Blog of the IACL, AIDC

a network of constitutionalists from countries throughout the world

Just Published: Constitutional Courts, Gay Rights and Sexual Orientation Equality, by Angioletta Sperti

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Tell us a little bit about the book

In the last fifteen years issues concerning sexual orientation equality have been frequently submitted to constitutional and international courts. The book analyses a wide-range of decisions – starting from decriminalization of sexual acts to same-sex marriage and parental rights of same-sex couples. It discusses analogies and differences in courts’ approach to human dignity, privacy, liberty and equality of LGBTI people. At the same time, the book focuses on the dialogue between constitutional courts and national legislators. It analyses courts’ role in promoting constitutional change and breaking legislative stalemate on issues so deeply entrenched in cultural and legal tradition such as the definitions of marriage and family.

What inspired you to take up this project?

Teaching a course on Constitutional Rights and Liberties at the University of Pisa, I had the opportunity to discuss many cases on sexual orientation equality with my students. The pace of recognition of fundamental rights of LGBTI people has increased dramatically across different jurisdictions in the last fifteen years. Therefore, I was inspired to make a comparative analysis of constitutional cases on sexual orientation equality. I focused not only on the circulation of legal ideas (a topic I studied in the past as a member of the research group of IACL-AIDC on judicial cross-fertilization, under the direction of T. Groppi and M.C. Ponthoreau), but also on the way in which courts have expounded principles of human dignity, equality, liberty and privacy. Then I increasingly realised that studying constitutional cases on LGBTI rights offered me a fascinating insight into some of the most crucial issues of constitutional justice: the courts’ role in promoting the advancement of human rights, the relationship with national legislators and how these issues are influenced by the model of judicial review of legislation.

Whose work was influential on you throughout the course of the project?

 I was inspired by many scholars, but first of all I am in debt with Alessandro Pizzorusso, whose works on comparative legal systems and constitutional justice laid down the foundation of these fields of the law in Italy and other European countries. Additionally, the works by R. Wintemute and R. Siegel were very fascinating to me.

What challenges did you face in writing the book?

The extensive case law on sexual orientation equality issues posed the major challenge I had to face in writing the book. I was forced to make a selection of topics and jurisdictions but I realised that my choice could not be justified only by the simple commonality of subjects and arguments among the cases. To put it shortly, I selected those issues (like the definition of “family” and “marriage”) that offered me the opportunity to situate the debate on the rights of gays and lesbians in a broader terrain and to address questions concerning, for instance, the role of courts in preserving traditions, in promoting constitutional change and expounding principles of liberty, dignity and equality.

What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

In the last few years, most of the monographs and edited collections on sexual orientation equality focused on different jurisdictions by addressing them separately. My first hope is to have been able to put into evidence analogies and differences in the courts’ approaches to issues so deeply involving the protection of human dignity, equality and liberty. I also desire to suggest to  my readers that, by recognising the fundamental rights of gays and lesbians, courts have advanced the cause of equality of all individuals.

What’s next?

Many ideas came to my mind when writing the book. I am currently working on the conflict between the liberty of conscience of individuals or public officials and their duty to comply with regulations affecting the fundamental rights of third parties. It is an issue that is gaining prominence in different jurisdictions and that is not limited to the enforcement of rights of same-sex couples.

Angioletta Sperti  is Associate Professor of Comparative Public Law at the University of Pisa.

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This entry was posted on August 2, 2017 by in Book, Just Published.
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