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w g a e r e .c o m Hungary 1051 Budapest, Nadorutca 9. University Central European PROFESSOR: Renata Uitz, PhD. PROGRAM: LLM in Human Rights, Legal Department THESIS HUMAN RIGHTS ENFORCEMENT OF MORALS AND ITS CONSTITUTIONALLIMITSIN ENFORCEMENT OFMORALSANDITS LIGHT OFTHELITIGATION ON SEXUAL MINORITIES INSOUTH AFRICA AND THE UNITED STATES THE UNITEDSTATES AFRICA AND

LAW OF DISGUST: LAW DISGUST: OF by Thiago Amparoby Thiago © Central © Central European University 2011 December 20,

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w g a e r e .c o m dignity-based, explicitly law, constitutional African South the (ii) law; marriage of basis formal cases same-sexfuture on relations of heteronormative highlighting the recognition right torecognition minorities of those through lensthe of dignity,which will likely impact the addresses therefore and doctrines, liberty and equality between division the challenges that Texas, v. Lawrence after specially minorities, sexual to relation in jurisprudence dignity-basedemerging an developedhas Supreme Court US the (i)following: the law.of structure heteronormative the and minorities sexual subordinationof status the highlights it sense this in and dimension recognition a to is related disgust finally, (iii) law; criminal of principle basic a violate example) classic the being (sodomy laws criminal disgust-based thus and principle, harm of basis the on justified increasingly is law criminal while others) against offence aspects of sexual minorities; andother sexuality regulate laws that moral-based aspect of hatred the highlights therefore (ii) disgust operateslegal morals basis forof prejudiceon enforcement sexualminorities against groundedand in the realm of offence (to prevent moral countries, particularly through the lens of the due process and equal protection clauses. Southin minorities sexual regarding Africa litigation constitutional in the disgust of role the analyzes and thesis this Nussbaum, Martha from theminorities sexual and disgust on inputs and Uniteddebate, States,sexual minorities from a constitutional Takingperspective. asastarting point Devlin-Hart the as wellThe present thesis addresses the longstanding legal problem of moralsenforcement of against the constitutional Executive Summary framework in these two Second, in applying these arguments to the US and South African case-law, I argue is disgust (i) dimensions: three has disgust that first, argues, thesis this realm, this In i

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w g a e r e .c o m prostitution. case regarding Jordan after interpretation, especially oflegal nature aswell institutions heteronormative exposes thedangersas of a dignity-based serves as a reference to the US both in relation to the potentiality of a dignity in underlining ii

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w g a e r e .c o m I dedicate this thesis to Ivan, with love. isolated writing period. I wouldlike,finally, to thankmy and whomparents sisters, missedI mostduring the the Kweitel and Camila Asano. AnnaJuana Lucia Nader, Fischer, human rights. Special inthanks to my careercontinue for providing necessary conditions forme to conclude this LLM as well as forinspiring me to I would also likeOpen thankboth to Society Justice and Initiative Conectas Human Rights lawwith excellence. constitutional terrain of guidingformemy thearid supervisor, thankwould Renata Uitz, through likeI to Prof. Acknowledgments

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w g a e r e .c o m Bibliography 87 ...... Conclusion Human Dignity and Sex: The South African Jurisprudence on Sexual Freedom Three Chapter ...... 31 Towards Dignity: Disgust in the US Supreme Court Jurisprudence on Sexual Minorities Chapter Two Morals ofToleration:The Bounds Disgust asaLegal Concept inrelationto theEnforcement of Chapter One Introduction: “NottheLaw’s Business”? Acknowledgments ...... iii Summary Executive ...... i Table ofContents 2. Secondary Sources ...... 88 Judgments1...... 87 3.5. 3.4. 3.3. 3.2. 3.1. 2.5. 2.4. Constitutional Interpretation 2.3. jurisprudence. 2.2. 2.1. 1.5. 1.4. 1.3. 1.2. 1.1.

13 ...... Conclusion Criticism to a Dignity-based Approach: Jordan case General Framework of the Equality Jurisprudence and Section 9 andSection Jurisprudence Equality the of Framework General Overview of the SA Constitutional Court jurisprudence on sexual minorities The Constitutional-Making Process and the Gay Movement in South Africa Conclusion: Towards Dignity? Irrational Prejudice andDisgust Prejudice Irrational Liberty as a Pandora Box: Judicial Self-Restraint and the Role of History in General Framework: The fall of Equality and the Rise of Liberty in the US Overview of the US Supreme Court jurisprudence on sexual minorities on sexual jurisprudence Court Supreme US the of Overview Conclusion Disgust as Denial of Recognition Denial of Disgust: Legal Liberalism and the Harm Principle Harm the and Liberalism Legal Disgust: of Denial Disgust as Basis for Legal Moralism Introducing Disgust

...... 39 ...... 81 ...... 29 ...... 14 ...... 48 ...... 58 ...... 24 ...... 53 1 ...... 16 iv ...... 78 ...... 21 ...... 74 ...... 33 ...... 63 ...... 61 ...... 67

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w g a e r e .c o m 3 Law. 2 1 Introduction: “Not the Law’s Business”? be considered] sufficient tojustify makingconduct that punishable by law” [should immoral isstandards by common certain conduct fact“the that whether question on sexualities. of forms other with simply becausemoremajority the elegantly, supposedly feels averageperson or, the disgust precisely a story of enforcement of morals with the use of state-sponsored coercive means, solely or primarily based on morals. in order by laws to enforce illustrated mentioned above, USexamples procedures the search and such aspolice raid orseizure means law of enforcement, formscoercive of certain of make canlegitimately use i.e. State whether the lawisjustified, criminal through particularly put it in the 60’s. On the other hand, it is a question of whether the enforcement of morals sex with another man Hardwickin was arrested his bedroom based on Georgia lawthe sodomy for conducting oral a week;almost City,inwhen and, for Michael demonstrated 1982, New York and then place” the raid aroutine on out carried goquietly police when to refused In 1969,when hundreds of people, “many them dragof flamboyant queens and prostitutes, Hart, H. L. A. Nussbaum,C.Martha Bawer, Bruce. “Notes on Stonewall.” “Notes on Bruce. Bawer, New York: Oxford NewYork: University Press, 2010,p.85. “Maybe thebestproofthat the language ispatriarchal isthatitoversimplifies feeling” The enforcement of morals presents a twofold question. On the one hand, it is a is it hand, one the On question. a twofold presents morals of enforcement The Law, and Morality. Liberty 2 ; a story was told. Itis a story of humiliation, of stigmatization, ormore FromDisgustto Humanity:Sexual Orientationand Constitutional

The New The New Republic Stanford: Stanford University Press, 1963. 1 (Jeffrey 217) “Middlesex”,Eugenides, p. , 13June 1993:24. 1 called Stonewall, in Stonewall, called 3 , as H. L. A. Hart

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w g a e r e .c o m eyes) enforcement of morality is valuable per se, not only for its instrumental functionality functionality instrumental its for only not se, per valuable is morality of enforcement eyes) for him (in is inthesensethat one, Hart’s while an thesis extreme Stephen’s together, society keep bounds that avoidof moral the disintegration to the law of as aninstrument enforcement 8 The University Press,p.of Chicago 159. 1873, 7 Pennsylvania Law Review Morality.” and Democracy, “Law, Patrick. Devlin, also: See 17. 6 Enforcement ofMorals. Patrick. is its (Devlin, existence” to else essential anything safeguardit that to uses 5 issue.liberty as a fundamental inState morals,enforcing question this becan arguably framed asone of especially principle, 4 andlaws is it thus primarily a question degree of question is,howdifferently, related heavy to hands State’s the should bein such enforcing second whilethe laws), support those that morals the with who deeply disagree those against particularly justified, morals are primarily on basedor laws, solely administrative or civil criminal, whether laws, morals-based enforcing (whether principle of question is a it se, andtherefore morals per of legalenforcement of justifications the with deals society’s right to preserve itself preserve to right society’s in answersliterature. arewell-known two the principles, those with disagree deeply might who society of members other against values moral the society’s right to enforce by law in general or, in the case of sodomy, by criminal law moral standard the feelings of “intolerance, indignation, and disgust” majority” moral overwhelming “an of expression James Stephen, Fitzjames isjustifiedis accordingSecond, itlegislation amoral an to when According to Hart, Lord Devlin’s thesis is a moderate one, in the sense that he sees the heseesthe inthat one, sense the moderate isa Devlin’s thesis Hart, Lord to According Stephen,JamesFitzjames. Devlin,Patrick. According to Devlin: “society may use the law to preserve morality in the same wayasitsame in morality preservethe law to may use the “society Devlin: to According Nevertheless, whenever extremely forceful means of coercion are lawfully at disposal of the Those two questions, differentThe firstquestionThose two nature. intertwined, although areof First, according to Lord Devlin, a moral legislation is justified on the basis of the the of basis the on justified is legislation moral a Devlin, Lord to according First, In order to justify moral-based laws, that is say:to for the sake findingof a ground for The Enforcement of Morals. The Enforcement NewYork: Oxford University Press, 1965,p.11). 110 (1962): 639. 110(1962): Liberty, Equality, Fraternity andThree Brief Essays.

5 moral usingitsas bounds)preserve to (meaning, right the 2 New York: OxfordUniversity Newp. York: 1965, Press, 4 . 7 . Despite its differences . Despite its 6 of the average person. person. average the of 1 Uiest of University 110

8 , those two theses theses two those , London: London: The

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w g a e r e .c o m 11 1172. Ristroph, Alice Supreme Court of Canada.” of Court Supreme (January 2006): 21-51. 2006): (January Seriously: Starting Points of the Hart/Devlin Debate.” Debate.” Hart/Devlin the of Points Starting Seriously: Law.” Tennen, Eric Disintegration Thesis.” Disintegration 249-275. 1987): (August 2 no. citizens” ordinary to nuisance offensive an was soliciting public that ground the on streets’ the off it drive ‘to be it legislation passed though itself should not should bemadeillegal,recommended that, unanimously prostitution they to as crime; a considered longerbe no should practice suggested “by majority a 1 of 12 to consenting homosexual that inpractices between adults homosexuality and prostitution in United Kingdom regarding law, criminal the of legalfor reforms recommendations presented which from Wolfenden Report, by the 1957, largely moralsfrom raised controversy the derived (Devlin) orfor bearing a value per se (Stephen). moral itsinboundsforjustifiable, value instrumental extent preservingsociety’s either have a common ground, i.e. both of them consider legal enforcement of morals to some here): referred works the of identification facilitate the to highlighted names (authors’ see also debate, 1.literature on Devlin-Hart Foramore detailedthe chapter 2010, University Press, Disgust toHumanity:Sexual Orientation and Constitutional Law 10 Liberty and Morality. which he disagrees. For the differences between more with convincing himself, thesis moderate andHart a therefore to according represents, Devlin and Stephen, see Hart, H. L. A. is debate butthe writings most onthe likely Devinfocused largely because Devlin and Hart, 9 52). A. L. H. (Hart, in his addressedby Hart also are by Stephen Fitzjames James The arguments defended Hart, H. L. A. For a more detailed account of this debate see, for example, Martha C. Nussbaum, C. example, Martha for see, this debate of account detailed a more For Feinberg, Joel Boalt JournalofCriminal Law The famous debate between Lord Devlin andH.LA. Devlin between Hart Lord debate The famous . “Is the Constitution in Harm's Way? Substantive Due Process and Criminal Law, Libertyand Morality. . “Third. Wave Legal Moralism.” Law, LibertyandMorality. 11 . Particularly in relation to the homosexuality, the Wolfenden Report Report Wolfenden the homosexuality, the to relation in Particularly . Stanford: Stanford p. 48-52. University 1963, Press, . “Some Unswept Debris from the Hart-Devlin Debate.” Debate.” from Hart-Devlin the Debris “Some Unswept . The Philosophical Quarterly Miller, Bradley W. American JournalofJurisprudence Galvin, Richard Francis. 8, no. 3 (2004): 3-5. (2004): 3 no. 8, Stanford: Stanford University 1963,p.Press, 48- Stanford: StanfordUniversity p. 13. Press, 1963, “Moral Laws in a Age of Rights: Hart at the 3 Arizona State Law Arizona StateLaw Journal 10 37, no. 149 1987): 420-423. (October37, no. . In particular, the Wolfenden Report, Report, Wolfenden the particular,In . The Journalof Ethics “Two Difficulties for Devlin's Devlin's for Difficulties “Two Cane, Peter Cane, 9 overlegal enforcement of 55 (2010): 79-103. (2010): 55 , New York: Oxford York: New , 42 (2011): 1151- 42(2011): . “Taking Law “Taking . 10, no. 1/2 no. 10, Synthese From Law, 72,

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13 named The National forCoalition Gay and Lesbian Equality, weredecidedin 1998 NGOs dozensother of of composed umbrella organization by a nationwide cases presented African South two first issue.major The cases onthis decided three Court Constitutional instance, the for Africa, In South social background. countries different with other in therefore put them in an unequal position in relation to other members of society. harm and this group to a mere desire classify with to homosexuals Clause Protection Evans v. in Romer Constitution, Colorado 2 to Clause. Inparallel, theUSSupreme had Court already in down struck 1996 Amendmentthe by DueProcess the protected choose sexualpartner, one’s right to theliberty-related on based 14 in same-sexThis v. decision couples. Lawrence Texas Georgia law,expressly targeted struckdecided down law theTexassodomy in which, the unlike Supreme 2003 Court to homosexuals rightthe engage to in sodomy.This holdinglater wasoverruled theUS when lawsodomy in v.Bowers Hardwick morals.nameenforcementof few, To USSupreme a the upheld Court in Georgia 1986the developments regarding rights the of sexual minorities have reframed question the oflegal morals. Others. 16 15 Hart, H. L. A. StanfordStanford: Universityp. 14-15. Press, 1963, 12 law’s business” the isit “not simply that concluded Bowers v.Hardwick. Bowers Lawrence v. Texas. Lawrence National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Minister of Another v Lesbian Equality and Gayand National Coalitionfor Romer v.Evans. A. L. H. in Hart, as quoted Wolfenden Report, Section 61, CCT11/98 (South CCT11/98 (South African Constitutional Court, 9October 1998). Such constitutional regardingdevelopments of rights the sexual minorities are present Since the Devlin-Hart debate in the UK in the 60’s, a number of key constitutional Law, LibertyandMorality. 517U.S.620 (US Supreme20 May Court, 1996). 539U.S.558 (US Supreme 26 Court, June 2003). 478U.S.186(US Supreme Court,30 June 1986).

13 , on the basis that the Constitution does not confer to to confer not does Constitution the that basis the on , Stanford: Stanford University Press, 1963,p.13. 4 15 , holdingitis , violation that Equal the of a 12 to invade people’s private realm of of realm private people’s invade to Law, LibertyandMorality. 14 16 was was and

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w g a e r e .c o m Law UCLA Review 21 Africa." in South Law Family for Act Union Civil the of Possibilities and Challenges The Toll?: Whom David,and"Forlesbian and Does Bell the people” MelanieJudge. gay (Bilchitz, of dignity the violate would to serve that equal' but 'separate aregime of create not could itfor all;secondly, and equal created disadvantage create aremedy that notcould Parliament one year.provided The judgment several toguideprinciples in Parliament first, this task: support ofeightjudges) other Parliament requiredcorrect to within constitutionalthe defect 19 Constitutional 1December Court, 2005). 18 and Others. 17 status subordination related to wider context a consideration into take not might liberties personal on emphasis An minorities. those of 1999 adults.” adults.” consenting between acts sexual same-sex criminalising laws of survey A world Homophobia: 20 world in case Fourie ordered, the therefore and Constitution, African South the of clause equality the with inconsistent is marriage, than other a regime tobeclear: relations, forlegal same-sex regime aseparate that se. Thislater was step intaken 2005, when South the African Constitutional consideredCourt per marriage however gay recognizing without lifepartners, same-sex of discrimination the the equality clause, while, in the second case, the Court went further and considered unfair couples to choose between marriage tochoose andcouples civil partnership which enabledsame-sex in Act November 2006, Union enacted aCivil Parliament response, Karst, Kenneth L. "The Liberties of Equal Citizens: Groups and the Due Process Clause." Home and Minister of Affairs Another vFourie andAnother. Affairs GayandLesbianEqualityOthers vMinisterof Home National Coalitionfor The International Lesbian, Gay, Bisexual, Trans and Intersex Association. “State-sponsored “State-sponsored Association. Intersex and Trans Bisexual, Gay, Lesbian, International The the J with judgment(written bySachs majority “The Bilchitz Judge: According to and 17 20 , and solidified, in the first case, the holding that sodomy laws represent a violation of of violation a represent laws sodomy that holding the case, first in the solidified, and , The fact that sexual minorities suffer from widespread rejection throughout the the throughout rejection widespread from suffer minorities sexual that fact The creates a heated context in which constitutional courts decide cases related to rights to related decide cases courts in constitutional which context a heated creates ILGA. South AfricanJournal on Human Rights CCT10/99(SouthAfrican Constitutional 2December Court, 1999). May 2011. (The of Regents Universitythe California)of 2007): 125. 55(October 18

, the Parliament to amend the civil law within one year. In In year. one within law civil the amend to Parliament the , 21 . 5 23 (2007): 477). 19 . CCT 60/04 (South African

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w g a e r e .c o m to fight against prejudice in the law, they are indirectly tackling disgust. disgust. tackling indirectly are they law, in the prejudice against fight to ofprejudice.extreme version In whenthis courts sense,seek to establishlegal framework a Law. 27 adults.” consenting between acts sexual same-sex criminalising laws of survey A world Homophobia: 26 April 2011. 25 State." 24 2011). 30, October (accessed http://www.hrw.org/sites/default/files/reports/safriglhrc0303.pdf in Southern Africa.” 13 May 2003. Homophobia Than “More Watch. also: State-Sponsored a Name: Rights See Human 2011). 11, December (accessed http://www.hrw.org/sites/default/files/reports/southafrica1211.pdf 2011. December 5 Africa.” inSouth Men Transgender and LesbiansBlack against 23 30,2011). (accessedOctober violence-against-lesbians March 2006. http://www.hrw.org/en/news/2006/03/01/south-africa-murder-highlights- 22 township African South indicated has as a2011Human forms Watchreport rapeandcorrective of Rights violence other sexual benchmarks. constitutional Byusing progressive with incountries even sexual minorities constitutional standards based on rights language andirrational ordisgustprejudice between link the and ingeneral, morals and law between relation the of complexity recognize same-sex in unions a landmark 2011decision by Brazilian the Supreme Court with around 3 million genderor identity of participants, intheir of orientation because sexual Brazil murdered people werereportedly 260 LGBTTI and being one of mentionthe to “sexual orientation”few in a Constitution countries inbeingsexual minoritiesfor rightson the of of including vanguardthe first-everthe by the region to Nussbaum, Martha C. Martha Nussbaum, The International Lesbian, Gay, Bisexual, Trans and Intersex Association. “State-sponsored “State-sponsored Association. Intersex and Trans Bisexual, Gay, Lesbian, International The em país.” sobe31% 2010 no Época. “Total assassinados de gays Revista Africa’s Post-Apartheid in South Marriage Same-Sex of "TheInevitability Pierre de. Vos, Human Rights Watch. “’We’ll Show You You’re a Woman’: Violence and Discrimination Human Rights Watch, Watch, Rights Human New York: Oxford University Press, 2010. In this thesis, disgust is defined as an is asan In University defined this disgust Oxford thesis, Press,2010. New York: South African JournalonHuman Rights In 2006,Zoliswa Nkonyana,lesbian, old a19-year wasbrutallyby killed inmob a a From the standpoint of enforcement of morals, those examples illustrate the the illustrate examples those morals, of enforcement of standpoint the From ILGA. 23 . Such . Such brutality happens like even within acountry Africa, globally South known May 2011: 6. 25 , although Brazil is the country with the largest gay pride in the world, 22 FromHumanity: Sexual OrientationandConstitutional Disgust to South Africa:Murder Highlights Violence Against Lesbians. to subject still are Africa in South lesbians other many while ,

6 23, no.3(2007): 432-465. 24 . On an equally brutal note, duringOn equally 2010, brutal . an Revista Época 27 towards towards 26 . 11 11 , 4 ,

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w g a e r e .c o m say liberty, equality to sexualminorities, least);concepts and,of the on of and dignity those Law. 28 the South Africa and in US regarding sexual minorities havesuch enforcementthus of morals. reaffirmed, on the rights-basedmorals,insteadlimits law nature to incriminal on of enforcing constitutional one hand, politicsthe of disgust this thesis is in debt withdiscussion Martha Nussbaumon privacy andand theher perspectives role with liberty,associated equality and/or dignity, which transcends ratherthe strictviews of criminalon the Develin-Hartlaw between in developments DevlinSouth debateconstitutional the andsay, to is Hart. that andsphere, Africa On thisconstitutional the matterfrom particularly and in the derived morals of enforcement legal the USto relevant perspectives other with debate have informed the debate overenforcement of morals in, at least, two ways. legal of enforcementquestions the reframed have developments constitutional above-mentioned The debate. of criminalization the beyond moralsincluding forms, various in its morals of enforcement with legal the to limits constitutional the over discussion a wider to privacy of realm andthe law criminal of limits the about primarily debate a transposed developments, constitutional litigation. rights-based constitutional a of limits the within other each with interacts morality and law how i.e. minorities, sexual of rights the on debate constitutional the of dimension moral the highlight to able is thesis this disgust, Nussbaum, Martha C. multi-dimensional nature New York: Oxford NewYork: University Press, 2010. By adding new elements to the debate, the recent constitutional developments in constitutional developments recent debate, the the to elements new By adding practical the significance Devlin-Hartthe about thinkingthey of enrichedFirst, our by laws,these of represented enforcement legal of question of the The reformulation 28 . In . In this Devlin-Hart sense,the focused debate primarily rolethe on of From Disgust toHumanity:Sexual Orientation andConstitutional of the issue of legal enforcement of morals (which involves

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w g a e r e .c o m forms or other (the classictake being example merely punishment than the coercion criminal and, to a larger extent, in in US the debates recentconstitutional However,the in chapters. following bethe addressed South Africa highlightswill self-worth, of their thebasis moral rejection of a on couples, same-sex against measures that the legal enforcementissueis such marriage discriminationsodomy.The questionpunitive whether an of of of morals can than the issue of coercive enforcement of morals through sex relations from marriage of institution the canbeconsidered ordegree of equal importance criminal law such as same- in of the exclusion the casewhether ofrightly, ask, could One marriage. of realm the from relations family of same-sex exclusion forced as such forms of subtlercoercion, to be applicable also punishmentcould or as coercion viewenforcement of clear timewhetherthis that was not at recognition of same-sex relations, through marriage or other means. legal of lack the is example common most The law. of use the with in place put often are morals, sakeof forenforcing the formsdiscrimination, of other that highlighted therefore it broadened discussion beyond the criminalization taking and the of intercourse, homosexual the present analysis of the sexual minorities.constitutional enforcement of moralsdevelopments as well as they debatedalso their Justices quiteover often disagreed the on the rolecontent of those constitutional ofrights in thoseinrestricting rightsUS side-by-side,jurisdictionsin when two areput but grounds differentAfricathe on weredecided relationand to in South South and US in the cases those were only morals. Not enforce seek to lawsthat control Africa have exposing a plethora of judicial concepts of each of those rights and how they justify or by debate, Devlin-Hart the reformulated also have developments those hand, other the When Hart mentioned the role of law in justifying coercion against homosexuals, it homosexuals, against coercion justifying in law of role the mentioned Hart When morals, of enforcement the on debate Hart-Devlin the to contributing besides Second, 8

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w g a e r e .c o m vagueness of thisthe concept. especially interpretation, dignity-based considering the dangers legal institutions of aswellexposes a of nature heteronormative as underlining serves asareference totheUSbothin in to thepotential relation approach of a dignity-based dignity-based, explicitly law, constitutional African South the Second, law. marriage of basis formal cases same-sexfuture on relations of heteronormative highlighting the recognition right torecognition minorities of those through lensthe of dignity,which will likely impact the addresses therefore and doctrines, liberty and equality between division the challenges that Texas, v. Lawrence after especially minorities, sexual to in relation jurisprudence dignity-based emerginghas developedan Court US Supreme the First,following. the law. of structure andheteronormative the minorities subordinationit status the highlights dimensionand ofsexual a recognition in sense this to is related disgust finally, (iii) law; criminal of principle abasic violate example) classic the justified on basisthe of harm principle, andthusdisgust-based criminal laws (sodomy being lawisincreasingly whilecriminal moral preventagainstothers) offence realm (to of offence sexuality regulate that laws aspects (ii) in operates anddisgust other of sexual minorities; the aspect moral-based hatred of the sexual highlights minoritiesand therefore prejudice against dimensions:islegal moralsfor enforcementhasdisgust on three (i)of basisgrounded minorities morals. inlegalof enforcement Inthisrealm,first, thesisargues, thatdisgust this since Lord Devlin, the inmind,particularly Bearing perspective. sexuala constitutional from minorities against role of disgust and other forms of aversion feelingsdebate brought up by the inclusion of a constitutional approach to this discussion.towards sexual Devlin-Hart of the scope of the expansion an in itself,is already which, marriage), same-sex Second, inSecond, applying arguments these to theUSand Africanlaw, South caseargue I morals legal longstanding The presentthesisof addresses problem of the enforcement 9

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w g a e r e .c o m Rgltn Sxaiy O Lbryvru Equality.” versus Liberty On Sexuality: “Regulating Robert. see Burt, jurisprudence, aequality-basedfavorin Arguing of (January 2011). Protection.” Equal Yoshino,“TheKenji. New or (April 2004), 2011). 12, (accessed October http://www.law.yale.edu/intellectuallife/sela2009.htm its Name.”Speak NotDare That Right" "Fundamental Texas: The 29 perspective. from debate a constitutional Hart constitutional litigation inthe arguments by disgust-based played for role the such categorization of impact the for rights of (equality,liberty sexual and acombination dignity or grounds).of those Second, it clarifies is what minorities, courts constitutional African South and US the under framed been have minorities andsexual therefore elucidates the Devlin- frameworks liberty equality andlens of the particular the perspective:through a from minorities inconstitutional the argumentanalyses regardingdisgust-based litigation ofsexual rights thesis this Furthermore, sexual minorities. against morals disgust-based of enforcement legal Africa,all) at (if the in curbs South jurisprudence,in emerging consolidated USand constitutional regardingin litigation a dignity-basedsexual minorities,and general, how referred toasdisgust). particularly takinginto consideration thesocietal aversion to those minorities (hereafter, Court andAfrican South the Constitutional torestrict legal morals,the Court of enforcement limits, itrefers specially the to triad of liberty,equality and dignity,used by USSupremethe rights-based of concept the applies thesis this When minorities. sexual of rights on litigation constitutional recent the from derived minorities, sexual to in relation morals of enforcement v.“Lawrence see Tribe, Laurence H. jurisprudence,favorof a dignity-basedArguingin The research question of the present thesis is what are the rights-based limits to legal limits to rights-based are the is what thesis present the of question The research The present thesis has the following objectives. First, it outlines how legal claims of of legalit claims how First, outlines objectives. following hasthe The present thesis Bearing this inmind, main the object of isthis thesis the betweenrelation disgust and 29 .

