William & Mary Bill of Rights Journal
Abstract
In this Article, I demonstrate that legal mobilization by activist litigants combined with a comparative methodological jurisprudence has been central to the “transnational legal process” of the generation and diffusion of the sodomy decriminalization norm since the 1950s. My analysis of the transnational comparative jurisprudence relies on a comprehensive legal survey of seven decades of decriminalization jurisprudence (1954–2022), primarily using successful cases. Although the scholarship on the well-known Dudgeon, Toonen, and NCGLE cases often asserts the influence that these cases had on subsequent domestic court constitutional jurisprudence, I suggest that it is the domestic privacy jurisprudence of lobbyists, legislators, claimants, and judges from the United Kingdom and United States in the 1950s through 1970s that shaped the claims-making in Dudgeon and Toonen. Conversely, I argue that the difference between the outcomes in Bowers v. Hardwick and Lawrence v. Texas can be explained in part by developments in transnational equality and human dignity jurisprudence that resulted in a shift from the privacy legal frame to the equality and human dignity legal frame and a shift from a spatial conception of privacy to a decisional (personal choice) conception of privacy. Additionally, I move beyond scholarship centered on European and U.S. case law to include the jurisprudence from the Global South (2005 to present) that, to my knowledge, has yet to be analyzed systematically and comparatively. My Article is among the first to analyze the five landmark decriminalization cases decided in 2022, and one of the few that discusses judicialized sodomy decriminalization in transnational and comparative constitutional perspective.
This inquiry is retrospective: how has legal mobilization and comparative methodological jurisprudence contributed to understandings of sexual freedom and the justifications for sexual freedom? But it is prospective as well. Sixty-six countries retain sodomy prohibitions; will the sodomy decriminalization trend continue, and if so, what role(s) will legal mobilizations play? There is also the question of backlash and retrenchment—whether homosexual conduct will be recriminalized in jurisdictions that have decriminalized. In 2022, in Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas essentially invited reactionary and regressive forces in society to bring to the U.S. Supreme Court cases that would overturn Griswold v. Connecticut and its progeny in the LGBTQ rights space—Lawrence and Obergefell v. Hodges. I recommend activists and their allies begin the work of upholding Griswold, Lawrence, and Obergefell by exploring not only U.S. domestic jurisprudence but also transnational jurisprudence—in international human rights law and comparative constitutional law—to support the continued legalization of adult, consensual, same-sex sexual conduct and same-sex marriage.