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Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment: Oxford Comparative Constitutionalism

Autor Rehan Abeyratne
en Limba Engleză Hardback – 24 apr 2025
Over the past two decades, liberal constitutionalism has been in decline. Yet some courts - including the U.S. Supreme Court, the Supreme Court of India, and the Hong Kong Court of Final Appeal - have continued to progressively realize the rights of lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons. How can the seeming paradox of LGBTQ+ rights advancement amid liberal constitutional regression be understood? And what, in turn, does that tell us about the state of liberal constitutionalism and rights adjudication?Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment addresses these questions by exploring rights adjudication within the broader context of declining liberal constitutionalism within the U.S., India, and Hong Kong. By analysing landmark LGBTQ+ rights judgments and topical case studies in increasingly challenging political and institutional contexts, this book provides detailed, qualitative accounts of constitutionalism in these jurisdictions over the past two decades. Progressive and original, this book explores how courts often use LGBTQ+ rights to demonstrate their rhetorical commitment to liberal and global constitutionalism, even as their judgments may fall short of, or even undermine, those ideals.
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Specificații

ISBN-13: 9780198888277
ISBN-10: 0198888279
Pagini: 288
Dimensiuni: 156 x 234 mm
Editura: OUP OXFORD
Colecția OUP Oxford
Seria Oxford Comparative Constitutionalism

Locul publicării:Oxford, United Kingdom

Recenzii

With this book, Abeyratne establishes himself as an indispensable voice in comparative constitutional law - enriching the field's methodology and debates equally.
This is an excellent, timely book that critically engages with LGBTQ+ rights, courtrooms, and the rise of reactionary forces in three societies. The book critiques the shallow and inconsistent commitment to LGBTQ+ rights, revealing how judicial strategies increasingly prioritize self-preservation over genuine equality. In doing so, it exposes the complexities of navigating rights in turbulent political climates.
What's the fate of cosmopolitan constitutionalism when populist authoritarians gain political power? Rehan Abeyratne comes up with a nuanced answer based on detailed studies of the judicial enforcement of LGBTQ+ rights in the United States, India, and Hong Kong. Drawing in analyses of particular institutional settings, political developments, and the details of legal doctrine, he argues that these courts have reached an "uneasy truce" with their political regimes in which they continue to take LGBTQ+ rights seriously while tempering their enforcement to preserve the courts' institutional capital both at home and abroad. This book should be of interest to those in the fields of comparative constitutional studies and LGBTQ+ studies.
The expansion of LGBTQI+ rights has been one area of notable progress for the project of transformative constitutionalism in many countries across the globe. Yet in this important new book, Rehan Abeyratne argues that this apparent rights expansion has come with a dark side: it has served to obscure, or at times even legitimate, the parallel retreat by many courts from a role in protecting democracy and the rule of law. This sobering conclusion, which should give pause to constitutional lawyers and scholars alike, demands and deserves wide attention.
This book explores the ways in which courts protect LGBT rights even in times of democratic backsliding. While the protection of rights by courts is associated with liberal democracy, Abeyratne explores how and why do apex courts continue to protect LGBT rights even when liberal democracy is in decline. This will be a fascinating read for students and scholars of LGBT rights as well as anyone interested in comparative constitutional law.
The book is a timely and important contribution. Through the prism of LGBTQ+ rights, it exposes the heterogeneity, complexity, and contingency of judicial protection of liberal rights in polities undergoing liberal retrogression. It is a significant contribution not just to our understanding of the landmark developments on LGBTQ+ rights in recent years, but also to our understanding of the nature of authoritarian legality. The book's insights are of particular relevance at a time of global crisis for liberal constitutionalism.

Notă biografică

Rehan Abeyratne is Professor of Law and Associate Dean at Western Sydney University. He has published widely in the field of comparative constitutionalism on topics including judicial independence, unconstitutional constitutional amendments, economic and social rights, and LGBTQ+ rights. Prior to moving to Australia in 2023, Professor Abeyratne spent six years at The Chinese University of Hong Kong (CUHK) Faculty of Law, where he was the founding Executive Director of the Centre for Comparative and Transnational Law. From 2011-16, Professor Abeyratne taught at Jindal Global Law School in Delhi, India. He holds a Ph.D. from Monash University, a J.D. from Harvard Law School, and a B.A. (Hons.) in Political Science from Brown University.