10 SELA. Harvard Law Review Harvard Law Law Review Harvard 1 ue 2009. June 11 124 117

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w g a e r e .c o m inand Justices role the Court how disgust In the of jurisprudence. of this USSupremethe minorities,2,I willChapter foundationsthe jurisprudence present of of US sexual the regarding rights with special1, I will discuss the idea of disgust and itsattention impact on the enforcement of morals by law. In the to the plurality relations. sex of constitutionalbasedin argument US would look like in futurethe cases about formal of same-recognition standardsa dignity- assess to what enable this asitthesis will Lawrence)aswell (after Court Supreme used US bythe approach theequal-liberty minoritiessexual than to approach its dignity in by the allow this thesis tocritically assess the argument that South Africa has been more progressive will comparison Such scrutiny. to subject morals of enforcement from minorities sexual approacheshighlighted two between willbe the andtheirability protect the rights of to difference Africa, the in jurisprudencedignity-based South with the equality protection) andequal process (due in the US standards constitutional the By comparingminorities. is by justified in differences approach the each of of jurisdictionsthe question tothe sexual of sexuality and morals, such as the criminalization of prostitution,incest oradultery. on areas of all) debate other (if the thesame to at extent to apply notnecessarily does thesis relation the about conclusion Any betweenminorities. sexual of question the on focused is it Second, law. morals and law and from theirderived case African moral USand apex debate in tothe the limited courts South the US and is South thesis this sense, this In minorities. sexual protected have laws statutory how discusses it Africa that mightdetailed account on the litigationderive on sexual minorities’ rights before state or local fromcourts, nor a presents neither thesis this Thus, debate. constitutional the to isit restricted this First, ways. It should be noted, therefore, that the current thesis is a limited endeavor in several in several limited endeavor isa thesis current the that therefore, noted, should be It As far as the structure is concerned, the thesis is organized as follows. In is Chapter follows. In the as isorganized As far the thesis concerned, structure asthe Africa USandSouth between comparison the perspective, methodological From the 11

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w g a e r e .c o m godecides towardsthis to direction. willlikely faceifitshortcomingswill USSupreme Court the I what experience,outline arguments dignity-based human present will I Conclusion, the In experience. US the from differ might it what in and as raised therein arguments dignity-based an the on emphasis putting minorities, alternative jurisprudencesexual African regarding will constitutional South the 3, I present Chapter in the US context and, derived from the South African

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w g a e r e .c o m http://news.bbc.co.uk/2/hi/africa/7266646.stm 31 Wasserstrom, Wadsworth 24-48. Pub. Co., 1971:40. 30 to the Enforcement ofMorals The Bounds of Toleration: Disgust as a Legal Concept in relation Chapter One. When Zimbabwean PresidentMugabe referred togays as“worse than anddogs” pigs accordingwhich to is disgust a denial recognition.of arguments dignity-based human finally, standard;and, regulatory as principleharm the legal morals; enforcement legal of liberalism, whichexpressly instead disgust, denies using in legal andmoral literature: legal moralism, towhich according servesdisgust as a basis for defined asdisgust. ishere religious terms, moral inand cultural, deeply sexual rooted minorities, towards of feeling the repugnance gays viscerallesbians’one considers sexualorientation. when feeling and Such clarity with pictures restrictions, dietary of part generally is meat pork’s where Islamism and Judaism as such traditions inreligious particularly dirtiness, animalistic disgust as basis particularly usual hideous choice arather the despite simply words, of to reference repeated for restrictions of gay rights. The well-known association of pigs with opponents ofreform are swayed simplyIf thatwere bydisgust. sowould it wrong, be butIdo Devlin, Patrick. “Morals and the Criminal Law.” In B News. BBC not thinkonecanignore disgust ifitisdeeply felt and notmanufactured.Itspresence isa In the present chapter, I argue at Iargue presentleast,In the thereare, chapter, todisgustthat very approaches three “Those whowith are dissatisfied thepresent law homosexuality often on say that the Africa's LesbiansDemand Change. good indicationthatthebounds toleration are ofbeing reached”.

(Lord Devlin, “Morals and the Criminal Law”, p. 40 13 (accessed June29,2011). Morality andtheLaw eray 7 2008. 27, February , by Richard, A. 31 , he, , 30 )

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w g a e r e .c o m homosexuality‘disease’ isunderlying a belief the beingthat women’ – ‘real African African women and girls thought tobe lesbians with the claimed purpose of turning them into raping of practice the describe to used “term is a which rape”, “corrective so-called the to lesbians areoften subjected in Africa, in Southern countries instance, several For violence. forms of more severe alsobut prosecution, of criminal threat face the only lesbians not and criminalize sexual acts committed in private between consenting adults of the same-sex. Gays countries still 76 Intersex Association, and Trans Bisexual,Gay, Lesbian,International 2011). (accessed June29, http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2011.pdf 32 Homophobia 2011WorldAccording the State-Sponsored Report on to in morein thenextchapters. detail analyzed courts, apex African US andSouth in Justices the of in opinions the law, arepresent disgust as consequence of historical subordination and disgust as violation of rationality of elements namely: irrationalprejudices. of fearsa disgust-based Both based approach, on or idea law should alegitimate means, that andbe aimrationally pursue not connected through i.e. the law in itssense, basic most lawof rationality ideal of deny to the approaches based groups),of especiallythose for treating theobjectof as inferior.disgustLikewise, disgust- based on moralsin its (which, turn,obviously impacts one’s understandings of equal liberty ofcertaingroups subordination emphasizes thesocietal a disgust-based approach particular, In literature. the in underrepresented be might otherwise that minorities sexual of rights ILGA. Furthermore, disgust is relevant for highlighting certain aspects of the litigation on the 1.1. State-sponsored Homophobia.

Introducing Disgust

2011. 14 32 , edited by ILGA – edited byILGA ,

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w g a e r e .c o m Journal on Human Rights 35 de-homossexuais-diz-grupo-gay-da-ba.shtml 33 are considered,tousea well-known by Graham expression Greene, “torturable classes” rights, suggests that, deprivations of other amongbecausemurder, rape and ofsystematic target are sexual minorities of their sexual orientation that The fact society. discrimination throughout perpetuate helpto andtherefore feelings, or gender identity, tackle such directly fail law, humanto rights framework of law the within the applying those minorities for responsible themselves in democracies, courts constitutional is whether addresses chapter is anddirected towards this thatthis the question therefore disgustdeep group feelingof the how illustrate those as such crimes violent homophobic of rates high However, phenomena. those for explanation with asociological reader toprovide the ofthe present thesis scope the isit of manner. outside inFurthermore, of a reductionist here byfeelings disgust explained lesbiansgays, and forwere killed transsexuals homophobic reasons in In Brazil, 2010,around 200 estimate that, murder. society particularly civil organizations by imported whitethe colonial empire’” BA 34 353, Summerfootnote 8. 2008, and Legal Approaches to Enforcing International Human RightsObligations inIan Miller a seminal on instartswork this interest thephilosophical “modern issue, disgust by William As chemical described or features. basic bodily its and acertain object towards a social which towards group isdisgust directed, causingadehumanization effect. EmmaMittelstaedt, Folha de São Paulo, São de Folha Oscar Vilhena Vieira, Inequality and the Subversion of Law, In: In: Law, of Subversion the and Inequality Vieira, Vilhena Oscar , available at: at: available , Complex social phenomena, such as corrective rape or hate crimes, cannot simply be simply cannot crimes, hate or rape corrective as such phenomena, social Complex From a philosophical perspective, disgust is described as a feeling of feelingrepugnance of as a is described disgust perspective, From a philosophical http://www1.folha.uol.com.br/cotidiano/898470-aumenta-n-de-assassinato- SafeguardingRights ofSexualThe Incremental Minorities: the Aumenta nº de assassinato de homossexuais, diz Grupo Gay da Gay diz Grupo homossexuais,de de assassinatonºAumenta , N. 6, Vol. 4,p. 40.

33 . Gays are also subjected to violent hate crimes, . Last accessed. Last 29June, on: 2011. 15 34 . Sur – International – Sur , 9 CHIJIL 35 , i.e. ,

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w g a e r e .c o m Quarterly Commission on Human and Peoples' Rights and the African Union." Sexual Orientation: The Normative Basis and Procedural Possibilities before the African 40 39 38 37 1997, p.1. 36 with Darwin, who centers it in the rejection of food and the sense of taste” differs from emotionsother by having aunique aversive style” disgust has, at least, four general features. comply them,because those values people to with disagreemoral those with who make even say: thosemorals, toenforce is inuse coerciveparticularly means that designed to to to order whenDisgust, as an understood suggestion morals, societal of the may indirectly justify laws evidencesalthough areserious indicatingthere otherwise isof Mugabe’s words widespread the view an homosexuality violates that Africanvalues, as itillustrates how disgustis related to theidea of anddirtiness contamination. context The reference to animals reinforces how disgust puts the societies other in a subordinated position, as well otherin forms ofhierarchicalmaintaining ranksplay justifying akeyroleor social and and the object of disgusting,feces to as in relation and therefore, age the of four orfive,in general, donot presentusual feelings of seendisgust in adults, such from a moral by delimitated young nature, than once have culture, rather studies proven that children under and political perspectives,isit contamination objectpresents observer.Third, tothe the that danger the disgust of of might Murray, Rachel, Dr.,and Frans Viljoen. "Towards Non-Discrimination on the Basis of William Ian Miller, William Ian Miller, William Ian Miller, William Ian Miller, Miller, Ian William First, it is an emotion, and therefore not an intellectual rational exercise. Second, “[it] “[it] Second, exercise. rational intellectual an not therefore and emotion, an is it First, 1.2. 39 29, no. 1 (February 29,no. 2007): 93-94. . Mugabe’s words at the beginning of this chapter illustrate this view. The view. thisillustrate chapter this beginningof the at Mugabe’swords .

Disgust as Basis for Legal Moralism 38 The Anatomyof Disgust The Anatomyof Disgust The Anatomyof Disgust . Finally, disgust implies a hierarchical relation between the observer observer the between relation hierarchical a implies disgust Finally, . The Anatomyof Disgust

16 , p. , 220. , p. , 12-13. , p. 9. , , Cambridge, Harvard University Press, Press, University Harvard Cambridge, , 40 . 37 , in other words, it implies Human Rights 36 . Accordingly,.

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w g a e r e .c o m Wasserstrom, Wadsworth 24-48. Pub. Co., 1971:32. 44 below. asiswell he leading analyzedliterature the disgust,aspresented bythe recentthe on author argument is more as since hismoderate key reference, the serveby Devlinwill developedLord arguments often found in the Justices’43 argumentation in the US and South Africa as

Debate.” Hart-Devlin the from Debris Unswept “SomeJoel. Feinberg, parties”. nonconsenting offense to harm noor ifcause actions immoral, even those are inherently actions that prevent they that statutes criminal of in support reason legitimate a sometimes is also it moralism’, that insists ‘legal called often theory, rival important One prohibition. criminal a for reason legitimate only isthe morally actor the other than parties of harm to offense or prevention 42 Court, 29Junepara. 850. 1992), 41 morals” its ideas about wayits the members behaveshould andgovern lives; thesetheirideas latter are issociety as such definedfor being a “community ideas, of not only ideas,political also but Stephen suchas Fitzjames James along with others Wolfenden Report for the decriminalization of sodomy,is thekey inreference thistheory, as legal mayis harm defined hereafter asimmoral of they moralism the cause regarded regardless acts certain playedin akeyrole morals. enforcing Thelegal arguesfor that theory criminalization the of cases. divisive moral own code” our mandate v. defineCasey,liberty “our Parenthood obligation isto not to of 1992) held that the all, confirmedCourt decision that choose women’s right the to terminate pregnancy(inPlanned to considered repulsively immoral in thesociety.When Justice in O’Connor, theUS Supreme acts of certain by occurrence the disgusted feels deeply majority certain or averagethe person Devlin, Patrick. “Morals and the Criminal Law.” In For the difference between Stephen and Devlin, see the introduction. In this thesis, the the thesis, this In introduction. the see Devlin, and Stephen between difference the For “That position, to which I shall refer by the overworked label ‘liberalism’, is that the Planned Parenthood of Southeastern Pa.Casey. v. Planned Parenthood of Lord Devlin’s argumentation starts with a particular conception of society: any society: of conception particular with a starts Devlin’sargumentation Lord Yet, road the to liberty many In presents history, legal obstacles. the lawcriminal has Synthese 44 . Accordingly, Devlin’s view of society is of a moral fabric, which is legitimate legitimate is which fabric, a moral isof society of view Devlin’s Accordingly, . 72, no. 2 72, 1987): 249. (August 42 . Lord Devlin, who famously criticized the recommendation of the

41 , she clearly declined to exercise the role of moral arbiter in arbiter moral of exercise role the to declined , sheclearly 17 43 . Morality andtheLaw 505 U.S. 833 (1992) (US Supreme(US 833 (1992) U.S. 505 , by Richard, A.

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w g a e r e .c o m is indeed much evidence against it.” In: Hart, H. L.it.” A. In: Hart, ismuch indeedevidence against thesis,andthere maintained this has historian No reputable existence of society. the threatens liketreason, is which, something in private, byadults even sexual minority, accepted 49 Wasserstrom, Wadsworth 24-48. Pub. Co.,1971:note20. 48 Stanford UniversityStanford 1963:50. Press, 47 Philosophical Quarterly 46 Wasserstrom, Wadsworth 24-48. Pub. Co.,1971:32. 45 wouldapart” drift members the relaxed, far too were bonds the If thought. common of bonds invisible the by society. the of integrity protectfor criminal law – in the to words,punishing thatattempt moral againstother acts the evidence (LordDevlin does not show any inhisevidence essay historical lacks disintegration societal ideaof the statement, an empirical as Considered made. been have criticisms least, two At thesis. in this later explained minorities sexual same way as a game is defined by its rules DevlinYet, hisevery reinforces viewthat society isby definedits morality shared as the new Devlin one. Lord defining replies particular this controversy amere as play words. with changes in morality” societal its with moralsidentical is wouldsociety “a representwhich to according the end of proposition, a given society and the beginning of a it. compose Second, it defendsthat that withoutideas such moral agreementmoral society would disintegrate.common the to reference by society a defines it i.e. morals, thesis disintegration According to Hart, “no evidence is produced [by Lord Devlin] to show that deviation from show deviation that Devlin]from [byLord Hart, “noisAccording to evidence produced to Devlin, Patrick. “Morals and the Criminal Law.” In Hart, H. L. A. Devlin, Patrick. “Morals and the Criminal Law.” In Galvin, Richard Francis. “Two Difficulties for Devlin's Disintegration Thesis.” Thesis.” Disintegration Devlin's for Difficulties “Two Francis. Richard Galvin, In this sense, “for society is not something that is kept together physically; it is held The second claim is more troublesome and has resonance in the cases involving involving cases in the resonance has and troublesome more is claim second The In relation to the first claim, H.L.A. Hart argues that it constitutes an absurd Law, andMorality. Liberty 45 46 . Such concern with the integrity of the society is known as the the as known is society the of integrity the with concern Such . . It is composed of two claims. First, it identifies the society with its 37, no. 149 (October 37,no. 1987): 420-423.

48 Standford: Stanford University Press, 1963. . 18 Law, Libertyand Morality. Morality andtheLaw Morality andtheLaw 49 ) as well as it treats 47 , by Richard, A. , by Richard, A. . Accordingly,. Standford: Standford: The

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w g a e r e .c o m Wasserstrom, Wadsworth 24-48. Pub. Co., 1971:40. 5353 Law. 52 70. 51 Thesis.” Philosophical QuarterlyDisintegration Devlin's for Difficulties “Two Francis. In: Richard result.” likely Galvin, the is revolution violent than rather within from change gradual since bombingWhite than House, the rate anincrease in to or postage the of elimination poll-taxes consenting homosexualare morebehavior, analogous to lobbying for alower speed-limit, the itself from in destruction thisMany sense. thought to beimmoral,practices such asprivate itis defend arighthas then clear society not price to percent one that of the a postage-stamp, is entailed by changing speed-limit, the securing the protection of voting rights or raising by ofsociety’ if ‘destruction the Rome. However, sackof or the in Streets of Wild order the the and on widespread harms, significant normallyentails onlybecause 'destruction' unarguable 50 causality of actual chain conceive asan is hardto which society, whole tothe asthreats acts private unreasonably isseemedenforcelaws bebecause morals.It used asabasis to todisgust so, for designed indicationDevlin,for of a moral actsand of pervasivenature certain the should therefore be [for legal regulation]” is himwith ita test because such “disgust, avery form disapproval,of provides intense sense, Devlin,legally morals should enforce feelings basedon disgust averagethe of person.In this Lord to according society, itself, preserve to In order together. community the members of keep the that tomaintain bounds the in order respected morals are common the that ensure might be desirable, once “such a society could be of no practical value for human beings” liberty, any universal equality value,itisor other toexpect its that reasonable disintegration value is the preservation of society itself, and not the protection of other moral goods, such as such could be even pursuing. somethingAs worth arguedby H.L.A. Hart,where the ultimate Nussbaum, Martha C. Hart, H. L. A. L. H. Hart, According to Galvin, “This point appears uncontroversial, innocuous and perhaps and innocuous uncontroversial,appears point “This Galvin, to According Devlin, “Morals Patrick. andthe CriminalLaw.” In New York: Oxford NewYork: University Press, 2010,p.10. Bearingin mind the danger of disintegration of society,in light of this view, law must Law, LibertyandMorality. 52 . Feelings such “intolerance,indignation,as and disgust” From Disgust toHumanity:Sexual Orientation andConstitutional 37, no. 149(October 37, 1987):422. 50 . Considered as a statement of principle, societal disintegration as disintegration societal principle, of as astatement Considered .

Standford: Stanford University1963, p. Standford: Stanford Press, 19 Morality andtheLaw , by Richard A.by Richard , 53 represent, represent, 51 The .

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w g a e r e .c o m 57 Harvard University Press, 2000. 56 Ely, John Hart. instead to minorities, of replacing with judges), their relevance from decisions see: unelected 55 Law. 54 than that it disapproves of the personal choices they make?” ground better no on citizens individual of liberty the limit democracy, majority’ ‘moral a “may namely: constitutional a in majority moral a of power the to related rights, constitutional conventions” social deep-seated of expression “an him misrecognition the only repairing was not he choice, freedom to personal a recognized in in cases that rather arightliberty, liberty linebutto engage tothe sodomy, several of other of homosexuals merely aright not at stakewas right the that emphasized Court, US Supreme oppressive majority, suchas liberty and dignity. order to address,in general society the which values maybethrough terms, by endorsed the dealing an ofsexual with minoritiesrights imposeoncourts extra burden justification,inof litigation constitutional of aspect counter-majoritarian the on literature the to is related This otherwise? feels legitimate bodies to issue decisions favoring minority rights even when deciding themost the majority courts unaccountable andlargely unelected, are namely: courts cases, morally divisive thinks or constitutional to question democratic a poses it therefore and majority, moral dissolve. would society Lawrence v. Texas. Lawrence Dworkin, Ronald. For an eloquentvoicein this in (arguing debate favor of opening upthepolitical processes Nussbaum, Martha C. New York: Oxford NewYork: University Press, 2010,p.10. As seen in the next chapter, when Justice Kennedy in Lawrence v. Texas v. Lawrence in Kennedy Justice when chapter, next the in seen As importantisWhat tohighlight, is however, for involving that, cases aspects, these Nevertheless, disgust is a feeling within specific social context. It is often related to a Democracy andDistrust. Sovereign Virtue: Theory andPracticeofEquality. The 539U.S.558 (US Supreme JuneCourt, 26,2003). 55 From Disgust toHumanity: Sexual Orientation andConstitutional . On the other hand, there is the question of individual autonomy and

Cambridge:Harvard University 1981. Press, 20 54 , without which the moral fabric of of fabric moral the which without , 56

Cambridge: 57 , from the

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w g a e r e .c o m ago. moralslong established history, to reference or aNation’s tradition and therefore to through especially injurisdictions, common-law have defined values, constitutional such as liberty, constitutional debate in the resemblance presented a has morality.Such perspective a givenlongstanding to according in the next chapters, assuch, punish immoral acts be usedto whichlaw should conservatism,to according in particular inmorality relationcritical to how Courts, in rational and to engage thechance opportunity loses a establishing of debate therefore the feelings of disgust and therefore affirms that, when the society is based on those feelings, one mustlaws, beable speak to out to religiousthis audience insociety as well. tackledesigned disgust-based a to approach, dignity-based feelingtherefore, and, disgust the reinforcing in beliefs religious by played role the relevant is particular it minorities, sexual effort or not is a wholeleast in general terms, personal liberties. Whether the newcourt is successful in this argumentative question, inaudiencelarger althoughthat, society may withfeel disgusted at homosexuality,not endorse, entirely addressed by this thesis. In the case of 58 by against homosexuals’perpetuated sexuality previous caselaw Philosophy of Law Philosophy of Journal gaysforlesbians.” to recognition and “TheLima. right Reinaldo impressionsde moralon (Lopes,Jose andfeelings” butfundamentals choice, of moralitysomethingimmoral,whichbe should law. these punished In terms, by concludes Hart, the proposed if certain facing street, then inthe on man we arecertainly the feelings orattitudesawaken these acts indignation: and intolerance disgust, combines that activity intellectual an byof result Devlin 59 is uncritical, is not based on any rational discussion of the Bowers v.Hardwick. Bowers According to Jose Reinaldo, “[Hart] argues that Devlin tries to show immorality as the the immorality as show to Devlin that argues tries “[Hart] Jose Reinaldo, to According In response to Lord Devlin, Herbert Hart highlights the irrational nature of those those of nature irrational the highlights Hart Herbert Devlin, Lord to response In 1.3. 2, no. 2 (2005): 64-65).See also Hart, H. L. A. “Immorality and Treason.” In

Denial of Disgust: Legal Liberalism and the Harm Principle andtheHarmPrinciple LegalLiberalism of Disgust: Denial 59 . This is a criticism against the very idea of the legal moralism or moral moral or moralism legal the of idea very the against criticism a is This . , byRoland Dworkin. Oxford: Oxford University 1991. Press, 478U.S.186(US Supreme Court,June 30,1986).

