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Article

Kristin Voigt

For relational egalitarians, equality is about how individuals relate to one another: equality requires that individuals regard and treat each other as equals. Different relational egalitarians have fleshed out this idea in different ways and use of the umbrella term “relational equality” should not detract from the differences between relational egalitarian views on offer. One question about relational equality is whether its requirements apply to individuals, institutions, or both. Some relational egalitarians focus primarily on what it means for individuals, or co-citizens, to relate to one another as equals, highlighting, for example, the problematic nature of status hierarchies and stigmatization of certain groups, or the need to give equal consideration to everyone’s interests. Such accounts sometimes also emphasize the importance of certain self-regarding attitudes, especially self-respect, as a component or requirement of relational equality. For other relational egalitarians, relational equality applies—primarily or additionally—to how institutions, especially states, relate to individuals. Institutional requirements can arise instrumentally (which institutions are best suited to produce egalitarian relations among individuals?) or because the demands of relational equality apply to institutions directly. A second crucial distinction, cutting across the first, is whether relational equality is taken to issue requirements about our treatment of others, our attitudes toward them, the attitudes expressed toward them, or a combination of these. Specifying where relational equality applies is important, not least because egalitarian treatment, egalitarian attitudes, and expression of egalitarian attitudes need not run together. Relational egalitarians have offered different views as to why relational equality matters in the first place. Relational equality may be valuable instrumentally (i.e., it promotes values such as self-respect); or because it has non-instrumental, impersonal value (i.e., the world is better if relationships are egalitarian); or because it expresses a deontic requirement about how individuals must treat each other. Relational egalitarians initially developed their views in response to distributive accounts of equality (such as luck egalitarianism), which assume that equality requires the equal distribution of a metric such as welfare. While relational egalitarians reject that assumption, they emphasize that distributions matter for equality for several reasons, for example when they interfere with egalitarian relationships, or when they are caused by relational inequality. Relational egalitarians have explored the real-world implications of their views, often opposing markets in favor of state provision of social services such as education or healthcare. Questions about the scope of relational equality are particularly crucial when it comes to determining its requirements: while relational egalitarians typically focus on requirements arising within political communities, it is not clear that relational equality can or should be limited by state boundaries; some relational egalitarians have begun to explore the possibility of a global relational egalitarianism. Similarly, tying requirements of relational equality to reciprocity may limit the theory to individuals with specific cognitive capacities. One striking aspect of the literature is the pluralism to which relational egalitarians are committed, for example when it comes to the reasons why relational equality is valuable, or the criteria used to identify when relational equality obtains. This does not make relational equality incoherent, but it creates the possibility of conflicting requirements.

Article

Sonia Palmieri

While women have succeeded in promoting a feminist agenda in some parliaments, the international research shows that this is not always possible, and accordingly, not a realistic expectation for women. Parliaments, like any institution, have specific cultural norms and practices, some of which actively work against the advancement of gender equality. Understanding the conditions under which female—and male—parliamentarians might succeed in promoting gender equality outcomes has become an important avenue for research and development practice. The focus on gender-sensitive parliaments allows for a framework to identify, and encourage the development of, those conditions. There are four key elements of a gender-sensitive parliament. First, it accepts that the responsibility to achieve gender equality, both as a policy outcome and as a process, rests with the parliament as a whole (its male and female members and staff) and with the organizations that drive substantial policy, procedural, and normative development (political parties). Second, a gender-sensitive parliament is guided by institutional policies and legal frameworks, which allow the parliament to monitor its achievements toward gender equality and allow follow-up and review. Third, a gender-sensitive parliament institutionalizes a gender mainstreaming approach through its representational, legislative, and oversight work to ensure that all the parliament’s outputs consider, and counteract, any potential discrimination against women or men, girls or boys. This element requires a reconsideration of the process and structures of the parliament, including the respective roles and capacities of members and parliamentary staff. Fourth, a gender-sensitive parliament constantly strives to eliminate institutional cultures that sanction and perpetuate discriminatory, prejudicial norms and attitudes in the workplace against women members and staff.

