Political Institutions and Lesbian and Gay Rights in the United States and Canada by Miriam Catherine Smith

Author:Miriam Catherine Smith [Smith, Miriam Catherine]
Language: eng
Format: epub
Tags: Political Science, Civil Rights, Social Science, LGBT Studies, Gay Studies, Lesbian Studies
ISBN: 9780415988711
Google: dUEjtQEACAAJ
Goodreads: 3102218
Publisher: Routledge
Published: 2008-01-15T12:23:04+00:00

THE ORIGINS OF SAME-SEX MARRIAGE LITIGATION

While same-sex marriage had been litigated in both the U.S. and Canada in the early 1970s, the issue reemerged anew in the early 1990s. In 1991, Ninia Baehr and Genora Dancel, and other same-sex couples filed their historic marriage case in Hawai’i (Baehr v. Lewin 1993). Shortly after, in January 1992, Todd Layland and Pierre Beaulne filed a similar case in Ontario, in an attempt to secure immigration status in Canada for Layland, an American citizen (Layland v. Ontario 1993). In both the U.S. and Canada, there was hesitancy among lawyers in the lesbian and gay movement in moving forward with a legal case claiming the right to legal civil marriage for same-sex couples. There was concern that the cases would be unsuccessful and that the cause of lesbian and gay rights in other areas of law would suffer a setback (Fisher 2001; Wolfson 2006). In the U.S., in the early 1990s, many states still had laws criminalizing sodomy, the Christian Right was on the rise, and many jurisdictions did not have enforceable anti-discrimination protections for lesbians and gay men. In Canada, in the early 1990s, the Supreme Court had not ruled on whether sexual orientation was an analogous ground of discrimination under section 15 of the Charter and, therefore, it was not clear that lesbians and gays were covered by the equality rights clause. In both countries, lawyers were concerned that proceeding too quickly with a court case would create a negative precedent for lesbian and gay rights (Elliott 2002; Fisher 2001; Wolfson 2006). In the U.S., the filing of the Baehr case was an audacious legal and political move, coming as it did only five years after the infamous Bowers decision. If same-sex relationships entailed sexual behavior that was criminal in some states and, if the U.S. Supreme Court had stated that criminalization of such sexual behavior was constitutional, how could same-sex relationships receive the legal, political, and symbolic recognition of legal marriage with all of the material benefits bestowed by such status in U.S. policy and law? The case was based on the hope that state courts would act where politicians feared to tread and that the state courts of Hawai’i would be more favorable to lesbian and gay rights claims than courts in other state jurisdictions or the U.S. Supreme Court. As evidenced by the impact of Baehr, the process of legal mobilization in which individual plaintiffs have been mobilized through a coordinated process of litigation, supported by groups such as Lambda Legal and non-governmental organizations, set the agenda of lesbian and gay rights in the U.S. during this period (Solokar 2001).

Baehr was quickly followed by other states, notably, the Brause v. Bureau of Vital Statistics case in Alaska (1998) and the Baker v. Vermont (1999). These cases laid the foundation for the pivotal Goodridge ruling in Massachusetts in 2003, which resulted in the legalization of same-sex marriage in that state. The litigation of these cases resulted in a substantial recognition of lesbian and gay rights and demonstrated that some state courts in the U.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.