21 SUR - International Human Rights - International SUR 58 . He was also addressing . Hewasalso a The

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w g a e r e .c o m and OtherEssays. in the opinions of others, to do so would be him for do itwillbecause be so, better forbearit because, will make himhappier, to because wise, or even right” (Mill, John Stuart. physical is moral,sufficientor a not Hewarrant. cannot rightfully be do compelled to or civilizedhisisprevent community, harm will,against to His to others. good,either own 62 1963, p.5). be right”.(Hart, H.L. A. to harm moralityBut of Mill issue tome on of others. enforcement seems tothe relevant narrower the to prevention the than other individual the of coercion legal the justifying grounds be 61 75. 60 others harm to prevent to is used it when moral is only individuals against coercion legal which to according would be artificially to arrest the process which gives social institutions theirlife” their lives. To use coercion to maintain the moral status quo at any point in a society’s history the result of the free, through no doubt unconscious, adaptation of men to the conditions of this“the sense, value of in established institutions resides factthat the they have developed as change quoaccording process.In status aconstantlyevolvingmoral men to rational the to let freeenforceshould whichnot thecurrentmoral tothe but lawshouldvalues, according to principles. and offence the harm on alongelaborated literature based theDevlin-Hart, on who, Feinberg, work of Joel the mentioning worth is it However, law. constitutional of development in the particularly focused entirely in present thesis, the morality law,isnot reflected and primarily to related berights harmed in to morallyorder justify anotherperson’srestricting individual liberty. one’s isitthat Rather, necessary by act. certain disgusted) instance, (for offended morally others harm to “That the only purpose for which power can be rightfully exercised over any member of a member overany exercised of forwhich canberightfully “That only power purpose the In Hart’s words: “I donotpropose to defend Mill all that said; for Imyself may there think Hart, H. L. A. L. H. Hart, In the contrary, Hart argues for an evolutionary perspective of development of morals, The theoretical debate regarding the harm’s principle is a complex one and, for being being for and, one complex a is principle harm’s the regarding debate theoretical The Yet, this liberty is not absolute. Hart sustains that law should play a role in preventing 62 61 .Therefore, in order to legitimately restrict one’s liberty, it is enough to be Law, LibertyandMorality. . In this sense, he endorses John Stuart Mill famous “harm principle”, New Haven and London: Yale University Press, 2003, p. 80). Law, LibertyandMorality.

Standford: Stanford University1963, p. Standford: Stanford Press, 22 Standford: Stanford UniversityStandford:Stanford Press, 60 . On Libety

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w g a e r e .c o m Vol. 19, No. 5, Sep., 2000, p. 545. 65 no. 3(2004):4. Harm's Way? Substantive Due Process and Criminal Law.” andCriminal Way? DueProcess Harm's Substantive constitutional inthe (rational criminalizing conduct for rational reasons not are alone, paternalism, sense of wefailing know what itthe is not: Whilerational rationalhasbasis. legislation is, completely “harm” no is, wemay know the not what it is not morality basisThat irrationally.has acted legislature the justification, valid,harm-based Without a conduct. and test)”. it is not, certain criminalize can constitutionally seemingly, legislature a before Tennen, required is harm therefore, paternalism. Eric. sum To follows. instruct issevereand, substantive cases asCriminalization up, these process (…) due “Is Moralitycriminalization for basis the a valid not is Constitutiontherefore and and harm of a type not is alone in 64 Universityp. X. Press, 1986, 63 sexual intercourse. private a for his/her partner choose to adults homosexual liberty consenting of the constitutional hold to Supreme Court for US the harm decisive lackwas jurisprudence, of the Court Supreme US the of light in chapter next in the analyzed better development, constitutional the acts can legitimately In liberty to what State criminalize. the scope standard of by setting the the harm determines the inprinciple liberalism, the once concepts arguably autonomy, key the person injured. A definition of the harm principle leads a to theory on personal liberty and isharm and, composed according to theharm law principle, shouldinto come play protect to rights person’s another andinterestsa detrimentalto an unjustifiable concepts: setbacktwo otherwrongdoing to of miscellany all of or any reference in its including former the sense, normative specifically others” offence to prevent justified to be might liberty of someone's restriction “state's which to according principle the i.e. principle”, “offence the resembles Devlin Lord by advanced argument The be from offensean perspective. regulated can also law anddisgust criminal between relation Principle,Offense the and Words" "Dirty Shoemaker,W. David According to Tennen, “From Lawrence, we have a clear answer that an offense to morality an offense to we haveaclear that answer “From Lawrence, Tennen, to According eneg Joel. Feinberg, According tohim,harm,in sensethe of harmthe principle, is defined by overlapping In addition, besides the harm principle, according to Joel Feinberg, a theory on the 65 Harm TheMoralLimitsto Self: ofCriminalLaw. . According to Joel Feinberg, the “word ‘offense’ has both ageneral Joel According ‘offense’hasboth “word . and the to Feinberg, 63 . When those two elements are put together, a sound definition of 64

23 Boalt Journal of Criminal Law Law and Philosophy Oxford: Oxford Oxford: 8, 8, ,

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w g a e r e .c o m Redistribution: Reconciling Inequalities.” Inequalities.” Reconciling Redistribution: Difference. SUR -InternationalHuman Rights Journal 214-234. Debate. Fraser, Nancy,and Axel Honneth thing, a he/she once humanity andfurther reduced isrepulsive his/herto isobjectified such undermined, as debated in both bodilyphilosophical and legal terms majority), isare also Recognition a denial largely aconcept recognition. overwhelming of excrements, or person (average by others immoral consideredact or group a to aversion deep like “feces, blood, semen, urine, nasal discharges, 68–93. Recognition? Dilemmas of Justice in a ‘Post-Socialist’ here): referred Age.”works the of identification the 68 The MoralLimits Criminalof Law. Joel. Feinberg, law. last in legitimate one of criminal realm asa the principle the only accept would Hart’s) or (Mill’s liberalism of view extreme an while principles, 67 University Press, 1985,pp.1-2. adults consenting between and private in conducted are they when even intercourse, same-sex of Devlin), theaverage view) morally Stephen’s by or (according person to offendedlegality the sodomy lawsjustified couldbe majority bythedisgustfeelingan overwhelmingof (in locatedoffencewords, at is similarfeelings the sensorial level,to Arguably,disgust. of 66 states those only when caused by wrongful the of (right-violating)others” conduct latter referring to andthe shame, anxiety,etc.), hurt, mental dislikedconditions (disgust, For a more in-depth discussion on recognition, see (authors’ names highlighted to facilitate facilitate to highlighted names (authors’ see onrecognition, a discussion moreFor in-depth harm the and offense the both embrace might view liberal a himself, Feinberg to According Feinberg, Joel. Feinberg, 67 Disgust–based laws, i.e. laws that are solely or primarily motivated byfeelings of motivated laws are solely i.e. primarily laws,or that Disgust–based 1.4. . London-New York: Verso, 2003. Verso, London-New York: Fraser, Nancy Lopes, JoseReinaldode Lima Princeton :Prnceton University 1990. Press,

Disgust as Denial of Recognition asDenial Disgust Offense toOthers:Offense The Moral Limits ofCriminal Law. . “Rethinking Recognition.” “Rethinking .

Oxford: Oxford University 1985,p.x. Press, . Redistribution orRecognition: A Political-Philosophical . “The right to recognition for gays and lesbians.” lesbians.” and gays for recognition to right “The . 2,no. 2 (2005): 61-92. Young, Iris Marion South AfricanJournal of Human Rights 24 68 . When disgust is directed towards a person, person, a towards is directed When disgust . Fraser, Nancy New Left Review Review New 3 Left Fredman, Sandra New Left Review . . “From Redistribution to to Redistribution “From . Justice and the Politics of the and Justice Offense to Others: Others: to Offense , 2000: 107-120. 2000: , . “Recognition or Oxford: Oxford Oxford: 22 (1995): 22 66 . In other other In . , 2007: ,

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w g a e r e .c o m Philosophical Debate. 72 Law. 71 Law. 70 University Press. Princeton Princenton: disgust, see also Nussbaum, Martha C. see alsoMartha Nussbaum, disgust, Law. 69 smelly” slimy,areor oozy, that and animals/insects meat, decaying corpses, discharges, menstrual those primary bodily objects. Nussbaum calls this association “projective disgust”. “projective association this calls Nussbaum objects. bodily primary those cultural value in ways thatNancyaccording model,to is byinstitutionalized status Fraser’s “constituted of patterns prevent one from participatingMisrecognition, atstake. subordination of group the it status lackrepresents the therefore of as a peer in social life” other’s equal humanity. interests they are pursuing” imaginewhat to attempt andsympathetic aserious fellow with forcitizens one’s respect “combination equal former a definingof humanity, of a politics instead the as disgust, of in When causesbodily others. Nussbaum on favor of repugnance argued objects a politics of primary of exchange their activity, sexual their because simply minorities, those towards formal recognition of their relations, this circumstance signalizes themoral disapproval from for being an inferior subjectedones prevented condition of“umarryable” to or laws sexual minorities are of object extreme tothe disgust being of branded as by criminal sodomy perspective. constitutional sense,as defininga denial disgust has recognition of followingthe from consequences, key a Nussbaum,MarthaC. Nussbaum, Martha C. Martha Nussbaum, Nussbaum, Martha C. Martha Nussbaum, Fraser, Nancy,andAxel Honneth New York: Oxford NewYork: University Press, 2010,p.50. Oxford NewYork: University Press, 2010,p.15. New York: Oxford NewYork: University Press, 2010,p.15.For a more detailed description of Sexual minorities are often object of disgust because their sexuality is associated with Recognition operates at the symbolic level, at the dimension of cultural value and 69 , accordingtoNussbaum. London-NewYork:Verso, 2003, p.29. From Disgust to Humanity: Sexual Orientation and Constitutional Orientation Humanity: Sexual From to Disgust FromHumanity: SexualOrientationandConstitutional Disgustto FromHumanity: SexualOrientationandConstitutional Disgustto 71 , she basically described disgust as a lack of recognition of the

Hiding from Humanity:Disgust, Shame, andthe Law. . 25 Redistribution or Recognition: A Political- 72 70 . In this. When

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w g a e r e .c o m 75 Age.” in Justice Dilemmas of a ‘Post-Socialist’ Recognition? to Redistribution “From Nancy. (Fraser, structures”. economic basic other transformingdemocraticor decision-making,investment subjecting to labour, division of 74 Review Age.” ‘Post-Socialist’ a in Justice of Dilemmas Recognition? to Redistribution and representations cultural (beingone’s culture); anddisrespect malignedin routinely disparaged stereotypic or public of practices andinterpretative via communicative, invisible authoritative the representational, institutions that are based on a devaluation of certain identities. and are culture alien andanother with associated are that communication and interpretation of patterns to (being subjected domination cultural include Examples communication. and interpretation, representation, second kind ofinjusticeis cultural or symbolic.It is rooted in social patterns of altogether); and material (being deprivation adequate living). an denied (…)The of standard laborincome-generating to access beingdenied or work poorly paid or undesirable to confined (being marginalization economic others); of benefit the for appropriated structure of society.Examples include exploitation (having in political-economic the is therooted which fruits injustice, is firstsocioeconomic The of injustice. of one’s labor terms:to distinguish “Ipropose broadly understandings two analyticallyconceived, distinct 73 considering is remedying cultural injustices, is to revaluateone cultural identities when goal, The them. with associated institutions social and legal forms of later,remedies. The on otherhand,the modifying requires cultural values and the economically vulnerable groups orsome sort of restructure of labor rights, among other most the to benefits social of provision the perspective, welfare a from particularly, rearrangement economic certain requires later The injustices. with socio-economic associated traditionally theremedies with in injustices, comparison cultural correct orderto society. subordination by value cultural inreducing the a certainits of peersin group relation to instatus plays perpetuatingdisgust the key role that paradigmrecognition highlights a intertwined are injustice of kinds both although injustices, socio-economic or The present thesis follows the analytical distinction by Nancy Fraser, in the following following in the Fraser, byNancy distinction analytical follows the thesis The present the reorganizingincome, redistributinginvolve“might it Nancy Fraser, Accordingto Importantly, for Fraser, the remedies for symbolic remedies could involve upwardly upwardly involve could remedies symbolic for remedies the Fraser, for Importantly, 22 (1995): 70). 22(1995): Second, a recognition paradigm also innovates ina innovates terms also paradigm recognition itSecond, seeksin of remedies the itFirst, thathighlights a series ofinjustices cannotbereducedmerely redistributive to /

or in everyday life interactions)”.inlifeeveryday or (Fraser,“FromNancy. / or hostile to one’s own); nonrecognition (being rendered rendered (being nonrecognition own); one’s to hostile or 26 New Left Review New Left 75 22 (1995): 73). 22(1995): , and therefore reform those those reform therefore and , New Left Left New 73 The . 74 ,

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w g a e r e .c o m identity positiveincreasingly gay affirmed a hasand inWestern Europe, in US the particularly manifestation, among others. of freedom and association of freedom in restrictions violence, homophobic bullying,school marriage, same-sex as such bedroom, of limits spatial the outside including life, of spheres other in several suffered have minorities sexual injustices cultural before law. To restrictits very misrecognition, such as the lack of formal acknowledgment of same-sex couples the dilemmaas a denial of recognition,of gay rightsthe in opinion USSupreme decisionthe inv. Court’s Inorderto Texas. Lawrence tackle disgust remedy is toonly reform theto legalsodomy strong enough disallowto homosexual andmarriage” social institutionslaws is basedto ispeople’sit suggests “disapprobationofhomosexual that opposite-sexconduct couples, demeanon the constitutional marriage When perspective. law is conceived as a legal institution open only to Justice and the Politics ofDifference. Justice andthePolitics and and politics, not merely be "behavior" to tolerated forbidden”or ( Gay ismatter sexual identity that (…) a asserts and perspectives of experiences pride culture merely civil butrights, affirmation the of gay men andlesbians social as with groups specific 77 dissenting opinion,604. para. 76 Review Age.” ‘Post-Socialist’ a in Justice of Dilemmas Recognition? to Redistribution Nancy.“From (Fraser, diversity” valorizingcultural positively andrecognizing involve could identities maligned It of revaluing products groups. also andthecultural disrespected increasingly being gay movementhas affirmed pride the gay, example), of currentUS the major the Stonewall being bars, in gay raid police as (such law criminal the on based focused fighting laws sodomy on against legalby and other carried restrictions out policethe As affirmed by Iris Young, “today mostgay seek“today by As affirmed lesbian not liberation advocates Young, and Iris Lawrence v. Texas. v. Lawrence 22 (1995): 73). 22(1995): Take the example of same-sex marriage, addressed in the next chapters from from a chapters next inthe addressed marriage, same-sex of example the Take Third, inThird, order to tackle thoroughly misrecognition,disgust-based movement, the gay 77 . Dissociating from the combative nature of the early gay movement in US, the movement early ofthe gay combativenature the from . Dissociating 539 U.S. 558 (US Supreme Court, 26 June 2003), Justice26June Scalia’s Court, 2003), 558 (USSupremeU.S. 539 Princeton Princeton : Prnceton University 1990,p. 161) Press, 27 76 , as put by Justice Scalia in his dissenting dissenting his in Scalia by Justice put , as Young, Iris Marion New Left Left New .

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w g a e r e .c o m Paulo (1978-2004).” Paulo 81 America Gay's Rights Revolution.” Revolution.” Gay'sRights America rights). human than rather demands 80 rights civil as claims its framed has inUS advoacy LGBT the US.” US.” the 79 events andinfluence of pinkthe money from derived gay tourism andpublicbudget, have associatedenvironment with mass several campaignsstrategies, suchasgay kiss-in parades, political favorable a that indicates people, million 3.5 around assembles currently on gay inSaoPauloprides experience. American Latin by the out pointed as on), so and systems rights human international and rights regional human networks, cross-regional (from abroad as well as organizations) rights human other media and level totheirpoliticians, togainnational causesatthe (from advocates supporters America Latin as such contexts, in other weapon apowerful itself proved have rights minorities’ sexual to approach rights claims in that country as well thesuccessof civil dueto andcontested”, as constructed associally LGBT categories reveals that communities within LGBT identity of self-critique“the reflect to approach rights as humanminorities’ definesexual to been reluctant have organizations LGBTTI several instance, rights, particularly recognize?”, large.before whichinits gayidentity turn forquestions society at In US, the because of the allegedly failure of the human rights 78 mainly UScontext, the because of school bullying lastfocused inthe yearsonthe gay youth due to inthe highrate of suicide of gays teenagers, Santos, Gustavo Gomes da Costa. “Mobilizacoes Homossexuais e Estado no Brasil:Sao no eEstado Homossexuais “Mobilizacoes Costa. Gomes da Gustavo Santos, Particularly in relation to gay rights as human rights, see: Encarnación, Omar G. “Latin “Latin OmarG. see: Encarnación, human rights, as gay rights to inrelation Particularly Mertus, Julie. “The Rejection of Human Rights Framings: The Case of LGBT Advocacy in of Framings: Caseof Julie.Human The LGBT Advocacy Rights “The Rejection Mertus, For a Project of this nature, see “It Gets Bettter” Campaign at: Campaign at: Bettter” see“ItGets a nature, of this ProjectFor Furthermore, from the perspective of symbolic change of cultural values, a case study acasestudy values, cultural from changeof of symbolic perspective the Furthermore, human rights a with view of sexual identities, beinga reductionist Despite associated to isissue: there “what the poses denial ofrecognition as a Viewingdisgust Human Rights Quarterly Revista Brasileira de Ciências Sociais 80 .Framing sexual minorities’ rights as human rights has helped helped has rights human as rights minorities’ sexual .Framing 81 79 , Brazil, where since the 90’s this event takes place and annually takes 90’sthisevent the , Brazil, since where .

29, no. 4 (November (arguingno. the 1036-1064 29, 2007): that Journal ofDemocracy 28 78 . , April , April 2011: 106-109. 22,no.63(2007): 121-135. http://www.itgetsbetter.org/ .

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w g a e r e .c o m Democracy Revolution.” Rights Gay's America “Latin G. Omar (Encarnación, culture.” identity mainstreamingforgay affirmingand gay they vehicles that have beeneffective from itof bedeniedcannot advancing gay Yet standpointthe counterproductive acceptance. even and frivolous as gay people, some by even criticized, been have marches WorldGuinness accordingworld,to around held all parades of gay-pride largest the people— Records.milliona crowd of3.5 whose gay-pride Paulo, in2007drew areas, ledby parade Sao metropolitan American Latin majorin most commonplace has become export American Because82 of their outrageous displaysFeinberg’s theory on harm and offence. of Joel from the inputs including the debate, Devlin-Hart in the verifiable particularlycamp and is This minorities. sexual sexuality, of rights restrict that laws of justification moral a as sense: gay-pride status subordination of minorities.sexual legal institutions,current suchas sexuallaw,or structured in marriage crimes are a context of the how namely: work, current in the discussed minimally dimension a recognition about debated have also chapters two in next the presented cases constitutional the Nevertheless, thesis. present the of scope constitutional the research outside further need questions tobeproperly those In inaddressed, beorder place. put perspective should rights human identity regardingquestions is what to recognized(if at all) aswell what as remedies from a large.public at onthe targeted anti-discrimination campaigns to up gay associations for manifestation and freedom of association traditional from the prejudice,fightensuring measures to innovative includinglegalthrough systems,social and in reformswide the pridedemands gay arena in political the subject asapowerful movement placed gay the “Gay-pride marches constitute a very different type of activism. Since the early 1990s, this this avery early of the 1990s, type activism.different Since marches constitute “Gay-pride In is chapter,itthis arguedhas thatdisgust been used asalegalin concept a particular 1.5. muchas adenial In sum, leads more disgust complex to recognition recognizing of , April , 2011: 109).

Conclusion

29 82 .Thisin trend affirming ora of Journal

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w g a e r e .c o m US andin African:South a dignity-perspective thatcombines equality liberty and claims. asdenial disgust will It recognition. of be done from a particular in constitutional perspective namely disgust as moral disapproval,sexual minorities and the heteronormative structure legalof institutions. disgust toarecognitionrelated in thedimension senseithighlights statussubordinationand this of is disgust finally, (iii) principle; asharm the law, criminal of principle related basic a violate example) classic the being to (sodomy laws criminal offense disgust-based thus and principle, harm the of basis rather the on justified increasingly is law criminal while others) against offence moral prevent (to than harm offence of realm inthe operates disgust (ii) andminorities; of sexual aspects other and sexuality sexual minorities aspect highlights andtherefore hatred the laws ofmoral-based regulate that dimensions: (i)is disgust basis for legal moralsenforcement of based onprejudice against However, the main argument in this chapter is a wider concept and presents three three presents and concept wideris a in this chapter argument main the However, The case law discussed in the next chapters will address those three dimensions, dimensions, three those address will chapters next in the law discussed case The 30

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w g a e r e .c o m 83 Jurisprudence onSexual Minorities Court Supreme US the in Disgust Dignity: Towards Two.Chapter 85 84 Hardwick (1986) cases decided major bythree the the present will I part, initial US this In Suprememinorities. sexual involving Court Supreme Court in relation to sexual minorities,general, andits equality liberty and dimensions in inparticular jurisprudencethe of US the namely: Bowers v. particularly equal the andprotection dueprocess the doctrines. minorities, sexual to related cases to relevant doctrines constitutional the on based language, with adifferent but jurisprudence, Supreme Court addressed bytheUS extent certain to questions are Those laws. of disgust-based targeted recognition of the on group the aharm law impact or principle consideration into whether eventual principle; (iii) should take legal enforcement (i)feelings of shouldconstitutional debate: whether agroup deep aversion justify against the of morals; (ii) whether criminal law should be shaped by an offence Bowers v.Hardwick. Bowers Lawrence v. Texas. Lawrence Romer v.Evans. In this chapter, I will, first, outline the main issues related to enforcement of morals in Disgust, asitDisgust, isin atleast defined presents previousquestions three the chapter, tothe therightto choose to enteruponrelationships in the of confines theirhomes 83 517U.S.620 (US SupremeMay 1996). 20, Court, (Justice Kennedy, v. Lawrence USSupreme Texas, Court,2003,para. 558) ; Romer v. Evans (1996) andtheirown privatelives and stillretaintheirdignityas persons.”free 539U.S.558 (US Supreme JuneCourt, 26,2003). 478U.S.186(US Supreme Court,30June 1986). “The libertyprotected by the Constitution allows homosexual persons

84 ; and v.Texas Lawrence (2003). 31 85

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w g a e r e .c o m 86 relations, which is the path the Court seemsstep innext theCourt’s jurisprudenceis discussion the onformal ofsame-sexrecognition to be leading to development of jurisprudencethe andamisunderstanding of a dignity-basedIf approach. the further the to a challenge constitutes in Lawrence recognized liberty the of exercise order to invalidatein advanced liberty, have Lawrence, after equal whiledignity-based project: is aunfinished sodomy laws, the Court’sa dignity-based doctrine sexual for minorities can makerights in USjurisprudence.the emphasis and laws irrational disgust-based prejudice against sexual minorities.between In the conclusion, Iwillrelation discuss what differencethe on (ii) privatediscrimination; historical of problem the sphere as on a sexuallocus minorities, for namely:willFollowing I framework, this major theoutline two problems addressedbyjurisprudence (i) the role of historyse. per doctrine singleconstitutional as a Court by the clearly embraced not although in the due process clause largelyis usedbytheliterature, jurisprudence, equalliberty aterm which risingthe of and therefore and equality, and liberty between tensions of framework general the within minorities sexual of protection the on debate the will contextualize I First, parts. inthree minorities sexual (accessed December 15, 2011). 15, (accessed December http://edition.cnn.com/2011/09/30/justice/scotus-preview-case-summaries/index.html critically assessed to move beyond the realm of bedroom. Mears, Bill. "Big cases await U.S. Supreme 2011-12term." Court's U.S. "Big casesawaitMears, Bill. Second, I will critically analyze the three cases that compose the jurisprudence on compose jurisprudence on the cases that threeI will the analyze critically Second, In sum,involving jurisprudence USSupremeCourt the argue that minorities I sexual

