Jan Kozubík, Jan Wintr
Author’s affiliation: Faculty of Social Sciences, Charles University in Prague / Faculty of Law, Charles University in Prague

Constitutional Courts and the Rights of Gays and Lesbians - Public Opinion as a Determinant of Court Decisions?

Jurisprudence 5/2016 Section: Articles Page: 34-47

Keywords: human rights, LGBT, gay, public opinion, constitutional court, ECHR

Abstract: 21st-century court decisions in human rights issues are based on a comprehensive assessment of many factors - the very letter of the Constitution and international human rights conventions, subjective worldview of the judges, recent constitutional development in neighbouring countries, public opinion, etc. In this paper, the authors will examine how the increasing social support of LGBT rights influences the decision-making process of courts. Most relevant cases related to equal marriage and gay adoption will be analyzed - US Supreme Court decision, several verdicts of the European Court of Human Rights and the decisions of the constitutional court of Italy, Austria, Mexico and Colombia. Above that, two countries with a significantly negative attitude of the society will be included in the text - Russia and India. The authors assume that as well as public support is one of the factors bringing the expansion of LGBT rights, the negative attitude of society causes that the constitutional courts declare the constitutionality of laws which would be constitutionally unacceptable by European standards.