Poland and Latvia are both signatories to a number of treaties that are supposed to protect the rights of their gay and lesbian citizens, but as this report documents, both countries have failed to uphold their treaty obligations on a number of occasions. The report begins with a discussion of the relevant provisions of the European Convention for the Protection of Human Rights, and the Charter of Fundamental Rights of the European Union, to which both Poland and Latvia have acceded.

Andersen considers the history of the Lambda Legal Defense and Education Fund, the development of the “legal opportunity structure” in the U.S. , and their impact on significant cases in the modern gay and lesbian civil rights movement. She provides an in-depth analysis of sodomy-related cases in the periods leading up to Bowers vs. Hardwick [478 U.S. 186 (1986)], and then from Bowers to Lawrence v. Texas [539 U.S. 538 (2003)], and analyzes why the later case was successful when the earlier one had failed. She considers changes in the social milieu, the structure of the Supreme Court, and legal criticism of the Bowers decision that were all part of the “legal opportunity structure” that contributed to Lambda’s success in the Lawrence case. The later chapters of the book focus on anti-gay initiatives and same-sex marriage, and explore how the political landscape, or “political opportunity structure” may differ from the legal opportunity structure.

This article examines the use of foreign and international law in the adjudication of U.S. constitutional claims in gay rights cases. It explores the distinction between structural provisions and individual rights provisions, and it argues that foreign law can be particularly useful in advancing individual rights claims. Both due process and equal protection claims are considered.

The author looks specifically at the immutability element of the test for suspect class protections under the Fourteenth Amendment, and how it might apply to homosexuals. Is sexual orientation an “immutable” trait, at least within the sense required by contemporary constitutional analysis? Balog believes the answer is Yes, and therefore, “assuming homosexuals are able to meet the remaining three Frontiero factors [history of purposeful discrimination, object of deep-seated prejudice, and politically powerless minority], homosexuality should be classified as a suspect classification and receive heightened review.”

In the case of Boer-Sedano v. Gonzales [418 F.3d 1082 (9th Cir. 2005)] the ninth circuit ruled that a gay asylum seeker’s HIV or AIDS status could make return to his country of origin unreasonable. This brief article examines the Boer-Sedano case and explores its significance for asylum seekers with HIV or AIDS.

This article discusses the experiences of sexual minority individuals in their interactions with the courts, both as employees and as court users. The article reviews four empirical studies of LGBT individuals and the courts, one from California, one from New Jersey, and two from the United Kingdom. The differing viewpoints of heterosexual vs. homosexual respondents are also discussed. In general, a significant portion of the survey respondents felt that openly gay employees and court users received unfair treatment in a number of contexts, although this response was stronger among homosexual respondents than among heterosexual respondents.

This article examines whether there is any international obligation on the United States, arising from international standards or treaties, which mandates the protection of lesbians and gay men from discrimination or the decriminalization of gay sexual conduct. The International Covenant on Civil and Political Rights (ICCPR) is discussed. The United States’ reluctance to adhere to international human rights norms is also explored.

New Zealand decriminalized homosexual intercourse in 1986, yet some judicial opinions in New Zealand still contain language that reinforces and repeats negative stereotypes about homosexuality. This article examines the effect this language has on rights claims made by homosexuals. It argues that such language undermines sexual rights claims made by gay New Zealanders.

This eminently readable article articulates the conflict of laws issues raised by same-sex marriage. Included are discussions of the obligations of states to respect other states' laws or judgments, and whether DOMA violates the Full Faith and Credit Clause.

Based upon the author’s Clarendon Lectures in Law delivered in October 2005, this book analyzes the swift social changes from 1967, when the problem before the UK was whether to decriminalize homosexual conduct, to 2005, when Parliament passed the Civil Partnership Act that provided for the formal legal recognition of same-sex relationships. The first of three chapters sketches the Act’s historical background, and the second analyzes its specific provisions. The third chapter seeks to place these problems into a broader sociolegal context. As illustrated by prominent cases from other English language jurisdictions included in extensive appendices (comprising three-quarters of the book’s content), heretofore change on this front in the UK has been comparatively less driven by court decisions than by legislative enactments. With the recent creation in 2005 of a UK Supreme Court, however, this may change, raising new philosophical questions concerning the proper relationship between the judiciary, the legislature, and the executive branches of government.

Leung v. Secretary for Justice [HCAL 160/2004], Hong Kong’s first gay rights case, declared the four provisions in the Crimes Ordinance involving homosexual conduct to be unconstitutional. This article calls for the affirmation of the court’s original ruling which relies on an equality analysis. It also rejects the critique that the court should have used a privacy analysis. The Court’s decision is analyzed in detail.