32 86 , the current case law must be must law case current , the CNN. October 2, 2011. 2, October

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w g a e r e .c o m 87 man another with sex oral for in conductingMichael wasarrested lawconstitutional.hisbedroom sodomy Hardwick in issues cases. those major the basis of substantive dueprocess,overruling thus This section Bowers). isdedicated tooutline homosexuals, the law specifically targeted theTexas sodomy that 2003 (striking on down targeted on same-sexv. Hardwick couples on the basis of substantive due process); Romer v. Evans2.1. 91 Law. 89 88 another” of anus or mouth person “performssubmits or toany sexual involving act sex the of organs one personand the violating the Equal Protection finally,Clause); Lawrenceand, v.Texas homosexuals,protect for judicial measurestaken to prohibited or executive all legislative, Constitution,Coloradowhich 2 to Amendment 1996 (striking down May20, decided on 90 argues the following. First, he frames the issue at stake in a rather restrictive manner, as being at stake. is rightthe but what rather standard, applicable tothe in not relation law in Lawrence v. Texas, did not expressly target homosexuals. The divergence in Bowers is Bowers v.Hardwick. Bowers Bowers v.Hardwick. Bowers v. Texas. Lawrence Romer v.Evans. Nussbaum, Martha C. Martha Nussbaum, In Bowers v. Hardwick, Justice White writes for the majority to consider the Georgia Bowers namely: cases, three by shaped been have minorities sexual on jurisprudence The Deciding the case from Deciding casefrom JusticeWhite perspective,a substantive the in dueprocess Bowers New York: Oxford NewYork: University Press, 2010,p.85. minorities sexual on jurisprudence Court Supreme US the of Overview 87 , decided, June on 1986 (upholding 30, aGeorgia sodomylaw notspecifically 517U.S.620 (US SupremeMay 1996). 20, Court, 539U.S.558 (US Supreme JuneCourt, 26,2003). 478U.S.186(US Supreme Court,30 June 1986). 478U.S.186(US Supreme Court,30June 188. 1986),para. FromHumanity: Sexual OrientationandConstitutional Disgust to 90 91 in violation of the Georgia sodomy law that criminalizes when a . In this sense, the Georgia sodomy law, unlike the Texas sodomy

33 89 , decided on , decided on June 26, 88 ,

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w g a e r e .c o m 92 is liberty” stake in in liberty the at whether this “implicitdefinition: conceptof ordered the in sodomy” “whether Federal the fundamental homosexuals confersConstitution aupon engageright to 93 rooted in Judeao-Christian moral and ethical standards” ancientroots of condemnation homosexualof which, intercourse, according tohim, is “firmly indeed”. busy very will be courts the Clause, Process Due the invalidatedunderbe to are choices moral essentially representing laws if all and morality, of notions on based constantly because of the moral disapproval they might express. According to him,“the law, however, is inadequate laws, are adultery incest or laws, assodomy, such moral-based that argument is implausible. perspective, andengage longstanding aliberty therefore infrom roots to historical sodomy this activity, inBowers majority, lawsAccording to approach cases. dueprocess substantive have sodomy and it whether is in “deeply rooted Nation’s the history and tradition” 96 represented Lawrence before state court in Texas. Texas." v. Lawrence After and Before Lawmaking: for Justifications "Morals-Based B. Suzanne Goldberg, see the law, in constitutional values moral influence of the analysis of comprehensive 94 procreation” marriage, or “family, expandingcase for concept the of liberty, is oncean homosexual notsodomy issue to related 97 95 Bowers v.Hardwick. Bowers Bowers v.Hardwick. Bowers Bowers v.Hardwick. Bowers v.Hardwick. Bowers Bowers v.Hardwick. Bowers v.Hardwick. Bowers Second, he defines liberty by reference to history, and therefore considers two elements history, two considers andtherefore to by reference liberty he defines Second, Third, particularly relevant from a moral perspective, Justice White expressly rejects the the rejects White expressly Justice from moral perspective, a relevant particularly Third, Fourth, in an exercise of judicial self-restraint, Justice White argues that Bowers isa not Bowers that argues White Justice self-restraint, ofjudicial in exercise an Fourth, 95 Justice Burger, in his concurring opinion, went even wentandaffirmed furtherthe in opinion, his concurring Justice Burger, 92 . 478U.S.186(US Supreme Court,30 June 190. 1986),para. 478U.S.186(US Supreme Court,June 30,1986),para. 191. 478U.S.186(US Supreme Court,June 30, 1986),para. 196. 478U.S.186(US Supreme Court,June 30,1986),para. 192 478U.S.186(US Supreme Court,June 30, 1986),para. 191. 478 U.S. 186 (US Supreme Court, June 30, 1986), para.196. a For June1986), 186 (USSupremeCourt, 30, U.S. 478 Minnesota Law Review

97 , and therefore Bowers is not linked with the line of line the is linkedcases of not Bowers and with , therefore 34 88 (2004): 1233-1311. SuzanneGoldberg 1233-1311. (2004): 88 96 . 94 , the standard standard the , 93

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laws minorities). morally- of legitimacy accepts the in Bowers majority above, the On asshowed contrary, sexual of disapproval moral of enforcement legal the particularly, case, this (in opinion in Bowers and Kennedy’s majority opinion in Lawrence, tackles moral–based laws in chapter. first presented the in framework can be readdisgust-based lightof Lawrence the marriage is simply about the right to have sexual to haveintercourse” therightis about sexual marriage simply claim individual the forward, justput asitwould demean amarried couplewere itto be said in “demeans the Bowers White did issuelike Justice framing Lawrence the that arguedin case was arightabout toengage in sodomy. Inafamous bitof judgment,the Justice Kennedy whom the to in White Bowers, by Justice formulated issue restrictive rejecting the stake, at issue the reframed Justices Both Clause. DueProcess of the laws aviolation those declaring sodomy laws, to a liberty-based approach reassured Bowers, which overruled Lawrence, in opinion leading Kennedy’s Justice and Bowers in opinion dissentingBlackmun’s sexuality from derived this line of cases Justice Stevens’ dissenting opinion in Bowers also emphasizes the liberty in relation to Process Clause related to personal rights within the realm of marital the realm marital within topersonal Clause of relations rights related Process 98 derived from Griswold v.Connecticut 100 99 101 103 102 (US Supreme June Court, 30,1986),para. 199. at canbe opinion in Blackmun’s statement found Justice GriswoldConnecticut. v. Griswold is analyzed in more detail in ismore Griswold detail in nextsection. analyzed the Bowers v.Hardwick. Bowers Lawrence v. Texas. v. Lawrence Bowers v.Hardwick. Bowers Bowers v.Hardwick. Bowers First, in relation to the legal enforcement of morals, both Justices, Blackmun’s dissenting dissenting Blackmun’s Justices, both morals, of enforcement legal the to relation in First, in Kennedy’sopinion Justice the terms, in those stake at issue the By reframing Although the majority in Bowers rejected such personal liberty approach, both Justice both in suchpersonal the majority liberty rejected Although Bowers approach, 102 . Inapassagedebate ofthatrefers theDevlin-HartBowers explicitly to 539U.S.558 (US Supreme Court, June 26, 2003),para. 567. A similar 478U.S.186(US Supreme Court,June 30,1986),para. 218. 478U.S.186(US Supreme Court,June 30, 1986),para. 211-212. 478U.S.186 (US Supreme Court,June 30,1986),para. 196 381U.S. 479(USSupreme June Court, 7,1965).

100 98 . , which recognized implicit liberties in the Due libertiesinimplicit the which recognized , 35 Bowers v. Hardwick. Bowers v. 101 . 478U.S.186 99 . Likewise,. 103

, Justice Justice ,

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by itself a statute that bans homosexual sodomy,but not heterosexual sodomy. It is not. justify interest state to isalegitimate moral disapproval Clause, Protection Equal under the 106 Texas. v. in (ascited sex” same of the individual another with intercourse sexual in deviate 105 (US Supreme June Court, 26,2003),para.559. U.S. 833,850, 112S.Ct. 2791,120 L.Ed.2d 674 (1992)”, at Casey,v.505 Pa. of Southeastern moralmandate PlannedParenthood ourown to code.’ not society through operation of law.obligationdefine criminal the is liberty ‘Our to the of all, whole the viewson enforce these to State ofthe power may use the majority the whether issueanswernotis The question before do the lives. us,however. their These considerations as ethical moral and principles towhich they andaspire which thus determine course the of accepted butprofoundmany anddeepconvictions nottrivial concerns For personstheseare family.and for traditional the religious and respect behavior,right of by acceptable beliefs, conceptions shaped been has condemnation The immoral. as conduct homosexual condemn to voices powerful been have forthere centuries point that making broader the was Bowers 104 with a moral-based law suchas Texassodomy the provision liberties those of America’s understanding itshaped has and how rather thepast but moral code, a given in wasnot stake case this at implicit right of the source the and therefore affirmative), was answer the him, (for sexuality regarding decisions personal making of liberty the recognize history and tradition Nation’s the whether of is issue the Kennedy, Justice morals,private a without public justification. enforce to merely serve Blackmun, Justice view of in the laws, because those together, protectitselfright to law fabricmoral againstthe disintegration of through keeps itthe that has the which society to according principle, disintegration Devlin’s the rejects Blackmun out agroup only for thesake of moral disapproval single oflawsthat constitutionality the law,argues against sodomy Georgia upholding the same-sex couples, is one of equality. Justice who O’Connor, joinedmajority the in Bowers in In Justice O’Connor’s words: “This case raises a different issue than Bowers: whether, an commits ifheThe Texassodomy offense read asfollows: “Aperson engages provision In Justice Lawrence’s words, “It must be acknowledged, of course, that the Court in On the other hand, for Justice O’Connor in her concurring opinion, the major concern concern major the opinion, concurring her in O’Connor Justice for hand, other the On For is two-fold. in Lawrence moral-based laws against precisely, argument the More 104 539 U.S. 558 (US Supreme June Court, 26,2003),para. 563). .

36 106 . Despite it, in Lawrence Justice Justice Lawrence in it, Despite . Lawrence v.Texas. 105 , which specifically targets targets specifically which , 539U.S. 558 Lawrence Lawrence

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case involving minors orcoercion Clause Protection 107 morality” private enforce that those and sensibilities public protect that laws between difference be punished that the private act at issue does notinterfere with the right of others, and therefore should not dissenting opinion in Bowers, Justice Blackmun offersIn this sense,a he affirmsMillian the ancient right of the majority in enforcing its moral values argument, by adultery. of toys or sex sale regarding suchaslaws are still thebooks, lawsthat on emphasizingmotivated the majority opinion insodomy not expressly targetthat at same-sex couples, unlike the Texas sodomy law in Lawrence. caseit overrule to does not reflectO’Connor reemphasized that she had joined the majority in Bowers, and that she did not want sufficiently on a number of morally wri, Ronald.Dworkin, 108 Texas. insufficient to satisfy rational basis review under the Equal Protection Clause” ( Moral disapproval of this group, like a bare desire to harm the group, is an interest that is 111 2. footnote dissenting, Blackmun’s 110 3. footnote dissenting, Blackmun’s 109 Harvard University Press, 2000. mutualwith and full who, adults involve two casedoes The enter. seek to persons homosexual consentany that relationship to formalmust give recognition government involve the whether not fromconsent mightnot easily beIt does refused. not involve public conductor prostitution. Itdoes eachinvolve persons whomightinjuredbe coerced who or or aresituated in relationships where other,112 engaged in sexual practices common to a homosexual The debate on moral majority is a extensive one. For a comprehensive view of it, see: it, view of a comprehensive For one. extensive is majority a moral on The debate Bowers v.Hardwick. Bowers According to Justice Kennedy: “The present case does not involve minors. It does notdoes It minors.involvenot case does present“The Justice Kennedy:to According Lawrence v. Texas. v. Lawrence Bowers v.Hardwick. Bowers v.Hardwick. Bowers Second, Lawrence and Bowers also present a discussion on Inhis on a discussion harm the principle. present Lawrence also andBowers Second, In relation to morals, Justice Scalia, in his dissenting opinion in Lawrence, highlights that 539U.S.558(US Supreme June Court, 26,2003),para. 582). 111 . By the same token, Justice Kennedy in Lawrence highlights that this is not a not is this that highlights Lawrence in Kennedy Justice token, same By the . 109 107 . While. inclination showing towardsdeciding caseon basisthe the of Equal . For her, Bowers posed a liberty issue, related to due process, since itwas a since due process, to related issue, aliberty Bowers posed For her, . 110 Sovereign Virtue: TheTheory andPractice of Equality. , Justice Blackmun concludes that the “[Bowers] Court failed to see the 539U.S.558 (US Supreme Court,June 26,2003),para. 579and 582.. 478U.S.186(US Supreme Court,June 30,1986),para. 212. 478 U.S. 186 (US Supreme Court, June 30, 1986), Justice1986), 30, June SupremeCourt, (US 186 U.S. 478 Justice1986), 30, June SupremeCourt, (US 186 U.S. 478 112 , and therefore talking about harm principle is notis principleharm about talkingtherefore and , 37

Lawrence v. Cambridge: 108 .

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w g a e r e .c o m for a“bare homosexuals classified only i.e.Amendment this basic mostin its sense, Clause in 2 violated Equal wasstraightforward Court, the the hisreasoning:Amendment Protection branches of state the homosexuals.to protect Kennedy, Justice deliveredwho of opinion the ColoradoConstitution, 2 to whichAmendmentall prohibitedstrikingdown the in 1996, perspective process from a due although stigma, on argument asimilar presents in Lawrence Kennedy homosexuals, which, in her view, it is different circumstance from the Bower’s law. Justice 114 the Case of "Don't Ask, Don't Tell"." 113 else” as everyone manner same in the be treated to homosexuals for difficult more it making thereby criminals, as homosexuals all lawbrands sodomy “Texas’ words, O’Connor’s in Justice body, person’s objectiveindependent disapproval.moral simply than stating a Like aphysical markon no serves classification such express that fact the rather but provision, sodomy Texas the by homosexuals areclassified fact that merely be not issuethe to key seems the O’Connor, referred tomarking someone’sbody due toawrongdoing he she or had done as branding with associated therest. Initsinferioroutsider, agroup to Greekorigin, word the It isin firstchapter. least from the injustice, asoutlined at perspective, a recognition cultural couples. same-sex between in intercourse aconsensual others isagainst injury infringed there because no adequate, 115 lifestyle.” ( 116 Lawrence v. Texas. v. Lawrence and Presumption Visibility The Protection: in Equal Bias "Assimilationist Kenji. Yoshino, Lawrence v. Texas. v. Lawrence Romer v.Evans. The stigmais argument key the thirdto casehere analyzed, Romer v.Evans Third, Lawrence is a bold objection to stigmatization. Stigma is a concept related to to related concept a is Stigma stigmatization. to objection bold a is Lawrence Third, Lawrence v.Texas. Lawrence 115 . 114 517U.S.620 (US SupremeMay 1996). 20, Court, .Her main concern was with the fact that Texas law directly target lawdirectly Texas factthat the with was main concern .Her 539U.S.558 (US Supreme Court, June 26, 2003),para. 581. 539U.S.558 (US Supreme Court, June 26, 2003),para. 575. 539U.S. 558(USSupreme June Court, para. 26,2003), 578). Yale Law Law Yale CompanyJournal 38 108(December523. 1998): 113 . For Justice Justice For . 116 , decided ,

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w g a e r e .c o m 2.2. 118 117 holding reach areasonable to in order necessary itwas because mannersimply a sophisticated in minorities of sexual advance rights the not did violation and therefore before apatent was it once andLawrence, in Bowers with comparison minor a case, is decision considered Court Supreme US grant special the rights, to rather them prohibited homosexuals butstate the did in theAmendmentstigmatized affirming that filedRomer, not opinion adissenting Scalia its parts remain of each and government openthat principle “the onnamely laws, of impartial protection equal the of idea very terms to all who seek its assistance” the measure, basically obstructs which of discriminatory nature such broad unprecedented the the core meaningviolates oftheEqual Justice Clause. Third,Kennedy Protection emphasizes injureconstitute alegitimateinterestand not does intention therefore to unpopular group an the its Second, isJustice ownpurposes. donefor Kennedy to whichaccording classification, scrutiny once such animosity is not a legitimate government interest. harm desire group” unpopular a politically to 119 of jurisprudencean emergence the fall and equality of the regarding alargerdebate within inserted is grounds of equality. duality constitutional right a to Such or liberty perspective, from a oflaw, being process stake, due is at right constitutional which disagree Justices Law. Bowers v.Hardwick. Bowers Romer v.Evans. Nussbaum, Martha C. Martha Nussbaum,

First, the State has not been able to present a legitimate interest to justify the the justify to interest legitimate a present to been able hasnot State the First, The cases outlined above present a wide range of judicial reasoning, when quite often New York: Oxford NewYork: University Press, 2010,p.113. the USjurisprudence. General Framework: The fall of Equality and the Rise of Liberty in 119 . 517U.S.620 (US SupremeMay para.20, 1996), Court, 634. 478U.S.186(US Supreme Court,June 30, 1986). From Disgust toHumanity:SexualOrientation andConstitutional

39 117 , which failed to pass even the rational basis basis rational the even pass to failed which , 118 . Although Justice Justice Although .

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w g a e r e .c o m itsimpactjudgments social of on specially cohesion, in toits group-based relation equality jurisprudence. The equal coreSupreme protection in US Court the anemerging todesignate phenomenon literature idea is, on one hand, an explicit concern from law.reasoning2011) of casewasdueprocess of the (Henry the Court with main the thealthough equality, and liberty both embraces inLawrence adopted approach regardingsince minorities,Supremedecisions future sexual the impact US the Court of likely doctrine will andin theequalprotection A changeequality component, vice-versa. also an incorporate judicial of liberty, dueprocess interpretation the seekto any should clause 123 121 Review Dignity." of Jurisprudence "The Meltzer. Leslie Henry, thefrom Court’s dignity an empirical opinions, on fivefold of see derived concept research inliberty, particularly involving personal overfamilycases sexualitychoices Fora or issues. dignity in anequal to hereHowever, isusedas reference the term specifically meanings. 120 majority of members the the share” that ‘liberty’ in interest same the has citizen free “every affirming: by in Bowers, dissenting Justice Stevens, backto even canbetraced perspective, single one into liberty and equality dignity). about (silent US in the text Constitutional the or doctrine) a to refer to not but used is term this (where itself caselaw from the exactly andbelow, not described topic, on the literature from recent the islargely derived this dignity-approach To be clear, SupremeUS Court. equal liberty associated with doctrine, libertyto both a dignity-approach and equality by the Decision in Race Equality Cases." 122 Yoshino, Kenji. "The New Equal Protection." Bowers v.Hardwick. Bowers The US Supreme Court has used the term dignity in several contexts and with different Siegel, Reva B. "From Colorblindness to Antibalkanization: An Emerging Ground of of Ground EmergingAn Antibalkanization: to Colorblindness"From B. Reva Siegel, “Antibalkanization” In jurisprudencethe onsexual dignity-approach this minorities, 160 (December 2011): 169-232. 160(December 2011): 478U.S.186(US Supreme Court,June 30, 1986),para. 218. 122 and “pluralism anxiety” “pluralism and

Yale Law Yale Law Journal 121 . In this view, if all citizens have an equal interest in 40 Harvard Law Harvard Law Review 120(2011). 123 are some of the words used by the University of Pennsylvania Law Law Pennsylvania of University 120 124 (January 124(January 2011). , thatcombines both

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w g a e r e .c o m (2011): 913-983).(2011): Schwarzenegger and the Future of Same-Sex Marriage Law." Marriage Same-Sex of Future the and Schwarzenegger "Perry v. J. Clifford(Rosky, Protection Clause” Equal under the argument traditional more the on relying than rather Clause, Process Due the under argument the articulating leadby follow Walker's Judge Lawrence--to endof the at invitation Kennedy's Justice do Supreme might before well accept U.S. they the Court, argumentto sex discrimination than a claimbased on equality the men lesbians.gay of and If seektodevelopplaintiffs the against laws same-sex of constitutionality the review to decides Court the when if and is that marriage,however, it fall the equality its of relation on and future mean,the ofsame-sex marriage: “Whatthis does may be moreregarding Yoshino’sargument judicialRosky debates for term, next the US Supreme Court sympathetic 126 to a claim2011):751. based on the freedom to marry 125 Decision in Race Equality Cases." 124 equality argument faces serious obstacles when transposed to the realm of sexual minorities. thefall of inand therefore is decline, equality that isdoctrine it argued especially when USSupremeCourt, the is racecasesbefore influencedby cautiously.This debate primarily beisin read to Lawrence, decision Justice Kennedy’s after particularly liberty doctrine, dignity-based equal emerging equality an fall and of the such debateon that mentioned itapproximate shouldliberty theequality seekstoand that doctrines, be based approach, political as well forprocess consistencyofits equality the jurisprudence. are serious doubts that the Court will be willing to do so, as a matter of legitimacy before jurisprudence, specially inrelationthe the formal to same-sex recognition of relations concerning sexualminorities tomake equality,least group-based at the way itdid inits race from the Court (the pluralism dilemma). diversity” and, dilemma), on otherhand,the “an apprehension of and country’s aboutthe demographic involving raceand regardingjurisprudence cases affirmative actions In a recent article about Perry v. Schwarzenegger, the same-sex marriage case before the the before case marriage same-sex the Schwarzenegger, Perry v. about article In arecent Siegel, Reva B. "From Colorblindness to Antibalkanization: An Emerging Ground of of Ground EmergingAn Antibalkanization: to Colorblindness"From B. Reva Siegel, Yoshino, Kenji. "The New Equal Protection." Equal New "The Kenji. Yoshino, Before presenting thisdiscussion in more detail the emergenceregarding of a dignity- Both dilemmas posesthequestion Courtwillwhether the of bewillingin future cases 125 and, consequently, the fear that new groups will seek a heightened protection protection heightened a will seek newgroups fear that the consequently,and,

Yale Law Yale Law Journal 41 120(2011):10. Harvard Law Review Arizona Law Arizona Law Review 124 (the antibalkanization antibalkanization (the 124 (January (January 124 126 . There There . 53

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w g a e r e .c o m in clause US protection the equal the of future onthe framed debate the has Clause Protection Equal claim, andthe instance, “different substantive and process consequences follow from internal logicfrom of the follow consequences substantive process and “different instance, Burt, for to According level liberty, debatehasreachedsometimes. such and the equality 130 Harvard University Press, 1999. 127 equality, which backdates toPlessy v. Fergusson (1896) for racial claims of ofjudicialization in aprocess race cases, hasof a series deal with Court shouldindoctrine be Justice that not Kennedy’sliberty disregarded.Third, USSupreme the component equality isan there that mentioned be also should it addition, In doctrine. process its due basisof the on Bowers tooverrule willingness namely: the reason, strategic a simple focused factthe onliberty Justice that Kennedy’s thanequality rather is to opinion partly due failsthispass group rationalthe to even basis standardisbestrongignored. too Second, to Even denying them statusthe of class,suspect the very statement abare that desire harm to Clause. Protection Equal the under protect sexual minorities to Court the of willingness the Equality." 2007). (October 55 California) of University Clause." Process Due andthe Groups Citizens: Law Law Review its Name." Dare NotSpeak That Right" "Fundamental Texas: The v. "Lawrence minorities. minorities. their implementation, cases of andthose context alone peculiar political in its let the of racial history, cases amount largerhasfar dealtwith a Court the consideration that into shouldin take doctrine general (1954) in contrast with the smaller number of cases related to sexual 129 1954). 128 Although it is not necessarily an either-or situation, where one should choose between between choose should one where situation, either-or an necessarily is not it Although Plessy v.Ferguson. For the debate on equality and liberty, see: liberty, and equality on debate the For Brown of v.Board Educationof Topeka. First, despite the narrow holding of Romer v. Evans, as presented above, this case shows A wider discussion wider A 128 , and therefore any critical analysis that makes the case of the fall of equality equality fall of the case of the makes that analysis any critical and therefore , New York University Law Law New York University Review 117 (April 2004). 117 163U.S.537(US Supreme May Court, 18, 1896). 129 on the relation between Due Process Clause, along with its liberty liberty its with Clause,along DueProcess between on relation the 130 .The literature has identified fall the of group-basedthe equality

Ackerman,Bruce. 42 347 U.S. 483 (US Supreme Court, May 17, SupremeCourt, 483 (US 347 U.S. 77 (December 2002). (December 77 Karst, Kenneth L. Brown, Rebecca L Brown, UCLA Law Review We the People: Foundations. 127 and Brown v. Board of Education "The Liberties of Equal (The Regents of the the of Regents (The . "Liberty, The New Tribe, Laurence H Tribe, Cambridge: Harvard Harvard .

