Review Articles

Constitutional Courts, Gays, and

ROBERT E. RAINS*

Angioletta Sperti has produced an ambitious, richly sourced volume attempting to analyze the development of regarding various rights of sexual minorities1 in multiple jurisdictions in Europe, as well as the United States, Canada, South Africa, and others, with an overlay of international law. This work of comparative and transnational law consists of an introduction and four substantive chapters addressing: the privacy dimension of , the same-sex couple as “family”, same-sex , and parental rights of gays and lesbians. Although these issues have not been addressed by courts and legislatures in strict chronological order, Sperti makes clear that certain legal developments advancing rights logically had to precede others.

CHAPTER 2: PRIVACY AND THE DUDGEON PRECEDENT

Sperti’s privacy analysis begins with the 1981 decision of the European Court of Human Rights (ECtHR) in Dudgeon v. United Kingdom,2 in which the Court ruled that Northern Ireland’s law effectively criminalizing private consensual sexual activity between adult males violated the complainant’s rights under Article 8 of the European Convention on Human Rights (ECHR): “Everyone has the right to respect for his private and family life, his home and his correspondence”. It may be difficult to recall today that although prosecutions were rare, criminal “sodomy” statutes were practically universal in 1981, and indeed they remain on the books in various countries. Dudgeon was decided a mere dozen years after the 1969 “” in New York City, widely viewed, at least in the United States, as the start of the gay rights movement, in which , drag queens, and others fought back against a police raid at the Stonewall Inn, much to the surprise of the police. As Sperti correctly asserts, Dudgeon was truly a “global landmark case”. It reverberated beyond the confines of European signatories to the Convention. The case and its rationale

* Emeritus Professor of Law, Dickinson Law, Pennsylvania State University (Carlisle), where he taught and supervised upper level students in the Family Law Clinic for many years; member, International Society of Family Law; Visiting Professor, Buckingham Law School, Buckingham, England. 1 Sperti, Angioletta. Constitutional Courts, Gay Rights and Equality. Hart Publishing, Oxford and Portland, Oregon, 2017. xxviii, 220 p. Casebound. £65.00. ISBN 978-1-78-22564-7. Throughout this review, the terms “gays and lesbians” and “gay rights” are used in their ordinary meanings. 2 Dudgeon v. United Kingdom, App no 7525/76, 22 October 1981, Series A no 45, [1981] EHRR 5. JCL 13:1 233 Review Articles were cited by the United States in 2003 in Lawrence v. Texas,3 striking down a Texas statute criminalizing same-sex sex acts conducted in private (and, quite remarkably overturning a relatively recent precedent, Bowers v. Hardwick,4 which had upheld a similar statute). The Constitutional Court of South Africa referenced Dudgeon in its 1998 judgment in National Coalition v. Minister of Justice,5 striking down that country’s laws criminalizing consensual anal sex, although the focus of that court’s analysis was equality rather than privacy. As Sperti notes, Dudgeon created a “boomerang pattern of influence”. It encouraged gay rights activists in other countries, such as Ireland and Cyprus, to file similar litigation, in effect compelling legislative change in their jurisdictions. Sperti argues that “… the main legacy of Dudgeon … lay in providing an illustrative example of tolerance and recognition of gay men’ (sic) rights and in the assumption that the enforcement of morality should no longer be considered a legitimate state purpose”. As written, is this a defensible position? If not based on morality, what is theState’s legitimate purpose, if there be one, in prohibiting public nudity and even public sex acts?6 Not long ago, a couple (who apparently had not previously known each other but perhaps were struck with love at first sight) were arrested after the woman performed an act of oral sex on the man during a Delta Airlines flight from Los Angeles to Detroit.7 Remarkably, this is not an isolated occurrence. If morality cannot be a basis of criminal law, is the State powerless to criminalize such conduct? This question is related to Sperti’s analogous assertion that by focusing on the right to private consensual sex, Dudgeon and its progeny “perpetuate the ‘logic of the closet’”. But this reviewer is unaware of any jurisdiction that has found a constitutional right to engage in public heterosexual sex acts. It should not be supposed that all courts citing Dudgeon have adhered to its reasoning and conclusion. In this regard, one could criticize Constitutional Courts for its imbalanced discussion of the relevant precedents. It is natural that in a book extolling the progress of gay rights internationally, more attention would be paid to victories for the gay rights movement than its defeats. But in the thirty-page chapter addressing Dudgeon and its influence, Sperti includes exactly one sentence at the end acknowledging the existence of contrary decisions from courts in Hong Kong and Zimbabwe citing, but declining to follow, Dudgeon and its progeny. A further problem with the Dudgeon chapter is its confusing chronology of the development of relevant law in the United Kingdom. On page 25, Sperti asserts without qualification: “As mentioned, the ECtHR’s view was influenced by the recommendations of the Wolfenden Report, which was determinative in the repeal of ‘sodomy laws’ in the United Kingdom in 1967”. But Northern Ireland’s was not repealed in 1967 because, as Sperti explains in the immediately preceding pages, Mr. Dudgeon was a gay man living in Northern Ireland who challenged Northern Ireland’s sodomy law, resulting