This very brief (ten pages) government study provides an overview of the Court’s opinion in Lawrence v. Texas [539 U.S. 558 (2003)] and considers its impact on future suits about gay rights generally and same-sex marriage specifically. More extensive treatment of the latter topic can be found in the CRS report Same-Sex Marriages: Legal Issues (Alison M. Smith, last updated July 17, 2006, available at www.opencrs.com/document/RL31994/).

Gabilondo begins this discourse-grounded piece (that many readers will find to be opaquely abstract) with an extended fantasy narrative depicting the life of “Joe,” a secretly heterosexual male trying to exist in a “homonormative world” of gay supremacy. Joe’s tale allows the author to introduce the concept of “heterosexual interpellation.” Interpellation refers generally to “the notion that systems of ideas are the medium through which a person finds one’s sense of self and comes to recognizes oneself as an emotionally and politically sentient subject.” In this context, “Heterosexual ideology interpellates gays through legal disabilities and other limits on freedom,” with the result that “insult is the main vehicle for” self-recognition by gays. Gabilondo pushes for an “‘interpellative advocacy,’ a commitment to using crushed expectations—as reconstituted through libidinal rage—to further the ‘coming to speech’ of a sexual minority outside of the heterosexual matrix.

Protection is meaningless, the author tells us, “if we are restricted from acknowledging our particular membership within” the category: “If a light-skinned person of color does not speak, she may be presumed to be white.” The paradigmatic example of such self-identifying speech is the coming out of the GLBT person. The author inventively builds upon the foundation of linguistic philosopher J.L. Austin’s three speech functions: “‘persuasive,’ in attempting to affect the thoughts or feelings of the listener; ‘creative,’ in engendering a promise, a bet, or another social contract or obligation; and ‘descriptive,’ in stating a neutral or verifiable fact.” Hanna argues that gay self-identifying speech possesses all three of Austin’s functional dimensions. Devoting sections to each, she concludes that the third, descriptive function of coming out speech, is the least explored, and offers a firmer basis for courts to protect such speech, something they have not always been willing to do (e.g., Rowland v. Mad River Local School District [470 U.S. 1009 (1985)]).

The Marriage Protection Act of 2004 (MPA), or House Bill 3313, would strip the federal courts of jurisdiction over same-sex marriage cases. This article provides some history of the MPA. It examines the federal courts’ powers of judicial review, and Congress’s power over the courts. It concludes that attempts to curtail judicial review through the MPA would be unconstitutional. Equal protection, full faith and credit, and due process analyses are all discussed.

This article compares the U.S. Defense of Marriage Act and the Australian Marriage Amendment Act of 2004, both of which define marriage as between one man and one woman, and prohibit benefits to same-sex partners at the federal level. The author then goes on to consider the ramifications of unsuccessful court challenges to both laws. In the U.S., she finds that the consequences would not be that great because the federal government has limited ability to regulate marriage, hence the states would still be able to allow same-sex marriage. In Australia, in contrast, she believes that an unsuccessful court challenge (i.e., where the Australian Supreme Court upheld the validity of the Marriage Amendment Act) might also be held to preclude the states from allowing same-sex marriage as well because the Australian federal government has more Constitutional authority to regulate marriage than is the case in the United States.

Written from the legal perspective of the Anglo-Commonwealth jurisdictions, the author studies the argument that describing someone as gay or lesbian alone opens the speaker to defamation claims. Does “such an imputation tend to lower the reputation of a person in the estimation of ‘right-thinking’ members of society”? He finds that generally “there remains a reluctance on the part of the courts to definitively rule that the right-thinking person is now indifferent to imputations of gayness.”

This author examines some issues that arise under various state “defense of marriage” laws. He identifies a number of issues that aren’t generally covered by those laws, such as persons migrating to the state, individuals attempting to avoid obligations incurred in other states, and litigation related to children of same-sex marriages who are now residing in the state. A number of attempts to deal with those situations, either by denying “contractual rights” to same-sex couples, by refusing to enforce judgments from other states related to same-sex unions, or by “blanket nonrecognition,” are most likely unconstitutional, because they either violate the Equal Protection or Full Faith and Credit clauses of the U.S. Constitution.

This brief article examines the treatment of same-sex partners and their families by the European Court of Human Rights (ECHR). It first lists the countries that have either legalized same-sex marriage or some other form of relationship recognition. It examines the ECHR’s definition of family and its treatment of same-sex couples and argues that the ECHR should expand its definition of family to include same-sex families.

With a forward by Martin Cauchon, the Canadian lawyer, politician and former Liberal Party of Canada cabinet minister who argued before the cabinet in favor of gay marriage, this book outlines the road to achieving same-sex marriage in Canada. It recounts the development of arguments, strategies and tactics used by both sides.

