The author recommends Canada as a model of marriage incrementalism for the United States. Under this scheme, "a more effective constitutional approach may be to push for more state laws banning sexual orientation discrimination. After this, advocating for state civil unions and then federal recognition of civil unions are crucial steps toward same-sex marriage." In this sense she is arguing a version of William Eskridge's Equality Practice (Routledge, 2002), in which he counsels postponing marriage rights for gay men and lesbians until the majority of Americans have grown comfortable with the idea; and against James Donovan's argument that rights are not the kind of thing that can be parceled out without doing damage to the idea of the right itself ("Baby Steps or One Fell Swoop?: The Incremental Extension of Rights is Not a Defensible Strategy," 38 Cal. W. L. Rev. 1 (2001)). Whether one accepts Alquist's view hinges largely on whether one accepts her claim that "Regardless of what same-sex relationships are called or how they are perceived, same-sex couples deserve equality and for now, at a minimum, equality needs to mean access to the federal benefits and obligations afforded heterosexual married couples." Some believe that the primary good of marriage -- however useful the government benefits may be -- is in fact the way it changes the perception of the same-sex relationship as being valued and worth supporting. Those who prioritize these intrinsic intangible benefits of marriage over the economic and practical ones, will probably continue to push for marriage.

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.

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 describes the considerable growth of China’s gay community in the last six years. Although the road toward full protection remains long, he is heartened by recent changes. He discusses policy developments relevant to the gay community in China over the last two decades, and he places them in a larger context of similar legal developments relating to gender law, antidiscrimination law and policy, and society in general. He then discusses the potential for future changes.

A rare empirical analysis, this article draws upon files of the Crown Prosecution Service in order to study the subset of murders of gay men in England and Wales. Bartlett concludes that gay sexual homicide can and should be considered as a coherent and discrete set of cases. They are both demographically, and in terms of the dynamics between the protagonists, different than heterosexual sexual murder.

An interesting section on this article documenting the treatment of transgender aliens seeking asylum in the United States asks whether, on the basis of the U.S. criteria, an American transgender would be entitled to asylum in a foreign country. According to those criteria, an applicant must prove that he or she was: (1) outside his or her home country; (2) a member of a particular social group, or had such a membership imputed onto them by his or her persecutor; and (3) persecuted in the past or has a well-founded fear of persecution in the future. A fourth criterion is that past or future persecution must be the basis of the applicant's real or perceived membership in the particular social group. The point is to test "United States asylum ideals against the reality of its domestic society," a test on which the U.S. is not likely score well, with a likely result that "another country applying United States asylum law would grant asylum to a transgender applicant based on his or her persecution in the United States."

The author intends this new piece to supplement an earlier work (32 Nova L. Rev. 357 (2008)) that discussed the problems of U.S. asylum law as it touches on gay men and lesbians. Here he employs those insights to propose corrective legislation, including five amendments to the Immigration and Nationality Act that will "better provide justice to victims of persecution based on sexual orientation." Those amendments would (1) define "persecution" as "The objective infliction of suffering or harm which is subsequently experience upon those who differ, including, but not limited to threats to life, confinement, torture and economic restrictions so sever that they constitute a real threat to life or freedom" (a combination of Ninth and Tenth Circuit holdings); (2) adopt the Seventh Circuit's evidentiary standard that "'Persecution' may be demonstrated by either showing the persecutor's motivation to punish or, more generally, the infliction of harm on account of the five statutory grounds"; (3) define "particular social group" in line with Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000); (4) allow consideration of "gender-based violence that is non-state sponsored"; and (5) require the publication of "opinions of each asylum case wherein claim is of asylum are granted on grounds of sexual orientation, gender-based violence and coercive population control measure."

The author, a Dutch law professor, examines the problem of cross-border recognition of same-sex relationships in the European Union. National courts have restricted competence to rule on these cases, depending upon the legislative enactment of specific rules. Thirteen of twenty-seven member states currently provide for some statutory recognition for same-sex couples. The variety of local solutions generate complicated interactions when couples migrate into new countries with differing categories, as illustrated in some intriguing tables to analyze her four scenarios. Local approaches are embedded in a more supportive European position that is grounded in human rights law, and which over time may effect more national uniformity within Europe favoring recognition of same-sex couples.

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.

Although restricted in the sample size -- the author surveyed members of the"Rainbow Network," consisting of LBGT employees of the Department for Constitutional Affiars, yielding 97 completed surveys -- the data offer an initial foundation upon which to construct a representation of the "day to day experiences of LGBT individuals in the British courts or legal system."

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 article covers the adoption controversy from the Catholic, English perspective. Echoing similar domestic reforms such as that in Washington, D.C. (http://www.catholicnewsagency.com/news/same-sex_marriage_law_forces_d.c._catholic_charities_to_close_adoption_program/), Catholic adoption agencies in England were compelled to consider a response to a new requirement that they not discriminate on the basis of sexual orientation. The author considers three broad strategies: Rejection of the new regulation, and withdrawal from the work of adoption (i.e., the route chosen by the Catholics in Washington, D.C.), acceptance of the requirement, or by an "arms-length agreement" that would remove "Catholic" from the name of the adoption organization, and severe direct administrative control by the diocese. She further reviews some implications for this latter choice in canon law.

