Tuesday, April 15, 2014
Drew Cohen recently published A Constitution at a Crossroads: A Conversation with the Chief Justice of the Constitutional Court of South Africa in the Northwestern Journal of International Human Rights. The interview covers transformative constitutionalism (including judicial transformation and the role of judges) and current constitutional issues in South Africa, with some background and context for the uninitiated. It's a terrific piece on the current and future state of South African constitutionalism; it has some gems on comparative constitutionalism, as well.
Here's a clip of the Chief Justice's response to Cohen's question whether South African judges should be "umpires":
Given our background and our Constitution, judges do not have the luxury to sit back and pretend that we do not have serious challenges, which can be addressed through a passive justice system. I do not think we can afford to be the type of umpires Chief Justice Roberts had in mind.
Whatever we, as judges, do must facilitate nation-building so far as the case makes it possible by actively addressing the socioeconomic challenges that still confront certain sectors of the community as well as addressing the position of women in every sector of our society. Whereas that may not be feasible for judges in the U.S., it must [be the case] in South Africa. We have a different set of challenges that require judges to be somewhat proactive in the manner in which they approach their judicial responsibilities.
On the use of foreign law:
Once our jurisprudence gets settled, once it gets to the point that everyone can say that it is fairly well developed, there will be very little reason to rely as much as we used to on the jurisprudence of other countries. With that said, obviously, we will still need to have some regard to the latest developments in comparable jurisdictions. This is particularly true with regards to the area of socioeconomic rights and property law.
On closing the gap between reality and an aspirational Constitution:
What the Court can do, however, is interpret the Constitution in a manner so as to ensure that every official who has a constitutional responsibility to close that gap . . . are held accountable.
I think that the Court, however, has done fairly well in its efforts to close that gap. Look at our judgments dealing with socioeconomic rights[,] . . . health issues[,] . . . housing[,] . . . natural resources . . . .
On the next big issues:
The next major court battles will involve the agricultural sector. If you look at the agricultural sector then you will realize that a very large percentage of commercial farmers are still those from the previously advantaged group . . . . For the few [previously disadvantaged] that have received land through the government's redistribution system, it does not look like enough was done to empower them to be able to use the land productively. So, I think a lot needs to be done in the area of land redistribution but this must occur in a very, very slow and careful process.
In its opinion National Legal Services v. India, the Supreme Court of India has recognized the constitutional rights of transgender persons, including the right not to be denominated as either "male" or "female."
The opinion by K.S. Radhakrishnan begins with an invocation of the "trauma, agony and pain which the members of Transgender community undergo" but rather quickly also invokes the cultural roots and importance of the community: "TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts."
The judgment rests on an interpretation of several provisions of the Constitution of India, including Article 14 (equality before law); Article 15 (prohibition of discrimination on the basis of various grounds, including sex); Article 16 (equality of opportunity in public employment, including sex); Article 19 (including freedom of expression); and Article 21 (protection of life and personal liberty). The judgment engaged in some originalist reasoning that broadly interpreted "sex" to include sex-stereotyping:
Constitution makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders. Both gender and biological attributes constitute distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.
Given this interpretation, the Court not suprisingly ruled
We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.
The Court has some interesting discussions of dress and grooming as an aspect of gender which included references to US cases and is further discussed here.
The Court also specifically disavowed any relationship between its present judgment in National Legal Services v. India and the controversial opinion Koushal v. NAZ Foundation decided in December in which the Court - - - or as the Court states here "A Division Bench of this Court" reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional:
we express no opinion on it [Kousal] since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.
In a separate judgment, A.K. Sikiri did not mention the sodomy decision in Koushal v. Naz Foundation, but the judgment's expansive rhetoric could be read as an implicit disagreement with that decision as well as serving as a further butressing of today's judgment. The concurring opinion elaborated on the importance of TG persons and communities to India's culture. It referenced Immanuel Kant, John Rawls, Amartya Sen as providing the "jurisprudential basis for doing justice to the Vulnerable Groups which definitely include TGs." It explicitly stated the "dynamic" and "living character" of the Constitution and its interpretation. It considered judicial review in the context of democracy (including, implicitly, "sexual democracy") and decidedly opined that it is the role of the judiciary to "ensure access to justice to the marginalized section of the society," and that undoubtedly "TGs belong to the unprivileged class which is a marginalized section."
