scholarly journals Marriage, Liberty and Constitution: a Corpusassisted Study of Value-Laden Words in Legal Argumentation

2019 ◽  
Vol 17 (1) ◽  
pp. 71-91
Author(s):  
Stanisław Goźdź-Roszkowski
Keyword(s):  
Supreme Court ◽  
Legal Argumentation ◽  
Same Sex ◽  
Same Sex Couples ◽  
First Marriage ◽  
Us Supreme Court ◽  
Original Sense ◽  
Argumentative Strategies ◽  
The Right ◽  
Judicial Argumentation

This paper investigates the interplay between judicial argumentation and evaluative or emotive language identified in two US Supreme Court landmark cases on the right of same-sex couples to marry. The analysis of both majority and dissenting opinions leads to two main observations. First, marriage and liberty are indeed emotive words and they represent two major sites of contention between the concurring and dissenting judges. Second, there are important differences within the argumentative strategies employed by the judges. While (re)defining the concepts remains the major argumentative goal for both types of opinion, the majority opinions tacitly integrate the redefined concept of marriage into their argumentation. It is the dissenting opinions that explicitly raise the issue of (re)definition in order to defend and retain the original sense of marriage.

The Use and Abuse of Definitions in Constitutional Law

ICL Journal ◽  
2015 ◽  
Vol 9 (4) ◽  
Author(s):  
Alec Walen
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Same Sex ◽  
Same Sex Couples ◽  
The Us ◽  
Us Supreme Court ◽  
Constitutional Right ◽  
Definition Of ◽  
The Right ◽  
Constitutional Meaning

AbstractJustice Roberts′s dissent in Obergefell v Hodges - the case in which the US Supreme Court found a constitutional right for same sex couples to marry - rested on the premise the Court cannot invoke the right to marry as a basis for changing the definition of marriage. But his argument works only if the Court has no obligation to find a constitutional meaning for the term. I argue here that it has such an obligation. I argue further that an analogy with the concept of ‘person’ throws light on how that obligation should work. And finally, I argue that the most plausible constitutional definition would include same sex couples.

What Obergefell v. Hodges Should Have Said

2020 ◽  
Keyword(s):  
Social Movement ◽  
Supreme Court ◽  
Constitutional Law ◽  
Gay Rights ◽  
Political Struggle ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
The Social ◽  
The Right

The authors of this book, sitting as a hypothetical Supreme Court, rewrite the famous 2015 opinion in Obergefell v. Hodges, which guaranteed same-sex couples the right to marry. In eleven incisive opinions, the authors offer the best constitutional arguments for and against the right to same-sex marriage, and debate what Obergefell should mean for the future. In addition to serving as Chief Justice of this imaginary court, the book's editor provides a critical introduction to the case. He recounts the story of the gay rights litigation that led to Obergefell, and he explains how courts respond to political mobilizations for new rights claims. The social movement for gay rights and marriage equality is a powerful example of how — through legal imagination and political struggle — arguments once dismissed as “off-the-wall” can later become established in American constitutional law.

‘Marry in Haste …’: The (Partial) Abolition of Same-sex Marriage in Bermuda

2020 ◽  
Vol 20 (1) ◽  
pp. 153-188
Author(s):  
Nicola Barker
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
European Convention ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
European Court ◽  
Legal Context ◽  
The Right ◽  
Court Of Appeal

Abstract In 2018, the British Overseas Territory of Bermuda revoked the right to marry for same-sex couples. In a judgment that reconceives the relationship between sexual orientation and religious freedoms, the Bermuda Supreme Court and Court of Appeal found this revocation to be unconstitutional. I explore the political and legal context in which same-sex marriage was granted and then revoked in Bermuda. I also consider the Bermuda Courts’ judgments in light of the subsequent judgment of the United Kingdom’s Supreme Court in Steinfeld, among others. While there was an assumption from both the Bermuda and United Kingdom Governments that the revocation provision was compatible with the European Convention on Human Rights, I argue that this underestimates the significance of the distinction between declining to recognise a right to same-sex marriage and revoking a right that has already been exercised. While the European Court of Human Rights has not yet found the absence of same-sex marriage to be a violation of Article 12 of the Convention, I argue that the revocation of a right to marry between same-sex couples that had been recognised in accordance with national law changes the terrain on which the Convention arguments would be made.

scholarly journals The influence of judicial practice on the legislation in the sphere of LGBT community rights

2021 ◽  
Vol 55 (3) ◽  
pp. 690-713
Author(s):  
Ana Čović
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
Case Law ◽  
The United States ◽  
Same Sex ◽  
Same Sex Couples ◽  
Lgbt Community ◽  
The Law ◽  
The Right

