Equality, Dignity, and Same-Sex Marriage
This book studies the concepts of equality and dignity, and reveals their inadequacies as grounds for same-sex marriage. It argues that the moral disagreement involved entails finding common ground for deliberation between parties who share fundamental va About 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...
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This book studies the concepts of equality and dignity, and reveals their inadequacies as grounds for same-sex marriage. It argues that the moral disagreement involved entails finding common ground for deliberation between parties who share fundamental values as fellow rights-holders.
Acknowledgments xiList of Cases xiiiIntroduction 1Rights and disagreements 1Equality, human dignity and rights 3Equality, human dignity and the disagreement on same-sex marriage 4The incremental development and the changing rights claims 8An overview 101 Same-Sex Marriage: History, Law, and Disagreements 16Same-sex marriage: a world survey 16The European pioneer: Denmark 16From Denmark to Nordic nations 17The first same-sex marriage: the Netherlands 18Belgium joins the Netherlands 20Spain follows 21Canada: same-sex marriage arrives in North America 22United States: a fragmented picture and an uncertain future 25United Kingdom: an inclusive model of Civil Partnership 32South Africa: same-sex marriage arrives in Africa 34Asia-Pacific and beyond: developments continue 36A sprawling phenomenon 38The incremental development and the evolving rights claim 40Same-sex marriage and civil union: the same but different? 43Pragmatic liberalism and full equality 46Same-sex marriage under international law 46The United Nations Human Rights Committee 47The European Court of Human Rights 48Why can same-sex marriage be morally controversial? 51A normative inquiry into same-sex marriage 54The proponent's case for same-sex marriage 55The opponent's case against same-sex marriage 62Conclusion 702 The Classic Concept of Equality and the Case for Same-Sex Marriage 73Equality and same-sex marriage 76The meaning of equality 82The problem of equality rhetoric 84Why formal equality? 86Why not formal equality? 88The paradox of formal equality: leveling up or down? 94Same-sex marriage: leveling up or down? 98Formal equality and equal rights for gays and lesbians 100What is being compared? 102"Conduct-based" equality 102"Class-based" equality 104Who is being compared? 107Why equal? 109Does "treatment as equals" live up to the commitment to equality? 113Analysis: does formal equality sustain the claim for same-sex marriage? 116True equality: deconstructing marriage? 124Is equality possible? 128Conclusion 1303 Human Dignity and Same-Sex Marriage 132Human dignity in international law and constitutional law 132The meaning of human dignity 135The historical and philosophical roots of human dignity 135Dignity: descriptive or normative? 140Two concepts of rights 142Dignity and intrinsic worth 144Dignity and respect 145Dignity as a multi-layered concept 148Dignity in context 154Some reflections on dignity 157Dignity and same-sex marriage 159Conclusion 1634 Human Dignity and its Role in the Equality Jurisprudence 167The Canadian way: human dignity and substantive equality 168Law v Canada: the norm-setting case 173Dignity and its critics 176The reasonable person test 178A divided court: many tales of dignity 179M v H: impairing vs enhancing dignity 179Lavoie v Canada: the court split four ways 182Gosselin v Quebec: who is more disadvantaged? 184Nova Scotia v Walsh: the capriciousness of dignity impairment 187What is left for human dignity? 189Jurisprudential transplant: dignity and equality in South Africa 190President of the Republic of South Africa & Another v Hugo: where it all begins 193Harksen v Lane NO & Others: a jurisprudential Legoland? 195Is dignity still worth defending? 197Dignity: promises and limitations 200Nurturing a culture of reason in a deliberative society 204Deliberative democracy in resolving disagreements on equality and dignity 206Dignity in same-sex marriage jurisprudence 207Conclusion 212Looking Back and Looking Forward 215Looking back: the progress, moral disagreement and philosophy 215The world survey 217The arguments: liberal vs conservative 219Equality, dignity, and same-sex marriage 221Equality and same-sex marriage 222Dignity and same-sex marriage 226Looking forward: finding common ground? 228Deliberative democracy and same-sex marriage 232Deliberation as the discipline of rights 232Deliberation and equality 234Deliberation and same-sex marriage 237Public deliberation in practice 240A democratic culture, equality, and dignity 243Bibliography 249Index 259