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.

Anthology consisting mostly of papers presented at a 2005 conference at Trinity College in Dublin. Contributors explore moral, philosophical and legal issues related to committed relationships under law, with an emphasis on same-sex couples and their families and the law of Ireland.

Family and domestic relations in Israel are governed by religious courts, which not only make no allowances for same-sex unions, but oppose them. This article offers an impressive review of the legal options available to gay and lesbian couples. The overall lesson is that, within the confines of the theocratic institutions, a secular judiciary has operated with sensitivity and flexibility, but any ultimately resolution must come from the Knesset.

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.

Canada and the United States began their debates concerning same-sex marriage from fundamentally similar positions: both assumed marriage to be one-man-one-woman, and both offered similar constitutional guarantees of equality before the law. Reviewing each country's subsequent legal wranglings, the authors ask what factors led Canada to recognize same-sex marriages in 2005, while the U.S. considers constitutional amendments banning them. Adopting a clear rule that religious organizations could not be forced to perform such unions certainly helped--an issue more likely to arise, one supposes less in the manner of demanding specific performance by an unwilling clergy, than in demanding access to valued venues for ceremonies. The authors are also hopeful that, as the U.S. Supreme Court becomes more open to looking at foreign constitutional law for instructive models of how to handle our own basically similar philosophical problems such as the meaning of equal protection, the arguments developed in the Canadian context can guide to a more gay-friendly outcome.

While not writing directly on issues relevant to a GLBT audience, Holland's analysis of the ways in which enforcement of immigration laws serves as de facto governmental regulation of family form offers some insight into difficulties experience within our own community. While family law has expanded to recognize many modern realities--step- and adopted children, and "functional" family units among others -- immigration policy remains mired in archaic notions of the traditional constellation. She contrasts two cases -- Nguyen v. INS, 533 U.S. 53 (2001) and Yin v. Esperdy, 187 F. Supp. 51 (S.D.N.Y. 1960) -- to show that INS rules are strictly construed to the extent the family at issue fails to conform to traditional nuclear models. Consequently many individuals who would be recognized by family law are denied that status by immigration authorities, and thus not allowed to enter this country to rejoin their relatives.

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.

Part of a symposium entitled, “Too Pure An Air: Law and the Quest for Freedom, Justice, and Equality,” this article offers an in-depth analysis of how treatment of gays by new members of the European Union—many from former communist regimes with a negative record on this issue—impacts their admission process. The author recommends that “the EU should seriously consider allowing gay rights to play a more prominent role in the course of the preparation of future enlargements.”

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.

Observing that for a provincial opinion such as Halpern v. Canada, 65 Ontario Rep. 161 (2003), there is "no higher honour ... than such lofty acknowledgment that it exists" as being criticized in Justice Scalia's dissent in Lawrence v. Texas, 593 U.S. 558, 573 (2003), the author uses that opportunity for a deeper scrutiny from the perspective of comparative constitutional law. Problems arise, he finds, in studying issues of constitutional law "in isolation from their enculturation in private law," with the result that too much of the credit goes to constitutional texts rather than to the private law that "informs the attitudes of the judges who construe constitutional rights."

An “exercise in normative theory,” this article reviews John Rawls’ concept of “justice as fairness” and extends it to same-sex couples in the context of immigration policy. Such immigration benefits, it is argued, “follow from a reasonable working-out” of basic liberties in a society committed to Rawls’ domestic theory of justice.

Asylum claims can be based on "membership in a particular social group," one of five such grounds. The standard view interprets this criterion as requiring an "immutable" characteristic, one that cannot, or should not be required to be changed in order to be secure in one's person, and which offers an objective standard. The U.S. Bureau of Immigration Affairs has, however, begun to include an additional subjective element of "social visibility," which applies to members rather than to social perception of the group. Marouf asserts that this reading is contrary to the norms of interpretation in international law, and risks "incoherent, inconsistent decisions." The harm will fall especially hard on those seeking refugee status on claims relating to sexual orientation and gender. "With respect to sexual orientation, the United States and international authorities have rejected the notion that gays and lesbians who remain "discreet" - and therefore "invisible" - are not protected by the refugee definition. Under the "social visibility" test, however, their claims may well be denied. Indeed, even claims brought by "out" gays and lesbians may be rejected if they come from societies that do not recognize homosexuals as a group or homosexuality as a social identity.... [The] Refugee Convention protects certain rights because of their intrinsic importance. Such protection is not made contingent on whether those rights can be hidden."

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.

