If future Supreme Court decisions involving homosexual rights will be based (partly?) on what the Eur. Ct. H.R. already has held in similar cases (as in Lawrence), allow me to briefly point out what the Eur. Ct. H.R. already has done in the field.
A.D.T. v. United Kingdom: private, consensual adult male homosexual conduct with multiple partners (i.e., orgy) protected under right to privacy Lustig-Prean & Beckett v. United Kingdom; Smith & Grady v. United Kingdom; Beck, Copp & Bazeley v. United Kingdom; Perkins & R. v. United Kingdom: investigation into homosexual military personnel's private sexual conduct and expulsion from military on basis of homosexuality held violative of right to privacy L. & V. v. Austria: S.L. v. Austria: Criminalization of private male homosexual conduct held violative of right against discrimination in light of non-criminalization of sexual conduct by lesbians and heterosexuals of same age DaSilva Mouta v. Portugal: Removal of child from gay father solely on basis of his homosexuality found violative of right against discrimination. There also is abundant ECHR case law on the rights of transgendered folks that is more complicated and evolving. Francisco Forrest Martin President Rights International, The Center for International Human Rights Law, Inc. <[EMAIL PROTECTED]> > [Original Message] > From: Marc Poirier <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Date: 7/3/2003 4:25:04 PM > Subject: Re: Progeny of Lawrence > > The Charlotte police force memo described by Professor Schroeder strikes me > as a plausible reading of Lawrence. Lawrence's fundamental rights holding > is arguably limited doctrinally in subtle ways. The privacy right > protected seems to involve personal sexual activity in a context of binary > intimacy, primarily in the home. Among the issues not clearly addressed > are various rights of transgendered/transsexual folk (no sexual activity, > no intimacy); a right to casual sex (no intimacy); a right to sex with more > than two people (no binary intimacy); a right to sex for money (no > intimacy); and a right to sex in places not quite so private -- e.g., car, > music festival, woods, beach, sex club, video booth (not physically as > private as a home, no intimacy, perhaps not binary). > > In fact, arrests for engaging in same-sex activity in people's houses under > the sodomy statues that Lawrence are invalidated has been rare. Many more > people (gay men especially) are arrested for sex in public, under lewd > conduct or public indecency or the like. I don't see Lawrence affecting > this situation. > > Let me raise another weird thought about post-Lawrence gay rights > arguments. We might see a flip-flop on the status-conduct distinction. > That is, after Bowers and before Lawrence, GLB advocates in various > contexts argued that even though homosexual sexual activity could be > criminalized, just because an individual said s/he was gay did not permit > anyone to assume that s/he would actually engage in sex. Thus, > discrimination based on status should not be allowed just because Bowers > said conduct could be criminalized. After Lawrence, in which same sex > conduct was held constitutionally protected, at least within certain > parameters, we may see a reversal of strategy. GLB advocates may seek to > link homosexual status explicitly to a presumption of sexual conduct. The > argument would be that discriminating against GLB people is indirectly > burdening a protected constitutional right to sexual activity in private. > > Happy Fourth > > Marc R. Poirier > Professor of Law > Seton Hall University School of Law > One Newark Center > Newark, NJ 07102 > 973-642-8478 > > > > Chris SCHROEDER > <[EMAIL PROTECTED] To: [EMAIL PROTECTED] > .EDU> cc: > Sent by: Discussion Subject: Progeny of Lawrence > list for con law > professors > <[EMAIL PROTECTED] > v.ucla.edu> > > > 07/03/03 03:47 PM > Please respond to > Discussion list for > con law professors > > > > > > > The following has just come to my attention. It is the guts of a memo just > issued to the police force of Charlotte, NC, regarding the implications of > Lawrence v. Texas for the enforcement of North Carolina's crimes against > nature statute. The statute itself is delightfully brief: If any person > shall commit the crime against nature, with mankind or beast, he shall be > punished as a Class I felon. > > Here is the excerpt from the memo issued by police headquarters to the > police officers in Charlotte: > > [Lawrence] draws into question the constitutionality of N.C.G.S. �14-177, > Crime Against Nature. Clearly, the holding in Lawrence prohibits charging > two consenting adults who are engaging in a crime against nature within a > private residence with the above charge. However, the case did not > directly address the solicitation of a crime against nature > (SOLCAN).<?xml:namespace prefix = o ns > = "urn:schemas-microsoft-com:office:office" /> > > For the time being and until a court tells us otherwise, we are of the > following opinion: 1.) a SOLCAN charge wherein a subject offers to commit a > crime against nature for money in either a private or public place is a > valid charge; 2.) a SOLCAN charge wherein the subject offers to commit a > crime against nature for no money in public or at an unspecified location > is a valid charge; and 3.) a SOLCAN charge wherein the subject offers to > commit a crime against nature for no money or consideration at a private > place is no longer a valid charge. > > We have spoken with the D.A.'s office who has agreed to continue to accept > these charges; however, in the event a judge dismisses these cases based on > a different interpretation, we may have to discontinue filing some or all > SOLCAN charges. > > Officers should still charge individuals with felony crime against nature > if persons are observed engaging in anal or oral sex in a public place, > such as a park or a restroom. > > ***** > > Any thoughts?