3 Lawrence v. Texas, 539 U.S. 558 (2003). 4 Bowers v. Hardwick, 478 U.S. 186 (1988). 5 National Coalition for Gay and Equality v. Minister of Justice, Case CCT 11/98, 9 October 1998. 6 The late Justice Scalia has argued strenuously that the US cases decriminalizing “sodomy” and other gay rights cases call into question laws prohibiting , adult , prostitution, masturbation, etc., most of which are primarily based on Western notions of morality. See Robert E. Rains, “The Future of Justice Scalia’s Predictions of Family Law Doom”, Brigham Young University Journal of Public Law, XXIX (2015), p. 353. 7 https://massappeal.com/couple-arrested-fellatio-plane-mile-high-club/ 234 JCL 13:1 Review Articles in the Dudgeon decision in 1981. In fact the events that gave rise to the litigation involved a search of Mr. Dudgeon’s papers that occurred in January 1976 and his subsequent questioning by police as regards to his homosexual activities. Thus, Parliament’s repeal of sodomy legislation in 1967 did not include the full United Kingdom. As Sperti acknowledges on page 24, the Government of the United Kingdom entered submissions in the Dudgeon case, arguing that the Northern Ireland sodomy statute was justified by “the protection of the morals in the sense of moral standards obtaining in Northern Ireland” and “the protection of the rights and freedom of others”.

CHAPTER 3: OUT OF THE CLOSET: THE SAME-SEX COUPLE AS FAMILY

In Chapter 3, Sperti analyzes the growing recognition of stable same-sex couples as legitimate families. Giving such couples the ability to enter into State-recognized unions, if not marriage per se, was the next logical step after decriminalization. Sperti traces the concept of “family” in the 1948 Universal Declaration of Human Rights, the ECHR, and the of various, primarily European, countries, including Italy, Ireland, , and Portugal. She concentrates on an influential dissenting opinion in a 1993 decision, Canada v. Mossop, in which a Canadian government employee unsuccessfully sought bereavement leave for attending the funeral of the father of the man described as his lover.8 The Court dismissed Mr. Mossop’s appeal on technical grounds, but Justice L’Heureux-Dubé argued strenuously that the legal concept of “family” should not be circumscribed by the logic of an “unexamined consensus” as to its plain meaning. Sperti then traces the evolution of ECtHR , from its 2001 decision upholding Spain’s refusal to grant a survivor’s pension to a partner in a same-sex relationship,9 to its groundbreaking 2010 decision in Schalk and Kopf v. Austria, holding that: It is artificial to maintain the view that, in contrast to a different-sex couple, a same- sex couple cannot enjoy ‘family life’ for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, fell within the notion of ‘family life’, just as the relationship of a different-sex couple in the same situation would.10 The House of Lords performed a similar -face in Fitzpatrick v. Sterling Association Ltd in 2001, effectively overruling contrary precedent and holding that the survivor of a “longstanding, close, loving and faithful, monogamous” same-sex relationship was entitled to take over the lease of his partner, the original tenant, as a member of the tenant’s family.11 Three years later, in 2004, the House of Lords went one step further in the Ghaidan case and concluded that such a person is entitled to be protected as a “spouse”.12 After discussing related litigation in South Africa and Israel, Sperti ends the chapter on the situation in Italy. In 2015, in Oliari v. Italy, the ECtHR ruled that Italy’s failure to provide any legal recognition for same-sex couples violated Article 8 of the ECHR, the