In the light of the announced adoption of the Law on Same-Sex Unions, the question arises whether the draft law is in accordance with the Constitution, especially after the announcements that the law will not be signed. Although the Constitution specifies that marriage is a union of a man and a woman, experts point out that in this case it is not a law on marriage and family, nor does it provide for the possibility of adoption of children by same-sex couples, but that it regulates property, health, pension and other legal relationships of same-sex partners living in the union. At the same time, many public figures have invited traditional religious communities to react in order to defend the "right to freedom and future of the people", emphasizing that contentious issues related to the regulation of mutual rights and obligations of same-sex couples could be resolved by amending the existing laws in those areas. In the countries where similar laws exist, case law has played a significant role, just as various medical and psychological associations. The European case law is not uniform, and cases often end before the European Court of Human Rights, while in the United States at the federal level, all anti-homosexual laws are repealed by a Supreme Court decision (Lawrence v. Texas, 539 U.S. 558 [2003]). Nevertheless, there is no single law in this area and the rights of same-sex couples vary from country to country. The paper will provide an overview of significant court decisions in this area in European countries, as well as the decisions of the US Supreme Court, which may lead us to think about the possible legal consequences of (non)adoption of the disputed Law on Same-Sex Unions, about procedures that could be initiated if partners decided to request judicial protection for the purpose of recognizing their guaranteed human rights, as well as the content and significance of such court judgments.

Family Formation and Parenthood

2020 ◽  
pp. 220-254
Author(s):  
Claire Fenton-Glynn
Keyword(s):  
Family Life ◽  
Family Formation ◽  
Same Sex ◽  
Same Sex Couples ◽  
New Methods ◽  
New Family ◽  
The Family ◽  
Reproductive Techniques ◽  
The Right ◽  
The Way

This chapter examines the interpretation of ‘family life’ under Article 8 and the way that this has evolved throughout the Court’s history. It contrasts the approach of the Court to ‘family life’ between children and mothers, with ‘family life’ between fathers and children, noting the focus of the Court on function over form. It then turns to the establishment of parenthood, both in terms of maternity and paternity, as well as the right of the child to establish information concerning their origins. Finally, the chapter examines the changing face of the family, considering new family forms, including same-sex couples and transgender parents, as well as new methods of reproduction, such as artificial reproductive techniques and surrogacy.

scholarly journals SAME-SEX MARRIAGE AND THE SAME OLD CONSTITUTION*

2011 ◽  
Vol 14 (2 & 3) ◽  
pp. 2005
Author(s):  
Ronalda Murphy
Keyword(s):  
Supreme Court ◽  
Social Institution ◽  
Supreme Court Of Canada ◽  
Same Sex ◽  
Political Debate ◽  
Same Sex Marriage ◽  
Political Issues ◽  
Same Sex Couples ◽  
The Supreme Court ◽  
Do So

The Reference re Same-Sex Marriage1 is not a major opinion on the rights of same-sex couples in Canada, but it is nonetheless an important and fascinating case. There are only a few lines that are about the “rights” of same-sex couples. Did the Supreme Court of Canada “duck” the issue? Was the Court carefully gauging how much or little political capital it had and making a political decision to say as little as possible on this topic? The Court certainly displayed strategic brilliance, but it did not do so in the name of avoiding the “political” hot topic of same-sex marriage. It is factually difficult to maintain the view that the Supreme Court of Canada is loath to enter into this political debate. It has been the lead social institution in Canada in terms of responding to the claims of gays and lesbians to equality in law,2 and it has never been shy of dealing with topics simply because they involve controversial political issues.3 Rather, the Court’s brilliance lies in its minimalist and almost weary tone. This approach had the effect of taking the wind out of the sails of those opposed to same-sex marriage: the same-sex advocates definitely win the constitutional race, but they do so because according to the Supreme Court, there is no provincial constitutional headwind that can stop them. In short, provinces can complain all they want about the federal position in favour of same-sex marriage, but the wedding will go on despite and over their objections to the ceremony.

The Right to Religious Freedom, with Particular Reference to Same-Sex Marriage

2012 ◽  
Vol 1 (2) ◽  
pp. 147-179
Author(s):  
Michael J. Perry
Keyword(s):  
Religious Freedom ◽  
Same Sex ◽  
Human Right ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
Civil Marriage ◽  
The Right

In this essay, I elaborate and defend the internationally recognized human right to religious freedom. I then pursue the implications of the right for government’s exclusion of same-sex couples from of civil marriage.

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