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w g a e r e .c o m standard bite a with basis rational a of development the context, this In scrutiny. heightened minorities. sexual of rights the forgrounds thisfall equality,of group-based which are relevantdiscussion tothepresent on and of liberty instead, rise, the via the Due the Process Clause Robert. "Regulating Sexuality: On Liberty versus Equality." versus Liberty On "RegulatingSexuality: Robert. is(Burt, guide” norm apreferable equality both the scores, on and grounds two that, the case in Cleburne words White’s in Justice groups”, of other a “variety fearthat thestated with class, suspect of categories existingexpanding the without discrimination, forms of other 751. Classifications Based on Sexual Orientation." HeightenedScrutiny Applicationto of Its Acknowledge ShouldCourt Why Supreme the basis withfinally,scrutinystrict classes (regardingfundamental suspect or For morerights). onrational a bite or and, standard, classifications) quasi-suspect to faces related review cases Court the (when heightened review intermediary classifications), ordinary of case (in review basis rational namely see: Smith, judicial review, tiers traditional of to the isthree action. added This standard government Jeremy B. 132 "The Flaws131 of Rational Equal Protection." Basisuse dueprocess asa vehiclefor vindicating Kenji. equality concerns” (Yoshino, "The New withto theCourt jurisprudence equality increasing pressureisshutting and traditional on down Bite: Meanwhile for others, such as Yoshino, “the idea of pluralism anxiety [is seen] as a force that anxiety” “pluralism as by Yoshinojurisprudencenamed inUS the an overall trend to related 135 134 July 1, 1985). 133 diversity” Yoshino, Kenji. "The New Equal Protection." Yoshino, Kenji. "The New Equal Protection." Protection." Equal "The New Kenji. Yoshino, Yoshino, Kenji. "The New Equal Protection." Inc. Center, Cleburne, Texasv.CleburneLiving City of This is a more demanding standard where the Court will question the aims of the the of aims the willquestion Court the where standarddemanding more a is This 133 First, the Court has limited the expansion of the number of categories worthy of the Such perspective over the development of the case law of the US Supreme Court is Court Supreme US lawthe of case the of development the over Such perspective , could seek thesame heightenedscrutiny. 132 134 135 might be seen as way of the Court to protect certain groups from from prejudiceor certainprotect groups to Court the way of bemight as seen and defined as “an apprehension of and about the country’s demographiccountry’s the about and of apprehension “an as defined and . This is a sociological trend characterized by the decline of social capital as capital social of by decline the characterized istrend sociological . This a Harvard Law Harvard Law Review 124 (January 17).note 124(January 2011), 43 Fordham Law Law Fordham Review Harvard Law Harvard Law Review Harvard Law Harvard Law Review Harvard LawReview 473 U.S. 432 (US Supreme 473U.S.432(US Court, 131 SELA. . There are, at least, two two least, at are, There . 73, no. 6 (2005).no. 73, 124 (January 124(January 2011). 124 (January 124(January 2011). 124 (January (January 2011): 124 June 11, 2009:2). 11, June

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w g a e r e .c o m Decision in Race Equality Cases." 139 138 Impact." Impact." "Disparate A. as Girardeau (Spann, whites”. of rights protection equal the violation of a be unconstitutional to remedies impact disparate statutory hold also might it that intimated haseven Court the Moreover, claims. impact disparate statutory created, congressionally the power, policymaking legislative of usurpation arguable an in But impact. disparate racially unintended hadprohibit an actionsnot that did guarantees Constitution the of protection equal the 137 753-754. 136 increase of consequence the of diversity shown is “discriminatory intent” a when Protection Clause Equal violate class only suspect membersa certain on of impact adisparate lawsneutral with that by Court the requirement unwillingness of Court the to open its applicationthe of most rigidnew standardto groups. and the bytheCourt protected groups of list the of exhaustion the to is related it decisions. equality its of cohesion social on principle. Through this principle, the Court has increasingly showed concerns with the impact antisubordination the and principle anticlassification the between position moderate is a Kennedy) Justice (mainly principle” “antibalkanization an developed have laws. neutral in clause caseof protection textually the equal argue aviolationthe of applicants to for makes intent evenharder discriminatory of requirement The Department. Police Columbia of District the by test admission Washington v.Davis. As shown by Spann: “A prior Supreme Court decision, Yoshino, Kenji. "The New Equal Protection." Protection." Equal "The New Kenji. Yoshino, Siegel, Reva B. "From Colorblindness to Antibalkanization: An Emerging Ground of of Ground EmergingAn Antibalkanization: to Colorblindness"From B. Reva Siegel, Second, the fall the Second, jurisprudence ofthe group-based with equality the hasbeenassociated As consequence of the fall of the equal protection clause, certain Justices in the Court 137 , particularly after the Daviscase the after , particularly Georgetown Law Journal 426U.S.229 (US Supreme1976). Court, Ricci

Court has now smuggled a similar restriction into the realm of 98(April1133-1135). 2010): Yale Law Yale Law Journal 136 , with an impact on the legal arena. In other words, words, other In arena. legal the on impact an with , 138 , related to the disparate impact on blacks of an blacks of on impact disparate related tothe , 44 Harvard LawReview 120(2011). Washington v.Davis, 124 (January (January 2011): 124 139 . This principle principle This . had held that that held had

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w g a e r e .c o m 1976. 143 Decision in Race Equality Cases." 142 Decision in Race Equality Cases." of Ground Antibalkanization:An Emerging to Colorblindness "From Reva B. Siegel, examination identified a pool for promotion that included original the that City was concerned the because officers scarcelyfire for department service exam any minority candidates”. “InSiegel, heldHaven's Court the a civil Ricci, toreadminister unlawful decision New 141 JuneSupreme Court, 28,2007). social balkanizecohesion” threaten and that arrangements avoidandcohesion racial to middleit equal the “interprets hand,offersa other as so social protection topromote ground: on principle, antibalkanization The law. by past in the conditions inferior to subject already have groups in laws,evenones, neutral ordertoassess discriminated whether perspective historical a applies later the group, protected certain of classification a present they principle. antisubordination a and anticlassification an namely: Clause, Protection Equal the of views other two between position moderate a as constructed is principle this that mentioning worth is it principle, antibalkanization the of significance the understand fully to order In society. social cohesion of a race-based affirmative policy, its danger i.e. promoting of in divisiveness test in a fire department. In both cases, Justice Kennedy showed the concern on the impact on former case related to assignment plansbeing racialseek promote the balance, to that selection processes cases Both public with deal of children to schools and the later about promotion 140 on race and laws equal of protection Involved case

Ricci v. DeStefano. Ricci v. Parents Involved in Community Schools v. InvolvedinCommunitySchools Seattle SchoolDistrictParents No. 1. Fiss, Owen Fiss, Siegel, Reva B. "From Colorblindness to Antibalkanization: An Emerging Ground of of Ground EmergingAn Antibalkanization: to Colorblindness"From B. Reva Siegel, While the former is concerned with laws that are on their letter discriminatory because discriminatory are letter laws on is their with that former concerned While the This isprinciplemainly derived from Justice Kennedy’s in opinion concurring Parent Tushnet, Mark The construction of an anticlassification principle is widely debated by the literature by isthe principle widely debated ofan anticlassification The construction 140 . "Groups and the Equal Protection Clause." Equal Protection and the "Groups . and from the Court’s opinion in Ricci case . "The Return of the Repressed: Groups, Social Welfare Rights, and the 129 S. Ct. 2658 (US Supreme Court, June 29, 2009). According 2009). June to Supreme 29, Ct.2658 (US Court, 129S.

Yale Law Yale Law Journal Yale Law Yale Law Journal 143 . In a recent analysis of the Equal Protection Clause, Clause, Protection Equal the of analysis In arecent . 45 120(2011):9. 120(2011): 5. 141 , delivered byJustice Kennedy. Philosophy & Public Affairs 551U.S.701(US 142 . ,

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w g a e r e .c o m 145 Decision in Race Equality Cases." 146 Decision in Race Equality Cases." 144 (March 2004). Anticlassification Values in Constitutional Struggles over Brown." Brown." over Struggles in Constitutional Values Anticlassification 2002. (bepress)), itis nevertheless nature, of a controversial studies physiological oron aneutral principle on relied Court the aswhether segregation as well facto de outlawed whether Brown was unclear guidedconstitutionalit standard overruling decision inits that that factDespite the Plessy. establisha debate, racial the of nature divisive despitethe to, Court for the standard useful a perspective, strategic from a was, principle anticlassification the words, other colorblindness claims: protecting individuals from harmthe of categorization by race” with associated commonly value a with by race classifying ruleagainst the associate principle anticlassification the of “proponents follows: as principle this defines Siegel Equal Protection Clause." Clause." Protection Equal of disagreement” legitimacy conditions under andfinds in community conflict itcreates to speak to and for all”, which, Siegel continues,“depends in significantmeasure on the ways its capacity - authority “Constitution's ofthe thepreservation with audienceworried certain such principle adds a component of formal equality to the idea of equal protection of laws. people should not be singled terms, intechnical law, or, in consideration into be taken notmust race that emphasizes out by law (i.e. classified) citizens” among classes tolerates nor knows on the basis of race.dissenting opinion of Plessy v.Fergusson“Our Constitution is that color-blind, andneither In this sense, Clause. Equal the Protection of aspects certain highlights principle anticlassification the this sense, Plessy v.Ferguson. Siegel, Reva B. "From Colorblindness to Antibalkanization: An Emerging Ground of of Ground EmergingAn Antibalkanization: to Colorblindness"From B. Reva Siegel, of Ground EmergingAn Antibalkanization: to Colorblindness"From B. Reva Siegel, In addition, the anticlassification principle has the advantage of speaking out to a to out speaking of theadvantage has principle anticlassification the In addition, First, the anticlassification principle reads Justice Harlan’s famous words in the Siegel, RevaB 163U.S.537(US Supreme May Court, 263.18, 1896): Issues inLegalScholarship . "Brown. atFifty: Equality Talk: Antisubordination and Yale Law Yale Law Journal Yale Law Journal 46 145 in a literal manner. In other words, it words, other In manner. literal a in 120(2011):1477. 120(2011):6. (The Berkeley Electronic Press Press Electronic Berkeley (The Harvard Law Review 144 146 117 . In In . . In

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w g a e r e .c o m 148 149 Decision in Race Equality Cases." 147 an but consideration, into taken be can diversity racial programs admission university Gratz (particularly society. jeopardize aslongnothistoricallyfor do groups in social the asthey disfavored cohesion programs those with principle, antisubordination the of proponents the likewise agrees, and programs affirmative action over historical perspective a adopts principle antibalkanization hand, the other One the certaingroup. a of merelymembersas butindividuals, as not individuals treat could that programs action affirmative concernwith anticlassification meaning very of It isequality. arestrainedview. On it paysthe hand,one due respectto the the to related is arguably that as a goal cohesion social the to by Clause, referring Protection subordinated. historically framedfavor group certain in to thebasisare of classify order on although race, racial theantisubordinationgroups, principle asaguiding serves to justify norm laws that, benefitunderprivileged that actions in affirmative casesregarding especially In this sense, rectify the forms of group inequality that race-based and race salient policies have caused” to endeavors and as the wrong classification) than (rather identifying“racial stratification manner, different in a inparticular equality racial the on and in general laws of protection impact wastobe separation impliedinferiority. once consideredper se unconstitutional, anegative basisracewith onthe of classification itsmessagethat holding from the derived Gratz v. Bollinger. Grutter v. Bollinger. Siegel, Reva B. "From Colorblindness to Antibalkanization: An Emerging Ground of of Ground EmergingAn Antibalkanization: to Colorblindness"From B. Reva Siegel, Although this debate marks the recent race cases decide by the Court on race issues race on Court by the cases decide race recent marks the debate this Although theEqual analysis of to the newcomponent a adds principle An antibalkanization The antisubordination principle, on the other hand, considers the question of equal equal of considers question the hand, the other on principle, The antisubordination 148 (02-516)539 U.S. 244 (US Supreme June Court, 23,2003). Grutter and (02-241)539 U.S. 306 (US Supreme June Court, 23,2003).

Yale Law Yale Law Journal 149 cases, which taken as a whole emphasize that in 47 120(2011). 147 .

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w g a e r e .c o m School of Government, Harvard University, 2004. Brown:Years after What HasBeenAccomplished and WhatRemains to Be Done? Student Race in School Admission, Attendance, and Transfer Policies at the K-12 Level." 150 individual mustassessment bemade in isopinion fed minorities,by theCourt’s protection.hope In therealmthis of sexual 2.3. them. discriminate to but policies) affirmative in people black (as minorities those protect to designed not whichwere minorities, involving sexual lawsin cases the discussed the stage than isin much issues, which a different race in actions affirmative to refers primarily particular on debate fall the clauseinequal in principle of general protection antibalkanization and the Constitution insubordinate them.2 ofColorado order Third,the to classifies homosexuals Amendment the that highlights it since one, antisubordination and principle anticlassification of combination a well articulates in Romer opinion Court’s The scrutiny. heightened a class and therefore suspect involves a later the since inracecases, islower than minorities sexual involving of equal protection in cases shouldersCourt’s the justification over societal the issues.relation moral-related burden derivedto Second, the from of divisiveness in stage, current atleast the at principle, aantibalkanization will incorporate Court the that impact eventual disregard the decision of the society’son morals, itis andtherefore doubtful Court the that reveals homosexuals, target expressly laws that to related both Lawrence, should be done carefully, if at all. First, a close reading of the Court’s opinions in Romer and Munich, John, and Andrew W. Broy. "The “Grutter-Gratz split doubleheader”: The Use of Due Process Clause represents hope for many authors that observe the fall of equal fallequal of the observe that manyfor authors hope Clauserepresents Process Due History in Constitutional Interpretation Interpretation Constitutional in History Liberty as a Pandora Box: Judicial Self-Restraint and the Role of

150 ); its transposition to the realm of sexual minorities minorities sexual of realm the to transposition its ); 48 Kennedy Kennedy 50

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w g a e r e .c o m 154 479 USSupreme Court, June 7,1965,para.500). JuneSupreme Court, 7,1965,para.493). bottom”( own its on my opinion, in stands, Amendment the of Clause Process Fourteenth Due The radiations. their any of or them on dependent may bein opinion aideddissenting by liberty,’ resort ordered of concept in the ‘implicit values basic violates Amendment enactment the because to the of Clause Process Due one the infringesFourteenth statute Connecticut this whether or more of153 the provisions( amendments” eight first in the mentioned by infringement Federal the isGovernment States or the restricted not torights specifically of the Billsupport totheview by that "liberty" the protected Fifth the Amendments and from Fourteenth of Rights,152 it151 is not 9 madewhilebut, useof Goldberg of the asubstantive Justice due process, opinions aspect on concurring Both basedtheir and Justice Harlan. opinions Goldberg concurringJustice of theparticularly Justices, by the used reasoning of plurality the due to case, complex Griswoldisfor standable itself a asright aconstitutional to consideringright. privacy as marital privacy based on the penumbra of rights notexpressly recognized by the Constitution, in case facetGriswold the its substantive of origin the since facesalso akey criticism however, doctrine, process The due Lawrence. to our notionsown of ‘civilized standardsof conduct.'” orisaccomplishesjustifiable purpose, offensive unreasonable,or nocapricious or arbitrary, islegislationbelief by that constitutionality our “tomeasure check Court the to blanket as seen was wrongly andGoldberg, Harlan by Justice itwas constructed as Clause, Process concept of ordered liberty, directly based on the substantive due process. Clause DueProcess the on directly his decision th Amendment to derive from it an implicit right to marital privacy marital to right implicit an it from derive to Amendment GriswoldConnecticut. v. AccordingJustice to Harlan,“In constitutional myview, proper the ininquiry caseisthis GriswoldConnecticut. v. According to Justice Goldberg, “In sum, the Ninth Amendment simply lends strong strong lends Amendment simply Ninth the sum, “In Goldberg, Justice to According In Griswold, the US Supreme Court, in the Justice Douglas’ opinion, confirmed a right to In the dissenting opinion, Justice Black and Justice Stewart highlighted that the Due the that highlighted Justice Stewart and Justice Black opinion, dissenting In the Palko v.Connecticut, Poe v.Ullman,supra, 381U.S. 479(USSupreme June Court, para. 513. 7,1965), 381U.S. 479(USSupreme June Court, 7,1965).

302 U.S. 319, 325. For reasons stated at length in my 151

I believe that it does. While the relevant inquiry 49 Griswold v.Connecticut. 153 , arguing that marital rights derive from a 154 Griswold v.Connecticut. . In this sense, Justice and Black sense, . In this 152 , Justice Harlan based based Harlan Justice , 381 U.S. 479 US 479 U.S. 381 381 U.S.

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w g a e r e .c o m Griswold v.Connecticut. thelawas himself,deciding strike to it down is because, they law.think aoffensive See: 156 Court, June 7,1965),para. 487). people as to be ranked asfundamental” ( our of conscience and in thetraditions rooted ‘so are liberties that those Clause protects 155 recognizingnew up the to Constitution opening for couples doctrinesame-sex regarding a liberty-based for also relevant is which Constitution, the in implicit rights personal of arealm Griswold recognized Second, Harlan). liberty (Justice directly through or Goldberg) (JusticeAmendment its Ninth Douglas), (Justice its by itpenumbra through protected but Constitution bythe recognized explicitly not liberties certain are there affirms that means use the of contraceptive timeagainst themorals of that contradicted haveinfact privacy)may morals. Inthis sense, the protection of longstanding the personal inliberty Griswold (marital since its constitutional foundation, which can thus contrast with certain aspects of the valuescurrent (as it was for Devlin), historyrelying Goldberg, is on and tradition notthe sameaspreservingthecurrent society’s but a way of findingconfidence in social conventions what as a source of aremoral laws. In thethe view of Justiceprimary Harlan and values of society dueprocess the implicitly by protected Courtthe and restrainthus discretionthe of judgethe in interpreting \ Nation history and tradition as amanageable assessare judicial standard to what libertiesthe the they presented words in other is Clause based, Process bytheDue liberty protected practice means that the Court should not recognize implicitliberties under this clause. due process, which in to appealina judicial casesrelated to self-restraint Justice Stewart In Justice Goldberg’s words: “The Court stated many years ago that the Due Process Process Due the that ago years many stated Court “The words: Goldberg’s Justice In In this divisive case, Justice Black accuses Justices Goldberg, Harlan and White of of White and Harlan Goldberg, Justices accuses Black Justice case, divisive this In The importance of Griswold, through the lens of Bowers,is twofold: first, Griswold strong equally Devlin’s Lord from different is history on reliance their Interestingly, The answer of Justice Harlan and Goldberg was to rely on history as an anchor where the 156 . 155 . 381U.S. 479(USSupreme June Court, para. 507. 7,1965),

Griswold v.Connecticut. 50 381 U.S. 479(USSupreme 381U.S.

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w g a e r e .c o m 160 JuneSupreme Court, 26, 2003, para.565). law impairedrespect tounmarried persons, theCourtwent tostate on fundamental the that proposition the the exercisewith1029; but 92S.Ct. Clause,at454, id.,Protection Equal case wasdecidedunderthe of theirunmarried The contraceptivesdistribution to persons. the a lawof prohibiting invalidated personal349 (1972),31 L.Ed.2d the Court Baird,U.S.438, 92S.Ct.v. 1029, 405 In Eisenstadt rights”.maritalextends beyond the relationship. sexual regarding decisions conduct to make certain ( 159 55 (October125. 2007): history America’s in rooted sodomy affirmcriminal are deeply provisionshistory that against Whiteto uses marriage to is restricted not in Griswold constitutional foundliberty implicit the andtherefore unmarriedcouples, to rights same extendedthe has decisions Court in the later couples, married of rights personal Griswold recognized 161 Clause." Process Due the Kennethinvisible Karst, L. thebackground”. "The and of Equal Citizens: Groups Liberties inliberty substantive asetting in group subordination whichstrong concerns about were protected decision the association, intimate freedom of the of oftherecognition stimulation 158 sodomy laws at state level). Law Review 157 Framers wished to free us of theirspecific intent, Justice Kennedy struck the the chains that of history argument intentionalist “ingenious an making by sense, this In too. differently offensive or immoral” maysexual others that in“theengage embraced nonreproductive, right to consider conduct conceptopinions, reemphasized the of liberty from beyond, andwhichGriswold according to rights Bowers v.Hardwick. Bowers right the that itwas established “After Griswold, inLawrence, words Kennedy’s InJustice Bowers v.Hardwick. Bowers Eskridge, William N."Destabilizing and DueProcess Evolutive Equal Protection." According to Karst, “although much of Griswold's doctrinal importance lies in its its in lies importance doctrinal Griswold's of much “although Karst, to According Regarding the role of history to advance personal liberty, in the Bowers’ case, Justice Justice case, Bowers’ in the liberty, advance personal to history of role the Regarding In Lawrence, the historical argument is used in a different way, since he framed the issue 157 , particularly those related to “freedom of intimate association” related of , particularly to “freedom those , June 2000: 1203-1204 (arguing that Griswold helped advocates to fight to against helped Griswold that advocates (arguing June 2000:1203-1204 , 160 161 , while Justice Blackmun and Justice Stevens, in their respective respective theirin Stevens, Justice and Blackmun Justice while , 478U.S.186(US Supreme Court,June 30, 1986),para. 192. 478U.S.186(US Supreme Court,June 30, 1986),para. 218. . UCLA Law Review

51 ( The Regents of the University of California) University of ofthe The Regents ( 159 Lawrence v.Texas. Lawrence . 539 U.S. 558 (US 158 . Although Although . UCLA UCLA

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w g a e r e .c o m generation can invoke its principles in their own search for greater freedom”. freedom”. greater for search 164 own in their principles its invoke can generation inAspersons every in Constitutionendures,serve oppress. the fact to and only proper can truthsblind ustocertain later can and generations times see thatlawsnecessary oncethought knew They insight. this have to presume not did They specific. more they been have might possibilities, manifold its in liberty of components the known Amendment Fourteenth 163 747 could. arguably decisions make contraceptive to marital right framed in a proper manner, at least be possibly not aswellcould and history tradition Nation’s him,the of according to not as a constitutional make part, not right sodomy does homosexual since by the Constitution, recognized implicitly of the same magnitude of a to deny right the that homosexual to as hecouldsodomy,it, puts aliberty integrate ever liberty”ordered inquestion is "’deeply rooted Nation'sthis and history ‘implicit tradition’ in or the concept of claim as a liberty beproperly could formulated aswellright, as checkwhetherin liberty the the check whether hadto Court the Process, Due of the protection deserves the that liberty 166 Law Review Protection."William and(Eskridge, Process N."Destabilizing Equal Evolutive Due citizenship” equal of principle core Amendment's Fourteenth from the Clause Process Due the “divorcing twodoctrines, those between perpetuate division the to serve as well However, aspointedout by division the betweenEskridge, forward/backwardlookingmight 2011). 12, October (accessed http://www.law.yale.edu/intellectuallife/sela2009.htm Equality." versus Robert."RegulatingOn Liberty Sexuality: Burt, see a versionthis of argument, For bebackward-looking. issaidto clause,which process 165 162 from jurisprudence”due process the Due Process Clause Due Process the dissenting. dissenting. Bowers as longis asit for sake freedom the of greater achieving Constitution,the such asdue process,in order to letnextgenerations fulfill to concept their Bowers v.Hardwick. Bowers the or Amendment Fifth the of Clauses Process Due the ratified and drew who those “Had Bowers v.Hardwick. Bowers forward-lookingmoredue is thethan equal protection clause It iscommonly saidthat Protection." Equal "The New Kenji. Yoshino, When Justice Scalia, in his dissenting in Lawrence, cites the majority opinion in opinion majority the cites Lawrence, in dissenting his in Scalia, Justice When 164 , he relies on a historical, backward-looking perspective of the liberty by perspectiveliberty the protected of , hereliesbackward-looking onahistorical, , June 2000:1185). , June 166 . The reference by Justice White in Bowers to Griswold is toGriswold. The reference byJustice madeinorder WhiteinBowers 478U.S.186(US Supreme Court,June 30,1986). 478 U.S. 186 (US Supreme Court, June 30, 1986), Justice June1986), SupremeScalia’s Court, 186 (US 30, U.S. 478 165 . In this sense, in order to decide whether the right at stake is a

162 . Accordingly,inincluded. Framers vagueprovisions the 52 Harvard LawReview 163 . SELA. 124 (January (January 2011): 124 June 11, 2009. 11, June UCLA

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w g a e r e .c o m Law. 168 Law. 167 prejudice in its equality jurisprudence. consideration into taken has Court The self-worthy. other’s about ideas preconceived itshuts down clause, way the whichfor are arguments, disgust-based related alsotosocietal When considers theCourt prejudice asan importantfactor in applying equal the protection 2.4. later. will the section with deal last The next perspective. equality in an US,from the beensubjected have minorities sexual nature of choose one’spersonal liberty to aswellwhichpartner thehistorical as to prejudice with longstandinga American history. of Oneway doing istostress this both historicalthe claim liberty the properly cannot if one bet risky isa liberty on heavily relying that shows arguments areaPandora box. diversity The ways history of can beseen and told byjudges minorities jurisprudence sexual regarding a progressiveand andNation’s therefore tradition, history should take this as a startingvalue of solidarity thatmakes the appeal disgustto legally relevant” pointisitin Devlin: the linked very of andclosely are society conception asolidaristic disgust and as an obstacle.idea asNussbaum morality in it,“theappeal common tothe law,or, of to puts refers disgust In the to Such appeal tradition. the country’s of part sincethey are beprotected legitimately this sense,saying, aDevlinesque perspective, referring tolong-standing American values, whichshould liberty guide that principles regulation the bythestate of sexuality Nussbaum,MarthaC. Nussbaum,MarthaC. Such reference to deeply rooted traditions reassembles Devlin-Mill debate over moral over debate Devlin-Mill reassembles traditions deeply to rooted Such reference In sum, oflaw dueprocess hasanorigininAmerican jurisprudence with associated the New York: Oxford NewYork: University Press, 2010,82. Oxford NewYork: University Press, 2010,82. Irrational Prejudice and Disgust From Disgust to Humanity: SexualOrientationandConstitutional From Disgust to Humanity: SexualOrientationandConstitutional From Disgust to

53 167 . Justice Scalia applied,withoutJustice . Scalia 168 .