Article

Bas Van Der Vossen

Libertarianism is a theory in political philosophy that strongly values individual freedom and is skeptical about the justified scope of government in our lives. Libertarians see individuals as sovereign, as people who have a right to control their bodies and work, who are free to decide how to interact with willing others, and who cannot be forced to do things against their will without very strong justification. For some, the argument in support of this view hinges on the principle of self-ownership. To them, individual rights are morally foundational, the basic building blocks of their theory. Many others, however, take a broader view, arguing that societies flourish when they offer people large degrees of freedom in both personal and economic matters. As a result, libertarianism sees the state as playing at most only a very limited role in matters concerning distributive justice. Libertarians are skeptical about calls to reduce material inequality for its own sake, strongly favor free trade, and defend opening borders for migrants. They see policies that violate these commitments as inevitably involving wrongs against free and equal persons.

Article

In the past 50 years, lesbian, gay, bisexual, transgender, and intersex (LGBTI) activism in Australia has grown from small, localized organizations to national campaigns calling on all Australians to affirm LGBTI people’s equality. While the issues and activist strategies have evolved over the past 50 years, there have been two persistent patterns: most organizations and activism have been state based and have drawn on international influences, especially from the United Kingdom and United States. In the 1970s the organizations CAMP (Campaign Against Moral Persecution) and Gay Liberation presented competing visions of LGBTI equality, but both recognized the importance of visibility in order to change societal attitudes and influence law reform. Campaigns to decriminalize male homosexuality began in the 1970s and continued across the states through the 1980s and even into the 1990s in Tasmania. After law reform, activists shifted their advocacy to other areas including anti-discrimination laws, relationship recognition, and eventually marriage equality. HIV/AIDS was another important cause that generated grassroots activism within LGBTI communities. State AIDS councils worked in partnership with the federal government, and Australia had one of the world’s best public health responses to the epidemic. Pop culture, international media, and visibility at events such as the Sydney Gay and Lesbian Mardi Gras gradually shifted public opinions in favor of LGB equality by the 2000s. Transgender and intersex rights and acceptance were slower to enter the public agenda, but by the 2010s, those two groups had attained a level of visibility and were breaking down preconceived stereotypes and challenging prejudice. Indeed, politicians lagged behind public opinion on marriage equality, delaying and obfuscating the issue as the major political parties grappled with internal divisions. In 2017 the Commonwealth government held a postal survey asking Australian voters whether or not they supported same-sex marriage. This was an unprecedented exercise in Australian polity that was divisive, but LGBTI activists succeeded in their campaign and secured an overwhelming victory. The postal survey’s outcome also set the stage for new political fights around LGBTI people’s rights: so-called religious freedom, transgender birth certificates and support for LGBTI young people.

Article

Political tolerance and commitment to egalitarianism have long been examined as possible contributors to attitudes toward LGBT+ people and policies. Since the 1970s, American attitudes toward LGBT+ issues have changed drastically. During this period, public policy and measures of public opinion toward LGBT+ rights have focused on a variety of areas, such as nondiscrimination laws, gay military service, and family matters such as adoption and marriage. Interestingly, although support for equality has remained the same in the United States, individuals have become rapidly more supportive of LGBT+ people securing equal rights in a variety of domains. There are three primary reasons for this shift: elite messaging, attributions of homosexuality, and contact with members of the LGBT+ community, both direct and indirect. These factors have led to an environment in which the value of equality is more readily applied to LGBT+ issues, therefore increasing support for these rights over time. Elite messaging has played a key role in this shift. Across LGBT+ issues, equality frames are often countered with moral traditionalism, thus leading to an increased propensity for individuals to associate LGBT+ issues with these values. The effectiveness of equality frames has been bolstered by the growing belief that homosexuality is a fixed rather than chosen trait, which yields a greater reliance upon egalitarianism when evaluating LGBT+-related issues. At the same time, both direct and indirect contact with the LGBT+ community increased following the Stonewall Riots of 1969. Americans were first introduced to gay characters on television in the 1970s. LG characters gained more prominent roles throughout the 1990s on shows such as The Real World and Will and Grace. Following Stonewall, LGBT+ activist organizations also advocated that members of the community “come out of the closet” and reveal their sexual orientation to the people in their lives. Thus, the chances of Americans knowing—or at least feeling like they knew—an LGBT+ person increased. Consistent with Allport’s Contact Theory (1954) and Zajonc’s work on “mere exposure effects” (1968), affect toward LGBT+ individuals has generally grown more positive with greater interaction and familiarity. These various factors interacted with underlying predispositions to drastically move public opinion in favor of greater equality for LGBT+ people.