The judgment not only requires the government to recognize a "third gender" and to grant "legal recognition of their gender identity such as male, female or as third gender," but also directs the government to take positive steps in education, health provisions, and "seriously address" various problems.
April 15, 2014 in Comparative Constitutionalism, Courts and Judging, Due Process (Substantive), Equal Protection, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 9, 2014
Northwestern University Law School just wrapped up its 2013-2014 colloquium series on Constitutional Design in the Muslim World--an outstanding series of presentations convened by Profs. Erin Delaney and Kristen Stilt. The program's web-site contains a list of presenters with links to their papers, videos of presentations, links, and a blog. Check it out.
Monday, April 7, 2014
Recall that in November 2013 we posted "UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?"
The answer is "no," at least if "soon" means the case discussed in that post, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer. The petition concentrated on the First Amendment speech rights of the photographer rather than religious rights; the Court denied certiorari today.
Meanwhile, Lady Brenda Hale, a Justice on the UK Supreme Court, appeared at a Comparative and Administrative Law Conference last month at Yale and spoke on the topic of "Religion and Sexual Orientation: The clash of equality rights," posting her written remarks on the UK Supreme Court site. Justice Hall considered the Bull case which we discussed as well as cases from Canada and the EU, all presenting the same basic issue: should religious persons be exempt from anti-discrimination laws? Justice Lady Hale offers some interesting observations: "it is fascinating that a country with an established church can be less respectful of religious feelings than one without." She also discusses direct and indirect discrimination and reiterates a point she made in the Bull case itself:
Both homosexuals and Christians were subject to the same laws requiring them not to discriminate in the running of their businesses. So if homosexual hotel keepers had refused a room to an opposite sex or Christian couple, they too would have been acting unlawfully.
This leads her to proclaim:
If you go into the market place you cannot pick and choose which laws you will obey and which you will not.
This may be an indication of how Lady Brenda Hale would rule in Hobby Lobby so recently argued before the United States Supreme Court, assuming the English Parliament would enact a statute similar to the Religious Freedom Restoration Act.
Another difference: The arguments before the UK Supreme Court are televised live.
April 7, 2014 in Comparative Constitutionalism, Current Affairs, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, International, Religion, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Friday, March 21, 2014
In its opinion today in Reference re Supreme Court Act, ss. 5 and 6, the Supreme Court of Canada, with only one Justice dissenting, concluded that Marc Nadon would not be joining them on the nation's highest bench.
As we previously discussed, the nomination of Marc Nadon (objected to by some for its failure to advance gender parity), posed a constitutional question regarding whether a judge on the Federal Court of Appeal was eligible for the Supreme Court. Cribbing from another of our discussions that quoted Canadian scholars Michael Plaxton and Carissima Mathen, here's the problem in a nutshell:
Section 5 of the Supreme Court Act states: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Section 6 provides: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Mr Justice Nadon was, at the time of his nomination, neither a judge of a Quebec superior court nor a current member of the practicing bar. It is therefore not clear that he is “among the advocates” of Quebec within the meaning of section 6.
Today the Court decided that
A judge of the Federal Court or Federal Court of Appeal is ineligible for appointment to the Supreme Court of Canada under s. 6 of the Act. Section 5 of the Act sets out the general eligibility requirements for appointment to the Supreme Court by creating four groups of people who are eligible for appointment: (1) current judges of a superior court of a province, including courts of appeal; (2) former judges of such a court; (3) current barristers or advocates of at least 10 years standing at the bar of a province; and (4) former barristers or advocates of at least 10 years standing. However, s. 6 narrows the pool of eligible candidates from the four groups of people who are eligible under s. 5 to two groups who are eligible under s. 6. In addition to meeting the general requirements of s. 5, persons appointed to the three Quebec seats under s. 6 must be current members of the Barreau du Québec, the Quebec Court of Appeal or the Superior Court of Quebec.
