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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

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

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

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

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

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

Over the past few years, same-sex marriage reforms have become central to contemporary LGBTQ movements. As a result of their mobilizations, many countries across the world have adopted same-sex marriage reforms. According to scholars, LGBTQ movements were successful in part because they used law and legal discourse, arguing that same-sex marriage flows from states’ legal obligations to protect equality and prohibit discrimination. The turn to law and the law of marriage in the local and transnational contexts may fail, however, to deliver substantive justice for all LGBTQ people. First, same-sex marriage reforms, rather than being just a translation of equality into law, is a product of ideological and legal battles in specific socioeconomic contexts. For instance, in the United States, same-sex marriage, rather than being another form of relationship recognition, became prominent because of the centrality of marriage in the country’s economic, cultural, and legal order. Second, the law of marriage is a system of governance historically shaped by different-sex couples’ needs, with specific one-size-fits-all rules that may not correspond to LGBTQ individuals’ desires, wishes, and lived experiences. Third, as queer theorists have shown, the law of marriage creates an “outside,” a space of exclusion that is inseparable from the legal regime of marriage and the cultural intelligibility of marriage. The emphasis on marriage by LGBTQ movements risks delegitimizing other forms of intimate relationships. The emphasis on marriage may also entrench neoliberalism in contexts in which the marriage, not the state, is seen as a primary safety net. Finally, in the global or transnational setting, claims for same-sex marriage may perhaps unintentionally feed into representations of civilizational conflicts, between those countries that recognize same-sex marriage and those that do not, while also erasing the variety of local practices around sexuality and gender norms.

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

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.