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This chapter briefly discusses the gay rights/queer movement, LGBTQ+/Queer studies, and queer theory. It reviews the concept of LGBTQ+ and the status of LGBTQ+/sexual minorities under international and regional human rights law. In particular, rights related to transgender people and intersex people, and the issue of same-sex marriage are explored in the regional contexts.
In 2017, the Taiwanese Constitutional Court handed down Judicial Yuan Interpretation No. 748, which was a ruling in favour of same-sex marriage. The Court also ordered the national legislature to amend the law within two years. Despite a significant backslide in the Taiwanese 2018 referendum, the legislature eventually followed the Court’s order and legalized gay marriage in 2019. This victory made Taiwan the first state to legalize same-sex marriage in Asia. Many legal scholars consider the same-sex marriage ruling a progressive decision in which the Court undertook a counter-majoritarian task of protecting a minority group. While we agree with the Court’s role in promoting marriage equality, we contend that most legal scholars overlook an important question in this dynamic: the legislature had had several chances to settle this issue over the past decades, so why did it refuse to draft gay-marriage legislation but later, in 2019, defer to the Court’s decision? In this paper, we explain the political foundations of an activist judiciary by using the case of the first gay-marriage legislation in Asia. We argue that the risk of position-taking on tough issues leads incentive-facing political elites to engage in position avoidance and to see the political value in deferring to a high court’s ruling. Using original data, we present evidence of how Taiwan’s diverse constituency relative to the same-sex marriage issue influenced legislators’ position-avoidance behaviour and led them to dodge political backfire by delegating policy-making authority to the Constitutional Court.
The first section of this Element reviews the history of LGBTQ rights in the region since the 1960s. The second section reviews explanations for the expansion of rights and setbacks, especially since the mid 2000s. Explanations are organized according to three themes: (1) the (re-)emergence of a religious cleavage; (2) the role of political institutions such as presidential leadership, political parties, federalism, courts, and transnational forces; and (3) the role of social movement strategies, and especially, unity. The last section compares the progress on LGBTQ rights (significant) with reproductive rights (insignificant). This Element concludes with an overview of the causes and possible future direction of the current backlash against LGBTQ rights.
In November 2020, the Appellate Tribunal (the Tribunal) of the Anglican Church of Australia (ACA) provided its opinion on references as to the constitutionality of diocesan legislation relating to same-sex blessings and marriage. There were two concurrent references about a marriage blessing service intended for use in the Diocese of Wangaratta (the Wangaratta references). There were also two concurrent references about the Clergy Discipline Ordinance 2019 Amending Ordinance 2019 of the Diocese of Newcastle (the Newcastle references).
Helen Alvaré chronicles tension between Christian individuals and institutions, and laws promoting sexual expression rights. Church and state used to share outlooks on these matters. Today, laws often mandate cooperation with behaviors opposed to Christian teachings on abortion, contraception, or same-sex relationships. State and certain private groups claim that new laws are necessary to secure interests such as dignity, equality, privacy, and personal identity. These laws are reinforced by cultural movements pressing individual autonomy and sexual freedom. Corporations and media have favored sexual expression protections and have discouraged exemptions for religious conscience. Christians, though, link religious teachings about sexual expression to core articles of faith on matters such as the nature of God, God’s relationship to humans, and how humans are to treat one another. Christians judge, then, that they should not cooperate with laws against these commitments. They also point to the close ties between impaired family relationships and increasing divides between racial and socioeconomic groups in the United States. The stakes for both sides of the controversy are high.
Kent Greenawalt discusses the permissibility, scope, and rationale for law to provide exemptions to protect religious and nonreligious conscience in the United States. It may be difficult for the law to determine which sentiments amount to conscience given differences in individuals’ perception and the strength of their convictions. Even the notion of a religious conscience is complex. Religious citizens’ conclusions about matters of interest to religion may proceed from both religion and reason, or only from reason. It is not clear what should count as religious, given differences between denominations and their ideas over time. There are a host of factors bearing on the permissibility and wisdom of granting exemptions, determining their scope, and deciding whether to extend protections to nonreligious conscience. A first principle is the importance of respect for others and for tolerance in a democracy. These questions about exemptions can be considered by looking closely at contested issues, like objection to the military draft, laws governing the manner of killing animals, ingestion of banned substances, abortion, and objection to insurance mandates concerning contraceptives.
