Abstract
The volume focuses on the jurisprudence of national, supranational and international jurisdictions (and quasi jurisdictions) as regards the legal status of same-sex couples. The book tries to convey the complexities and controversies that derive from the judicial recognition of same-sex couples across the world, considering the relationship of the judiciary with the executive and the legislature.
The legal discourse on the status of same-sex couples before the courts raises problems in terms of legitimacy, democracy and separation of powers. What is at stake is the balance between the prerogatives of the judiciary and (especially) those of the legislature. The courts of some jurisdictions have been progressive, dynamic, activist and even creative in their interpretation of the law, while others have been conservative, static, literal and originalist.
In any case, regardless of the final outcome, it is undisputable that the continuous flow of new decisions has produced a considerable body of jurisprudence that deserves close attention. This is precisely the main objective of the present book.
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Notes
- 1.
Developments in this field are fast, as shown by those occurred in 2013 in Brazil, France, New Zealand, United Kingdom, United States, and Uruguay (all covered in this book).
- 2.
Countries that have legalized same-sex unions at the national (but not sub-national) level, or where these unions are recognized de facto, include: Andorra, Australia, Austria, Colombia, Costa Rica, Croatia, Czech Republic, Ecuador, Finland, Germany, Hungary, Ireland, Israel, Liechtenstein, Luxembourg, Slovenia, Switzerland, and the UK. The following countries have recognized same-sex marriage: Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, The Netherlands, Norway, Portugal, Spain, South-Africa, Sweden. For a comprehensive list of countries, including some sub-national jurisdictions—such as parts of Mexico and the US—where legal partnerships and/or same-sex marriages have been legalized, see www.iglhrc.org/.
- 3.
According to the EU Foreign Affairs Council’s “Guidelines to promote and protect the enjoyment of all human rights by Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) persons” (Brussels, 24th June 2013, para. 15), around 80 States still consider homosexuality as a crime. See www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/137584.pdf.
- 4.
Not only national but also international and supranational bodies, such as the institutions of the European Union.
- 5.
As already noted, national legal systems where homosexuality is criminalized—that is, countries where there can be, a priori, no case law on same-sex couples’ rights—are not discussed in this book.
- 6.
In 2007 the High Court ruled on LGBTI rights, asking the Government of Nepal to form a committee in order to produce a study on the issues raised by same-sex marriage. The judgment is available at www.bds.org.np/publications/pdf_supreme_eng.pdf.
- 7.
In 2000, the Netherlands were the first country in the world to legalize same-sex marriage. An English version of the Dutch civil code is available at www.dutchcivillaw.com/civilcodebook01.htm.
- 8.
In Ireland, civil same-sex partnerships became legal in 2011 and the recognition of the right to marry is currently under discussion. For the text of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, see www.irishstatutebook.ie/2010/en/act/pub/0024/.
- 9.
- 10.
Chapter 8 by O’Neill.
- 11.
Chapter 4 by Mostacci.
- 12.
- 13.
Chapter 14 by Virzo.
- 14.
Chapter 15 by Biagioni.
- 15.
Chapter 16 by Winkler.
- 16.
Waldijk (1994), p. 51.
- 17.
Wintemute (2004), p. 594.
- 18.
- 19.
See Chap. 5 by Cabrales Lucio, as to Colombia for example, and chapter by Fidalgo de Freitas and Tega, as to Italy.
- 20.
- 21.
Depending on the legal system, the term ‘spouse’ does not necessarily imply marriage. On this point see, for instance, Chap. 22 by Gallo with regard to the Staff Regulations and Rules of international organizations.
- 22.
But see Chap. 13 by Drosos and Constatinides.
- 23.
But see Chap. 5 by Cabrales Lucio, as to Chile for example.
- 24.
See, for instance, the case of Italy discussed in Chap. 12 by Fidalgo de Freitas and Tega.
- 25.
See Chap. 9 by Bodnar and Śledzińska-Simon, with regard to Hungary.
- 26.