Article

Iwao Hirose and Shlomi Segall

Equality is an undisputed political and moral value. But until quite recently, political philosophers have not fully explored its complexity. The literature on equality and egalitarianism is vast, complex, and multilayered—with over thirty-five years of philosophical discussion. Specifically, there are three major questions to ask about equality. First, what is equality? This question can be unpacked into two sub-questions. Distinguishing first between formal and distributive accounts of equality, we may ask what the currency of egalitarianism can be. The article goes through currencies such as welfare, resources, and capabilities, showing their respective strengths and weaknesses. A second important sub-question here is: what are the relevant scope and temporal dimensions of equality? Among whom is equality valuable, and precisely in what time frame is it valuable? This hints at the second major question, namely concerning the value of equality. Is equality indeed valuable, or are we confusing it with some other value, be it giving priority to the worse-off, or lifting individuals above a certain threshold of deprivation? The article goes through some famous criticisms of equality’s purported lack of value (e.g. the leveling down objection), explores some potential answers, and then examines the relative strength of equality’s two main rivals, namely priority and sufficiency. The third major question concerns what the proper account is of egalitarian justice. In particular, setting aside the question of currency, should our conception of distributive justice be informed by responsibility-sensitive accounts, or rather be focused on a responsibility-insensitive accounts that moreover place an emphasis on equality of relations rather than individuals’ holdings? We explore this in the two final sections, one devoted to understanding luck egalitarianism, and the other to its rival, relational egalitarianism.

Article

Barry D. Adam

Anti-LGBT politics around the world have undergone a major transformation over the last half century. While European powers once held themselves up as defenders of Christian morality and patriarchy, characterizing Asia, Africa, and the Americas as locations of sexual disorder, in the 21st century many of the countries of the Global South construct LGBT sexualities as pathological, threatening, or criminal, while many countries of the Global North incorporate sexual orientation in a discourse of human rights, democracy, and individual freedom. Many of the social forces of nationalism and populism of the early 21st century place the well-being of LGBT citizens in jeopardy, and conflicts between these divergent visions of the good society continue to have grave consequences for LGBT people around the world.

Article

We can distinguish between three moral approaches to war: pacifism, realism, and just war theory. There are various theoretical approaches to war within the just war tradition. One of the central disputes between these approaches concerns whether war is morally exceptional (as held by exceptionalists), or morally continuous with ordinary life (as held by reductive individualists). There are also significant debates concerning key substantive issues in the ethics of war, such as reductivist challenges to the thesis that combatants fighting an unjust war are the moral equals of those fighting a just war, and the challenge to reductivism that it undermines the principle of noncombatant immunity. There are also changing attitudes to wars of humanitarian intervention. One under-explored challenge to the permissibility of such wars lies in the better outcomes of alternative ways of alleviating suffering. The notion of unconventional warfare has also come to recent prominence, not least with respect to the moral status of human shields.