The plain meaning of s. 6 has remained consistent since the original version of that provision was enacted in 1875, and it has always excluded former advocates. By specifying that three judges shall be appointed “from among” the judges and advocates (i.e. members) of the identified institutions, s. 6 impliedly excludes former members of those institutions and imposes a requirement of current membership. Reading ss. 5 and 6 together, the requirement of at least 10 years standing at the bar applies to appointments from Quebec.
This textual analysis is consistent with the underlying purpose of s. 6 and reflects the historical compromise that led to the creation of the Supreme Court as a general court of appeal for Canada and as a federal and bijural institution. Section 6 seeks (i) to ensure civil law expertise and the representation of Quebec’s legal traditions and social values on the Court, and (ii) to enhance the confidence of Quebec in the Court. This interpretation is also consistent with the broader scheme of the Act for the appointment of ad hoc judges, which excludes judges of the federal courts as ad hoc judges for Quebec cases.
The Court's opinion seems well-reasoned, careful, and right. And while its effect is certainly cataclysmic to Nadon (and perhaps to his conservative supporters), it may be less so for Canadian politics ultimately, and even less so for Canadian constitutional law doctrinally. Nevertheless, Nadon's appointment to the Supreme Court would have changed Canadian Constitutional law. And certainly, the nomination of a Justice to the nation's highest court being deemed ineligible to serve on that Court by the Justices of the Court themselves is certainly dramatic.
Tuesday, March 18, 2014
Alabama Supreme Court Chief Justice Roy Moore and Justice Tom Parker issued advisory opinions to the state legislature last week that said that the legislature's article-by-article approach to amending the state constitution is unconstitutional.
The opinions came after the legislature began an organized effort in 2010 to rewrite the state's 1901 constitution. That constitution is widely considered an outdated relic crafted to perpetuate white supremacy in the state. (The document still contains provisions for a poll tax and segregated schools. It also sharply limits home rule for local governments--so that local governments dominated by African Americans couldn't gain political power. But that's part of why the document is now so long, and so amended: In order to get anything done at the local level, the state has to change the constitution.) It's also quite long: with over 800 amendments, it's the longest constitution in the United States, and one of the longest in the world.
The constitution allows for amendment by way of the state legislature and Alabama voters. It also allows for a constitutional convention if the legislature and voters agree to hold a constitutional convention. Several efforts to overhaul the entire document have failed, however.
So the Constitutional Revision Commission, a panel formed in 2011, began an article-by-article rewrite.
Chief Justice Moore's and Justice Parker's advisory opinions said that the article-by-article approach was an unconstitutional side-step around the requirement for a constitutional convention in order to change the whole document. Those opinions appear to have chilled the rewrite effort--at least temporarily.
Sunday, March 16, 2014
there's a bigger problem: the referendum seems inconsistent with the Ukrainian constitution, which says all Ukrainians would have to vote on Crimea’s secession – not just those living in Crimea.
Indeed, Title X of the Constitution of Ukraine governs "The Autonomous Republic of Crimea" and does not seem to provide for secession. Yet questions of secession are vexing, even in the United States, as we've discussed.
Friday, March 14, 2014
The high profile trial of Oscar Pistorius may be South Africa's "OJ Simpson moment." Although there are certainly differences - - - Pistorius admits he fired the gunshots that killed his partner, Reeva Steenkamp; his defense is that he thought she was an intruder - - - the televised trials and intense media interest are similar.
Yet the South African judge has had to contend with the question of how much graphic material to allow.
Over at Constitutionally Speaking, Pierre De Vos confronts the issues. The original decision was to "grant permission to media houses to broadcast the Oscar Pistorius murder trial live on radio and television." But then during the trial, there was a "ruling by Judge Masipa to ban live tweeting of the evidence of the pathologist, apparently to protect the sensibilities of the family of the deceased due to the potential graphic nature of the evidence" was "at best ill-advised." Indeed, the judge later reversed his own "decision to prohibit live tweeting of the pathologist’s evidence," but continued to ban the audio or audio-visual broadcasting of the pathologist's "testimony due to the possible graphic nature of the evidence."
