The Right to Relate: A Lecture on the Importance of “Orientation” in Comparative Sexual Orientation Law

The right to establish and develop relationships with other human beings was first articulated—as an aspect of the right to respect for private life— by the European Commission of Human Rights in 1976. Since then such a right has been recognized in similar words by national and international courts, including the U.S. Supreme Court (Roberts v. United States Jaycees), the European Court of Human Rights (Niemietz v. Germany), the Constitutional Court of South Africa (National Coalition for Gay and Lesbian Equality v. Minister of Justice), and the Inter-American Court of Human Rights (Fernández Ortega v. Mexico). This lecture traces the origins of this right, linking it to the meaning of the word orientation and to the basic psychological need for love, affection, and belongingness. It proposes to speak of the right to relate and argues that this right can be seen as the common theme in all issues of sexual orientation law (ranging from decriminalization and anti-discrimination to the recognition of refugees and of same-sex parenting). This right can be used as the common denominator in the comparative study of all those laws in the world that are anti-homosexual or that are same-sex-friendly. The right to establish (same-sex) relationships implies both a right to come out and a right to come together. The right to develop (same-sex) relationships is being made operational through legal respect, legal protection, legal recognition, legal formalization, and legal recognition of foreign formalization

Family, Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples under U.S. Law

"Family, Unvalued" documents the crippling barriers same-sex binational couples face in pursuing a goal enshrined in America's founding document -- happiness. One fact sets them apart from other binational families. A heterosexual couple where one partner is foreign, one a U.S. citizen, can claim the right to enter the U.S. with a few strokes of a pen. But a lesbian or gay couple's relationship -- even if they have lived together for decades, even if their commitment is incontrovertible--is irrelevant. Instead they face a long limbo of legal indifference, harassment, and fear. Delays, bureaucracy, inconsistency, and injustice make the U.S. immigration system a nightmare for millions. Debate over that system is intensifying. Family, Unvalued shows how its failures affect, and sometimes destroy, families which prejudice has deprived of any legal protection. This report reveals how today's discrimination grows from a long history of anti-immigrant campaigns. Most of all, Family, Unvalued lets the reader hear the sometimes horrifying, always enlightening testimony of lesbian and gay families: people simply seeking to build a better future ... together

Varieties of Constitutional Experience: Democracy and the Marriage Equality Campaign

Beginning in the 1970s, the overwhelming success of anti-gay ballot questions made direct democracy the most powerful bête noire of the LGBT rights movement. It is thus deeply ironic that, more than any other factor, an electoral politics-style campaign led to the national mandate for marriage equality announced by the Supreme Court in Obergefell v. Hodges. This occurred because marriage equality advocates set out to change social and constitutional meanings not primarily through courts or legislatures, but with a strategy designed to win over moveable middle voters in ballot question elections. Successful pro-gay litigation arguments, followed by supportive reasoning in judicial victories, grew directly out of the messaging frames that tested best with voters. A new variation on popular constitutionalism was born. The lawyers who led the marriage equality campaign succeeded by decentering litigation until after opinion polls registered majority support for allowing same-sex marriage. In developing and implementing this strategy, they were assisted by professionals skilled in communications research and enabled by large-scale, coordinated funding. These dimensions of the marriage equality effort both validate and contradict much of the law and society scholarship predicting that court-centered rights discourse will inevitably dominate law reform campaigns. In this Article, I argue that the same-sex marriage campaign is likely to foreshadow sophisticated social change efforts in the future that look less like traditional impact litigation strategies and more like social marketing campaigns, one component of which may be constitutional interpretation. Whether this model has major potential for significantly progressive change will turn on its effectiveness for issues that involve claims for redistribution of material resources or greater openness in governance, challenges with which the marriage equality effort was not forced to engage. In the marriage campaign, voter-tested messaging led to two major discursive innovations. The first was the jettisoning of rights arguments in favor of storytelling models that were grounded in emotions rather than rights. Advocates stopped enumerating the legal benefits of marriage and talked more about the bonds of commitment exemplified by same-sex couples. Second, ballot question campaign ads increasingly featured the construction of a storytelling arc centered on how opposition to same-sex marriage of older or more conservative voters could morph into acceptance (even if not endorsement) of it. These narratives guided conflicted, moveable middle voters (and others) along a path toward a different sense of moral awareness about homosexuality and same-sex marriage than the manichean version of morality arguments used by conservatives. The new approaches were calibrated, tested, and refined for particular audiences, producing empirical evidence to support a new addition to the language of law: data-driven arguments. The most significant limitations of this approach operated at the level of social and constitutional meanings. Several discursive pivot points that emerged from the messaging strategy led to the shrinkage of what might have been greater emphasis on the pluralism of family forms as the foundation for equality and liberty in the realm of personal relationships. These pivot points include: The shift from an equality frame based on analogies to other social minorities to a universalized sameness approach; The shift from an emphasis on the material consequences of being denied access to the legal incidents of marriage to an emphasis on commitment, child raising, and the relational and emotional motivations for wanting to marry; and The avoidance of arguments for “expanding” or “changing” marriage and the stress of the desire for “joining” marriage. This new frame reassured moderate voters and judges that the traditional norms and practices associated with marriage were not being threatened, producing a kind of cultural interest conversion. This was brought about through a discourse that was mined from the rhetoric of popular constitutionalism but suffused with the resonance of respectability