Article

On June 26, 2015, the U.S. Supreme Court determined that same-sex couples have the right to marry, and newspapers across the country declared that gay couples could now exercise this right in all 50 states. While the Obergefell decision was an important moment in history and a significant victory for the LGBT movement, it was not an immediate and complete change in policy. Rather, the change emerged slowly over decades from numerous complex interactions among federal, state, and local governmental actors. These same actors continue to influence marriage equality even after the Supreme Court’s historic ruling. A careful consideration of the path of marriage equality demonstrates the importance of federalism in the evolution of policy in the U.S. context. Not only does the extent of federal involvement influence state decision-making, but state policies also respond to the policymaking processes in other states. Examining the progression of marriage rights for same-sex couples also illustrates how variation in state government institutions shape policy outcomes in the U.S. system. For example, aspects of state courts such as judicial capacity influence the nature of state policy responses on the issue of gay marriage. Finally, focusing on marriage equality provides an opportunity to consider how institutions of government and political actors strategically interact to influence the policymaking process. For example, advocacy coalitions make strategic choices to focus on levels and institutions of government that are more responsive to their interests. Overall, same-sex marriage policy and the scholarship that investigates it highlight the complex and sometimes convoluted development that characterizes the policymaking process on many important issues in American politics and society.

Article

Serious inequalities in health abound the world over. For example, there are marked differences in average life expectancy both between and within countries. Individual life expectancy varies by more than 30 years between the highest national average and the lowest. Even worldwide, average life expectancy lags more than 10 years below the highest national average. Within single countries, inequalities in life expectancy between the top and bottom groups of men, for example, have been recorded at 7 years in England and Wales and at almost 15 years in the United States, albeit using rather differently constituted groups. Intuitively, these inequalities in health will strike many observers as unjust. But why are they unjust, if they are? Are inequalities in health unjust per se? If not, what makes some inequalities in health unjust, but not others? According to an influential analysis, inequalities in health are unjust when they are avoidable, unnecessary, and unfair. Thus, if an inequality in health is inevitable, it is not unjust. Following this analysis means that answering these questions requires a combination of empirical and normative understanding. On the empirical side, some understanding of the socially controllable causes of health is required. On the normative side, various dimensions of fairness have to be understood. In addition, some appreciation of the interaction between these two sides is needed.. Each side of the question is fairly complicated. With respect to the requirements of fairness, three subsidiary controversies can be distinguished. To begin with, should a general principle of equality be applied directly to the case of health? An alternative approach traces the injustice of avoidable inequalities in health to the independent injustice of their social causes instead. Next, should inequalities be defined across social groups (such as class or race within countries or, indeed, countries themselves)? If so, which groups? An alternative is to define inequalities across individuals. Finally, should equality be defined in comparative terms (as is traditional)? An alternative is to define the requirements of fairness non-comparatively (as a matter of “priority” to the worst off). Even if a given inequality in health is avoidable, some resolution of all three controversies is needed to decide whether that inequality is unfair.

Article

Though deeply contested, citizenship has come to be defined in gender-inclusive terms both as a status anchored in law, with attendant rights and resources, and as agency manifested in active political participation and representation. Scholars have argued that gender often determines how citizenship rights are distributed at household, community, national, and institutional levels, thereby leaving women with many responsibilities but few resources and little representation. Citizenship laws in different parts of Africa explicitly discriminate based on ethnicity, race, gender and religion, with women bearing the brunt of these inequities. In particular, African women have faced structural, institutional, and cultural barriers to ensuring full citizenship in policy and praxis, with contestations in the post-independence era centering around the fulfillment of citizenship rights embedded in law, practice, and lived experience. While African women’s concerns about their subjective roles as equal citizens were often sidelined during nationalist liberation movements, the post-independence era has presented more meaningful opportunities for women in the continent to demand equality of access to citizenship rights, resources, and representation. In contemporary times, a number of local, national, continental, and transnational developments have shaped the contours of the battle for women’s citizenship equality, including the prominence of domestic women’s movements; national constitutional reviews and revisions processes; electoral quotas; female labor force participation; and feminism as a unifying principle of gender justice. African women have had to overcome constraints imposed on them not only by patriarchy, but also by histories of slavery, colonialism, structural adjustment, land dispossession, militarism, and neoliberalism. They have often been subordinated in the domestic or private sphere, with gendered values and norms then undermining their agency in the public sphere. Although African women have managed to secure some political, socio-economic, and cultural rights, resources, and representation, this has certainly not been the panacea for achieving full equality of citizenship or gender justice.