Amy Davidson, writing on the New Yorker Blog, provides journalist context to the testimony in question; testimony that made Pistorius himself vomit.
For comparative constitutionalists interested in conflicts of "free press" and "fair trial," the Pistorius trial is yet another case study.
[image of Oscar Pistorius via]
Uganda's controversial law, The Anti-Homosexuality Act, 2014, long-linked to United States Evangelicals, has been challenged as unconstitutional by a petition filed in the Constitutional Court of Uganda.
The vast majority of the claims of unconstitutionality focus on the rights provisions in the Uganda Constitution, including explicit rights of equality, privacy, dignity, civic participation, freedom from cruel, inhuman and degrading punishment, expression, for persons with disabilities, and fair hearing. The claims also rely on the principles in the "National Objectives and Directive Principles of State Policy" which are part of the Constitution.
Here are a few examples of the ultimate legal arguments in the petition:
THAT sections 1, 2 and 4 of the Anti-Homosexuality Act 2014, in defining and criminalising consensual same sex/gender sexual activity among adults in private, are in contravention of the right to equality before the law without any discrimination and the right to privacy guaranteed under Articles 2(1) & (2), 21(1), (2) & (4) and 27 of the Constitution of the Republic of Uganda respectively;
THAT section 2(1)(c) of the Anti-Homosexuality Act 2014, in criminalising touching by persons of the same sex, creates an offence that is overly broad and is in contravention of the principle of legality under article Articles 2(1) & (2), 28(1), (3b), (12), 42 and 44(c) of the Constitution of the Republic of Uganda;
THAT Sections 7 and 13(1) & (2) of Anti-Homosexuality Act 2014, in criminalising aiding, abetting, counselling, procuring and promotion of homosexuality, create offences that are overly broad, penalise legitimate debate, professional counsel, HIV related service provision and access to health services, in contravention of the principle of legality, the freedoms of expression, thought, assembly and association, and the right to civic participation guaranteed under principle XIV of the National Objectives and Directive Principles of State Policy, Articles 2(1) & (2), 8A, 28(1), (3b), & (12), 29(1), 36, 38(2), 42 and 44(c) of the Constitution of the Republic of Uganda 1995.
There are certainly many who hope the Uganda Constitutional Court will look to the prestigious Constitutional Court of South Africa for guidance in deciding these issues, although unlike the South African Constitution, the Uganda Constitution does not have an explicit provision protection sexual orientation.
[H/T Tony Tate]
[Image of Uganda Coat of Arms via]
Monday, February 10, 2014
The Michigan Supreme Court last week unanimously upheld Michigan's medical marijuana law, and struck a Michigan town's ordinance that purported to apply the federal Controlled Substances Act against it, in a two-step, federal-state-local preemption ruling. The net result: Michigan's medical marijuana law stays on the books exactly as is, and the City of Wyoming's ordinance against it is struck. And of course: Michigan medical marijuana users could still be prosecuted by federal authorities under the Controlled Substances Act.
The case, Ter Beek v. City of Wyoming, involved a challenge to Wyoming's ordinance that was adopted to allow city authorities to enforce the federal Controlled Substances Act (the "CSA") against Michigan's medical marijuana law. Wyoming's ordinance read:
Uses not expressly permitted under this article are prohibited in all districts. Uses that are contrary to federal law, state law or local ordinance are prohibited.
That last sentence would ban marijuana that violates the CSA in the city.
But a city resident challenged it as preempted by the Michigan medical marijuana law under the Michigan Constitution. The city argued in reply that Michigan's medical marijuana law was itself preempted--by the CSA under the federal Constitution.
The court ruled first that the CSA did not preempt the Michigan medical marijuana law. The reason is simple: nothing in the Michigan law prohibits federal enforcement of the CSA. There's no conflict preemption and no obstacle preemption. Moreover, the CSA "explicitly contemplates a role for the States" in regulating medical marijuana.