Lucas advocates in this extremely brief opinion piece from a symposium titled “Sex for Sale” that mainstream gay rights advocates avoid the one trait that uniquely distinguishes homosexuals from straight people: sex. They are thus inclined to adopt the majority interpretation of pornography as degrading to women (among other bad things). Contradicting this negative portrayal of pornography, Lucas suggests that gay male porn can serve functions that are useful to the gay community and even to wider society. This statement may be unique in the legal literature: Although possessed of a law degree from Russia, Lucas’ authority to speak on this subject flows from his own position as a successful gay porn star and entrepreneur.

This essay considers the constitutional issues raised by the establishment of institutions like the Harvey Milk High School in New York City. The school was established in 1985 to “target students that are being harassed in their community schools because of their actual or perceived sexual orientation or gender identity.” Because it provides a benefit to the exclusion of other, similarly bullied students, it might be vulnerable to claims that its existence violates the Equal Protection Clause of the 14th Amendment. For years gay rights advocates have been pushing to have homosexuality included among the suspect classes meriting heightened scrutiny, thus practically ensuring that laws excluding GLBT persons would fall. The author, however, believes that in the current climate of incremental social changes, “rational basis review may better serve the goals of gay rights advocates than would the application of heightened scrutiny [because] benign programs meant to remedy discrimination are far less likely to survive strict scrutiny than rational basis review.”

Mezey’s book provides a fairly comprehensive overview of a number of areas of gay and lesbian-related litigation over the past 50 years. The initial chapter provides a general history of gay rights activism, and then is followed by chapters dealing with equality and privacy rights, same-sex marriage, military service, and employment discrimination. Each chapter provides a synopsis of the major cases that have been brought in each area of the law, and explores the progress (or lack thereof) in each. Also included at the end of each chapter is a brief discussion of survey results measuring popular support for the issues discussed in the chapter. Mezey uses this data to discuss whether the judges’ decisions that have been discussed in the chapter can be considered counter-majoritarian or not. She finds that although state supreme court cases may seem to be counter the to majority’s will in a given locale, they often match the majority view in the nation as a whole. In some areas, specifically involving military service, she finds that the courts’ unwillingness to invalidate anti-gay legislation is actually contrary to the feelings of a majority of U.S. citizens.

Three approaches to applying international materials in judicial decision-making are identified and examined by this author. Each approach is explored in light of the decision in Lawrence v. Texas [539 U.S. 558 (2003)]. The author then considers which approach would be most useful in using comparative analysis in U.S. courts in same-sex marriage cases. Recent changes in the legal status of same-sex couples in other countries are surveyed.

Drawing on a Critical Race Theory analysis, this article examines the role that racial and sexual stereotypes play in sexual orientation asylum cases. The asylum process is outlined, and the racism and homophobia inherent in the requirement of proving one’s homosexuality are exposed. Suggestions on improving the asylum system are provided.

Massachusetts General Law chapter 207, section 11, prohibits the issuance of marriage licenses to non-resident couples who reside in states where their marriages would be void. This article analyzes this “marriage evasion statute” as it applies to same-sex couples. It concludes that the statue violates the Privileges and Immunities Clause of the United States Constitution.

The author begins by considering the appropriate degree of deference the U.S. Supreme Court should use when invalidating a piece of legislation, and determines that they should use a “not unreasonable” standard in their review. He then reviews the key components of the 14th Amendment (due process, equal protection, and privileges and immunities), and concludes that a law will run afoul of the 14th Amendment if it is based on a “demeaning view” of a group of people. While he concludes that most anti-same-sex marriage laws are based on a demeaning view of gay men and lesbians, and thus technically unconstitutional, he feels that the Supreme Court should perhaps proceed cautiously in invalidating those laws in deference to the legislative process, and because invalidation could provoke a backlash that prompts an amendment to the Constitution.

This article addresses the potential impact of Lawrence v. Texas [539 U.S. 558 (2003)] on asylum law. It refutes the assertion made by Professor Michael Scaperlanda, of the University of Oklahoma Law School, that the recent expansion of protections granted to gay asylum seekers will allow gay rights advocates to build a body of precedent useful in constitutional law contexts. The article asserts that lower courts’ interpretations of Lawrence have not been helpful and could slow advances in asylum law.

This report is the result of a study conducted by the Institute for Conflict Research. It was commissioned by the Northern Ireland Policing Board (NIPB) and the Office of the Police Ombudsman for Northern Ireland (OPONI). Questionnaires, focus groups, small group interviews and individual in-depth interviews were used to study 233 lesbians, gay men and bisexual’s attitudes and experience with the police in Northern Ireland. The findings include statistics on contacts and perceptions of the police as well as recommendations on reporting, training, recruitment and outreach.

