Constitutional Courts and the Rights of Gays and Lesbians - Public Opinion as a Determinant of Court Decisions?
Abstract
21th century's court decisions in human rights issues are based on a comprehensive assessment of many factors - the very letter of the Constitution and of international human rights conventions, subjective worldview of the judges, recent constitutional development in neighboring countries, public opinion etc. In this paper, the authors will examine how the increasing social support of LGBT rights influences decision-making process of courts.
Most relevant cases related to equal marriage and gay adoption will be analyzed - US Supreme Court decision, several verdicts of the European Court of Human Rights and the decisions of the constitutional court of Italy, Austria, Mexico and Colombia. Above that, two countries with significantly negative attitude of the society will be included in the text - Russia and India.
The authors assume that as well as public support is one of the factor bringing the expansion of LGBT rights, the negative attitude of society causes that the constitutional courts declare the constitutionality of laws which would be constitutionally unacceptable by European standards.