter’s analysis is predominantly descriptive and offered fewer insights about the (admittedly more scattered) jurisprudence of constitutional courts in this area of law. It felt more like a coda that an additional substantive section of the book.
Indeed, the prominence of the marriage equality analysis in the book, both in weight of analysis and as the basis for Sperti’s larger institutional and socio-legal lessons, makes it somewhat challenging to evaluate the other, ancillary chapters on sexual activity and adoption on their own merits. Indeed, I believe the book would have been even more compelling if it were fully re-oriented as a marriage equality book. (Even as it is, “Insights from Rights Adjudication, Sexual Orientation Law, and Marriage Equality” may have been a more apt title for this volume.)
As a final note, the work (and the reader) would have benefited from a substantive conclusion. The author has so convincingly demonstrated her mastery of these topics, that I was eager to review the aggregate lessons of her four areas of focus, or alternatively, to compare and contrast the discrete lessons from the four topics. It would have further enriched a very worthwhile read. Nevertheless, this book presents compelling and novel insights into both elements of Sperti’s inquiry: the larger themes of institutions and constitutional norms as well as the specific human rights claims of gay and lesbian people. Like the gay and lesbian plaintiffs in most of the Twenty-first Century cases examined in her book, Sperti has been deservedly successful in her endeavor.
Suggested Citation: Eric C. Christiansen, Review of Angioletta Sperti’s “Constitutional Courts, Gay Rights and Sexual Orientation Equality”, Int’l J. Const. L. Blog, Nov. 10, 2017, at: http://www.iconnectblog.com/2017/11/book-review-eric-c-christiansen-on-angioletta-spertis-constitutional-courts-gay-rights-and-sexual-orientation-equality
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