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Abstract:
This short Essay represents an attempt to encourage all participants in the same-sex marriage debate to engage in new thinking, new alliances, and new tactics. By critically examining the California and Connecticut Supreme Courts’ recent un-empirical and under-theorized claims as to gay and lesbian dignity, I aim to strip away the veneer of obviousness that attaches to presently popular (if unexamined) gay and lesbian dignity claims. In doing so, I argue that these dignity claims neither necessarily win the battle for same-sex marriage, nor necessarily result in the best legal situation for gay and lesbian people, with their distinct needs, expectations, and desires with respect to family law. My project then is a homo-philic one that is interested in gay and lesbian dignity, but finds it in places other than majoritarian marriage.

same-sex marriage, dignity, legal pluralism, agency, gay, lesbian, personal law, India

Abstract:
This article explores Pakistan's Shariat judicial system's understanding of what is required by a constitutional and legal system, in order for that system to be considered Islamic. In the main part of this article, I present some of the Pakistani Shariat judicial system's landmark cases, interpreting them and demonstrating how they build and structure the Islamic system of constitutional and legal governance that I believe they do. As I argue, these cases emphasize the importance of Muslim community consensus in determining those laws which will be enforced by an Islamic legal system.

This article adds to the literature on Islamic law in a couple of different ways. First of all, most theories of Islamic constitutionalism root themselves in the exegesis and discussion of Islamic religious texts and precedents. My argument, however, emphasizes the importance of extant political realities - in particular, the Muslim sectarian divide in Pakistan - in contemporary discussions of Islamic constitutionalism.

Moreover, in the concluding section of my article, I compare Pakistan's approach to defining Islamic law and constitutionalism with India's approach. India, as I argue, has emphasized a more top-down, state-led approach to defining Islam. While this has often resulted in admirably progressive interpretations of Islamic law, I argue that Pakistan's approach - one that is more of a community-led, bottom-up approach - is likely to be needed as well, if Islamic legal reform is to be a sustainable and peaceful enterprise.

Pakistan, Islam, India

Abstract:
In this piece, I draw upon Indian and other comparative legal experience to argue that the present U.S. system of territorial federalism resonates deeply with those systems of personal law that are commonly found around the world. Under a personal law system, a state enforces different laws for each of the state's different religious or ethnic communities - which is one reason such systems have been so heavily interrogated by U.N. and other international organisations for their human rights implications. Similarly, as well, U.S. First Amendment jurisprudence has frowned upon the carving out of religious-group exceptions to generally-applicable law. That being said, the U.S. Supreme Court has also recently given renewed emphasis to state sovereignty and other federal values. As this piece argues, what results from this worship of federalism is a truly American-style personal law system, where territorial communities have taken the place of other personal law systems' religious and ethnic communal constituencies. This being the case, I conclude by questioning recent innovations in American constitutional jurisprudence which devalue religious pluralism, while simultaneously elevating territorial communalism.

federalism, personal law, India, territory, religion, minorities

Abstract:
In this article, I offer both a critique of and alternatives to a recent proposal by Brazil to the United Nations Commission on Human Rights (UNCHR) concerning sexual orientation persecution and discrimination.

I begin my argument by demonstrating, as in the case of Egypt, how state persecution of gays, lesbians, and homosexuals around the globe is often steeped in claims of religiosity. I then go on to demonstrate, as well, that while it is certainly true that some homosexuals want to identify as gay, some do not wish to so identify. Moreover, some who do so identify don't necessarily understand gay as first and foremost a sexual identity at every point in time (if ever at all). For this latter set of persons, their gayness or homosexuality is deeply interwoven with personal experiences and understandings of religion. Accordingly, when such homo-sectuals - to use a neologism - are persecuted, they understand this persecution as religious persecution. Thus, as formulated and understood by many governments and persons - but not, as I argue, by enough international human rights activists - persecution of the sexual can often actually be persecution of the religious.

Given this reality, and using a subsequent discussion of a related set of religious and sexual politics in India, I demonstrate how international human rights norms and practices can and should do a better job of respecting persons' diverse self-identifications and self-understandings. These international norms and practices can demonstrate such respect, I argue, by more seriously deploying existing human rights protections concerning religious persecution and discrimination, instead of insisting that the forms of persecution and discrimination discussed in this article must now be understood as sexual for all people, no matter where located. The particular international human rights norms and practices whose reform I discuss in this respect are those which deal with states' persecutory anti-sodomy laws, as well as those which concern international law's treatment of the gay refugee.

Sexuality, religion, Islam, human rights, Egypt, India