Micah Watson argues that an active conscience is the outgrowth of the evangelical mind. Evangelicalism is the form of Protestantism that relies on the truths of historical Christianity while navigating between mainline Protestantism and fundamentalism. For evangelicals, conscience is founded in the Bible, particularly the writings of Paul. It also flowered in the post-Reformation world, where it was taught that an active conscience signaled a person’s salvation. Conscience also led evangelicals to be active against all forms of sinfulness. In the United States, this contributed to the proliferation of voluntary societies, where Christians who were “saved for service” could exercise their consciences to spread the Gospel or stamp out perceived evils (like alcohol use). Watson traces the history of evangelical conscience into the twentieth century, and he describes voices like Carl Henry and others who sought harmony between the pious strand of evangelicalism, and adherents who were committed to social action. Later in the twentieth century, evangelicals sought peace in society more than saving it. Still, evangelicals continue to oppose perceived social evils, including same-sex marriage.
The increased visibility of same-sex relationships and the call for same-sex marriages have been particular challenges to the traditional marriage system in Africa in the contemporary period. While some critics have argued, erroneously, that same-sex relationships were completely unknown to the African continent until the advent of Western modernity, others have suggested that the practices speak to a greater malaise confronting African societies. Nigeria is not an exception in this case. In light of these trends, this article examines the Same-Sex Marriage Prohibition Act, which was promulgated by the Nigerian government in 2014 and has since led to infractions upon the human rights of citizens in same-sex relationships. The article examines these developments around same-sex relationships in the context of wider social and economic challenges to the traditional marriage institution in Nigeria.
In 2007 the bishops of the US Episcopal Church invited my advice on a “theology of same-sex relationships.” Of what other panelists said – PhDs teaching at respected institutions – the most arresting was: “The trouble with same-sex relationships is they impugn the blood of Christ.” They do what? The original remark attempted a hazing; the final result bestowed a gift, the gift of blood made strange. Blood is supposed to wash gay people with the atonement, even as self-accepting gay people say they don’t need cleansing. It’s supposed to unite Christians in communion, even as sexuality debates divide the churches. It’s supposed to protect the succession of priests, even as bishops shield them for sexual crimes. To some Christians, such failures of Christ’s blood amount to a cosmological disturbance. But what if Jesus becomes a bridegroom of blood, who stays on the cross for love of the (male) thief to whom he promises a life together in paradise? Reflects on Anselm, Abelard, Sebastian Moore, and "pleading the blood."
This chapter briefly surveys the history of the Supreme Court's interpretation of the Fourteenth Amendment and shows how many salient cases would come out today under a correct originalist interpretation. It shows how the privileges or immunities clause justifies the result in Brown v. Board of Education and possibly also Obergefell v. Hodges, and explores the implications for, among other things, public accommodations cases, "one person, one vote," and partisan gerrymandering, economic liberty, and incorporation.
Chapter 5 examines the effect of disagreement with specific Supreme Court ruling on support for both narrowly and broadly targeted Court-curbing. The chapter presents results from a national panel survey with waves surrounding some of the most important rulings in the contemporary era, including 2012’s health care ruling (NFIB v. Sebelius, upholding the Affordable Care Act), 2013’s rulings on the Voting Rights Act (Shelby County) and same-sex marriage (Windsor), and 2015’s landmark ruling declaring a constitutional right to same-sex marriage (Obergefell v. Hodges). The results demonstrate that citizens’ support for Court-curbing changes as a function of agreement and disagreement with salient rulings. The chapter also demonstrates that right-wing citizens are consistently more supportive of Court-curbing throughout the 2012–2016 period, suggesting that blockbuster liberal rulings during this period have had a substantial impact on mass perceptions of the Court’s ideological tenor. We also report the results from two original national survey experiments which show that the effect of policy disagreement is larger for narrow than broad Court-curbing.
Chapter 6 examines how partisan polarization reduces citizens’ willingness to defend the Supreme Court from curbing attacks. The chapter focuses on two national survey experiments which randomly assign respondents to polarized or unpolarized conditions in the context of a salient Supreme Court ruling. While disagreement with Court decisions always increases support for curbing the Court, the effect of disagreement is substantially larger in polarized relative to unpolarized conditions. The chapter demonstrates that the polarization effect is not due to mere partisan branding and that disagreement with specific decisions has a larger impact on support for narrow than broad curbing.
Family law is often overlooked in transnational law scholarship, partly because it is still seen as a domestic field of inquiry, while transnational law is perceived as related to market regulation. This chapter argues instead that family law is an excellent example of a field that is deeply shaped by the transnational legal dynamics, that transnational law scholars seek to capture and critically examine. To show that, the chapter analyzes a set of contemporary case studies, such as the application of religious law, same-sex marriage, and transnational surrogacy, by focusing on different actors, norms and process that take place below, beyond and across states. Likewise, the chapter argues that globalization dynamics that are at the heart of transnational law analysis, such as the flow of power and the transformation of the state, cannot be fully understood without paying attention to the evolution of family law. To show this, the chapter examines how questions of legal pluralism, the contestation of the private/public distinction and the advent of the neoliberal state, cannot be fully understood without taking into account family law.
