domingo, 11 de agosto de 2013

Backlash nos Estados Unidos e India

Comparando India e Estados Unidos na questão do mesmo sexo. A solução indiana é um tratamento holitistico. No caso americano "Lawrence" nos seus dez anos agora não teve tratatamento de paridade. O holistico evita o backlash (a rejeição pela sociedade)

> ///////////////////////////////////////////
> The Liberty-Equality Debate: Comparing the Lawrence and Naz Foundation
> Rulings
> Posted: 07 Aug 2013 10:03 PM PDT
> Cross-posted with  permission from the Oxford Human Rights Hub Blog.
> Ajey Sangai, Research Associate, Jindal Global Law School
> Last month marked the 10-year anniversary of Lawrence v. Texas, where the
> United States Supreme Court ruled that laws that criminalized sodomy were
> unconstitutional. Like June 26 2013, June 26 2003, was also a historic
> day
> for the LGBT rights movement. For many LGBT rights activists, Lawrence was
> their Brown, the historic civil rights case that found racial segregation
> in United States public schools unconstitutional. The significance of
> the Lawrence ruling, however, is not restricted to the United States.
> In this post, I shall reflect on Lawrence’s conclusions and compare it
> with
> the approach taken in the Naz Foundation case (decided by the High Court
> of
> Delhi, India which decriminalized consensual sex between homosexual
> partners). In comparing these two rulings, I examine the interpretation of
> liberty and equality provisions found in the United States and Indian
> Constitutions.
> In Lawrence, the majority opinion of the Court invalidated the prohibition
> on homosexual intercourse using the Constitution’s Due Process Clause
> predicated on liberty, but did not engage with equal protection
> claims. Catherine Mackinnon argues that the majority’s singular
> reliance on
> due process indicates that empty formalism of legal equality… is the
> limit
> of equal protection’s visible horizon.
> Conversely, Justice O’Connor held the law ultra vires the Equal
> Protection
> Clause’ as it [branded] one class of persons as criminal based solely on
> the State’s moral disapproval of that class and the conduct associated
> with
> [it]. Â Because the Court approached liberty and equality as isolated
> values, I shall call its ruling a detached view.
> An example of a different approach, where liberty and equality are seen as
> integrated, rather than detached concepts, is evident in Naz. In Naz the
> High Court gave an integrated reading of Articles 14 (equality), 19 (free
> speech, association, etc.) and 21 (life and personal liberty) of the
> Indian
> Constitution, bringing, in a sense, due process and equal protection
> together. It looked at the criminalization of sodomy from different optics
> including dignity, privacy, liberty and equality. By holding that the
> legislation interfering with liberty ought to satisfy the demands of
> fairness, reasonableness, and proportionality, Naz, like the majority
> opinion in Lawrence, relies on due process.
> Yet it proceeds further to integrate it with a substantive conception of
> equal protection. It notes that anti-sodomy laws inevitably target the
> homosexual identity branding them criminals and causing pervasive
> prejudice
> leading to their marginalization and persecution. These laws force LGBT
> individuals to conceal their identities and pass as heterosexual persons.
> The fear of violence pushes them underground’ and also dissuades them
> from
> accessing AIDS prevention material and treatment. This, the Court noted,
> makes homosexual persons more vulnerable to, inter alia, AIDS than their
> heterosexual counterparts. These are systemic issues where infringement of
> liberty and denial of equality are intimately connected. Here the
> integrated approach of Naz seems more suitable than the detached one in
> Lawrence.
> At a deeper level though, it remains under-appreciated by both the United
> States and Indian Courts that inequality here pertains to
> heteronormativity
> which presumes heterosexuality as normal: and homosexual relations as
> immoral and deviant. The expectations this ideology entails mean that
> inequality exists not merely in individual relations but also permeates
> social institutions and systems. Justice Scalia in Lawrence observes that
> legalizing homosexual intercourse is not limited to sexual relations but
> extends to the organization of family and family law including marriage,
> adoption and inheritance laws. The recent Windsor ruling, interestingly,
> at
> several places, integrates liberty and equality (see pp. 20, 21, 25).
> However, given the constraints of federalism, it is unclear if it would
> benefit LGBT people living in states that have not recognized same-sex
> marriages.
> The inequality of power that manifests in LGBT persons’ inability to
> determine or change the organizing principles of society (for example,
> marriage and family) by exercising one’s autonomy, strikes at both
> issues
> of access and opportunity. In the context of structural and systemic
> discrimination, taking a detached view of liberty and equality at best
> yields incremental gains. A multi-focal and integrated view that questions
> the organizing principles and supporting legal and social structures seems
> a more holistic judicial strategy.
> Suggested Citation: Ajey Sangai, The Liberty-Equality Debate: Comparing
> the
> Lawrence and Naz Foundation Rulings, Intl J. Const. L. Blog, August 9,
> 2013, available
> at:Â


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