Article

Kerman Calvo and J. Ignacio Pichardo

The LGBT movement has been successful in improving the legal and social standing of sexual minorities in Spain; this includes the recognition of same-sex marriages, joint adoption, and the right to change identification in public registers. The movement has also contributed to a wider acceptance of LGBT diversity at the societal level. LGBT mobilizations in Spain started in the 1970s, with the transition toward democracy. The first political generation of activists believed in gay liberation, supported revolutionary ideas, and defended street protesting. This did not prevent activists from seeking collaboration with the state, as urgent legal action was required to end the criminalization of homosexual relations. After a decade of demobilization, a new generation of activists revamped LGBT activism in Spain during the 1990s, again with a well-defined political agenda: reacting to the devastation caused by AIDS, and also to the changes taking place in the international stage, the new “proud” generation demanded not only individual rights, but also family rights. The legalization of same-sex marriage (and joint adoption) in 2005 was the outcome of a vibrant cycle of mobilization. Contrary to some expectations, the Spanish LGBT movement has not become the victim of its own success. By shifting its attention toward the goal of substantive equality and by reaching out to new communities, the movement remains influential and vigilant against threats posed by the consolidation of new forms of conservative countermobilization.

Article

Christopher Wlezien and Stuart N. Soroka

The link between the public opinion and public policy is fundamental to political representation. The current empirical literature tests a general model in which policy is considered to be a function of public preferences. The mechanics by which preferences are converted to policy are considered along with extensions of the basic model - extensions through which the magnitude of opinion representation varies systematically acorss issues and political institutions. Thus, public opinion is an independent variable - an important driver of public policy change. With the consideration of 12/1 opinion as a dependent variable, specifically, its responsiveness to policy change - the ongoing existence of both policy representation and public responsiveness is critical to the functioning of representative democracy.

Article

Helma G. E. de Vries-Jordan

Marriage equality movements have been successful in achieving policy change in an increasing number of states. Hence, a growing body of scholarship has explored institutional and cultural factors that influence activists’ tactics and messaging and, in turn, contribute to marriage equality policy diffusion. Democracies with parliamentary, presidential, and semi-presidential systems, federal and unitary states with varying levels of centralization, and the presence or absence of constitutional anti-discrimination protections provide social movements with divergent political opportunity structures, contributing to dynamics in their tactical choices. In addition, the type of electoral system and party system, the presence of political parties that are movement allies, the use of conscience votes, the level of party discipline, the presence of out LGBT elected officials and straight political allies, and the degree of political will to enact policy change also impact activists’ strategic calculations. Finally, the use of personalized narratives in advocates’ messaging, the framing of marriage equality and LGBT rights as human rights norms, the adoption of family values frames to coopt opponents’ messaging, and the use of homonationalist versus homophobic discourses to justify policymaking decisions regarding same-sex marriage are explored. This article provides a comprehensive review of state-of-the-art research concerning all of the states that have legalized same-sex marriage as well as a detailed analysis of the mechanisms used to achieve policy change. After examining how different explanatory factors perform in accounting for the dynamics in marriage equality activism and policy convergence across a broad range of national contexts, new directions for future scholarship are suggested.