The author makes “two basic points in support of the idea that we should be attentive to, but should not overstate, the institutional dimensions of social change” on gay issues that courts are often accused of promoting. She first examines what exactly “social change” means in this context. If it “means moving the proverbial hearts and minds” of the public, then what she terms “law skepticism” is probably the most defensible position: “the sensibility that anti-discrimination laws cannot themselves change people’s attitudes about the groups such laws” protect. Schacter next inquires into “the significant variability in the realm of gay rights.” In her four-square analysis, both courts and legislatures have each produced both positive change and backlash, and thus it is simplistic to portray any specific relationship as predominating. Rather than seeking universal explanations, she proposes that our attention focus on learning whatever lessons can be gleaned from particular episodes. Transcript of symposium presenters discussing these issues follows the article.

The author begins with a brief discussion of the federal Defense of Marriage Act, and the Full Faith and Credit Clause of the U.S. Constitution, and finds that neither is dispositive on the issue of whether a same-sex marriage in one state must be recognized in another. He then analyzes the New York state case In re May’s Estate [148 N.E.2d 4 (N.Y. 1953)] to see whether a choice-of-law argument might help proponents of same-sex marriage to advance their claims. While the decision in May’s Estate would seem to do so, the author finds the case to have been improperly decided. He concludes, however, that the Equal Protection, Due Process, and Establishment Clauses of the U.S. Constitution would require a state to recognize same-sex marriages performed in another state.

Skow draws out the inherent tensions in Missouri law that, on the one hand, in 1999 included sexual orientation in its Hate Crimes Act, yet in 2004 passed a state constitutional amendment banning same-sex marriage. Besides the seeming general inconsistency concerning the state’s attitude toward GLBT persons, the author theorizes that the two taken together “may provide a basis for an Equal Protection challenge if the same-sex marriage prohibition amendments inspire the animus that hate crime statutes seek to prevent.”

This article reviews 14 homicide cases in California from the years 1949 and 2000 that involved a “homosexual advance” defense. The author expostulates “four classic scripts of homosexuality” – the effeminate, the sick or mentally ill, sexually predatory, and violent, and considers how each figured in the homicide cases involving the homosexual advance defense. Finally, the prevalence of the four scripts in the popular press over the same time period is examined, and the author concludes that the scripts have survived longer in the legal setting than in the popular culture.

Strasser intends this article as a corrective to those who interpret Lawrence v. Texas [539 U.S. 558 (2003)] as a simple incorporation of John Stuart Mill’s “harm principle.” ON LIBERTY’s harm principle states that “the only conduct for which an individual is appropriately subject to sanction by either the state or society is conduct which is ‘other-affecting;’ that which only affects himself is not appropriately subject to external punishment.” Strasser argues that viewing Lawrence as embodying this principle follows from both a “watered-down” understanding of the harm principle itself, and a narrow reading of Lawrence to justify the claim that the decision “incorporates this modified version.”
“It is inappropriate to characterize Lawrence as a straightforward incorporation of the harm principle both because in some respects it does more than the harm principle [by assigning positive value to GLBT relationships], and because in other respects it does less than the harm principle [by protecting fewer liberties than the harm principle requires, such as prostitution].”
The erroneous reduction of Lawrence to the harm principle reinforces but does not wholly account for subsequent decisions (Lofton v. Secretary of Florida Department of Children and Family Services [358 F.3d 804 (11th Cir. 2004)], L.A.M. v. B.M. [906 So.2d 942 (Ala. 2004)], Kansas v. Limon[83 P.3d 229 (Kan. Ct. App. 2004)]) that have disadvantaged GLBT persons “not because of a misreading of Lawrence as simply an incorporation of Mill’s harm principle into 14th Amendment jurisprudence, but because the courts have been making more serious and obvious mistakes in their interpretation of local and constitutional law.”

This writer maps out the tensions inherent within the First Amendment’s protection of antigay hate speech, on the one hand, and, on the other of the expressive speech of LGBT persons themselves. He opines that these two threads are not independent: hate speech often occurs more frequently in response to expressive speech. The article concludes with the “normative proposal that expanded protection of LGBT expressive speech should lead to increased restrictions of homophobic hate speech.”

The author of this article compares the status of same-sex marriage in Canada vs. England and Wales. In response to court challenges, Canada passed the Civil Marriage Act in 2005, which granted same-sex couples the same right to marry as opposite-sex couples. In England and Wales, in contrast, Parliament passed the Civil Partnership Act in 2004, which gave same-sex couples most, but not all, of the same rights as opposite sex couples. The author considers the factors that gave rise to the differing results in England and Canada, and also considers a number of arguments as to why the UK legislation violates the Human Rights Act of 1998.

Zaske describes the history and current content of U.S. immigration laws which impact homosexuals. Zaske goes on to discuss the Permanent Partners Immigration Act [H.R. 3006, 109th Cong. (2005)]. A comparative analysis of immigration laws from other countries is included in Zaske’s analysis of how PPIA may be implemented.