Sexualities and the ECHR: Introducing the Universal Sexual Legal Subject

Shifting from an essentialist to a constructionist perspective on sexual identities, I move from a consideration of the homosexual legal subject, as presently treated under the European Convention on Human Rights, to the elaboration of a universal sexual legal subject. The universal sexual legal subject enjoys two basic rights: the right to choose sexual activity and sexual identity and the right to establish relationships and families in accordance with this choice. The possibility of including these two rights within the Convention presupposes their insertion into a set of sexually neutral standards which grant the universal sexual legal subject equality of choices. By examining the case law of the European Court and Commission of Human Rights on decriminalization of same-sex sexual activity, and family and relationship issues, I question the sexual particularity of the construction of the homosexual legal subject. This analysis of the case law provides the legal material and principles around which the insertion of the two sexual rights into the Convention is discussed. Both sexual rights are located within the right to respect for private and family life (Article 8). Equality of choices can only be guaranteed if the right to marry and found a family (Article 12) is erased and marriage is ‘privatised’ into Article 8 on an equal footing with other sexual and relational choices

Intimate Violence and the Problem of Consent

The juxtaposition of intimacy with violence is striking. Intimacy implies a closeness and a vulnerability that is treasured and inviolate. Intimacy should foreclose the possibility of violence. Intimate violence should be an oxymoron. Yet, intimacy sometimes creates its own special kind of violence, one that can erupt into rape or assault. On a less physical level, intimacy may cause violence to a woman\u27s personal integrity and economic independence. Intimate violence manifests itself with a certain subtlety that forces women to walk a careful tightrope in order to avoid threatened harm. This essay is about that tightrope: the double binds women experience in their intimate lives and the ways in which the law reinforces those binds by interpreting women\u27s constrained choices as consent. This essay focuses on familial and sexual intimacy to see how the law reads women\u27s behavior as indicating consent to what would otherwise be redressable harm

Stem Cell Research and Same Sex Reproduction

Recent advances in stem cell research suggest that in the future it may be possible to create eggs and sperm from human stem cells through a process that we term in vitro gametogenesis (IVG). IVG would allow treatment of some currently untreatable forms of infertility. It may also allow same-sex couples to have genetically-related children. For example, cells taken from one man could potentially be used to create an egg, which could then be fertilised using naturally produced sperm from another man to create a genetically-related child with half of its DNA from each of the men. In this chapter, we consider whether this technology could justifiably be denied to same-sex couples if it were made available as a fertility treatment to different-sex couples. We argue that it could not