See Chap. 22 by Gallo on the cross-references made by the UNAT and ILOAT.
- 27.
See Chap. 23 by Paladini, on the references made by national and international judges to the case-law of the UNHRC.
- 28.
Chapter 7 by Friðriksdóttir.
- 29.
- 30.
See, for instance, Chap. 5 by Lucio Cabrales.
- 31.
- 32.
Chapter 17 by Pustorino and Chap. 18 by Crisafulli.
- 33.
Chapter 19 by Magi.
- 34.
Chapter 20 by Rijpma and Koffeman and Chap. 21 by Orzan.
- 35.
- 36.
See, for instance, Chap. 12 by Fidalgo de Freitas and Tega.
- 37.
Chapter 17 by Pustorino and Chap. 18 by Crisafulli.
- 38.
- 39.
Chapter 20 by Rijpma and Koffeman and Chap. 21 by Orzan.
- 40.
Chapter 19 by Magi.
- 41.
In these terms Klabbers et al. (2009), p. 127.
- 42.
- 43.
See Rubenfeld (2001), p. 188.
- 44.
See, in this perspective, the relationship between constitutional/supreme/high courts and legislatures as discussed in Zagrebelsky (2005).
- 45.
References
Cappelletti M (1984) Giudici legislatori? Giuffrè, Milano
De Búrca G, Gerstenberg O (2006) The denationalization of constitutional law. Harv Int Law J 47:243–262
Delmas-Marty M (2009) Ordering pluralism. A conceptual framework for understanding the transnational legal world. Oxford University Press, Oxford
Focarelli C (2012) International law as social construct. The struggle for global justice. Oxford University Press, Oxford
Klabbers J, Peters A, Ulfstein G (2009) The constitutionalization of international law. Oxford University Press, Oxford
Nollkamper A (2010) National courts and the international rule of law. Oxford University Press, Oxford
Nussbaum M (2009) A right to marry? Same-sex marriage and constitutional law. Dissent – a quarterly of politics and culture 2009. http://www.dissentmagazine.org
Nussbaum M (2010) From disgust to humanity: sexual orientation and constitutional law. Oxford University Press, Oxford
Poiares Maduro M (2009) Courts and pluralism: essay on a theory of judicial adjudication in the context of legal and constitutional pluralism. In: Dunoff JL, Trachtman JP (eds) Ruling the world: constitutionalism, international law, and global governance. Cambridge University Press, Cambridge, pp 356–379
Rubenfeld J (2001) Freedom and time – a theory of constitutional self-government. Yale University Press, New Heaven
Von Bogdandy A (2008) Pluralism, direct effect, and the ultimate say: on the relationship between international and domestic constitutional law. Int J Const Law 6:397–413
Von Bogdandy A, Schill S (2011) Overcoming absolute primacy: respect for national identity under the Lisbon treaty. Common Market Law Rev 48:1417–1453
Waldijk K (1994) Standard sequences in the legal recognition of homosexuality—Europe’s past, present and future. Australas Gay Lesbian Law J 50:50–72
Waldron J (2006) The core of the case against judicial review. Yale Law J 115:1346–1406
Walker N (2008) Beyond boundary disputes and basic grids: mapping the global disorder of normative orders. Int J Const Law 6:373–396
Wintemute R (2004) International trends in legal recognition of same-sex partnerships. Quinnipiac Law Rev 23:577–595
Zagrebelsky G (2005) Principî e voti. La corte costituzionale e la politica. Einaudi, Torino
Acknowledgements
The editors wish to thank: Dr. Elena Miraglia for revising the English of this and other chapters; the team at Springer, especially Anke Seyfried, for their help, support and efforts, which have led to a timely publication of the present volume.
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Gallo, D., Paladini, L., Pustorino, P. (2014). Same-Sex Couples, Legislators and Judges. An Introduction to the Book. In: Gallo, D., Paladini, L., Pustorino, P. (eds) Same-Sex Couples before National, Supranational and International Jurisdictions. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-35434-2_1
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