8 Canada v. Mossop, (1993) SCJ No. 20. 9 Mata Estevez v. Spain, ECHR 2001-VI. 10 Schalk and Kopf v. Austria ECHR 2010-1 (2010). 11 Fitzpatrick v. Sterling Association Ltd [2001] AC 27. 12 Ghaidan v. Godin-Mendoza [2004] 2 AC 557. JCL 13:1 235 Review Articles right to respect for private and family life.13 As a result, Italy enacted legislation in 2016 making status available to same-sex couples as “a special social group”, but not marriage or recognition as a family per se.14

CHAPTER 4: SAME-SEX MARRIAGE RECOGNITION

The heart of Constitutional Courts is its extended discussion in Chapter 4 of the advent and expansion of same-sex marriage in many Western jurisdictions. Sperti chronicles and analyzes the multi-pronged and continuing battles for recognition of same-sex marriage across multiple jurisdictions, involving constitutional courts, changing public opinion, state and national legislatures, and supra-national courts. She ably demonstrates how even cases that reject gay rights claims sometimes contain useful language, either in the majority opinion or in a strong dissent, that can positively advance gay rights. Thus, this chapter begins with an explanation of how Justice L’Heureux-Dubé’s dissent in Mossop and the 1995 decision of the Canadian Supreme Court in Egan v. Canada15 denying spousal status to a surviving same-sex partner, both had seminal language leading to M v. H,16 the 1999 Canada Supreme Court case that resulted in same-sex marriage, first in Ontario, then in other Canadian provinces. Sperti addresses whether the virtually overnight about-face in much of the Western World — from same-sex marriage being unthinkable to becoming almost the norm — was the result of a judicial revolution or “constitutional inevitability”. She discusses the notion of “backlash theory”, the idea that when constitutional courts get too far ahead of public opinion, they lead to a counterproductive result, as arguably the Hawaii Supreme Court did in the Baehr case leading to enactment of the United States Defense of Marriage Act. Sperti provides a history of the march to same-sex marriage in Spain, Portugal, France, and Germany. Whereas in most jurisdictions once same-sex marriage has been legalized it has met with increased public support, in Portugal there was an opposite effect. Nevertheless, Sperti concludes that generally: [W]hat mattered most in the European countries analyzed in this chapter was not the outcomes of the judgments, but the subtle instructions that courts—especially constitutional courts—provided to legislators, social movement and even public opinion. This process, she asserts, results in a “‘virtuous cycle’ in which each single achievement leads to a further advancement towards sexual equality”. Same-sex marriage per se has not been universally accepted, even in Europe. Addressing her own country of Italy, Sperti relates how its Constitutional Court has taken a “hard line position” against recognition of same-sex marriage, and how the legislature adopted a civil union alternative in response to the ECtHR decision in the Oliari case.17 Sperti provides a detailed analysis of the arguments in various same-sex marriage cases involving tradition vs. social change. What is tradition? What is the “core of marriage”?