The court held next that the Michigan medical marijuana law did preempt Wyoming's ordinance. Again, the reason is simple: the ordinance, by allowing enforcement of the terms of the CSA by local officials, conflicts with the Michigan law. The Michigan Constitution says that the City's "power to adopt resolutions and ordinances relating to its municipal concerns" is "subject to the constitution and the law." Art. 7, Sec. 22. That means that local laws can't conflict with state laws. And the court said that Wyoming's did.
Sunday, February 9, 2014
Before the opening of each town hall meeting, the Mayor recites a prayer - - -
Almighty God, we thank You for the many favours that You have granted Saguenay and its citizens, including freedom, opportunities for development and peace. Guide us in our deliberations as members of the municipal council and help us to be well aware of our duties and responsibilities. Grant us the wisdom, knowledge and understanding that will enable us to preserve the advantages that our city enjoys, so that everyone can benefit from them and we can make wise decisions. Amen.
Although a government official - - - rather than someone selected by government officials - - - recites the prayer (in French), the similarties to Town of Greece v. Galloway, argued before the United States Supreme Court in November, are obvious. However, the religious practice of the City of Saguenay in the province of Quebec, is going before the Supreme Court of Canada in Mouvement laïque québécois (MLQ) v. City of Saguenay. (Americans might analogize the Quebecois MLQ to American organizations such as Freedom from Religion).
There's a terrific discussion of the case by Victor Yee over at "The Court," a blog from Osgoode Hall about the Supreme Court of Canada.
Any decision by the Supreme Court could have implications for Quebec's controversial attempt to regulate the wearing of "ostentatious" religious gear by public employees and might draw on the Supreme Court of Canada's decision in R. v. N.S., involving the right of a witness in a criminal prosecution to wear a veil. Although the challenge in City of Saguenay is akin to a US Constitutional "Establishment Clause" challenge and the Canadian doctrine of government religious neutrality.
Monday, January 27, 2014
Tunisia's National Constituent Assembly yesterday approved a new constitution, one of the most progressive in the region, three years after the overthrow of the long-time ruler Zine el-Abidne Ben Ali. Al Jazeera reports here; BBC here; the Guardian here; Reuters here.
According to reports, the new document says that Islam is the nation's religion (and forbids "attacks on the sacred"), but it does not require religious law, and it guarantees freedom of religion. Moreover, it guarantees equality between men and women and protects women's rights.
The new constitution divides executive authority between a prime minister and president. Prime Minister Mehdi Jomaa announced earlier that a caretaker cabinet would govern until the country holds elections.
Saturday, January 18, 2014
Julie Ebenstein of the ACLU writes on Jurist.org that the dual system of voter registration in Kansas unlawfully denies citizens the right to vote. Ebenstein outlines the Kansas case challenging the dual system under state constitutional provisions, filed last November and now pending in state court.
As we wrote, two states, Arizona and Kansas, adopted a dual system of voter registration in the wake of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona. In that case, the Court held that the requirement under the National Voter Registration Act that states "accept and use" an approved and uniform federal form for registering voters preempted Arizona's requirement that voters present evidence of citizenship at registration. (The NVRA form requires applicants simply to attest to their citizenship, not to provide additional documentation.)
Arizona and Kansas then announced that they would require voters to register separately for state and federal elections. This created a dual system of voter registration: NVRA and state-form registrants before January 1, 2013, can vote in both state and federal elections; but NVRA registrants after January 1, 2013, can vote in only federal elections. (NVRA registrants after that date also can't sign petitions.) Now only state-form registrants who provide the additional proof of citizenship can vote in state elections. State-form registrants who fail to provide the additional proof of citizenship cannot vote at all.
The ACLU and ACLU of Kansas filed suit last November challenging the dual registration system. The complaint, filed in state court, alleges that the system violates state constitutional equal protection by distinguishing between classes of voters in the state, that state officials exceeded their state constitutional authority, and that the system wasn't properly promulgated as a rule or regulation under Kansas law.