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w g a e r e .c o m closet. William N. (Eskridge, failed process” a prejudice with infected considereda process Court and the failed, had process justified when the political best was activism Judicial Jews. and Americans Asian also but just Americans not African minority,” insular and a “discrete against “prejudice” reflecting legislation based (1938) Products refined equal protection doctrine to justify serious class- scrutiny toward 173 4. footnote 172 756. 171 756. 170 Law. 169 review” basis rational receive currently - orientation sexual and disability, “age, as such others sex,“race, andnonmarital heightened national origin, alienage, scrutiny: parentage” deserve this that fiveclassifications recognized has Court Supreme US the Currently, “likely besuch classificationsarethose linked tohierarchy to and discrimination” heightenedthe disfavored is protect asNussbaum scrutiny standard to it, groups,or, hasput of means. rationale leastThe restrictive of use the narrowly with tailored interest compelling a lawspolicies on its base and must government where i.e. the scrutiny, heightened itis perspective, theoretical the From class. suspect of concept by the inspired were sections, ofsuspectclasses group the to“prejudicesubjected againstdiscrete minorities” andinsular and are arehistorically discriminated, that case,groups 4 Caroleneof the Products footnote since it is likely that such laws will bring about deleterious effects on those groups. theSince the political processes, and therefore the Court is suspicious of laws that single out them, was in “It in Carolene theAccording Court v.that toEskridge,Unitedthis States context v.Carolene ProductsCo.United States Yoshino, Kenji. "The New Equal Protection." Protection." Equal "The New Kenji. Yoshino, Yoshino, Kenji. "The New Equal Protection." Protection." Equal "The New Kenji. Yoshino, Nussbaum,MarthaC. New York: Oxford NewYork: University Press, 2010,44. Cambridge: Harvard University Press, 2002,p.207). When the Court isWhen Court the classes dealingwith suspect orfundamental itmustrights, apply a The antisubordination and anticlassification principles, described in the previous previous the in described principles, anticlassification and antisubordination The groupsSuch suspect areconsidered tobeexcluded orsufferextra barriers toaccess 171 . From Disgust to Humanity: SexualOrientationandConstitutional From Disgustto 173

. 304 U.S. 144 (USSupreme April 304U.S. Court, 25, 1938): 54 Harvard LawReview Harvard LawReview Gaylaw: challenging the apartheid of the apartheidof Gaylaw: challenging the 172 likely tobeincludedare in 124 (January (January 2011): 124 124 (January (January 2011): 124 170 , while , 169 .

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w g a e r e .c o m interest. alegitimate considered need,in Loving, toapply rigidthe scrutiny since invidious discrimination was not even to be in did in of wasput not prejudice Equal Court the center the Clause, although Protection the States” the in discrimination racial invidious of the sources of purpose state Amendment central official all Fourteenth eliminate to was “theand clear clearly Court the affirms, in only class.Loving, However, of suspect concept 177 1503. Brown." over in Struggles Constitutional Values 176 175 classification the of “singlesuspect” one “immediately racial group” declared case Korematsu in the Court Supreme US the When Clause. Protection class hasbeen alsolinkedby with Court the a prohibition of stereotyping under Equal the and requireper sesuspect, aheightened scrutiny. regulation” of rationality instrumental the concerning problem a into question constitutional the “transformed Court words, the In other Brown. eleven of footnote the particularly blackpeople, to argument inferiority apply to the reliedon Court the regardingwhich grounds Brown followed 178 174 as McLaughlin such cases in anti-miscegenation presumption classesof in unconstitutionality suspect caseof the of wasaresponse Court, the importantly, development the the From more of groups. of those historical the perspective, in classification the historical by classifications law andthereference to discrimination group see elementspossible to principles inof both the i.e.class,ideasuspect of concern the with Korematsu States. v.United Anticlassification and Antisubordination Talk: Equality Fifty: at "Brown B. Reva Siegel, Loving v.Virginia. Loving v.Virginia. McLaughlin v.Florida. Furthermore, besides its relation with historical discrimination, the idea of suspect suspect of idea the discrimination, historical with relation its besides Furthermore, 388U.S.1 (US SupremeJune1967). 12, Court, 388U.S.1 (US SupremeJune1967). 12, Court, 176 379 U.S. 184 (US Supreme Court,December1964). 7, , by articulating a framework where racial classification would be would where classification racial aframework , by articulating

323U.S. 214(US Supreme December Court, 1944). 18, 178 55 . Therefore the idea of a discrimination rooted rooted adiscrimination idea of the Therefore . 174 Harvard Law Review Loving and 175 , to the controversy that that controversy the to , 117 (March 2004): (March 117 177 , it launched the

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w g a e r e .c o m legitimate aim/objective of the State; (ii) Reasonably and rationally related means. andrationally related State; (ii)the of Reasonably aim/objective legitimate is a there whether (i)at: will look The court cases. all other the to reserved scrutiny, basis is arational there Finally, aim. the to related substantially means are governmental (ii) objective; important (i) is an there whether check will Court The gender). instance, (for class quasi suspect to reserved scrutiny, isanintermediary there means. Second, restrictive aims; suspect areinvolved. classes (ii) will has Court check Then, (i) compelling the state the whether whetherin US, derived from its case law. First one is a strictthey scrutiny181 test, when fundamentalare rights or narrowly tailored to this objective, with subjectedgroup to irrational andprejudice notsubjected therefore theto strictscrutiny use of the least class. be is aviolation likely relatedsuspect not Clause, eveninto of Equal cases the to Protection law.In words, other to harm a groupbased,for instance, disgust on irrational or other fears meaning to equal the protection lawsof asprohibitingirrational in prejudice rationalitythe of a hasattributed Court the that indicate precedents those Court, the protection seeking new groups of theemergence With antisubordination. to opposing anticlassification merely Clause. 180 July 1, 1985). 179 interest” governmental a legitimate constitute cannot group unpopular politically harm a to desire congressional a legitimate interest constitute not could mentally retarded” the against prejudice an “irrational ofCleburne, City in that, recognition the Forinstance, groups. by some suffered in discrimination the prejudices is itkey that a suspectclass, a acaseof hasrecognized role and played bystereotypes For the sake of clarification, there are three major tests under the equal doctrine under protection equal the are tests major there three For clarification, sakeof the US Dept.of Agriculturev. Moreno. Inc. Center, Cleburne, Texasv.CleburneLiving City of This is the case even when the Court does not grant the status of suspect class to the the class to of suspect status the notgrant does Court the when case even is the This from has shifted Clause Protection meaningEqual of the cases, of lightthose In Likewise, there were instances where the US Supreme Court, even not recognizing recognizing even not Court, Supreme US the where instances were there Likewise, 180 , compose, a picture on the role of prejudicein theEqual Protection

179 , along with the formula in Moreno case that “bare “bare that case Moreno in formula the with along , 413 U.S. 528 (USSupreme June Court, 25,1973). 56 473 U.S. 432 (US Supreme 473U.S.432(US Court, 181 . In the the In .

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Ask, Don'tTell"." "Assimilationist Orientation." Bias in Sexual Equal Protection: The on Classifications Based Visibility to Scrutiny Heightened of Application Its Acknowledge Should Presumption and the Case of "Don't186 Law. 185 Orientation." Orientation." Sexual on Classifications Based to Scrutiny Heightened Application of Its Acknowledge 184 homosexualslaws (likely rational affectingapply standardto Court moreto the searching a feelings. and Thefocus ondisgusthistorical on therefore convince is discrimination able to inbeen equalmanner denied solely thebasisirrationalon of todisgust related prejudice Orientation." Sexual on Classifications Based to Scrutiny Heightened Application of Its Acknowledge 183 July 1, 1985). 182 such qualifyto themas wouldit beaffirming correct literature are already considerable there class,suspectwhetheralthoughhomosexuals a isnot primary constitute the that question in arguments of consideringcontext disgust-based this to occur precedent the action of will state aims the the because Court the question precisely review, insearching thedefaultrational basis comparison isconducted bytheCourt enquiry with bite” as basis “rational by with named the literature the by (justifications)its proposed policy.to governmentthe hasbeen more This searching test aimsquestioned the Court means,the related rationally involved a interest and legitimate is a there checkwhether willjust Court which the to according basis review, rational case Cleburne See Smith, Jeremy B. "The Nussbaum,FlawsMarthaC. of Rational Basis with Bite: Why the Supreme Court Smith, Jeremy B. "The Flaws of Rational Basis with Bite: Why the Supreme Court Should Smith, Jeremy B. "The Flaws of Rational Basis with Bite: Why the Supreme Court Should Inc. Center, Cleburne, Texasv.CleburneLiving City of 186 New York: Oxford NewYork: University Press, 2010. . More importantly, the key issue is rather whether rights of sexual minorities have have minorities sexual of rights whether is rather issue key the importantly, More . In the case of sexual minorities, where the emergence of irrational prejudices is likely islikely irrational prejudices emergenceof the where minorities, In thecaseof sexual Fordham Law Fordham Law Review Fordham Law Fordham Law Review 182 , unlike the tradition of deference by the Court to the government under the the under government the to Court the by deference of tradition the unlike , Yale Law Journal Company Fordham Law Fordham Law Review From Disgust to Humanity: SexualOrientation andConstitutional From Disgustto

73, no. 6(2005):2774. 73, 73, no. 6 (2005).no. 73, 57 108(December 1998). 73, no. 6 (2005). Or Yoshino, Kenji.Yoshino, Or (2005). 6 no. 73, 473 U.S. 432 (US Supreme 473U.S.432(US Court, 183 . Under this standard, a more 184 185 . , it is, it arguable

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w g a e r e .c o m twin goals ‘to equalize the status and position of the homosexual with those of the the of those with heterosexual’homosexual the of position and status the equalize and‘to goals ‘totwin secure for the homosexualits objects.The gay movementrights recognized this in 1961 when itpublicly declared asits the right, perverts,’ lesbians,cross-dressers, and gaymeninas the last century similarly denied dignity to a human being, to develop190 and law American in dignity of recognition often-implicit the to in relation development a itself unfolding tale of equal liberty and increasingly dignity”universal single, is a It helix. double legal ina interlocked profoundly are inquiries, different entailing in whichnarrative dueprocess farand having equal missionsprotection, from and separate i.e.“astory”, Lawrence tells Tribe, a“multi-layered equality.to According liberty with relate to convenient or possible not is it believe who those to objection bold a constitute Texas decision, also based on due process grounds. Bower’s the tooverrule in order claim Process a Due saw Clause, Protection theEqual on decision the basing of instead Lawrence, in majority the for writing Kennedy, Justice above, its Name." 189 187 considered byhim v. “Brown the andof Board gay lesbianAmerica” andliberty process by was shortened USSupreme Courtholdingthe in caseLawrence 2.5. class. asuspect constitute they whether of question aside the leaves itstill while bite), a with basis its Name." its Name." 188 According to Eskridge, “The state's demonization of ‘degenerates,’ ‘homosexuals and sex ‘homosexuals andsex of‘degenerates,’ demonization Eskridge,“The state's According to Tribe, Laurence H. "Lawrence v. Texas: The "Fundamental Right" That Dare Not Speak Not Dare That Right" "Fundamental Texas: The v. "Lawrence H. Laurence Tribe, Texas. v. Lawrence Tribe, Laurence H. "Lawrence v. Texas: The "Fundamental Right" That Dare Not Speak Not Dare That Right" "Fundamental Texas: The v. "Lawrence H. Laurence Tribe, 190

Such dignity approach is explicitin Justice Kennedy’s opinion in Lawrence, which is in v. Lawrence together, taken are opinions Kennedy’s andJustice O’Connor If Justice According to Tribe, who represented Hardwick in Bowers, this tension between due tensionbetween Hardwick this in Bowers, represented Tribe,whoto According . When Justice Kennedy highlighted that “equality and dueprocess When oftreatment highlighted Justice that the . Kennedy Conclusion: Towards Dignity? Dignity? Towards Conclusion: Harvard Law Law Review Harvard Harvard Law Law Review Harvard 539U.S.558 (US Supreme JuneCourt, 26,2003).

117(April 2004): 1896;1898. 117(April 2004): 1895. 58 189 . 188 . As highlightedAs . 187 ,

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w g a e r e .c o m argumentdeveloped in by Justice Kennedy Lawrence, history stilland tradition a key play through intentionalist sweeping Even the after framed. be argument liberty properly can claim which the historical a formulate to necessary is it liberty, on rights minorities’ sexual in the future if especially a in Romers, was it as caselaw in prejudice rejecting of in terms will assertive less be might not so clear-cut Court the as therefore class, and suspect considered until now not are they since minorities, Romers. Third, in orderSecond, itis unclear also role the of prejudice in the equality jurisprudence regarding sexual to articulate claims holding. despite its narrow Court, from in factthe a Clause was strong statement Protection of Equal the under decided sexualinvolving minorities (Bowers) case only the that fact cases, duetothe isto race minorities asitarguably tothecaseof applicable pertinent sexual regarding sexual minorities. First, it is not clear whether the fall of equality doctrine is society grounds itallliberty isboth andinrecognizes defined members equaltermsof to the be in sense,in caseshould decided anand, the this violates liberty clause, a minority,equal against moral disapproval express laws that disgust-based through in case this stigmatization, standard, this to According minorities. sexual of rights to dignity-approach a set anda respects, in important point interests” decision linked latter advances both on the liberty are of by guarantee protected substantive the conductfor demandrespect to right 191 and Evolutive Equal Protection." of context a marriagein the tosomeone of sex.”a differentWilliam (Eskridge, "DestabilizingN. DueProcess often children, have bisexuals and men, gay Lesbians, cases. in American some implicit been has dignity of principle The lives.’ he inwhich society the to contribution as acitizen,achieve right potential hisfull maximum and make his the and to dignity, 2010, p.87). C. Humanity: SexualOrientation and Constitutional Law.Martha (Nussbaum, liberty” equal and liberty of notions relevant the well for articulates equally liberties all.beforeLawrence areprotected wesay protected that of are which liberties weneedan account fully ideaby not treatment: equal of the explained 192 Lawrence v. Texas. v. Lawrence In Nussbaum’s words, “The core idea of a protected are of liberty is independent of of libertyand is independent are of “The ideaa protected core of In Nussbaum’s words, 192 Currently, severalissues are still pending in American the constitutional jurisprudence . 539U.S.558 (US Supreme Court, June 26, 2003),para. 575. UCLA Law Law Review UCLA 59 , June 2000:1210). , June New York: Oxford University Oxford Press, York: New From Disgust to Disgust From 191 , he ,

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w g a e r e .c o m political processes if considers that it is not relied on the country’s history and tradition. claims for formal recognitioninmightrole theconstitutional dueprocessjurisprudence Court see new andtherefore the of same-sex relations as a usurpation of the mandate of the

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w g a e r e .c o m judicial Constitution regarding the of text clear-cut the considering minorities’ rights, Court isexpressly applysexual bythe constitution toadignity-based obliged to approach danger of such dignity-based approach to rights of sexual minorities. jurisprudence basedonhuman for is critical enoughfood dignity thought of potentialthe and African South the above, signalized as dignity, human to right the of recognition increasing an isin moving towards US if theexperience from perspective, a comparative Furthermore, marriage. same-sexrecognizing later, and, provision sodomy the strikingdown first country, in that rights minorities’ sexual of development the led Court Constitutional African South The make. to worthy effort isan jurisdiction two these between comparison the therefore and US the than manner different a in questions same those answer to seek rights enforcement, in a post apartheid context, as well itsas understanding of the sexual minorities’ self-restraint? Those are issues discussed in the previous chapter from the US perspective. injudicial primarily rely to reasonable it is in US, interpretation for standards constitutional lackclear of Due to via liberty dueprocess? universal claim for a and doctrine equality race-driven a between tensions any there Are socially consolidated? disgust feelings of eventual incorporating avoid to order in particularly interpretation, judicial in the rights liberty and equality? Whatis theproper role of history and tradition in defining constitutional between tensions the overcome to panacea a approach adignity-based of emergence the Is answers. clear without questions leaves several minorities sexual on jurisprudence US The Sexual Freedom on Jurisprudence African South The Sex: and Dignity Human Three. Chapter In this chapter, I argue first that, unlike in the US, the South African Constitutional Constitutional African South the US, in the unlike that, first argue I chapter, this In judicial its and process constitutional with experience African South The 61

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and Others. 193 life aspermanent partners relations same-sexcases, of recognition regarding one two lens the of critically through assessed in and Third, Constitution). approach be a dignity-based Section 8(3) 1993Interim the will discrimination in South the African Constitution (Section 9 (3)in 1996Finalthe Constitution of grounds prohibited the of as one “sexual orientation” expression the constitution as tothehistory includehow andallies gay of first managedforin groups the time to ever a key aswell to rights byreference sexualminorities’ jurisprudence cases on African equality jurisprudenceand the ofConstitutional Second, Court. chapterthis introduces South the in theConstitution clause anti-discrimination a betterthe understanding of leads to prelude Such influenceitsinpost-apartheid process. context constitutional-making and the political criticism. dignity expressedof means views whatJustices are,tosay that least, subjected toseverethe (particularly, in specificcases standard, constitutional clear servingas a missioninits of failed has itsfor vagueness, approach,dignity a human Yet, third, precisely disgust. to tackle words, inother minorities, or, sexual of determinelaws inin harm mainstreamed to what jurisprudence equality self-worth its order value a as dignity embraced Court Constitutional African South the policies, based To putitsimply linkingandit with discussion the in presentthe thesis regarding disgust- be overcome. can policies disgust-based and assessed canbeconstitutionally minorities those laws the whichmoral impact value on thediscriminatory of symbolic standard of through Court applies Constitutional African South the that argue I Second, Rights. of Bill the the of interpretation concept of human dignity, in its cases related to sexual minorities, as a National Coalition for GayandNational Coalition for Lesbian Equality and Others vMinisterofHome Affairs This chapter has the following structure. First, it presents briefly the South African CCT10/99(SouthAfrican Constitutional December Court, 1999). 2,

193 and the other regarding decriminalization of of decriminalization regarding other the and 62 S vJordan andOthers , 2002),where ,

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w g a e r e .c o m major laterimplications generated jurisprudence. aspects that on equality to the two had in particular, Constitution African South in the orientation sexual the of inclusion supervision of Constitutionalthe Court. the form of constitutionala politicalin to post-apartheid compromise subjected of drafters finalConstitutional were the principles, but also the outcome of this process was under the University,available 2008, at: It was process an 1997. unprecedented February forcecoming on4 into1996, on10December finally adopted Constitution was Final the was it onceandamended after accordingly, tocertify Final the rejected Constitution Constitution, underthe supervision of Constitutionalthe After Court. Constitutionalthe Court Final the of drafting the should guide that Principles Constitutional lists34 document Such April inforce1994. into which came an Interim Constitution,adopted (MPNP) Process Negotiating Multi-Party the democracy, to apartheid from transition of process the 3.1. strength. celebrated based jurisprudence in linking equality and liberty as well as reasonthe of its much- 196 at: available Le. "The South African Constitutional Court." 195 Amici Curiae). 194 prostitution Roux, Wessel Le. "The South African Constitutional Court." For more details regarding the constitutional-making in South Africa, see: Roux, Wessel S vJordan andOthers (Sex Workers EducationandAdvocacy Task Force andOthers as

The South African experience with constitutional-making in general, and with the the with and general, in constitutional-making with experience African South The The constitutional-making process in process AfricaThe constitutional-making South particular presents features Africa South in andtheGayMovement Process The Constitutional-Making 194 http://www.conectas.org/IBSA/WesselLeRoux.doc . Finally, in the conclusion, this chapter explains briefly the limits of a dignity- of limits the briefly explains chapter this conclusion, in the . Finally, CCT31/01 (South African Constitutional October Court, 9,2002).

http://www.conectas.org/IBSA/WesselLeRoux.doc 196 , in constitutional-making, where not only the the only not where constitutional-making, in , 63 BISA III. Pretoria: Pretoria University, 2008, BISA III.

Pretoria: Pretoria , p. 11. 11. , p. 195 . In In .

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w g a e r e .c o m itsperspective ofblackgays andpoor advocacylesbian and into Inthis efforts. sense,the the adding of opportunity the lost it perspectives, multitudesof those incorporating accounts of undergroundthe gaylife movementandeven during the apartheid than mass campaigns mass than 1994 and lobby 1996was one of based on personal connectionswith certain politicians rather between National strategy the Coalition insteadof sense, In this curbing them. general public movement, becausefear of the could this that increase existing homophobicfeelings bythe marriage. legalization of same-sex lead to eventually would clause this that defending therefore avoiding intercourse, same-sex of criminalization the strategy focusingon of a targeted hand, one on adopted, final constitution, 1996 the approval of and tothe from constitution interim lasted 1993 the that political process the Equality,in its efforts to secure the maintenance theof expression “sexual orientation” during for for in sexual Gay actor theNational freedom, and litigation Coalition Lesbian process the to movement establishmentcontribute the a grassroots of supportthecause to to terms explicitly in avoided even and intend not did it that sense in the movement, Recognition, Africa: South Neoliberal in Project." Equality the and Redistribution, "Homonormativity Natalie. (Oswin, and gays of lesbians” harmlessness the about and race of immutability the to parallel sexual as of orientation immutability the about arguments developed NCGLE the ranks, its within diversity racialimportant) class, and(most an image gender, present of needto the of cognizant while And, benefits. of purposes for the spouses as same-sex partners of recognition specific making by society African in South adversaries rattle potential to not chose demands It activism. around of kind conservative very was a lobbying effort “The Coalition’s alsorelevant: are words such volatile State." issues 198 as the definitionState." of family,197 adoption, and the constructions." constructions." 199 32, no.3(2007): 652. Vos, Pierre de. "The Inevitability of Same-Sex Marriage in South Africa’sin Post-Apartheid South Pierre Marriage Same-Sex of Vos, de."The Inevitability Africa’sin Post-Apartheid South Pierre Marriage Same-Sex of Vos, de."The Inevitability Rudwick, Stephanie. "‘Gay and Zulu, we speak isiNgqumo’: Ethnolinguistic identity identity isiNgqumo’:speakEthnolinguistic we Zulu, Stephanie."‘Gay and Rudwick, South African JournalonHuman Rights On the other hand, the National Coalition strategically avoided creating a grassroots First, the fight to include sexual orientation in the constitution was an elitist South African Journal onHuman Rights Transformation 198 . This centralized strategy of the National Coalition contrasts with with contrasts Coalition theNational of strategy This centralized .