Article

Tension has long existed in the United State between the equality claims of LGBT individuals, on the one hand, and free exercise claims by those who hold that compelling equal treatment violates their convictions, on the other. This tension increased, however, after the United States Supreme Court extended marriage equality to same-sex couples nationwide. Equality advocates hold that antidiscrimination laws simply allow LGBT individuals to enjoy the same rights as others. Many religious advocates, however, believe that they are being prohibited from living out the implications of their conscientious beliefs. Neutrality between these conflicting claims cannot be achieved, as policies that appear neutral to one group appear non-neutral to the other. Private voluntary organizations are one site of conflict. Although private organizations should not typically be forced to reflect the values of the larger society, not all organizations are similarly situated within it. Groups such as the Boy Scouts should be able to exclude at will. Public authority does not itself always support the values of free and equal citizenship, and organizations may evolve over time as the Scouts itself has done. Organizations that exist within larger entities, however, fall into a different category. The Supreme Court was correct to uphold Hastings Law School in forcing the Christian Legal Society as a registered student organization to admit all comers. These groups also represent the values of a public entity and can continue to operate as independent entities if they so choose. The provision of services in connection with same-sex weddings and commitment ceremonies has been another site of conflict. In Craig v. Masterpiece Cakeshop (2015), the Supreme Court found narrowly that bakery owner Phillips could refuse to create cakes for same-sex wedding celebrations, as the state of Colorado had displayed animus toward Phillips’s religious beliefs. Commercial establishments, however, are public accommodations and generally should not be allowed to discriminate against customers on the basis of their identities. Discrimination against the activity or conduct of formal commitment is also discrimination against the identity or status of a same-sex couple. These kinds of cases do not admit of neutral solutions. Some suggest that those with religious reservations could advertise that they do not serve same-sex couples, but this is reminiscent of Jim Crow in the post–Civil War South. Jurisdictional pluralists suggest that the government designate a sphere of noninterference as a jurisdictional boundary that it will not cross. Thus individuals and associations with religious commitments would be free to pursue these interests with minimal interference. However, a prior authoritative structure must exist to define the nature and scope of this jurisdiction, just as the Constitution defines the relationships between the national government and the states. Applications for religious exemptions should not be treated more generously when they conflict with LGBT equality concerns than with equality claims based on race or gender. Although religious individuals and groups should be able to exercise their religious convictions within their areas of competence, in a liberal society and state they cannot define the limits of these areas.

Article

Toyin Falola and Chukwuemeka Agbo

In line with Thomas Hodgkin’s assertion, the search for Africa’s struggle for liberation, equality, self-determination and the dignity of the African is traceable to the result of the centuries of relationship between Africa and Europe dating at least since the 15th century. That association left Africa at the lowest ebb of the racial pyramid which Europeans had formed. As Africans at home and diaspora began to gain Western education, they began to question the racial and discriminatory ideas of whites against black people. They initiated the campaign for African equality with other races drawing inspiration from Africa’s culture and history to argue that Africa had contributed to world development just like any other race. At home in Africa, this new class of elites launched the struggle for the end of colonial domination in the continent. This movement to lift Africa out of the pit of subordination became known as Pan-Africanism. The movement has recorded tremendous successes, an outstanding example being the decolonization of the continent and the improved position of Africans in diaspora. Scholars have done a great deal of work on these movements and successes. Nevertheless, there is urgent need for a critical appraisal of 21st-century Pan-Africanism.

Article

Sonia Sikka

There are many versions of liberalism, but it would be uncontroversial to say that they agree in placing a premium on individual liberty. As a political paradigm, liberalism is committed to protecting the freedom of persons to live and think as they choose without interference from the state, provided they do no harm to others. This fundamental commitment underlies the classical liberal arguments for religious liberty and toleration articulated by John Locke and J. S. Mill. It forms the basis for legal provisions guaranteeing freedom of religious belief, worship, and expression in liberal democratic nations, as well as the principle of non-establishment, which prohibits the state from favoring any religion or from favoring religion over nonbelief. The formulation of these two principles, religious freedom and nonestablishment, requires that the spheres of the secular and the sacred be distinguished in order to institute a particular relation between them. Questions have been raised about the validity and universality of this distinction, as well as its implications for the place of religion within political life. In contemporary political theory, the topic of public reason has been especially prominent, the point of contention being whether and how religious discourse may be allowed in political reasoning. Balancing religious freedom against other fundamental liberal rights poses another difficulty in cases where the beliefs and practices of religious individuals and communities come into conflict with general laws or compromise equality, another central liberal value. Sometimes social and political judgments about such cases seem to apply a double standard to the religious practices of certain minorities, moreover, and to reflect an element of cultural racism. This is arguably true of attitudes and decisions in Western countries regarding the hijab and other types of veils worn by Muslim women. Applying liberal principles for regulating religion in a fashion that is genuinely neutral and impartial remains a challenge. Indeed, some argue that there is no way of defining “religion” for the requisite purposes without privileging certain forms of it. If so, liberal efforts to protect religious freedom may end up enforcing varieties of religious establishment.