January 18, 2014 in Cases and Case Materials, Comparative Constitutionalism, Congressional Authority, Elections and Voting, Equal Protection, Federalism, News, Preemption, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Friday, December 20, 2013
In its highly anticipated judgment in Canada v. Bedford, the Supreme Court of Canada has unanimously declared several provisions of Canada's criminal code regulating prostitution and sex work to be inconsistent with the Canadian Constitution's Charter of Rights and thus unconstitutional, although it suspended the declaration of invalidity for one year to allow Parliament to act.
The provisions of the criminal code at issue were:
- § 210 making it an offence to keep or be in a bawdy‑house;
- § 212(1)(j) prohibiting living on the avails of prostitution; and,
- §213(1)(c) prohibiting communicating in public for the purposes of prostitution.
All there were declared inconsistent with §7 of the Charter which provides "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." The Court was clear that it was security - - - and not liberty - - - that was the animating principle for its decision.
Importantly, prostitution itself is legal in Canada, an important underpinning of the Court's decision. The Court reasoned that the criminal code provisions at issue heightened the risks prostitutes face, by not merely "imposing conditions" but also going "a critical step further by imposing dangerous conditions on prostitution" and prevent "people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks."
The Court rejected the notion that the created danger was "negated by the actions of third‑party johns and pimps, or prostitutes’ so‑called choice to engage in prostitution."
The Court then engaged in a type of purpose, means, and balancing analysis familiar in constitutional law. Quoting from the Court's handy summary of its reasoning and holding in this lengthy and scholarly opinion,
[First], the negative impact of the bawdy‑house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance. The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.
Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage. The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards. It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is consequently overbroad.
Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause. The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.
The Supreme Court of Canada's unanimous opinion affirms a judgment by the Court of Appeal for Ontario and one might believe that Canada's remaining criminalization of sex work have been vanquished. However, the Court recognized that the "regulation of prostitution is a complex and delicate matter," and that Parliament "should it choose to do so" could "devise a new approach, reflecting different elements of the existing regime." The Court suspended its declaration of invalidity for one year. And one might say that the "ball" is now in Parliament's "court."
[image: Canada Supreme Court building's Grand Entrance Hall via]
The anti-homosexuality bill has been before the Uganda Parliament for several years. For background - - - including discussions of the links between the bill and US evangelicals- - - both Jeff Sharlett's 2010 Harper's Magazine article Straight Man’s Burden: The American roots of Uganda’s anti-gay persecutions and the documentary film God Loves Uganda are worth consideration.
The death penalty was removed from the Bill during the debate, and the death penalty was replaced with life imprisonment.
- Clause 14 Failure to disclose the offense was deleted because the clause will be too hard to implement
- Clause 12 was amended,a new clause inserted that sentences any person or institution that conducts gay marriage to 7yrs and licence canceled
- Clause 9(b) the words"either in Uganda or elsewhere"or" appearing at the end of the end of the sub- clauses 1(a) (b)were deleted
- Clause 9 was amended by deleting the words "etc " in the head note, because it makes the head note appear vague
- Clause 8 Conspiracy to engage in homosexuality, was deleted because it is provided for under clause 13
- Clause 7 : Aiding and abettting Homosexuality was deleted, because it provided for under clause 13
An official copy of the bill is not yet available. It must be presented to the President of Uganda for assent.
Additionally, yesterday the Uganda Parliament passed The Anti Pornography Bill creating the offense of pornography. As defined, it includes "any indecent act or behavior tending to corrupt morals."
Should there be Presidential assent and the bills become law, there are vows to challenge the constitutionality of both laws in the courts.
Wednesday, December 11, 2013
The Australian Capital Territory (ACT) - - - akin to Washington, D.C. for those familiar with the United States - - - passed a "marriage equality act" allowing for same-sex marriages. Australia's High Court has declared the ACT's marriage act invalid in The Commonwealth of Australia v. The Australian Capital Territory,  HCA 55.
Here's the Court's "judgement summary":
Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961. The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament.
The Court held that "marriage" in s 51(xxi) of the Constitution refers to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations. "Marriage" in s 51(xxi) includes a marriage between persons of the same sex.