13 Oliari v. Italy, [2015] ECHR 752. 14 Law no. 76, 20 May 2016. 15 Egan v. Canada, [1995] 2 SCR 513. 16 M v. H, [1999] 2 SCR 3. 17 Oliari v. Italy, [2015] ECHR 752. 236 JCL 13:1 Review Articles

She explores how the indeterminacy of cultural and religious tradition perpetuates the “vicious cycle” of and cites with approval the Spanish Constitutional Court statement that, “religious sources of the law may not be appropriately relied upon by a court”. Sperti retraces the debate in the United States over “unenumerated rights”, those not set forth in the United States , which, in contrast to many others, does not even mention the concept of “family” (certain problems with Sperti’s discussion of American law will be addressed below). There follow discussions of the normative value of tradition and the risk of circular reasoning and judicial cross-fertilization as constitutional courts look to decisions of similar courts in other countries, equality and the “expressive value” of marriage, and the different meanings and purposes of “dignity” in same-sex marriage cases.

CHAPTER 5: FAMILY LIFE AND PARENTAL RIGHTS

The final, short chapter of Constitutional Courts surveys family law regarding procreation and children, with particular focus on custody and issues. Are same-sex couples inappropriate parents because they cannot, by themselves, produce children “naturally”? Is the optimum, or only, favorable family unit to raise a child a married man and woman? Sperti points out that: “prospective same-sex parents undergo more extensive checks and interviews than opposite sex couples, in order to verify whether they are fit for child- rearing and so that the best interests of the child are actually served”. Presumably she is comparing same-sex couples in the adoption or pre-adoption process to opposite sex couples simply reproducing. Discussing the “procreative nature” of marriage, Sperti notes the bizarre argument made by some “traditionalists” that “permitting same-sex couples to marry would diminish the procreative potential for marriage because if same-sex couples were permitted to marry, significant of opposite-sex couples would no longer do so”. The idea that opposite-sex couples who wish to marry would decline to do so because the State allows same-sex marriage is frankly so absurd that it seems unnecessary to bother to debunk it. Sperti notes that Justice Kennedy in Obergefell flatly rejected the contention that equal marriage harmed the institution of marriage because it “sever[ed] the connection between natural procreation and marriage”.18 As an aside, your reviewer, having spent three decades supervising a family law clinic, can attest that many opposite-sex couples, at least in the United States, manage to procreate without even getting married. Sperti briefly examines how gay and lesbian parents have at times been disadvantaged in custody litigation, especially in jurisdictions where same-sex sex was illegal under sodomy laws. The ECtHR declared discrimination against homosexuals in custody proceedings to be a violation of Article 14 in 1999 in Salgueiro da Silva Mouta v. Portugal.19 The ECtHR has taken a less consistent path in matters of adoption. Three years after Salgueiro, it ruled in the Fretté case that France had not violated a gay man’s human rights

18 A less ridiculous argument might be propounded by traditionalists that, in the absence of the availability of legal same-sex marriage, significant numbers of gays and lesbians did enter into opposite-sex for various reasons and did procreate within such marriages of convenience. 19 Salgueiro da Silva Mouta v. Portugal ECHR 1999-IX. JCL 13:1 237 Review Articles when it denied him a single parent adoption.20 But, in 2008, the Court tacitly overturned Fretté in EB v. France, ruling that “a person seeking to adopt cannot be prevented from doing so merely on the ground of his or her homosexuality”.21 Then, in the landmark 2013 ECtHR case of X and Others v. Austria, the Court ruled that it was a violation of the right of family life for Austria to deny second parent adoption to same-sex couples when it allowed such for unmarried opposite-sex couples.22 Sperti concludes with a brief analysis of the “more controversial” issue of joint adoption by same-sex couples of children not biologically related to either prospective parent, addressed in the French Case no 669 of 2013 in which the Conseil constitutionnel rejected an attack on law no. 404 of 2013 permitting such adoptions.23