Article

Samuel Freeman

Liberalism in politics is associated with nonauthoritarianism, the rule of law, constitutional government with limited powers, and the guarantee of civil and political liberties. A liberal society is tolerant of different religious, philosophical, and ethical doctrines and allows individuals to freely form and express their conscientious convictions and opinions on all matters and live according to their chosen purposes and life paths. In economic terms, liberalism is associated with an unplanned economy with free and competitive markets, as well as private ownership and control of productive resources. The basic institutions that are characteristic of a liberal society are constitutionalism and the rule of law; equal basic rights and liberties; formal equality of opportunity; free, competitive markets with private property in means of production; government’s obligation to provide public goods and a social minimum; and the fiduciary nature of political power to impartially provide for the public good. Liberals interpret these basic institutions differently. Classical liberalism regards extensive property rights and economic liberties as basic, while libertarians see all rights as property rights and as absolute. High liberalism regards economic liberties as subordinate to personal and political liberties and subject to regulation, with redistribution of income and wealth to mitigate gross inequalities and provide all citizens with adequate resources to guarantee the worth of their basic liberties and opportunities.

Article

Axel Tschentscher

Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system. Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.

Article

Opposition to same-sex marriage in the United States is frequently based on the religious belief that marriage should be reserved for a man and a woman. With most of the attention focused on wedding vendors, the clash between religious liberty and marriage equality has largely manifested itself in efforts by business owners, such as photographers, florists, caterers, and bakers, to deny their services to same-sex couples celebrating their marriages. Citing state antidiscrimination laws, the couples demand the owners treat them as they do their other customers. Owners of public accommodations (privately owned business open to the public) who object to facilitating the weddings of same-sex couples do so typically by asserting their personal religious beliefs as defenses when charged with violating such laws; they argue that they would view their participation (albeit indirect) in wedding ceremonies as endorsing same-sex marriage. As the lawsuits against them began to proliferate, the business owners asked the courts to shield them from liability for violating the laws prohibiting discrimination because of sexual orientation in places of public accommodation. They cited their First Amendment right to the free exercise of their religion and their right not to be compelled to speak, that is, to express a positive message about same-sex marriage. With conflicts between same-sex couples and owners of business establishments arising in a number of states, the focus of the nation’s attention was on a New Mexico photographer, a Washington State florist, and a Colorado baker, each of whom sought an exemption from their state’s antidiscrimination law to enable them to exercise their religious tenets against marriage equality. In these cases, the state human rights commissions and the state appellate courts ruled that the antidiscrimination laws outweighed the rights of the business owners to exercise their religious beliefs against marriage equality by refusing to play a role, no matter how limited, in a same-sex marriage ceremony. In June 2018, in Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission, the U.S. Supreme Court affirmed the state’s antidiscrimination law that guaranteed equal treatment for same-sex couples in places of public accommodations but reversed the Commission’s ruling against the Colorado baker. In a narrow decision, the Court held that the Commission infringed on the baker’s First Amendment right to free exercise by uttering comments that, in the Court’s view, demonstrated hostility to his sincerely held religious beliefs. The ruling affirmed that society has a strong interest in protecting gay men and lesbians from harm as they engage in the marketplace as well as in respecting sincerely held religious beliefs.