Review Articles Constitutional Courts, Gays, and Lesbians ROBERT E. RAINS* Angioletta Sperti has produced an ambitious, richly sourced volume attempting to analyze the development of constitutional law 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 homosexuality, the same-sex couple as “family”, same-sex marriage, 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 gay 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 “Stonewall Riots” in New York City, widely viewed, at least in the United States, as the start of the gay rights movement, in which gay men, 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 family law 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 Sexual Orientation 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 Supreme Court 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 the State’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 sodomy law 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 Lesbian 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 bigamy, adult incest, 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 constitutions of various, primarily European, countries, including Italy, Ireland, Greece, and Portugal. She concentrates on an influential dissenting opinion in a 1993 Supreme Court of Canada 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 jurisprudence, 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 about-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.