A CAUTIONARY WORD: PROBLEMS WITH UNITED STATES LAW

American (United States) family law is a morass, with legislation and case law being constantly propounded in fifty states and the District of Columbia, plus an overlay of evolving federal law. It is a major effort for American family law scholars to keep abreast of, and fully understand, the developments in their field. It is not surprising that a foreign scholar, however diligent, would have difficulty doing so. Nevertheless, the number of misstatements and misleading statements of American family law in this tome is remarkable. They start with the very first sentence of the book, where Sperti asserts: [I]n 1993 the Supreme Court of Hawaii released its groundbreaking judgment in Baehr v Lewin, holding for the first time in the world, that denial of marriage licenses to same-sex couples amounted to a violation of equal protection under the State Constitution … This is at best a misleading description of Baehr.24 The Baehr Court did not hold that Hawaii’s refusal to issue marriage licenses to same-sex couples violated the state constitution; rather it held that the plaintiff same-sex couples had stated a cause of action to that effect and remanded the case for a trial to determine whether the prohibition could withstand “strict scrutiny”.25 Had the Hawaii Supreme Court declared the Hawaii ban on same-sex marriage to be in violation of the Hawaii Constitution, such a remand for trial would have served no purpose. The first state court in the United States to issue a final decision that denial of the rights (if not rites) of marriage was not Hawaii, but rather Vermont in Baker v. State in 1999.26 It is odd that Sperti gives her inaccurate description of Baehr on the first page of her text since she does provide an accurate description of the case later on page 82, but then, bizarrely, she restates her original inaccurate description of Baehr twice on pages 112 and 113.

20 Fretté v. France ECHR 2002-I, (2004) 38 EHRR 21. 21 EB v. France, IHRL 3284 (ECtHR, 2008). 22 X and Others v. Austria /GC/ [2013] ECHR 425. 23 Conseil constitutionnel, decision no. 2013-669 DC, 17 May 2013. 24 74 Haw.530, 852 P.2d 44 (1993). 25 Baehr v. Lewin, 852 P.2d at 74. See Robert E. Rains, “The Evolving Status of Same-Sex Unions in Hawaii, Alaska, Vermont and throughout the United States”, Contemporary Issues in Law [2000], pp. 71, 78-81. 26 Baker v. State, 744 A.2d 864 (Vt 1999). See Robert E. Rains, “Vermont Bends the Same-Sex Marriage Barrier: Baker v State”, in ibid., p. 97. 238 JCL 13:1 Review Articles

Describing the United States Supreme Court decision in Lawrence v. Texas, Sperti writes (at page 37) that Justice Kennedy: … supported this conclusion mentioning the recommendations of the Wolfenden Report in 1957 and relying on Dudgeon v United Kingdom. The citation marks the first time the Supreme Court decided to take into account a foreign case in the text of the opinion of the Court. It is unfortunate that Sperti added this gratuitous and untrue assertion regarding foreign citations. Although certain “conservative” legal scholars, jurists, academics, and politicians are wont to rail against citation to foreign authority in Supreme Court decisions, in fact that practice is almost as old as the Court itself. In 1793, in Chisholm v. Georgia, addressing whether “the Constitution vests a jurisdiction in the Supreme Court over a State, as a defendant, at the suit of a private citizen of another State”, the Court extensively discussed British precedent in suits against the Crown.27 Furthermore, in the landmark 1803 case of Marbury v. Madison,28 in which the Court established the proposition that a law repugnant to the Constitution is unenforceable, Federalist Chief Justice John Marshall cited English case law, as well as Blackstone. References to foreign authority, although not common, have continued into modern times. In 1988, fifteen years before Lawrence, in Thompson v. Oklahoma, striking down the death penalty imposed on a 15-year-old, the Court’s plurality cited statutory law from multiple foreign jurisdictions, including the United Kingdom, New Zealand, Canada, and even the Soviet Union.29 On page 85, Sperti asserts that the [United States] “Supreme Court is a court of general jurisdiction, …”. If, by this, she means that the Court both has the power to hold laws unconstitutional and to otherwise adjudicate constitutional issues, that is true. But the Court is most definitely not a court of general jurisdiction; its jurisdiction is decidedly and purposefully limited. Indeed, in Marbury the Court effectively struck down that part of the Act of 1789 that purported to grant it original jurisdiction to issue writs of mandamus, a jurisdiction it does not possess under the Constitution.30 There are at least two occasions where Sperti discusses United States cases without mentioning that they have either been overturned or vacated. On pages 178-179, she discusses the Ninth Circuit Court of Appeals decision in Perry v. Brown, addressing the constitutionality of California’s Proposition 8 barring same-sex marriage, but fails to acknowledge that the Supreme Court vacated the Ninth Circuit’s decision in Hollingsworth v. Perry31 on the basis that the appellants had lacked standing to bring the case to the court of appeals. On page 183, Sperti discusses the panel decision of the Pennsylvania Superior Court in Constant V. (sic) v. Paul C.A., regarding how courts should consider homosexuality of one parent in a custody proceeding. She fails to mention, even in a footnote, that that decision was overturned by the same court sitting en banc in M.A.T. v. G.S.T. in 2010.32