The Marriage Act does not now provide for the formation or recognition of marriage between same sex couples. The Marriage Act provides that a marriage can be solemnised in Australia only between a man and a woman and that a union solemnised in a foreign country between a same sex couple must not be recognised as a marriage in Australia. That Act is a comprehensive and exhaustive statement of the law of marriage.
The Court held that the object of the ACT Act is to provide for marriage equality for same sex couples and not for some form of legally recognised relationship which is relevantly different from the relationship of marriage which federal law provides for and recognises. Accordingly, the ACT Act cannot operate concurrently with the federal Act.
Because the ACT Act does not validly provide for the formation of same sex marriages, its provisions about the rights of parties to such marriages and the dissolution of such marriages cannot have separate operation and are also of no effect.
The Court held that the whole of the ACT Act is of no effect.
The Court's unanimous opinion is mostly concerned with whether the ACT marriage act and the federal marriage act are inconsistent. The constitutional issues lurk in the background: Australia's constitution gives the federal government power over marriage. As the opinion states:
Section 51(xxi) of the Constitution gives the federal Parliament power to make laws with respect to "marriage". Section 51(xxii) gives the Parliament legislative power with respect to "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants". Both powers were included in the Constitution to avoid what the framers saw as a great defect in the United States Constitution. The object of the powers was to enable the federal Parliament to provide uniform laws governing marriage and divorce.
Once the inconsistency is determined - - - and there was an argument that the laws could be interpreted as not inconsistent, but this failed - - - then the federal law must prevail.
As the opinion states, "Under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law (as a majority of the Territory Legislative Assembly decided) is a matter for the federal Parliament."
In its long-awaited opinion in Koushal v. NAZ Foundation, the Supreme Court of India has reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional.
The Supreme Court decision noted that India's sodomy law was pre-constitutional - - - and derived from British rule - - - and also that the Court certainly had the power to declare the law unconstitutional as inconsistent with several provisions of the India Constitution, including
- Article 13 (Laws inconsistent with or in derogation of the fundamental rights)
- Article 14 (Equality before law)
- Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth)
- Article 19 (Protection of certain rights regarding freedom of speech etc.)
- Article 21 (Protection of life and personal liberty)
Nevertheless, the Court stated that there is a presumption of constitutionality given the "importance of separation of powers and out of a sense of deference to the value of democracy that parliamentary acts embody."
The Court's 98 page opinion authored by Justice Singhvi (who is interestingly scheduled to retire tomorrow, the day after the opinion was rendered), and without a dissenting opinion, criticizes the Dehli Court's reliance on non-national sources:
In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.
For United States scholars, such concern for nationalism certainly echoes the dissenting opinion in Lawrence v. Texas, in which the United States Supreme Court held unconstitutional a state law criminalizing sodomy. Yet in the India context, the fact that its constitutionalism is linked to British rule as well as the fact that the sodomy law is a product of colonialism (and is a law that the colonial power has since repudiated as former Australian High Court Judge Michael Kirby has analyzed as England's "least lovely" export) are distinguishing features.
Certainly, however, the problematizing of judicial review in the context of sexuality occurs in the United States cases as well as those from South Africa, an issue extensively discussed here.
And certainly, advocacy on behalf of "the so-called rights of LGBT persons" will be moving to India's Parliament.
[image of Supreme Court of India via]
Tuesday, December 10, 2013
The struggles that follow the victory of formal equality and universal franchise may not be as filled with drama and moral clarity as those that came before, but they are no less important.
A full transcript of Obama's speech is in the Washington Post here.
Video (and transcript) from BBC here.
Nelson Mandela's autobiography Long Walk to Freedom remains the best read about Mandela.
And worth (re)reading on this anniversary of Mandela's signing the South Africa Constitution in 1996, volumes such as The Post-apartheid Constitutions : Perspectives on South Africa's basic law by Penelope Andrews and Stephen Ellman and Constitutional Rights in Two Worlds by Mark Kende.
