Courts Liberalism And Rights: Gay Law And Politics In The by Jason Pierceson

By Jason Pierceson

Within the courts, the simplest probability for attaining a wide set of rights for gays and lesbians lies with judges who view liberalism as grounded in a diffusion of rights instead of a constraint of presidency task. At a time while such a lot homosexual and lesbian politics focuses in simple terms at the factor of homosexual marriage, Courts, Liberalism, and Rights courses readers via a nuanced dialogue of liberalism, courtroom rulings on sodomy legislation and same-sex marriage, and the comparative development gays and lesbians have made through the courts in Canada. As debates proceed concerning the skill of courts to impact social switch, Jason Pierceson argues that this is often attainable. He claims that the best chance for reform through the judiciary exists whilst a judiciary with wide interpretive powers encounters a political tradition that endorses a sort of liberalism in response to generally conceived person rights; no longer a unfavorable set of rights to be held opposed to the nation, yet a collection of rights that acknowledges the inherent dignity and price of each person.

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Extra info for Courts Liberalism And Rights: Gay Law And Politics In The United States and Canada (Queer Politics Queer Theories)

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3 Liberalism and Gay Politics: Rights and Their Critics M Y ARGUMENT in this book is that liberalism is an ideology capable of accommodating claims of lesbian and gay equality, particularly the claims associated with same-sex marriage, and that courts can be effective vehicles for promoting this equality. But liberalism is, and continues to be, under attack. Queer and critical theorists view liberalism as a mask for power and oppression of minorities, while communitarians, both left and right, see liberalism as a thin ideology, overly concerned with the individual at the expense of the needs of society.

52 Thus, the justices’ attitudes were changing, but this did not result in uniform success for gay litigants. Doctrinal issues, particularly the importance of negative freedom over other values, trumped personal attitudes for many of the justices. This is exemplified by the 9 to 0 decision in Hurley. In 2003, the Court appeared to change its mind more uniformly on sexual minorities. In Lawrence v. Texas, the Court overturned Bowers and held that the state’s same-sex-only antisodomy law violated the right to privacy.

Particularly in the first half of the twentieth century in the United States, utilitarian/majoritarian views of law and politics tended to deemphasize the importance of rights. Legal realism was an understandable antidote to the Lochner era, but it gave far too much deference to political majorities in all areas of political life. Neo-Kantian thinkers attempt to revive rights claims. My goal here is not to engage in a philosophical defense of such thinkers. Instead, my view in this book recognizes that theoretical arguments can become the raw material of law and politics.

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