27 Chisholm v. Georgia, 2 U.S. 419, 2 Dall. 419 (1793). 28 Marbury v. Madison, 5 U.S. 137 (1803). 29 Thompson v. Oklahoma, 108. S. Ct. 2687, 2696 (1988). 30 Note 29 above. 31 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). This had the effect of reinstating the decision of the trial court which had also upheld the challenge to Proposition 8. 32 M.A.T. v. G.S.T., 989 A.2d 11 (2010). By way of comparison, on the following pages Sperti acknowledges that the other case she discusses on the issue, Fretté, was tacitly overturned by the subsequent decision of the ECtHR in EB v. France. JCL 13:1 239 Review Articles

On page 188, Sperti confusingly states that: It is surprising that [Mississippi’s ban on second-parent adoption by same-sex couples] survived the Supreme Court’s decision on Obergefell v. Hodges, the only constitutional court judgment so far to overturn the argument of procreation maintaining the right to marry ‘safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education’. This assertion is particularly odd, coming immediately after Sperti’s discussion of the federal district court decision in Campaign for Southern Equality v. Mississippi Department of Human Services, which did, in fact, strike down Mississippi’s ban precisely on the basis of Obergefell. On page 112, Sperti sets forth the following misleading, compound sentence: In the United States, as early as the end of the nineteenth century, the Supreme Court acknowledged the heterosexual and monogamous nature of marriage and upheld the states’ power to reserve the marital status to opposite sex couples. Thus written, this conflates the Court’s 1878 decision in Reynolds v. United States, upholding Utah’s ban on polygamy,33 and its 1972 one-sentence decision in Baker v. Nelson, ruling in essence that there is no federal constitutional right to same-sex marriage.34 Moreover, it is striking that Sperti’s footnote reference here to Baker is its only mention in the book inasmuch as much subsequent American law on same-sex marriage focused on the continued validity of the Baker precedent. A search on Lexis.com revealed that Baker had been cited 106 times, followed eight times, and questioned twenty-four times before being finally overturned by the Supreme Court in Obergefell. Indeed, the circuit court decision overruled by Obergefell contained a lengthy discussion of whether Baker was still binding on the lower courts, concluding: The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overturn Baker.35 On page 112, Sperti asserts: “At state level, with the exception of Massachusetts, every state law in the past defined marriage in heterosexual terms”. This is not accurate. Many, if not most, state laws were silent on the subject, presumably because same-sex marriage was not an issue when they were enacted. In Baker, for example, the Minnesota Supreme Court acknowledged that the state’s contained no “express statutory prohibition against same-sex marriages”.36 Courts confronted inexplicit statutory schemes in other early challenges to denial of marital status to same-sex couples in Kentucky, Washington State, Pennsylvania, and Vermont.37

33 Reynolds v. United States, 98 U.S. 145 (1878). 34 Baker v. Nelson, 409 U.S. 810 (1972). 35 DeBoer v. Snyder, 772 F.3d 388, 400 (6th Cir. 2014). 36 Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971). 37 See cases discussed in Rains, note 26 above. 240 JCL 13:1 Review Articles

This ambitious work could have benefited from the assistance of an American co- author or editor. One can only hope that it does not contain as many mischaracterizations of the law of other jurisdictions as it does that of the United States.

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