Judicial Review and Sexual Freedom

Abstract

Sexual freedoms have become a flashpoint for contemporary controversies surrounding judicial review. The power of an often unelected judiciary to declare acts of a usually elected legislature, or even products of direct democracy, void as unconstitutional, is a prominent feature of constitutionalism in the United States and in some, but not all, other constitutional democracies. Yet judicial review continues to be contested in jurisprudence, political discourse, and in judicial decisions themselves.

This article elucidates the mainstream theorizing on judicial review, arguing that it is deficient for three reasons. First, although the debates regarding judicial review refer to sexual freedoms, the theorizing is abstracted from the actual controversies surrounding sexual freedom and often implies that sexual freedom itself is of less consequence than the larger issues at stake. Second, the mainstream jurisprudential debates have mostly failed to incorporate the perspectives of feminist and queer legal theorists, even when such work has been directly relevant. Third, the debates in the United States regarding judicial review often proceed as if the United States is exceptional and sui generis, usually with a reflexive privileging of originalism and historical exegesis.

This article addresses these deficiencies by centralizing the substance of the controversies related to judicial review, by incorporating queer and feminist theorizing, and by considering in depth the disparate approaches to judicial review in three jurisdictions often considered at the forefront of sexual freedom: California, the Netherlands, and South Africa. The conclusion posits principles for theorizing judicial review in constitutional democracies in order to promote sexual freedom.

Keywords: sexuality, lesbian, democracy, constitutional law, judicial review, comparative law