Equality in the UK

Last week, the Supreme Court of the United Kingdom (prior post) issued a unanimous judgment extending protection to gay asylum seekers who would be required to conceal their sexual orientation if returned to their home country.
Though sexual orientation has long been recognized as a ground for asylum in the United States, LGBT asylum seekers have not fared as well in the UK. Indeed, the UK Home Office had made a practice of telling gay asylum seekers to go back to their home country and keep their sexuality private.
The UK Supreme Court decision rejected the case law upon which this policy was based (the "reasonably tolerable" test), finding that an asylum seeker "cannot and must not be expected to conceal aspects of his sexual orientation which he may be unwilling to conceal, even from those whom he knows may disapprove of it" -- and even where the adjudicator finds this refusal to conceal unreasonable.
Home Secretary Theresa May (right) welcomed the ruling, noting that the government had already promised to stop deporting gay asylum seekers, and that the Home Office will reframe its guidance on sexual orientation claims based on the decision.
The trend is promising, but there's still much work to be done educating asylum decisionmakers from the UK Border Agency.
A report issued earlier this year by the gay rights charity Stonewall found that Border Agency staff often dismissed gay applicants if they were not immediately open about their sexual orientation, did not engage consistently and exclusively in same-sex sexual activity, or had not participated openly in explicit homosexual activity. Breaking down these and other stereotypes about LGBT asylum seekers will require comprehensive ongoing training of and guidance for asylum adjudicators. Ending assumptions that LGBT people can be safe in their home country if they "hide" their sexual orientation is only the first step in ensuring equality in the UK asylum system.

Path to adoption eased in Europe

By a 10-7 margin the Grand Chamber of the European Court of Human Rights has ruled that France's refusal to permit a lesbian from adopting a child violated Europe's Convention on Human Rights.
E.B., a teacher in France's national nursery school system, had been in a longterm relationship with R, a psychologist. After the Conseil d'Etat refused to grant E.B. an authorization to adopt -- France reasoned that the child would suffer from lack of a "paternal referent," E.B. sought relief from the ECHR.
The Court ordered France to pay E.B. 10,000€ plus 14,528€ for court costs, finding violations of 2 provisions of the Convention, which is binding on all 47 member states of the Council of Europe:
► Article 8, freedom of interference with private and family life. On this, the Court wrote in ¶ 43 (citations omitted) that it had

previously held that the notion of “private life” ... is a broad concept which encompasses, inter alia, the right to establish and develop relationships with other human beings, the right to “personal development” or the right to self-determination as such. It encompasses elements such as names, gender identification, sexual orientation and sexual life, which fall within the personal sphere..., and the right to respect for both the decisions to have and not to have a child.

► Article 14, freedom from discrimination -- this was held to apply even though the provision does not explicitly protect individuals from discrimination on account of sexual orientation.
Voting with the majority in favor of E.B. were Judges: Nicolas Bratza, ECHR Vice President (Britain); Peer Lorenzen (Denmark); Françoise Tulkens (Belgium); Ireneu Cabral Barreto (Portugal); Elisabeth Steiner (Austria); Elisabet Fura-Sandström (Sweden); Egbert Myjer (Netherlands); Dragoljub Popović (Serbia); and Sverre Erik Jebens (Norway). Dissenting were Judges: Jean-Paul Costa, ECHR President (France); Boštjan Zupančič (Slovenia); Loukis Loucaides (Cyprus); Antonella Mularoni (San Marino); Riza Türmen (Turkey); Mindia Ugrekhelidze (Georgia); and Danutė Jočienė (Lithuania).
Even as a spokesman for France's Association of Gay and Lesbian Parents (logo on balloon in photo) rejoiced that "'homosexuals would no longer have to hide themselves in order to adopt,'" gays and lesbians in Belgium warned against premature celebration. Le Monde reported: "Their reservations can be explained by a stark observation: in their country, where homosexuals have not only the right to marry but also, since May 2006, to adopt, not one couple has managed to open a file for international adoption. Belgium's 2006 law, they said, is an "'empty vessel.'"

On October 7, ...

... 1942 (65 years ago today), U.S. President Franklin Delano Roosevelt announced that once World War II came to an end, the United States would work with Britain and other countries to assure "that the 'war criminals' who had been guilty of barbarism against the civilian populations in enemy occupied countries be surrendered to the United Nations for punishment." The statement foreshadowed the International Military Tribunals that would be convened years later at Nuremberg and Tokyo.
... 1937 (70 years ago today), Maria Szyszkowska (left) was born in Warsaw, Poland. A member of Poland's Senate as well as an academic and author, she opposes Poland's participation in the Iraq War. She also has championed the rights of gay men and lesbians by inter alia introducing legislation aimed at recognizing civil unions for same-sex couples.

Pretty in Pink

Scholars of constitutional and comparative law know well the story told by U.S. Justice Anthony M. Kennedy in Lawrence v. Texas (2003): in Bowers v. Hardwick (1986), then-Chief Justice Warren E. Burger was wrong to base his conclusion that the Constitution's Due Process Clause permitted criminal punishment of same-sex intimacy on the premise that such punishment was embedded in "Western civilization." Burger erred, Kennedy wrote, for the simple reason that by 1986 not only Britain, but also the European Court of Human Rights, had outlawed such punishment. Continuance of that trend among Western countries was cited as further support for a similar holding in Lawrence.
Preceding the ECHR's decision in Dudgeon v. United Kingdom (1981) had been a hard-fought battle in Northern Ireland, home to the statute that the Strasbourg Court rejected. Leader of efforts to retain criminal punishment there, notwithstanding abolition in Britain, was a political firebrand of a minister, Ian Paisley, who rallied crowds with this cry: "Save Ulster from Sodomy!"
Paisley remains political, having won the title of 1st Minister of Northern Ireland earlier this year. But he lost the Dudgeon battle: Free Derry Corner, a decades-old landmark, boasts a fresh coat of pink paint in recognition of this month's Pride celebration in Northern Ireland's 2d largest city. And an attempt to revive the old cry brought "thousands" to a Pride march in Belfast, its capital city. (photo by Peter O'Neill)
An aside on comparative constitutionalism: Though it eventually caught up with doings in Britain and Ireland, the U.S. Supreme Court neglected even in 2003 to give precise note to similar efforts by lawmakers elsewhere in Europe. Indeed, as this Le Monde article marking the 25th anniversary of those efforts indicates, France too had taken steps well before Burger put pen to paper in Hardwick.