Woman-to-woman marriage is a form of customary marriage between two women, predominantly found in Africa. These customary marriages have been and to some extent still are conducted by various communities across Africa, including in Kenya. Communities such as the Kamba, Kisii, Nandi, Kikuyu and Kuria practise woman-to-woman marriages for a variety of reasons. The legal status of woman-to-woman marriages in Kenya is uncertain due to the provisions of article 45(2) of Kenya's Constitution of 2010 and section 3(1) of the Marriage Act of 2014, which stipulate that adults only have the right to marry persons of the opposite sex. However, a holistic and purposive reading of the constitution, taking into consideration its recognition of culture and the protection of children as important values in Kenyan society, and considering the historical context within which the provisions concerning same-sex marriages were included, leads to the conclusion that these provisions were not intended to proscribe the cultural practice of woman-to-woman marriage in Kenya. The constitutional validity of woman-to-woman marriage opens the door to a more expansive and fluid understanding of “family” in Kenya.
With a decisive Liberal party electoral victory in 2015, observers are now wondering if religious conservatism's role in the Canadian political landscape is waning. Using data from the Canadian Election Study (CES) from the years 2004 to 2015, we find that respondents’ attitudes toward same-sex marriage and women working outside the home have moved left on the spectrum among both the general population and more religious voters. However, this does not go hand in hand with a decline in the effect strength of religiosity on the Conservative vote, which remains significant across the five federal elections examined in this study. Conservative religious voters now make up a smaller share of the adult population, but their issue positions on sexual morals and gender roles, along with the wider conservative value orientation these issues represent, remain important in their vote choice.
Some scholars, faced with the apparent conflict between the Church of England's teaching on marriage and the idea of equal marriage embraced by the Marriage (Same Sex Couples) Act 2013, have focused on the implications of that Act for the constitutional relationship between Church, State and nation. More frequently, noting the position of the Church of England under that Act, academics have critiqued the legislation as an exercise in balancing competing human rights. This article by contrast, leaving behind a tendency to treat religion as a monolithic ‘other’, and leaving behind the neat binaries of rights-based analyses, interrogates the internal agonies of the Church of England as it has striven to negotiate an institutional response to the secular legalisation of same-sex marriage. It explores the struggles of the Church to do so in a manner which holds in balance a wide array of doctrinal positions and the demands of mission, pastoral care and the continued apostolic identity of the Church of England.
Costa Rica and Colombia, two of the earliest Latin American countries to protect many LGBT rights, attempted to amplify those rights and litigate same-sex marriage (SSM) in mid-2000s; however, these attempts sparked a major anti-LGBT backlash by religious and conservative organizations. Yet a decade later, Colombia legalized SSM while Costa Rica still lacks the right to SSM. Using a most-similar systems comparative case study, this study engages the judicial politics literature to explain this divergent outcome. It details how courts, while staying receptive to many individual LGBT rights claims, deferred SSM legalization to popularly elected branches. In spite of the lack of legislative success in both countries, in Colombia a new litigation strategy harnessed that deference to craft a litigated route to legalized SSM. In Costa Rica, the courts’ lack of conditions or deadlines has left SSM foundering in the congress.
In May 2017, Taiwan's Constitutional Court reached a landmark decision that marriage should be opened to same-sex couples within two years, making Taiwan potentially the first country in Asia to realize marriage equality. How can we explain the success of the LGBT movement here? I argue that explanations based on cultural proclivity, public opinion, and linkages to world society, are inadequate. This article adopts a “political process” explanation by looking at changes in the political context and how they facilitate the movement for marriage equality. I maintain that electoral system reform in 2008, the eruption of the Sunflower Movement in 2014, and the electoral victory of the Democratic Progressive Party in 2016, stimulated Taiwan's LGBT mobilization, allowing it to eventually overcome opposition from the church-based countermovement.
Intersectionality has contributed to the ongoing deconstruction of dichotomous and essentializing categories of identity and oppression. As some scholars have noted, however, intersectionality has debunked a sociobiological, single-node paradigm and unintentionally codified a deterministic form of social cognition. I suggest one mechanism for understanding how to untangle this intersectional dilemma: disclosure practices. Disclosure of stigmatized statuses can illuminate how macro level inequalities manifest in individual thought processes. This study adds to emerging research by showing how social actors rely on intersectional experiences to understand, think about, and frame complex social problems. I examine this topic via 197 interviews with 102 Black participants who identify as LGBT about their views on same-sex marriage as a civil rights issue before and after same-sex marriage was nationally legalized. Specifically, I argue that the Black LGBT participants’ experience with intersectional discrimination and their levels of sexual and gender identity disclosure account for their personal views on same-sex marriage and Black civil rights. Further, the majority of Black participants across disclosure practices viewed marriage equality as primarily benefitting the property interests of White gays and lesbians. Last, I discuss the implications of my findings for LGBT politics and the connections between self-interest and political perspectives.