Diritto Pubblico Comparato ed Europeo

Sommario

1. Dalla Bowers alla Lawrence: storia di un overruling. – 2. La tradizione liberal nell’interpretazione del quattordicesimo emendamento e la sentenza Lawrence. – 3. Il “new judicial federalism” nella protezione della libertà sessuale degli omosessuali da parte delle corti statali.

Abstract

Lawrence c. Texas, the recent decision taken by the U.S. Supreme Court, casts an interesting light both on the constitutional rights of homosexuals and on a particular kind of dialogue currently experienced in the American jurisdictional system under the so-called “new judicial federalism”. In the first place, it’s the first time that the federal Supreme Court recognizes a constitutional guarrantee to the sexual liberty of homosexuals, expressly against one of its precedents, Bowers c. Hardwick – in which it had refused any constitutional protection of the alleged right – finally banning any state sanction still in force against the sodomy. The U.S. Supreme Court eventually joins other foreign jurisdictions cited in the decision (one for all, the European Court of Human Rights) in sharing common values embedded in the general Western civilization. Secondly, this decision is a plain example of the “new judicial federalism”, as many state courts had already acknowledged this kind of liberty under some of the clauses complementary in their own state constitutions: frequently, in fact, they are mere textual correspondent of the federal XIV Amendment, but much more willing than the U.S. Constitution clauses to an extensive interpretation. This shift from state to federal courts in elaborating new meanings of liberty seems to spur a virtuous circle, as – after the Lawrence – the Supreme Judicial Court of the State of Massachusetts declared unconstitutional the lack of state constitutional provisions in favour of the same-sex marriage.