, 2010:115-118. Signs: WomenJournal inCulture of and Society 64 23, no.3(2007): 432-465. 23,no.3(2007):441. In sense,this Oswin’s 199 197 , and,by not . The main

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w g a e r e .c o m addressedbytackling Court the that effort argumentative requiredan It roots. conservative its beyond theConstitution of text read the to had marriagecase, same-sex the decided between adopted 1994 and1996during Court, when constitutional-making the the process, State." 202 Human Rights State." Post-Apartheid Africa’s South in Marriage Same-Sex men and lesbiansdisastrous were a strong possibility the of becauseof societal homophobia confrontto totry be risky too alsobacklash. ‘normal’ African population or toconfronthomophobic and attitudes assumptions. ItwasfeltitEverywould human care beings” was201 thus (Vos, takenInternational Forum Constitution." African PierreSouth the in to Clause beEquality The de.uncontroversialRights: "The Inevitability1) p. (1988, Lapinsky and Jara and Theseto showsocialof cleavages that mean mitigate againstany developing.society gay andlesbian movement representative powerful, thatgay there is no ‘‘common1994, p.3) experience men.’’ urban class, middle- of white, of sexual that been often has oppression,’’experience’ as write, ‘‘there is no single, essential gay identity in South Africa. What has passed for ‘the gay define alesbian and gayidentity aninclusive identity.as African AsGevisser and Cameron 200 argues asDeVos orientation” “sexual expression the of Constitution the in inclusion the to due inevitable somehow marriage was of same-sex legalization if the even hand, one the ways.On leasttwo at intact almost left was minorities sexual against prejudice strong societal the while clause discrimination ledstrategy, toa schizophrenic scenario: a progressive constitution with a unique anti- Africa. as in one such the South identity gay the how impacts that present connection between equality and race in the South African post-apartheid context is still so Vos, Pierre de. "The Inevitability of Same-Sex Marriage in South Africa’sin Post-Apartheid South Pierre Marriage Same-Sex of Vos, de."The Inevitability In aimed“thesense, andthis wasnot campaign hearts minds atchanging the South of the On the matter of race and gay identity, Jacklyn Cock’s claim that: “The challenge is to South African JournalonHuman Rights This schizophrenia affected the equality jurisprudence of theequality jurisprudenceinThis schizophrenia of Constitutional affected the Court advocacy asan successful otherwise process, elitist this perspective, a disgust From . The divisions of gender, race, and class, which still scar the South African African South the scar still which class, and race, gender, of divisions The . 201 23, no.3(2007): 440) . 26,no.1(2003): 43).

202 claim.” (Cock, Jacklyn. "Engendering Gay and Lesbian Lesbian and Gay "EngenderingJacklyn. claim.” (Cock, , it was not obvious. Due to the conservative strategy 200 is read in light of a transformative constitution constitution transformative a of light in read is 65 23, no. 3(2007). South African Journal on Journal African South (Gevisser&Cameron, oe’ Studies Women’s

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w g a e r e .c o m politics. coalition as qualified was strategy This differences. racial despite movement, thegay of image unification an of giving, therefore, groups theNationalprocess, was Coalition successfulinbringing upunderitsforty wingdifferent of gays and lesbians asarelatively united segment. Duringand uniform constitutional the avoidedconstitutional language in the discrimination of racial text group to presentorder the the in orientation” “sexual of inclusion the for advocates hand, one the On proximity. the struggle with was connected politics, African post-apartheid in South matter a clearly decisive forrace, equality of sexual minorities. It was a complex relation of distance and however meaning the of extending towomenthis word marriage only Islamicunder law her duetohermonogamous rights relation,by hertotheconditionputting of spouse, without 205 Journal Africa." South in Laws Family Eletronic Journal law underSharia marriedwoman only Journal ofLaw and Society 207 Court, March11,2004), para.29-33. 206 Court, March11,2004). 204 Constitutional December Court, 2005). 1, 203 South the family African law legal by beconsidered law(Sharia)under should only marriages celebrated Islamic whether African South marriage regardingConstitutional Court law, in this case particularly related to different as one of the foundations of Section 9 (3) beto a right Africain considering and South family law of nature heteronormative the Juleiga Danielsv. Robin.GrieveCampbell. Stychin, Carl F. "The Struggle for Sexual Orientation in the South African Bill of Rights." Rights." of Bill African South in the Orientation Sexual for Struggle "The F. Carl Stychin, v.Robin.GrieveCampbell. Juleiga Daniels Africa." in South divorce regarding women muslim of "Dilemma N. Gabru, Minister ofHome Affairs and Another v Fourie andAnother. Second, the elitist lobby strategy of National Coalition also had an impact on how on impacthad an also Coalition of National lobby strategy elitist the Second, This alleged right to be different faces certain limits in the same jurisprudence of of the limitsin jurisprudence same facesthe certain be different to right This alleged 3,no.1(2003). , 2004. See also: Rautenbach, Christa. "Gender Equality and Religious Religious and Equality "Gender Christa.Rautenbach, also: See 2004. , 23,no. 4 (December461. 1996): 204

. In . In a caseinvolving recognitionthe inheritanceof to rights a Queensland University of Technology Law and Justice and Law Technology of University Queensland 205 , Justice Sachs, writing for the majority, reaffirmed majority,reaffirmed for the writing Justice Sachs, , 66 Case CCT 40/03 (South African Constitutional Case CCT 40/03 (South African Constitutional 203 . 207

CCT 60/04 (South African Potchefstroom 206 .

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w g a e r e .c o m sexual of wide concept hand,a theone on Court, defended,for speaking Ackermann, Justice andOthers vMinisterof and Another of sodomy between two men, in the case 3.2. havebeen subject domination to and should therefore bespecially by protected courts. recalls properly Vos De as principle, anti-subordination the reminds Africa in South liberalization gay the for context such broader terms,liberationIn US post-apartheid. discourse successfully embraced this across todeny spectrum the were unwilling for claim any equality political upon major end whereall actors the racialof the of segregation regime environment in order language itsanti-apartheid of to advance Takinginterests. advantageof political the Others. 210 State." 209 and Society "The StruggleSouth AfricanJournal on Human Rights for Sexual State." Africa’s inPost-Apartheid South Marriage Same-Sex of "The Inevitability de. Pierre Orientation (Vos, rightsfrom granting tohistoricallyopposingplayers marginalized the of groups”. in the mainstreamprohibited prevailingconstitutional strategy climate political because the of South Africanoppression. They as amatter both this, did of principlein and,Iwould interests contend, the Bill anti-apartheid of largerdiscourse into the tapped that language issuesin a its framed of Rights." 208 National Coalition for GayandLesbian ofNational Coalitionfor Equality andAnother vMinister Justiceand Africa’sin Post-Apartheid South Pierre Marriage Same-Sex of Vos, de."The Inevitability In this sense, “The Coalition worked hard to show that it was representative and also

South African JournalonHuman Rights On the other hand, and in a paradoxical manner, the National Coalition used the the used Coalition National the manner, paradoxical a in and hand, other the On CCT11/98 (South CCT11/98 (South African Constitutional Court, October 9,1998). In 1998, the South In struck South African 1998, the down common Constitutional the Court law offence minorities on sexual jurisprudence Court Constitutional SA the of Overview 23,no. 4 (December461. 1996): 209 , it once history into takes consideration todetermine whichgroups

23, no. 3 (2007): 442). See also: 442).no. Stychin, See 23, 3 (2007): Carl F. National Coalition for Gay and Lesbian Equality Gayand Coalition for National 67 23, no. 3(2007): 448. 210 (hereafter, National Coalition 1). Justice Justice 1). Coalition National (hereafter, 208 , the National Coalition Coalition National the , Journal of Law of Journal

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w g a e r e .c o m key Whendistinction this others. andof couples straight of acts sexual between difference isfundamental there a that by them) assumes deeply offended that’s society of majority the policy (oneactions, that defendsat a morebeings, general the namely:criminalizationlevel, common sexual to all desire,would have the rightitself,to protect membersby asput DevlinLord of private of itthe society becomes therefore and by society, the rejection feelings of extreme provoke might sexuality society. sexual harderA disgust-based formsnon-mainstream of idea that the namely: perspective, a disgust-based of of principles acts for only the tackled one Court Constitutional South African the of sexuality, societyfixed to categories reference because toof justifydefining sexualorientation sexualreferencethrough to avoidingdesire, and therefore making the criminalizing New York: Oxford University p. 11). 1965, Press, its existence” (Devlin, isifto Patrick. essential it else anything 214 Others. 213 Albie of jurisprudence Sachs.” 212 Others. Justiceand ofand LesbianEqualityand AnothervMinister Coalition forGay National sex.” own their of member a to attracted erotically be only occasion single a on might persons whoare bi-sexual, transsexual or italsoandapplies to the orientation of persons who 211 bearing” capable of fully linguisticallyis andtextually itinterpretation“a ofwhich generous to orientation Court below. asexplained jurisprudence, “Society may use the law to preserve morality in the same way it uses it to safeguard itto uses it way same the in morality preserve to law may usethe “Society Gay andLesbian ofNational Coalitionfor Equality and Another vMinister Justice and According to Justice Ackermann: “[This concept] applies equally to the orientation of of orientation the to equally applies “[This concept] Ackermann: Justice to According Vos, Pierre De, and Jaco Barnard-Naudé. “Disturbing heteronormativity: The ‘queer’ The heteronormativity: “Disturbing Barnard-Naudé. Jaco and De, Pierre Vos, 212 CCT11/98(SouthAfrican Constitutional Court, October 9,1998),para. 21. CCT11/98(SouthAfrican Constitutional Court, October 9,1998),para. 22. When sexuality is defined by a groundreferring to tovirtually common human all National Coalition 1 represented a queer moment of the South African Constitutional African Constitutional moment South of the aqueer 1represented Coalition National , when Justice Ackermann’s wide concept of sexual orientation, conceived according according sexual conceived of orientation, wideconcept Ackermann’s , whenJustice 213 211 , is analyzed along with Justice Sachs’s concurring opinion in the cast. By , and on the other hand placed human dignity in the center of of equality the inhand center human dignity theother the and placed , on

Southern African PublicSouthern African Law 68 214 25,no.1:209-234. , including via criminal law. law. criminal via including , The Enforcement ofMorals. The Enforcement

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w g a e r e .c o m Others. 217 Law. 216 Others. 215 social conventions” deep-seated Nussbaum,according“relied becauseit to disgusthim on seemedbe an to to expression of Devlin, directly Burkean conservatism Lord of who, tackles Such progressive perspective the eliminationthe publicof institutions which are based such onand perpetuate prejudice” that admits leastathomophobic “require(s) but decision, willConstitution remainafter prejudice the the opinion, concurring his in Sachs, Justice 1. Coalition National the in itself Court Constitutional African South the by recognized challenge a fact in is This man. ordinary the of reasonableness the on relies him morality to according because people, ordinary same moral level, a disgust-based law such as a sodomy provision becomes illogical. by falls acommon allapart to reference puts that formsground consented of sexuality the at him, Accordingprivacy. anti-sodomy to and dignity viewcompartmentalized equality, of discrimination. AfricanSouth Constitutional Court arguesfor amore individualized analysis of impactthe of serves asastandard toassesstheimpact ofthemeasure on individual the interpretingmethod of equality the which within meansclause, test dignity Harksen the that as dignitya short, operates and In equality. liberty between dignity, making relation the clear merely moral existingenforcing conventions. logicDevlin’s andhighlighting role rather the institutions in of rights, than public advancing National Coalition for GayandLesbian ofNational Coalitionfor Equality andAnother vMinister Justiceand Nussbaum,MarthaC. Gay andLesbian ofNational Coalitionfor Equality and Another vMinister Justice and New York: Oxford NewYork: University Press, 2010,p.10. CCT11/98(SouthAfrican Constitutional Court, October 9,1998),para. 19. CCT11/98(SouthAfrican Constitutional Court, October 9,1998),para. 130. Yet, in Devlin’s terms, such reconceptualization of sexuality should reach the mind of Such individualized perspective lead Justice Sachs to argue for Sachsanon- to leadJustice perspective Such individualized In addition to the queerness of National Coalition 1, this case is also relevant for for relevant also is case this 1, Coalition National of queerness the to addition In From Disgust to Humanity: SexualOrientationandConstitutional From Disgust to

216 . The National Coalition 1 case answers this issue inverting 69 217 . In this sense, the 215 .

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w g a e r e .c o m partnerships. According literature tothe partnerships. ControlinAliensread but the marriage, same-sex recognizingof expressly constitutionality the Act have under equal theAliens Actrights 96 Control In of 1991. this sense,theCourtavoided in conformitypartnerships, ashortcoming represents in jurisprudence queer the of this Court. with the Constitution, and therefore allowing same-sex State.” 222 and Others. 221 Others. 220 International p. 281. Publishing, 2010, In Topography: Values andConstitutionsCourt.” Constitutional African South and Court Supreme Canadian 219 Others. 218 Coalition National the by petition an in Court Constitutional African South deliveredby judgmentthe second minorities, the by those suffered discrimination society. shouldhave right the toequality in tobe order considered fully and members evenly of the elementin dignity according to South African Constitutional Court, and therefore individuals individuals as members of our society” “the constitutional protection of dignity requires us to acknowledge the value and worth of all of equal treatment forms differentrestricting of spheresexuality private leadswithin the also toa basic violation forviolate equalrespect difference,lawswhichis equality. hand,On the other vital to Vos, Pierre de. “The Inevitability of Same-Sex Marriage in South Africa’s Post-Apartheid in Pierre Marriage South “TheSame-Sex Vos, of de. Inevitability National Coalition Gay and Lesbianfor Equality and Others vMinister ofHome Affairs Gay andLesbian ofNational Coalitionfor Equality and Another vMinister Justice and Gay andLesbian ofNational Coalitionfor Equality and Another vMinister Justice and Wesson, Murray. “Contested Concepts: Equality and Dignity in the Case-Law of the the of Case-Law the in Dignity and Equality Concepts: “Contested Murray. Wesson, South African Journalon Human Rights CCT11/98(SouthAfrican Constitutional Court, October 9,1998),para. 28. CCT11/98(SouthAfrican Constitutional Court, October 9,1998),para. 112. In the case here called National Coalition 2, the Court held that same-sex partners partners same-sex held that Court 2,the Coalition National called here case In the Yet, if the idea of dignity, in the context of sexual minorities, is to address a symbolic CCT10/99(SouthAfrican Constitutional 2December Court, 1999). 218 . Although itis . Although concept an unclear

, by András Sajó & Renata Uitz, 280. Utrecht:András& Sajó Eleven 280. , by Renata Uitz, 222 220 , casethis represented ashortcomingin Court’sthe . In this sense, self-worth is arguably the key key isarguably the self-worth sense, In this . 70 23, no. 3(2007): 452-453. 219 , according to Justice Ackermann,Justice according to , 221 , regardingsame-sex , Constitutional

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w g a e r e .c o m prevent in waysthat value of [established] cultural “institutionalized patterns setof i.e. the listed by the Court. others, among nature of ceremony,the or living in expenses responsibility such asshared sex relations, althoughformer those donotneed relations comply to in general demandswith tohave valuelistan of same the extensiveopposite- of requirements respect should relations homosexual” created idea of “good the requirements permanent relation under the Aliens Act. In other words, as put by De Vos and Barnard, those to anopposite-sex be equivalent to relation woulda same-sex Court, the qualify according to stereotype. this same-sex to partnerships recognition of the andconditioned opposite-sex relations of Albie of jurisprudence Sachs.” 225 Constitutional 2December Court, para. 88). 1999, Equality andOthers vMinister of Home Affairs and Others. partners the in ( wills for oneanother” made provision have their extent what to and whether and are; contents its what and agreement partnership is a there whether benefits; related and medical,pension to in relation another one for forwhat the madefinancial support whether partnersother; have extentthe andto provision whatextentjointexpenseshome; and upkeepof and provides the partner one whether the to common abode jointly; whether and to lease what the own or partners whether the common abode; a share partners extentthe whether partners; the partners share responsibility forand living whotheir attended intention part manifesting inaceremony partnersthe took whether ofthe partnership; duration the to enter partners; the agesof following: respective the include would the suchfacts list, into exhaustive it; a permanent how partnership,the224 Press. University Pretoria Pretoria: Upendra Baxi. partnership what the andIndiathe apexcourts ofBrazil,SouthAfrica of nature of thatSouth Africa.” ceremonyis In viewed was 223 by the relations and friends of the apolitics becauseendorsed jurisprudence of passing In Court’sopinionthe by purportingdelivered Ackermann:“WithoutprovideJustice to an in Hegemony and Heteronormative the Freedom “Sexual Minority Jaco. Barnard-Naudé, Vos, Pierre De, and Jaco Barnard-Naudé. “Disturbing heteronormativity: The ‘queer’ The heteronormativity: “Disturbing Barnard-Naudé. Jaco and De, Pierre Vos, From a disgust-based perspective, the symbolic dimension of legal misrecognition, legal of dimension symbolicthe From perspective, a disgust-based 2 Coalition National the paragraph88of the In particular, Courting Justice:Brazil-India-SouthAfrica:ComparingtheJurisprudence

Southern African PublicSouthern African Law 71 223 National Coalition Gay and Lesbian for , by Oscar Vilhena, Frans Viljoen and , i.e. incorporated anidealizedi.e. incorporated concept , 225 , i.e. they indicate that same-sex same-sex that indicate they i.e. , 25,no.1:218. CCT10/99 (South African (South CCT10/99 224 lists several factors that, that, factors several lists

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w g a e r e .c o m Constitutional 1December Court, 2005). 228 Rights State.” Post-Apartheid Africa’s in South Marriage Sex be notwill worthy of Pierre andrespect”(Vos, equal de.“Theconcern of Inevitability Same- doclosely relationshipsthat not mapsuggests that of marriage, that heterosexual an idealized dealt protection,with that out questions ispoint none requirements forindispensable of these establishing legal to arelationship worthy of pains at was theCourt the Although cumulative protected. legally be would relationships marriage-like heterosexual idealized only effect that suggests factors above the about the on focus different, be to right the regarding ofv Justice in NCGLE thisCourt the of rhetoric forceful thethe set of factorslegal 227 and protectionthe Philosophical Exchange. way in which the226 Court of hassame-sex relationships achievement the inand diminished or isenhanced dignity otherhuman be whether always will clause] cases, sense that the “crucial determinant [to determine whether there was a violation of the equality in ways.very two leastcentral at is case means, Fourie the by legal institutions public of design regarding the especially judgment. Fromtheperspective symbolic of suffered discrimination bysexualminorities, the of date the from months 12 within inconsistency such correct to in order amendment with Constitution the remedy pass andlegislative grantedthe orderingof a to Parliament the inconsistent is marriage of definition common-law the that held Court Constitutional African marriage, heteronormativity peculiar to culturalassumes values) unions, opposite-sex which stereotypes (or therefore version of idealized an in directly inspired relations same-sex for requirements of list a sets Court asapeerin from one life” social participating Minister ofHome Affairs and Another v Fourie andAnother. “Given heteronormativity: has reinforced Court how the adescription presents of De Vos F ae, ac, n Ae Honneth. Axel and Nancy, Fraser, 23,no. 3 (2007): 452). First, the case confirms the centrality of dignity in an equality jurisprudence, in the jurisprudence, inan equality dignity thecentrality of caseconfirms the First, in only laterSuch heteronormativity caseregarding was properly same-sex tackled the Minister ofHome and Minister vFourieAffairs Another andAnother NewYork: Verso, 2003. 227

. 72 Redistribution orRecognition: APolitical- 226 , is reinforced rather than tackled when the when the tackled than rather isreinforced , South African Journal on Human on Journal African South CCT 60/04 (South African 228 ,when theSouth

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w g a e r e .c o m equal protection of minoritiessexual should be conductedwithin pluralisticframework.such formsdifferent sexuality of family,and butalsoas requiring constitutional that the on debate onlyas equality not the accepting clause In interprets radically Court the thisdifferent. sense, it invidious” that like status becomes constitutionally distaste implieswhen a or inferiority separation connotes repudiation, caste- and perpetuates is“Itis byJustice Suchaspect opinion inis here Sachs, delivered explicitthe calleddisgust. condition to same-sex couples only based on prejudices inferior an imposes marriage) and strong opposite-sex of feelings definition law common and of rejection, marriage same-sex what beyondby physical the separation, legalseparated that affirming regimes (non-recognition of level, another to idea this takes Fourie in Court Constitutional African South The others). institutions public roleof the highlighted the Court inferior, considered were society of members in granting se asystem certain where per perpetuated physical separation that case highlighted in that status Board of toEducation, discussed in the first chapter, in thisindividuals particular aspect. When the majority accordinginstitutions, particularly when they accord unequalto statuses to members of society. certain legal humanof isimpact ideaSachs highlights of symbolic byapplyingthe dignity the aspects (race,Justice What test. Harksen by clearly the established wasalready jurisprudence protection sex, in equal dignity of the centrality evenThe further. goes andYet, this decision Justice Sachs. Constitutional 1December Court, 152. 2005):para. 230 Constitutional 1December Court, 152. 2005):para. 229 of isequality or undermined promoted by measurethe concerned” Minister ofHome Affairs and Another v Fourie andAnother. Minister ofHome Affairs and Another v Fourie andAnother. Second, the South African Constitutional Court, in Fourie, affirms a right to be It is impossible to not remind the decision of the US Supreme Court in Brown v.

73 230 . CCT 60/04 (South African CCT 60/04 (South African 229 , as pointed out by by out pointed as ,

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w g a e r e .c o m Others. 232 Constitutional 1December Court, 59. 2005):para. 231 nota “case about who may penetrate whom where” (para. 107), a way of demeaning the issue invalidating was provisions itclear that sodomy made society of memberthe and therefore in jurisprudence, order to overcomeliberty. tensionsbetween equality and system) legal of an equality forbasis solidproviding in a hand,dignity rolethe of theother and,on nature heteronormative the tackling (i.e. level recognition the at minorities is, It rights. sexualremedying against discrimination in dignity the rolethe onehand,of namely,on minorities’ sexual regarding jurisprudence constitutional of development the 1 case) National Coalition in decided Court, 1998 [hereafter, Constitutional African South the before case sodomy first the of opinion concurring his When thatdignity Sachs isJustice expressed thelink between liberty in equality,and privacy 3.3. andlack of legal seriously. recognition based on disgustfeeling by a historical them intoputting discrimination that takes perspective lawsinand seekstotackle general, equality inandtherefore the minorities clause particular, sexual rights of the over perspective historical imposes a framework This (apartheid). oppressionbackground a of against historicaldocument a Constitution as lesbians; (iv) historical of discrimination sexual minorities;againstlackof (iii) recognition broad gays to rights of and recognition (ii) recognizes; it entities legal the of terms in plural is framework of this four aspects hasset Court the Precisely, National Coalition for GayandLesbian ofNational Coalitionfor Equality andAnother vMinister Justiceand Minister ofHome Affairs and Another v Fourie andAnother.