Many nations that have signed international agreements protecting the rights of sexual minorities (e.g., ICCPR) maintain domestic laws in blatant contradiction to those commitments. The author reasons that such situations leave rights advocates with two choices: either use the international legal obligation as a lever to force local changes, or minimize such pressures to allow "incremental change toward human rights for sexual minorities." Differentiating local laws that predate the treaty, those that predate but have been "reinforced to further violate those obligations," and those that have been newly added since the treaty was signed, she concludes that a mix of strategies will be most effective, but that "in situations where the offending legislation predates the treaty, legal arguments will likely be less effective."

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.

O'Dwyer, a practicing immigration attorney, combines data and practical experience to conclude that "one of the decisive factors in asylum claims based on sexual identity will continue to be the identity of the judge, rather than that of the applicant." All told, "with the exception of the Ninth Circuit, the odds of being successful on a petition for review in a sexual-identity-based protection claim are extremely slim." Immigration courts, in fact, despite reputations to the contrary, "have proven themselves far more receptive to sexual-orientation based protection claims than the federal courts." Given these obstacles and inconsistencies across jurisdictions, the author shares the lessons of his experiences by offering advice on how asylum cases might be successfully argued.

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.

Intersexed persons are born with external genitalia that are fully neither male nor female, creating problems for a system of "allocating rights on the basis of sex," especially in the areas of employment and marriage. Rellis contrasts the treatment of those born intersexed in the United States -- usually triggering emergency "corrective surgery aimed at 'normalizing' external genitalia to fit societal expecations" -- with those in the India, the hijras, a group she describes as "beginning to gain legal recognition in India when they self-identify as a third gender." The "E" mentioned in the title is one example, an official third-gender designation allowed (referring to "eunuch") for documents such as passports. The author urges reforms that ensure "a constitutional right to self-identify outside the gender binary based on the fundamental right to privacy and bodily integrity derived from the Fourteenth Amendment's Due Process Clause," and identifies some statutory efforts such as the International Bill of Gender Rights adopted by the International Conference on Transgender Law and Employment Policy as important first steps.

"Do nations who do not recognize same-sex marriage have an obligation to recognize same-sex marriage, when such marriages have been consummated abroad?" Yes, replies Samar, if the right to same-sex marriage could be framed as a substantive human right. He defends this proposition by building upon the arguments of Alan Gewirth, whose ethical rationalism posits a supreme "principle of generic consistency" that logically follows from the structure of human agency. The principle states that "everyone should have the same freedom as long as it does not interfere with anyone else's similar freedom," and thus allows for the recognition of same-sex marriage. This approach thus defends same-sex marriage not by special pleading, but because it comports with a more general basis for the recognition of human rights.

"Rights talk," writes this author, are a double-edged sword. Those claiming rights (in this case, for same-sex couples to adopt) are often met those opponents also claiming rights (Catholic adoption agencies seeking an exemption from a requirement to consider same-sex couples). Such conflicts show the inherently rhetorical nature of the claim to rights, which constitutes Stychin's primary point. The idea of the right, from this perspective, one upon which much of gay activism depends, from this perspective becomes less of a trump than merely one device among many, a perhaps necessary but not sufficient claim in the public marketplace since it is so easily parried by countervailing claims framed in equivalent terms.

This brief article offers a cogent summary of the legal status available to same-sex couples in Hungary. Since 1996 the "laconically" regulated domestic partnerships were opened to gay relationships. Registered partnerships became available in 2009, which offer many of the rules of marriage to apply to same-sex couples as well.

The author discusses the context of a possible sexual orientation discrimination ordinance in Hong Kong. She concludes that the real danger in protecting gay men and lesbians from discrimination is in the way such prohibitions would restrict expressions of anti-gay prejudice. Such expressions must be protected, she feels, because they are often supported by “scientific findings showing the harms of homosexual conduct not only to the society but also to those engaging in such practices.”

Coming from a law professor whose sole claim to fame rests on his vigorous and varied attacks on gays' rights, this particular article is remarkably restrained. The basic question he asks is whether U.S. ratification of the Hague Convention on Intercountry Adoption contains any hidden requirements to allow adoption by gay men and lesbians, something he would view as a regrettable outcome. His analysis suggests -- not least because at the time of the HCIA's writing (between 1988 and 1993), the social landscape concerning homosexuality was markedly different than it stands today -- the treaty contains no such stipulation, and in fact leaves much of the details about adoption to the local law of the countries involved. While this result is perhaps not as positive as gay couples would like, neither is it as negative as the author would prefer, a cause for some encouragement.

Those wishing a compilation of brief descriptions of the means by which many countries -- "industrialized democracies" -- handle the issue of same-sex partner immigration will find this an especially helpful piece. The author's broader objective is to use the experience of these comparable states to suggest workable approaches for the United States. He finds particularly instructive their successes "de-coupling the issues of same-sex unions and same-sex partner immigration" (pun intended, one wonders?).

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.

The author considers the problem of ascertaining, from the particular view of Israeli law, parenthood of a child who was conceived by the egg of one lesbian partner being carried to term by the other. Because current law "cannot provide an adequate response," she proposes legislative changes that will allow recognition "through appearance before a registry official." Until such time, however, the Family Court will have jurisdiction over this question.

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.