Right to Privacy and Gay/Lesbian Sexuality: Beyond Decriminalization to Equal Recognition
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Description
Liberal constitutional democracies increasingly acknowledge that claims of gays and lesbians are based on fundamental constitutional rights that are, in turn, grounded in respect for human rights required by arguments of justice. Two kinds of arguments have been prominent: first, arguments appealing to basic liberties (including that to an intimate life); second, arguments for an equal respect free of irrational prejudices (such as racism and sexism) that dehumanize and degrade. For example, the European Court of Human Rights has found laws criminalizing gay sex to be unconstitutional violations of applicable guarantees of the right of private life; and the United States Supreme Court, which had earlier declined (5–4) to hold comparable laws unconstitutional, later found state constitutional provisions, that forbade all laws protecting gays and lesbians from discrimination, an unconstitutional violation of the right to be free of dehumanizing prejudice, a decision that casts doubt on the continuing authority of the earlier privacy decision. In this chapter I will first argue that a certain normative conception of how these rights are to be understood and related explains both the constitutional decriminalization of gay/lesbian sexuality and the more recent arguments for forms of legal recognition of same-sex partnerships; later, I will argue that a further elaboration of this argument explains why commercial sexual services should be decriminalized.
Source Publication
Women and the United States Constitution: History, Interpretation and Practice: A Collection of Essays
Source Editors/Authors
Sibyl A. Schwarzenbach, Patricia Smith
Publication Date
2003
Recommended Citation
Richards, David A. J., "Right to Privacy and Gay/Lesbian Sexuality: Beyond Decriminalization to Equal Recognition" (2003). Faculty Chapters. 1915.
https://gretchen.law.nyu.edu/fac-chapt/1915
