Equality, Dignity, and Same-Sex Marriage: A Rights Disagreement in Democratic Societies

Overview

This book investigates the concepts of equality and dignity under same-sex marriage jurisprudence. Having surveyed the multinational developments of same-sex marriage and arguments from proponents and opponents, the author studies the two concepts with an aim to revealing their inadequacies as grounds for contentious rights claims such as same-sex marriage. To truly live up to the spirit of equality and equal dignity, it is argued that the seemingly uncompromising disagreement over the issues requires people to ...

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Overview

This book investigates the concepts of equality and dignity under same-sex marriage jurisprudence. Having surveyed the multinational developments of same-sex marriage and arguments from proponents and opponents, the author studies the two concepts with an aim to revealing their inadequacies as grounds for contentious rights claims such as same-sex marriage. To truly live up to the spirit of equality and equal dignity, it is argued that the seemingly uncompromising disagreement over the issues requires people to explore common ground to make room for deliberation. It also requires the disagreeing parties to acknowledge that their disagreement is about the best interpretation of fundamental values that everyone shares and not about confrontation between conflicting and mutually incomprehensible worldviews.

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Product Details

  • ISBN-13: 9789004179264
  • Publisher: Brill Academic Publishers, Inc.
  • Publication date: 4/6/2010
  • Pages: 264
  • Product dimensions: 6.40 (w) x 9.60 (h) x 0.80 (d)

Meet the Author

Man Yee Karen Lee, Ph.D. (2009) in Laws, University of Hong Kong, is a law lecturer at Hong Kong Shue Yan University. She wrote “Universal Human Dignity: Some Reflections in the Asian Context”, (2008) Asian Journal of Comparative Law: Vol. 3: Iss. 1, Art 10.

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Table of Contents

Acknowledgments xi

List of Cases xiii

Introduction 1

Rights and disagreements 1

Equality, human dignity and rights 3

Equality, human dignity and the disagreement on same-sex marriage 4

The incremental development and the changing rights claims 8

An overview 10

1 Same-Sex Marriage: History, Law, and Disagreements 16

Same-sex marriage: a world survey 16

The European pioneer: Denmark 16

From Denmark to Nordic nations 17

The first same-sex marriage: the Netherlands 18

Belgium joins the Netherlands 20

Spain follows 21

Canada: same-sex marriage arrives in North America 22

United States: a fragmented picture and an uncertain future 25

United Kingdom: an inclusive model of Civil Partnership 32

South Africa: same-sex marriage arrives in Africa 34

Asia-Pacific and beyond: developments continue 36

A sprawling phenomenon 38

The incremental development and the evolving rights claim 40

Same-sex marriage and civil union: the same but different? 43

Pragmatic liberalism and full equality 46

Same-sex marriage under international law 46

The United Nations Human Rights Committee 47

The European Court of Human Rights 48

Why can same-sex marriage be morally controversial? 51

A normative inquiry into same-sex marriage 54

The proponent's case for same-sex marriage 55

The opponent's case against same-sex marriage 62

Conclusion 70

2 The Classic Concept of Equality and the Case for Same-Sex Marriage 73

Equality and same-sex marriage 76

The meaning of equality 82

The problem of equality rhetoric 84

Why formal equality? 86

Why not formal equality? 88

The paradox of formal equality: leveling up or down? 94

Same-sex marriage: leveling up or down? 98

Formal equality and equal rights for gays and lesbians 100

What is being compared? 102

"Conduct-based" equality 102

"Class-based" equality 104

Who is being compared? 107

Why equal? 109

Does "treatment as equals" live up to the commitment to equality? 113

Analysis: does formal equality sustain the claim for same-sex marriage? 116

True equality: deconstructing marriage? 124

Is equality possible? 128

Conclusion 130

3 Human Dignity and Same-Sex Marriage 132

Human dignity in international law and constitutional law 132

The meaning of human dignity 135

The historical and philosophical roots of human dignity 135

Dignity: descriptive or normative? 140

Two concepts of rights 142

Dignity and intrinsic worth 144

Dignity and respect 145

Dignity as a multi-layered concept 148

Dignity in context 154

Some reflections on dignity 157

Dignity and same-sex marriage 159

Conclusion 163

4 Human Dignity and its Role in the Equality Jurisprudence 167

The Canadian way: human dignity and substantive equality 168

Law v Canada: the norm-setting case 173

Dignity and its critics 176

The reasonable person test 178

A divided court: many tales of dignity 179

M v H: impairing vs enhancing dignity 179

Lavoie v Canada: the court split four ways 182

Gosselin v Quebec: who is more disadvantaged? 184

Nova Scotia v Walsh: the capriciousness of dignity impairment 187

What is left for human dignity? 189

Jurisprudential transplant: dignity and equality in South Africa 190

President of the Republic of South Africa & Another v Hugo: where it all begins 193

Harksen v Lane NO & Others: a jurisprudential Legoland? 195

Is dignity still worth defending? 197

Dignity: promises and limitations 200

Nurturing a culture of reason in a deliberative society 204

Deliberative democracy in resolving disagreements on equality and dignity 206

Dignity in same-sex marriage jurisprudence 207

Conclusion 212

Looking Back and Looking Forward 215

Looking back: the progress, moral disagreement and philosophy 215

The world survey 217

The arguments: liberal vs conservative 219

Equality, dignity, and same-sex marriage 221

Equality and same-sex marriage 222

Dignity and same-sex marriage 226

Looking forward: finding common ground? 228

Deliberative democracy and same-sex marriage 232

Deliberation as the discipline of rights 232

Deliberation and equality 234

Deliberation and same-sex marriage 237

Public deliberation in practice 240

A democratic culture, equality, and dignity 243

Bibliography 249

Index 259

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