Monday, August 13, 2007

Pretty in Pink

Scholars of constitutional and comparative law know well the story told by U.S. Justice Anthony M. Kennedy in Lawrence v. Texas (2003): in Bowers v. Hardwick (1986), then-Chief Justice Warren E. Burger was wrong to base his conclusion that the Constitution's Due Process Clause permitted criminal punishment of same-sex intimacy on the premise that such punishment was embedded in "Western civilization." Burger erred, Kennedy wrote, for the simple reason that by 1986 not only Britain, but also the European Court of Human Rights, had outlawed such punishment. Continuance of that trend among Western countries was cited as further support for a similar holding in Lawrence.
Preceding the ECHR's decision in Dudgeon v. United Kingdom (1981) had been a hard-fought battle in Northern Ireland, home to the statute that the Strasbourg Court rejected. Leader of efforts to retain criminal punishment there, notwithstanding abolition in Britain, was a political firebrand of a minister, Ian Paisley, who rallied crowds with this cry: "Save Ulster from Sodomy!"
Paisley remains political, having won the title of 1st Minister of Northern Ireland earlier this year. But he lost the Dudgeon battle: Free Derry Corner, a decades-old landmark, boasts a fresh coat of pink paint in recognition of this month's Pride celebration in Northern Ireland's 2d largest city. And an attempt to revive the old cry brought "thousands" to a Pride march in Belfast, its capital city. (photo by Peter O'Neill)
An aside on comparative constitutionalism: Though it eventually caught up with doings in Britain and Ireland, the U.S. Supreme Court neglected even in 2003 to give precise note to similar efforts by lawmakers elsewhere in Europe. Indeed, as this Le Monde article marking the 25th anniversary of those efforts indicates, France too had taken steps well before Burger put pen to paper in Hardwick.

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