WDW387 March 13 2012.docx

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University of Toronto St. George
Woodsworth College Courses
William Watson

March 13Lecture 8Same Sex Marriage March1312 1304 PM SameSex Relationship Recognition in Canada and the USA 1 A genealogy of sexual orientation the constitutive effects of law on identity 2 SameSex spousal status in Canada courts and legislatures play pass the buck What is sexual orientation terms invented in the shadow of the law to promote rights claims in liberal contentneutral legal system on analogy with gender invented to seek equality for women without naming the group constitutive power of the law people now feel that sexual orientation is an important even essential inner identity and that it is a universal psychic phenomenon law invented terms before 70s there was no such thing as the idea of sexual orientation homosexual minority straightness as not as identifying of personCanadian Law s15 of Charter can be interpreted to cover analogous groupsno change in text needed for analogous group designation gayslesbians have to be shown to be a discrete and insular minority drawn from US jurisprudence and historically disadvantaged this is a specifically Canadian criterion of jurisprudence USA does not look at historical disadvantage word gender being used in law to cover nondiscrimination of men and women in 1970s effect of laws need for a neutral term sexual orientation is not found anywhere in the Charter of rightssuits against sexual orientation had to try to orient under one of the other groups listed in s15 for protection discrimination as analogous with other prohibited kind of discrimination US Contextracism as paradigm of discrimination US antidiscrimination law came out of Black civil rights race is the only automatically suspect classification for purpose of judicial scrutiny of laws and policieswith race biologically constructed biologization of blackness in US gender classification subjected only to intermediate scrutiny other factors even less protected not a suspect class therefore US gaylesbian rights movement pressured to argue that sexual orientation is immutable inborngender has lower status as race in USA race seen as biological traits so to get anywhere in law must insist sexual orientation is biological what about religious discrimination Cannot really prove that one is born with a certain religion Romer v Evans 1990s ColoradoSexual Orientation as Biologicalmoral majority mobilized nonurban voters frightened by equal rights city ordinances into voting for a state constitutional amendment prohibiting gay rights provisions gaylesbian movement organized to defend existing rights this featured gaylesbian communities not individuals similar to gay pride day recognition cases in Canada question for court is sexual orientation analogous to race If so amendment 2 is not in keeping with US constitution movement slogan gay by nature proud by choice in Romer 1996 SC of US struck down antigay Colorado constitution amendment 2 movement had to prove being gay as same as being black did not directly answer the question of whether sexual orientation and race are analogous Richard Green Sexual Science and the Law argued that sexual orientation is irreversible
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