CCT11/98 (South CCT11/98 (South African Constitutional Court, October 9,1998). From a moral standpoint, Justice Sachs words emphasize the intrinsic value of each General Framework of the Equality Jurisprudence andSection 9

74 231 232 : (i)in South Africa,family law , he highlighted a key point in CCT 60/04 (South African

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based human on dignity, equality and freedom” promote forum tribunal must valuesthe andor underlie that democratic anopen society by the Constitutionitunfair is while against protection alsomethod discrimination, an interpretation determined itself in the SectionEquality, 39, as“when a right, interpreting is established the by Billthe Sectionof rights. other for reference or object constitutional Rights, 9 of thea court, South AfricanConstitution), Constitution, where it is established dignityas as a valuea that transcends as the righta human of right role to human the dignityillustrates case the onof (Section bite itsThis 10 of dignity. thehuman own,Southadvance must African Rights of and reaches the level of a larger Bill of the any interpretation and therefore in Constitution, the established rights objectthe of in interpreted anda “generous” “purposive” manner African Constitution (Section 39 (1) a). According to his view, the Constitution should be Constitutional Shared Interpretation, anAppropriate"Limitations: Normative Framework andBotha. Hard Choices." Henk In and Stu, Woolman, see: methods, 235 para.9.1995), 234 1995). 233 Africa South v. Makwanyane case penalty death famous the follows interpretation, purposive the interpretation, majority in hadit Bowers almost put decades ago. two aspect of the dispute, by denying that the issue was merely the right toconduct sodomy as the liberty the stressed he when v. Texas, in Lawrence words Kennedy’s Justice reminds Court the issue before the of Suchreframing equal respect. about a dispute rather but case, of the interpretation adetailed For of meaning provision constitutional this on of of the analysis S vMakwanyane andAnother. S vMakwanyane andAnother. Dignity, as interpretative method, is method, equality, linkedequality interpretativeunderDignity, with as the clause. From a legal perspective, Justice Sachs’s use of dignity as a method of constitutional of constitutional as amethod useof dignity Sachs’s legal Justice perspective, a From 233

, by applying human dignity as part of the values of the South CCT3/94 (South African Constitutional Court, June6, Court, Constitutional African (South CCT3/94 June6, Court, Constitutional African (South CCT3/94 75 235 . In this sense, to take equality and take In dignity . to sense, this 234 , accordingwhich to dignity is akey Constitutional

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w g a e r e .c o m 1997), para.53.1997), 239 within the limitation clause of the South African Constitution. main text of due thesis this to its specificity,namely,whether thediscriminatory measureis 238 1997). the Constitution in mandated interpretation terms by explicitUS standards of arenoclearthere constitutional in the while courts, the of obligation explicit is an interpretation in constitutional account into 237 Its Own Interpretation?" for Rules Prescribe Constitution the "Does Stokes. Michael Paulsen, see: interpretation, own 236 Law Press,2008. Conversations of unfairinwas outlined discrimination Harksen the case itdecideis acase to framework The general whether against unfairprotects discrimination. Constitutional Court in 1997. Itis a two-foldframework inthem adversely manner”serious a comparably potentialfundamental toimpair human as the beings ortoaffectof dignity human persons the have which characteristics and attributes on based is ground “the whether discrimination be caseof itwill the hand, 9.Onthe one meaning Section the of inthe discrimination Rights to all three branches, has been violated. of oftheBill applicability the regarding Constitution, the 8(1)of Section the whether verify to in order aim, government a legitimate to related isrationally itself differentiation asking such whether review), basis rational US the to (similar test rationality a apply should it decision. above-mentioned the Harksen vLaneNOandOthers. In fact, there is a third elementin this framework that does not need to be mentioned in the Harksen vLaneNOandOthers. its for rules the envisages Constitution which US the to contrary viewaccording For a The text of the Section 9, the equality clause of the South African Constitution, Constitution, African South the of clause equality the 9, Section the of text The Second, the Court must check whether the differentiation amounts to unfair unfair to amounts differentiation the whether check must Court the Second, in If yes, firstplace.the is mustthere check Court adifferentiation the First, whether , by Woolman, andStu 149-186. Michael Pretoria:Bishop, PretoriaUniversity 236 . Northwestern University Law Law Review University Northwestern CCT9/97 (South CCT9/97(South African Court, OctoberConstitutional 7, CCT9/97 (South CCT9/97(South African Court, OctoberConstitutional 7, 76 239 . 238 237 outlined in the paragraph 53 of 53 of paragraph inthe outlined , decided by the South African 103, no. 2 (2009): 857-922. 103,no.

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w g a e r e .c o m redistribution morefocused claimson forrecognition, rather than claims socio-economicon jurisprudence personalized a to lead can policies discriminatory of impact individual the argue petitioners from to pointthe of view of victim its Yet, the and self-worth. this focus on for individualisticindividual.From focus such a dignity opensperspective, space awide the on of themeasure impact isthe discrimination the of unfairness determine the aspect to violation, position the of individual the of and the nature provisionthe of the extent suchasthe in task, this Court assist the to established havebeen factors Several deserve itsspecial because theirattention impairing risk of dignity judicial standard, i.e. it helps the Court to determine which kinds of differentiation should conceptjurisprudence. Importing the of dignity into equality the analysis isuseful raise the to equality dignity-based a with policies rejectingdisgust-based therefore and self-worth their reaffirming minorities sexual against laws discriminatory tackle to able been has Court International International Publishing, 2010. In Court." Topography: Values andConstitutions Constitutional African South and Court Supreme Canadian 243 PretoriaLaw Press, University 2008. Constitutional Conversations 242 para.51.1997), like in Canada 241 International Publishing, 2010. In Court." Topography: Values andConstitutions Constitutional African South and Court Supreme Canadian 240 Harksen vLaneNOandOthers. Wesson, Murray. "Contested Concepts: Equality and Dignity in the Case-Law of the Wesson, Murray. "Contested Concepts: Equality and Dignity in the Case-Law of the Albertyn, Cathi, and Beth Goldblatt. "Towards a Substantive Right to Equality."In to Right a Substantive "Towards Goldblatt. Beth andCathi, Albertyn, This is a crucial step for the present thesis. Under the concept of human dignity, the the dignity, human of concept the Under thesis. present the for step crucial a is This On the other hand, the Court must assess whether it is an unfair discrimination. 242 243 . This issue has been, for instance, reason of concern in other jurisdictions jurisdictions in other concern of reason instance, for been, issuehas This . . , by Stu Woolman and Michael Bishop, 231-254. Pretoria: Michael Bishop, andWoolman by Stu ,

CCT9/97 (South CCT9/97(South African Court, OctoberConstitutional 7, , by András Sajó & Renata Uitz, 275. Utrecht:András& Sajó Eleven 275. , by Renata Uitz, , by András Sajó & Renata Uitz, 280. Utrecht:András& Sajó Eleven 280. , by Renata Uitz, 77 240 . 241 . However, the main the However, . Constitutional Constitutional

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w g a e r e .c o m 245 April 29, 2002). 244 United Kingdom private life (Article 8, European Convention on Human Rights), as stated in the case Court ofHuman Rights,Pretty for instance,derived right the human dignity to from rightthe to v. mentioned in the legalbeing expressly not despite human dignity, to right the By contrast, right. “inviolable” text, is often derived in Basic words the of the as anabsoluteLaw, or, is itformulated 1), Basic Law(Article from other rights. In this sense, the European legal forms. assumed different has human dignity Accordingly,courts. constitutional jurisprudence of bythe indirectly often) itself (more or Rights Bill the of by expressly recognized systems, constitutional several of foundation the considered been has dignity Nevertheless, dignity. human to right the 1establishes article Its exception. BasicLawis TheGerman anotable legal documents. herebriefly introducingstake. term Human the at dignity is in notoften expressly recognized Africa,isit worthy caseinSouth tothe Jordan presenting problematic related the Before 3.4. served as it BasicLawandtherefore of the values” of order “objective of so-called value the as top the dignity operated right to the Court, Constitutional Federal German the Case before In Lüth the framework. legal specific caseandthe thecircumstances of each depending on Court of 1999). Canada,25, March (Section 15 (1), Canadian Charter), as highlighted in the case Law v. Canada right to human dignity from the right toequality based on the anti-discrimination clause Law Law v. Canada (MinisterofEmploymentand Immigration). Pretty v.United Kingdom

For instance, when the right to human dignity is expressly mentioned in the German case Jordan Approach: toaDignity-based Criticism Once human dignity is accepted as a right, it can assume different functionalities functionalities can it assumedifferent as aright, is dignity accepted human Once 244 (para. 27). The Canadian Supreme Court, on the other hand, derived the the derived hand, other the on Court, Supreme Canadian The 27). (para. (2346/02)[2002]ECHR 423 (European Court of Human Rights,

78 [1999] 1 S.C.R. 497 (Supreme 245 (para (para 53).

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w g a e r e .c o m 247 April 29, 2002). 246 horizontal effectindirect the of as application individuals, private about cases even solve to guidance a of the Bill of Rights. In the Pretty v. United Kingdom Journal ofHumanRights 250 International p. 281. Publishing, 2010, Topography: Values andConstitutions Canadian Supreme Court and South African Constitutional Court.” In 249 1995). 248 Court of 1999). Canada,25, March worthy individualto the 25). (para. concerned protects under its scope even “physically morally or harmful activities dangerous” or thatare Court considers human dignity as the “very essence of the Convention” (para. 27) and present morethe andto importantly livein life.Second, where people real context economic concept seen asaindividualistic incorporates a perspective of socio-economic equalities (distribution dilemma), should not between equality andFirst,in dignity. dignity, light view of asubstantive of equality that relation from the canbedrawn features conceptual least at two judicial standard, as a vagueness its Despite terms. in precise by courts or texts “purposive” approach (para. 9),besides dignity being arightin itself 10). (Section and“generous” beundera) reada (1) to 39 (Section Constitution valuesthe of part of the Africa South v. Makwanyane the Section 15 (1) of the Canadian Charter. Finally, as presented earlier, human dignity,in the within 53-54), purpose to of as the (para. general equality the approach the purposive clause Law Law v. Canada(MinisterofEmploymentand Immigration). Pretty v.UnitedKingdom Fredman, Sandra. "Recognition or Redistribution: Reconciling Inequalities." Wesson, Murray. “Contested Concepts: Equality and Dignity in the Case-Law of the S vMakwanyane andAnother. In Lawv. Canada Furthermore, human is It afuzzyisdignity concept. by hardly defined constitutional , 2007:225. 247 , on the other hand, the protection to the human dignity functions functions dignity human the to protection the hand, other the on , (2346/02)[2002]ECHR 423 (European Court of Human Rights,

248 250 before the South African Constitutional Court, operates as CCT3/94 (South African Constitutional Court, June 6, , at pricethe of not giving dueconsideration to thesocio- , by András Sajó & Renata Uitz, 280. Utrecht: Eleven 79 249 , whichit makesharder apply to it [1999] 1 S.C.R. 497 (Supreme Constitutional 246 , the European European the , South African

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w g a e r e .c o m CCT31/01 (SouthAfrican Constitutional October Court, 9,2002),para 74. andAdvocacyTaskOthers (Sex WorkersEducation Force andOthersasAmiciCuriae). body.” human the in inherent as regards Constitution the that respect the devalues they undertake work Thevery of the sex work. character in commercial engaging is by prostitution, not bysection diminishedprostitutes 20(1)(aA)but dignity the their of 253 Amici Curiae). 252 Journal ofHumanRights 251 view of dignitythe body of (as aninviolable entity,almostsaint) disregards the concept of criminalizationthe theirof butby conduct, inengagementtheir conductitselfthe of dignity according body the of prostitutes, of towhich violation the theirto is dignity notby isincorporation the inof personal values dignity.defining They present atroublesome view jurisprudence. equality conscious historically and dignity-based a to relation in step backwards a representing text, its beyond clause anti-discrimination the read fails to perspective literal this Accordingly, women). often are who prostitutes, of work (the sex commercial the the measure (para. 15) with the Constitutionof inconsistency the declare simply to Court because the allow not does the text statute gender-neutral criminalizesits that affirming primarily in literal manner, Act a Sexual the Heinterprets Offences illustrates aspect. this prostitution, precise, the criminalization of the work of prostitutes, not the acts of the clients). Others v. Jordan in decision identities” different leadof “affirmation to be tothe should able universalto anabstract, isbutdignity individual,not beseenrelated thesis, should that According to them, “Even though we accept that prostitutes may have few alternatives to to alternatives few have may prostitutes that accept we though “Even them, to According and TaskForceS vJordanandOthers(Sex andOthersas Advocacy WorkersEducation Fredman, Sandra. "Recognition or Redistribution: Reconciling Inequalities." Yet, Yet, dissentingthe opinion deliveredby O’Regan Justices andSachsismore striking, majority, of criminalization the for the regarding opinion,Justicewriting Ngcobo’s The lastquestionAfrican is sincetheSouth more problematic ConstitutionalCourt CCT31/01 (South African Constitutional October Court, 9,2002). , 2007:226.

252 regarding the criminalization of prostitution (to be more be (to prostitution of criminalization the regarding 80 251 . S v Jordan and Jordan v S South African 253 . This This .

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w g a e r e .c o m Africa.” South Apartheid 256 Africa.” 255 South AfricanLaw The Case of S v. Jordan ." In 254 potential indignity lack ofthesexualof remedying of recognition minorities, seekingto few marriage yearslater same-sex the new the adopting establishing legislation of inthe process evenrepeated which were 2, Coalition in National the heteronormativity minorities, the South African Constitutional Court adopted certain stereotypes related to master own his/her being i.e. autonomy, personal as dignity concept Kantian expression of of expression such prejudice extreme most rape the corrective of cases beinglesbians, andgays against prejudice nature of the gay movement in the mid-90s on. so and continent African in the inmarriage same-sex of Southrecognition first-ever African left almost andthe jurisprudence in equality and the dignity rolesymbolicSachs, the discrimination of intact the societal by Justicediscrimination, for opinionsthe queernessof prohibitedthe elaborated grounds the of one as orientation sexual of recognition constitutional first-ever the reading: of story of legal recognition of rights of gays and lesbians. Several factors contribute to this kind 3.5. concept may open it up to incorporation of views that violate rights. this of vagueness equality, the since to approach a dignity-based of fragility the exposes Barnard, Jaco. “Totalitarism, (Same-Sex) Marriage, and Democratic Politics in Post- the Politics and Democratic Marriage, (Same-Sex) “Totalitarism, Jaco. Barnard, in Southern Homophobia State-Sponsored Name: Than a “More Watch. Rights Human seriously? rights take Africa South of Court Constitutional the "Does Denise. Meyerson,

The cases presented above, specially National Coalition 1 and Fourie, show the the show Fourie, and 1 Coalition National specially above, presented cases The However, some relevant pitfalls in the South African context arise. First, the elitist the First, arise. African context in South the pitfalls some relevant However, It is readtheSouth temptingAfrican jurisprudence to as linear on sexual minorities a Conclusion Human RightsWatch. , edited by , edited François duBois, Cape 138-154. Town: JUTA, 2008. SAJHR 255

The Practice of Integrity: DworkinThe Practice ReflectionsonRoland of and 13 May 2003, chapter 5. . Second, in the process of recognition the rights of sexual sexual of rights the recognition of process the in Second, . 23(2007). 81 256 254 . . This case This .

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w g a e r e .c o m of dignity. post-apartheidas context,wellits jurisprudence) hasalsoshowed the transformative potential its constitution, (its context African South the danger, this Despite standard. judicial clear functionbeing a for not to able as term vaguenessof maythe fail dueto and therefore this that caseshowed clearly dangerof a dignity-based approach, The Jordan the jurisprudence. in cause abackward step Court’s itsthe potential to already has showed interpretation textual affirm their equality including in the context of positive recognition of their relations. Yet, a

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w g a e r e .c o m morals as the only basis for criminal law, and therefore (without saying explicitly) considered considered explicitly) saying (without therefore and law, criminal for basis only the as morals its development dignity increasing. In although to in references law, since are rare, fully case the developed from Bowers combine been yetequality.has not seeks that liberty andSuch approach basedto approach to Lawrence, the US Supreme jurisprudenceAfrican on sexual minorities. Court has rejected minorities. sexual the of misrecognition a societalrepresents disgust (iii) principle; enforcement of morals; (ii) person. average disgustaversion is related against thesis this it, analyzed question the ofsexualanswer minorities thelens through a feelingdisgust, of deep of to toorder In certaintheminorities? sexual of rights on offence litigation group recent the constitutional from derived byminorities, sexual principle,to therelation in morals majorityof enforcement legal to limits of rathersociety rights-based the are what question: research following with the started thesis The present orthan by an harmabstract conception of Conclusion (Justice Cameron, Cameron, (Justice In the US, both the cases and the literature have shown an emergence of a dignity- anemergence of haveshown cases literature the the In and US,both the Second, such threefold framework was analyzed through the lens of the US and South First, Iargued disgustthat has three dimensions: (i)seeks disgust to justify legal the ‘This paradoxlies at the core of ournational project –thatwe oppression come from bylaw,resolved but toseekour free future, from oppression, inregulationbylaw’ Fourie v Minister of Home Affairs. Home of v Minister Fourie 83 3 SA 429, South 3SA429,South African Supreme Court of Appeal,Court of 8) para.

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w g a e r e .c o m anti-discrimination the that apartheid highlights of The context interpretation. constitutional itsin clauses on Constitutionthe itself mandated by enforcing is at dignity and aims perspective dignity a consideration into takes that approach purposive a There, Constitution. in sexual of grounds discrimination 1996 the prohibited the that isoneof fact orientation due tothe is of minorities, sexual usedtoaffirm liberty, one rights the the than rather clause, equal the Inthis protection country, jurisprudence oftheCourt. the experienceas well homosexuals derived from recognitionthe of equal their dignity. of liberty personal of concept broad a of favor in statement bold a represented also but one’schoose sexual partner, liberty to a onlynot itrecognizes Lawrence decision, since in isconfirmed thisminorities, approach sexual of case In the jurisprudence.liberty fallsignalized the equal the of anddoctrineprotection emerging the of equal a dignity-based hasliterature logic.The disgust perpetuate and therefore group this subordination of of history the with associated be can tradition and history Nation’s the to reference a homosexuals, of case in the since, Constitution, in the liberties implicit defining for a basis basic standard. group just for the sake classifying a irrationalenforce through to prejudice laws sense,case. In seeking this that of stigmatizing it of circumstances narrow leastunder the at in caseof homosexuals, the Romers, review since are a violation of the basis in alsobut rational the in moststandard, rigid class, the idea of coreof suspect at the the equal protection at is irrational prejudice equality perspective, From an analyzed. in of cases the each component its most relevant is a prejudice irrational of form in the disgust that is clear it US in the Constitution. the Furthermore, of violation a Romers) (vide group unpopular politically certain a on stigma a imposes or Lawrence) (vide liberty personal restricts that legislation disgust-based In the case of South Africa, the context of apartheid shaped the constitutional-making constitutional-making shapedthe of apartheid Africa, context the South In the caseof irrational From ispresent liberty useof through the a prejudice perspective, history as 84

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w g a e r e .c o m of forms justifiedwhen all anymore not policies are disgust-based that both recognize by sexuality sexualvirtuallycommon referring towhich is to allhumanbeings)desire defines that Fouriecase (one National 1 to the Coalition the from recognized sexuality, consensual of forms all of equality the as as well respect) dignity-based of realm the reach and intercourse sexual have to right pure the beyond goes that (one in US Lawrence in South Africa and US try to tackle. The liberty that does not dare to speak its name recognized a and repugnantobjectified thing.reduced to then be deserve to that less worthy so are some people viewthat the on manner, a different isidea basedon some clear-cut are the that put worth less of respect than people or, others, in majoritarian view insociety they that worth are not judicialof such protection.disgust Third, the despite homosexuals, of favor in decisions their justify to need often quite they Courts, once to dilemma ademocratic disgust presents Second, being.human worthy equally asan be respected right to asa perspective, from a recognition conceived, dignity, violates disgust First, minorities. sexual of rights inthe factors several highlight is to able disgust of concept the majority, overwhelming an or person average by the group a towards aversion disregards dealing withwhen involvingminorities.cases Defined sexual asafeeling moral of deciding rather constitutional acomplexcases, but courts range should that aspects not of feelingsthis group. towards and tackling of disgust therefore legalof institutions such as marriage in order to reaffirm equal the value of sexual minorities, question.has ConstitutionalIn this sense,the Court able been instigate reformulationthe to initsoppression profound mosti.e. way, that one touchestheself-worthy inof group the outlawing clause as a minorities, sexual of in therealm interpreted, been has clause This lastaspectThis isprecisely sexual latest jurisprudence the minorities on inwhat in standard judicially manageable seen as a was not disgust thesis, present In the 85

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w g a e r e .c o m subjected. which minorities indignities aredaily sexual to speak nameof the to doing dares this, adds amultidimensional totheconstitutionalperspective sexual on debate minorities and,by way that it respects the equal dignity of all members of society. legal access on institutions, to have otherthe hand, or, rightto the institutionsin designed a havegettinga formally theright rightthe intoto referring recognizedbut union, to equal to centralitythe marriageself-worth of of institution the itof same-sex to was not couples, only emphasized Court African Constitutional South when the in Fourie, Likewise, intercourse. in dignity homosexuals,itgoes thisof beyond conduct same-sex sense right and to the emphasizeitdoes equal the relations, formally same-sex recognize not it does Although beingliberties. topersonal related consensual sexualityat are put thesame level;moral for their either equality for or roots, Indeed, asaffirmedin introduction,language the mayoversimplify feelings. Disgust sodomy. issueof the beyond goes Lawrence in recognized liberty the Finally,

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w g a e r e .c o m Law Review Eskridge, WilliamN."Destabilizing DueProcess andEqualProtection." Evolutive April 2011. Encarnación, OmarG."LatinAmerica Gay's Rights Revolution." Ely, John Hart. Hart. John Ely, Harvard University Press, 2000. Dworkin, Ronald. —. Wasserstrom, 24-48. Wadsworth Pub. Co., 1971. Devlin, Patrick."MoralsandtheCriminalLaw." In Review and Morality." "Law,Democracy, Devlin, Patrick. 138-165. Currie, Jain. "Judicious Avoidance." Law Review ‘Duck/Rabbit’." andAfrican Bill ofRights the Alfred."TheSouth Cockrell, African Constitution." and TheEqualityClausein theSouth Cock, Jacklyn. Gay Lesbian "Engendering Rights: Journal of Ethics Cane, Peter."TakingLawSeriously:StartingPoints oftheHart/Devlin Debate." 2011). 12, October (accessed http://www.law.yale.edu/intellectuallife/sela2009.htm Burt, Robert.Burt, "Regulating Sexuality: OnLiberty versus Equality." (December 2002): 1491-1558. NewEquality." The Rebecca L."Liberty, Brown, on Human Rights Possibilities oftheCivilFamily Law UnionActfor inSouthAfrica." Toll?: TheChallenges and WhomDoes David,the Bell andMelanieJudge."For Bilchitz, http://news.bbc.co.uk/2/hi/africa/7266646.stm (accessed June 29, 2011). BBC News. "NotesonStonewall." Bawer, Bruce. Press. University Pretoria Pretoria: Baxi. Upendra of theapexcourts andIndia ofBrazil,SouthAfrica South Africa."In in Hegemony Heteronormative the and Freedom Minority "Sexual Jaco. Barnard-Naudé, The Enforcement of Morals. of Enforcement The 110 (1962): 635. Africa's Lesbians DemandChange. Africa's Lesbians , June 2000: 1183-1219. 60,no.4(July 1997): 513-537. Democracy and Distrust. and Democracy 10,no.1/2 (January 2006):21-51 . Courting Brazil-India-SouthAfrica:Comparing Justice: theJurisprudence 23(2007): 466-499. Sovereign TheTheory Virtue: and Practice ofEquality. Women’s StudiesInternational Forum NewYork:Oxford University Press, 1965. South African Journalon HumanRights The New Republic Cambridge: Harvard University Press, 1981. 89 February 27, 2008. New York LawReview University 110 Universityof Pennsylvania Law , by Oscar Vilhena, FransViljoen and and FransViljoen Vilhena, , byOscar Morality and the Law Morality andthe , June 13, 1993: 24. 26,no. 1(2003): 35-45. Journal of Democracy of Journal SELA. South African Journal June 11, 2009. Cambridge: Cambridge: , by Richard A. , byRichard The Modern Modern The 15(1999): The 77 UCLA ,

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