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Global Constitutionalism 2018 YALE LAW SCHOOL GLOBAL CONSTITUTIONALISM A Part of the Gruber Program for Global Justice and Women’s Rights Global Reconfigurations, Constitutional Obligations, And Everyday Life Constituting the Family Governing Sports Refugees in a Time of “Unprecedented” Mobility Health, Medicines, and Constitutional Obligations Co-Editors Judith Resnik Clare Ryan 2018 Gruber Program for Global Justice and Women’s Rights The Gruber Program for Global Justice and Women’s Rights has supported the Yale Global Constitutionalism Seminar since The Gruber Foundation was established at Yale University in 2011. The Seminar originated at Yale Law School in 1996 and is now an integral part of the Gruber Program. The Gruber Program supports programs in international justice and human rights. Core components include the Global Constitutionalism Seminar, the Gruber Distinguished Lectures in Global Justice and Women’s Rights, and the Gruber Fellowships in Global Justice and Women’s Rights. The commitment of philanthropists Peter and Patricia Gruber to bringing about a fundamentally just world is furthered by the Gruber Program for Global Justice and Women’s Rights at Yale Law School, which draws upon the missions of the former Gruber Justice and Women’s Rights Prizes. www.gruber.yale.edu Global Reconfigurations, Constitutional Obligations, and Everyday Life Co-Editors Judith Resnik Arthur Liman Professor of Law, Yale Law School Clare Ryan Class of 2013, Ph.D. Candidate, Yale Law School, 2019 Executive and Managing Editor Matt Butler Class of 2018 Associate Managing Editor José Argueta Funes Class of 2019 Executive and Managing Editor Emeritus David Louk Class of 2015 Senior Editor Kyle Edwards Class of 2018 Editors Catherine Crooke Class of 2019 Edgar Melgar Class of 2020 Allison Rabkin Golden Class of 2020 Quirin Weinzierl LL.M., 2018 Yale Law School, 2018 Global Reconfigurations, Constitutional Obligations, and Everyday Life CHAPTERS Constituting the Family Douglas NeJaime, Clare Ryan, and Helen Keller Governing Sports Harold Hongju Koh, Susan Rose-Ackerman, and Miguel Poiares Maduro Refugees in a Time of “Unprecedented” Mobility Muneer Ahmad, Lucas Guttentag, Cristina Rodríguez, and Marta Cartabia Health, Medicines, and Constitutional Obligations Amy Kapcynski, Samuel Moyn, and Manuel José Cepeda Espinosa All rights reserved, Yale Law School 2018 Global Reconfigurations, Constitutional Obligations, and Everyday Life Table of Contents Preface ........................................................................................................................... i I. CONSTITUTING THE FAMILY DISCUSSION LEADERS: DOUGLAS NEJAIME, CLARE RYAN, AND HELEN KELLER Marital and Non-Marital Relationships Between Adults The Legal Status of Marriage Home Affairs v. Fourie (Constitutional Court of South Africa, 2005) ....................................................................................................... I-4 Litigation and Legislation Regulating Marriage in Latin America ........... I-7 The Path to Marriage for Same-Sex Couples in the United States .......... I-10 Obergefell v. Hodges (Supreme Court of the United States, 2015) ........ I-11 Sherif Girgis, Robert P. George, and Ryan T. Anderson, What is Marriage? (2011) ................................................................................. I-16 Non-Marital Relationships Kerrigan v. Commissioner of Public Health (Supreme Court of Connecticut, 2008) ................................................ I-19 Oliari v. Italy (European Court of Human Rights, Fourth Section, 2015) ........................................................................... I-21 Ratzenböck and Seydl v. Austria (European Court of Human Rights, Fifth Section, 2017) ................................................................. I-25 The Parent-Child Relationship Unmarried Biological Fathers Michael H. v. Gerald D. (Supreme Court of the United States, 1989) ..................................................................................................... I-29 Ahrens v. Germany (European Court of Human Rights, Fifth Section, 2012) .............................................................................. I-31 Non-Biological Parents Pavan v. Smith (Supreme Court of the United States, 2017) .................. I-35 Global Reconfigurations, Constitutional Obligations, and Everyday Life Uniform Parentage Act (2017) (United States) ....................................... I-36 AA v. BB (Court of Appeals for Ontario, 2007) ..................................... I-39 Ontario All Families are Equal Act (2016) ............................................. I-40 Reproductive Technology and Conflicts over Surrogacy S.H. v. Austria (European Court of Human Rights, Grand Chamber, 2011) ......................................................................... I-41 Artavia Murillo v. Costa Rica (Inter-American Court of Human Rights, 2012) ........................................................................... I-43 A.B. v. Minister of Social Development (Constitutional Court of South Africa, 2016) .............................................................................. I-46 United Nations Report of the Special Rapporteur (2018) ....................... I-49 Johnson v. Calvert (Supreme Court of California, 1993) ........................ I-51 J.R. v. Utah (U.S. District Court for the District of Utah, 2002) ............. I-53 In re T.J.S. (Superior Court of New Jersey, Appellate Division, 2011) .................................................................... I-55 Douglas NeJaime, The Nature of Parenthood (2017) ............................. I-57 Mennesson v. France (European Court of Human Rights, Fifth Section, 2014) .............................................................................. I-58 Paradiso and Campanelli v. Italy (European Court of Human Rights, Grand Chamber, 2017) ............................................................. I-62 II. GOVERNING SPORTS DISCUSSION LEADERS: HAROLD HONGJU KOH, SUSAN ROSE-ACKERMAN, AND MIGUEL POIARES MADURO Do Constitutional Rights Apply? Expressive Speech and Associational Rights Letter from Roger Goodell, Commissioner of the National Football League, to the Chief Executives and Club Presidents (2017) .................................................................................................... II-6 Olympic Charter Article 50 (International Olympic Committee, 2015) ............................................ II-6 Frédérique Faut, The Prohibition of Political Statements by Athletes and Its Consistency with Article 10 of the European Convention on Human Rights (2014) .................................................... II-7 Press Release No. 29/2018, Decision in “Stadium Ban” Proceedings (Federal Constitutional Court of Germany, First Senate, 2018) ............................................................................... II-10 Table of Contents Equality Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (Court of Appeal for British Columbia, 2009) .................................................................................. II-14 Dutee Chand v. Athletics Federation of India (AFI) and The International Association of Athletics Federation (IAAF) (Court of Arbitration for Sport, 2015) ................................................. II-17 Silvia Camporesi, Ethics of Regulating Competition for Women with Hyperandrogenism (2016) ........................................................... II-20 Moya Dodd, Chair, FIFA Task Force for Women’s Football, FIFA, Football and Women (2015) ..................................................... II-22 Guidelines for Promoting the Involvement of Women on the FIFA Council (Governance Committee, Fédération Internationale de Football Association, 2017) ................................................................ II-23 Are Sports Organizations Private Institutions Subject to State Regulation? Competition Law and Economic Freedoms Brentwood Academy v. Tennessee Secondary School Athletic Association (Supreme Court of the United States, 2001) ................... II-25 Union Royale Belge des Sociétés de Football Association ASBL v. Jean-Marc Bosman (European Court of Justice, 1995) ................... II-28 Meca-Medina v. Commission of the European Communities (European Court of Justice, Third Chamber, 2006) ............................ II-31 American Needle, Inc. v. National Football League (Supreme Court of the United States, 2010) ........................................................ II-32 Anti-Corruption Efforts Bruce Bean, An Interim Essay on FIFA’s World Cup of Corruption (2016) ............................................................................... II-35 Superseding Indictment, United States v. Hawit (U.S. District Court for the Eastern District of New York, 2015) ............................. II-38 Can Self-Governance Achieve Good Governance? Statement of A. Bartlett Giamatti, Commissioner of Baseball (1989) .................................................................................... II-43 Navi Pillay, Miguel Poiares Maduro, and Joseph Weiler, ‘Our sin? We appeared to take our task at Fifa too seriously’ (2017) ........ II-44 A and B v. International Olympic Committee (Federal Supreme Court of Switzerland, First Civil Law Division, 2003) ....................... II-45 Cañas v. ATP Tour (Federal Supreme Court of Switzerland, First Civil Law Division, 2007) ................................................................... II-49 Pechstein v. International Skating
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