Thursday, November 28, 2013
UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?
Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple? Does it make any difference that he couple have entered into a civil partnership?
The main opinion, authored by the twelve justice Court's only woman member, Lady Hale, affirms the lower court's finding that the same-sex couple's equality claims must prevail. While the decision is unanimous, some justices wrote separately because of differing on the rationale, including whether the discrimination should be deemed direct or indirect. These differences resulted from highlighting sexual orientation or highlighting marital status, with the added wrinkle of civil partnership being equivalent to marriage.
But clearly, the Court held, there was discrimination. And further, the Court held, that discrimination cannot be justified. The Court construed the statutory frameworks prohibiting discrimination based on both sexual orientation and religious belief, and then turned to article 9 of the European Convention on Human Rights, which guarantees the ability to manifest religious beliefs in “worship, teaching, practice and observance." But Article 9 also provides:
Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
This "rights of others" qualification is key to the Lady Hale's analysis, as these rights include rights under "ordinary law," including UK's regulatory framework that prohibits discrimination.
But, as Lady Hale makes clear, it is not a matter of sexual orientation discrimination trumping religious discrimination. Instead:
If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today.
While the UK Supreme Court did cite cases from other jurisdictions, it sometimes noted that they occurred in a "different constitutional context."
In the United States, the constitutional context pits First Amendment rights of free exercise of religion against Equal Protection rights based on sexual orientation. When the sexual orientation rights of equality have been statutory, the United States Supreme Court has clearly held that the First Amendment interests prevail, as in Boy Scouts of America v. Dale (2000) and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995). However, with the constitutional recognition afforded same-sex marriage last term in United States v. Windsor under the equal protection component of the Fifth Amendment in the challenge to DOMA (Defense of Marriage Act), the legal landscape has altered.
Thus, it may be that the US Supreme Court will soon be confronting an issue quite similar to the one that the UK Supreme Court in Bull v. Hall. One possibility is Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer and in which Elane Photography has filed a petition for writ of certiorari.
Interestingly, the petition relies upon the compelled speech doctrine, arguing that requiring Elane Photography, a wedding photographer to photograph a same-sex wedding would be to require her to "create expressive images" that conveyed messages that conflict with her religious beliefs and therefore violates the First Amendment doctrine of compelled speech. The petition heavily relies upon Wooley v. Maynard (19977) the New Hampshire "leave free or die" license plate case. As Lyle Denniston notes, the case "does not ask the Court to rule on any right of gays and lesbians to marry" and NM presently does not either prohibit or allow same-sex marriage.
Given the US Supreme Court's highly discretionary grant of certiorari and the lack of a developed conflict in the circuits on this issue, it seems more likely than not that the US Supreme Court will refuse to hear Elane Photography. But given the probabilities of recurrence of the issue, the US Supreme Court will most likely be confronting this issue sometime soon.
Thursday, November 7, 2013
Alex Seitz-Wald writes over at The Atlantic that we need a new Constitution, and he has some ideas about how to write it.
Seitz-Wald says that our Constitution is seriously out of step with the best and most recent thinking about constitution-making around the world. Indeed, he writes, "Almost nobody uses the U.S. Constitution as a model--not even Americans." More: our differences don't reflect anything especially unique about the United States. Instead, our Constitution is just, well, old.
It's also short, leaving too many holes. That means that the courts can step in to interpret and apply it, giving judges remarkable power. ("Where modern constitutions in other nations get specific, we get judicial activism.") It also ensures the kind of hyper-partisanship, and resulting government break-down, that has become common in our politics.
In contrast, other, more recent constitutions around the world are long and specific, filling in the holes we left open. They also create institutions that protect against the dangers of hyper-partisanship, and voting and participation rules that increase direct citizenship involvement.
But if ours is old and short, it's also uncommonly hard to change. So Seitz-Wald surveys some familiar proposals (an amendment convention called by the states under Article V) and some not-so-familiar ones (the German Pirate Party's "liquid democracy") to get us going. Whatever the process, Seitz-Wald concludes, "the status quo isn't working. We badly need a more perfect union."