Legal Path Dependence and the Long Arm of the Religious State

Udi Sommer, Victor Asal

Description

Bringing together theoretical perspectives from both comparative politics and public law, this book examines the reasons why certain countries criminalize same-sex activities while others have carved into law the requirement that sexual minority communities be protected. The authors break new ground by using cross-national yearly data over decades—focusing on sodomy laws, death penalty provisions for same-sex sexual relations, and sexual discrimination practices—to develop a Gay Rights Index comparing treatment of such groups in various parts of the world. The book includes legal and large-N analyses, historical examples, and case studies underscoring important changes and key trends during the last several decades. Also highlighted are the significant human rights violations still being committed in various parts of the world against sexual minorities, and the continuing role religion plays.
List of Figures
List of Tables
Acknowledgments

1. Introduction

2. The History of Sodomy Laws and the Theory of Legal Path Dependence

3. The Religious State and Death Penalty for Sodomy

4. Sodomy Provisions and Their Repeal

5. Equalization of Rights

6. The Gay Rights Index

7. Conclusions

Appendix A: Descriptive Statistics
Appendix B: A Correlation Matrix
Appendix C: Supporting Analyses and Robustness Tests
Appendix D: Supporting Analyses and Robustness Tests
Appendix E: Supporting Analyses and Robustness Tests
Appendix F: Illustrations

Notes
References
Index

Sujets

• Comparative politics

Informations

• Publié par: State University of New York Press
• Date de parution: 12 octobre 2016
• Nombre de lectures: 0
• EAN13: 9781438463254
• Langue: English

Extrait

LEGAL PATH DEPENDENCE and the LONG ARM of the RELIGIOUS STATE
LEGAL PATH DEPENDENCE and the LONG ARM of the RELIGIOUS STATE
Sodomy Provisions and Gay Rights across Nations and over Time
VICTOR ASAL AND UDI SOMMER
Both authors contributed equally to this work and their names appear in alphabetical order.
Published by State University of New York Press, Albany
© 2016 State University of New York
All rights reserved
Printed in the United States of America
No part of this book may be used or reproduced in any manner whatsoever without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise without the prior permission in writing of the publisher.
For information, contact State University of New York Press, Albany, NY www.sunypress.edu
Production, Jenn Bennett Marketing, Fran Keneston
Library of Congress Cataloging-in-Publication Data
Names: Asal, Victor, author. | Sommer, Udi, author.
Title: Legal path dependence and the long arm of the religious state : sodomy provisions and gay rights across nations and over time / Victor Asal and Udi Sommer.
Description: Albany, NY : State University of New York Press, 2016. | Includes bibliographical references and index.
Identifiers: LCCN 2016007708 (print) | LCCN 2016007838 (ebook) | ISBN 9781438463230 (hardcover : alk. paper) | ISBN 9781438463254 (e-book)
Subjects: LCSH: Gays—Legal status, laws, etc. | Homosexuality—Law and legislation. | Homosexuality—Religious aspects. | Gay rights.
Classification: LCC K3242.3 .A83 2016 (print) | LCC K3242.3 (ebook) | DDC 345/.02536—dc 3
LC record available at http://lccn.loc.gov/2016007708
10 9 8 7 6 5 4 3 2 1
The history of the past is but one long struggle upward to equality.
—Elizabeth Cady Stanton
We will never have true civilization until we have learned to recognize the rights of others.
— Will Rogers
CONTENTS
List of Figures
List of Tables
Acknowledgments
Chapter 1: Introduction
Chapter 2: The History of Sodomy Laws and the Theory of Legal Path Dependence
Chapter 3: The Religious State and Death Penalty for Sodomy
Chapter 4: Sodomy Provisions and Their Repeal
Chapter 5: Equalization of Rights
Chapter 6: The Gay Rights Index
Chapter 7: Conclusions
Appendix A: Descriptive Statistics
Appendix B: A Correlation Matrix
Appendix C: Supporting Analyses and Robustness Tests
Appendix D: Supporting Analyses and Robustness Tests
Appendix E: Supporting Analyses and Robustness Tests
Appendix F: Illustrations
Notes
References
Index
FIGURES
Figure 1.1. Distribution of Sodomy Laws around the World and over Time (1975–2005)
Figure 1.2. Number of Countries Legalizing Homosexual Relations
Figure 5.1. Distribution of Sodomy Laws around the World and over Time (1975–2005)
Figure 6.1. Distribution of Gay Rights around the World and over Time (1975–2005)
Figure 6.2. Distribution of Levels of Gay Rights
Figure 6.3. Variation in Gay Rights in Different World Regions (Percent of countries in Region with GRI Score)
Figure 6.4. Criminalization and Legal Equality (Change over Time)
Figure 6.5. Variation in Levels of Legal Protection for Gays (Change over Time)
Figure 6.6. Protection of Women under International Law (CEDAW) and Level of Protection for Gay Rights
Figure 6.7. GDP Per Capita and Levels of Protection for Gays
Figure 6.8. Democratic Conditions and Variation in Legal Protection for Gays
TABLES
Table 1.1. The Types of States in the Dataset (1970–2008)
Table 3.1. Variables and Data Sources
Table 3.2. Results of the Selection Model
Table 4.1. Analyses of the Predictors of Repeal of Sodomy Laws (GEE Models)
Table 4.2. Analyses of the Predictors of Repeal of Sodomy Laws (1990–2003)—with Alternative Measures for the Effects of Religion
Table 4.3. Institutional Contexts of Sodomy Provisions (1972–2008)
Table 4.4. Repeal of Sodomy Provisions via Judicial and Non-judicial Institutions
Table 4.5. Multinomial Logistic Regression Model: Analyses of Repeal of Laws Criminalizing Same-Sex Sex (1972–2002)
Table 5.1. Analyses of the Predictors of Prohibitions on Legal Discrimination
Table 6.1. Analyses of the Predictors of Gay Rights Index (Ordered Logistic Regression Models)
Table 6.2. Analyses of the Predictors of Gay Rights Index (GEE Models)
Table 6.3. Predicted Probabilities
ACKNOWLEDGEMENTS
Udi: I am indebted to many who supported me over the years it took to write this book. Risking the possibility of missing some, I would like to take this opportunity to thank those individuals and organizations by name. First, I’d like to thank my coauthor, Professor Victor Asal of the University at Albany, State University of New York. It has been a pleasure working with such a prolific scholar over the years, and this book is the culmination of collaborative work of nearly five years. In addition, I would like to acknowledge my research team: Maayan Ravid, Adi Grady, Oren Regev, Elliot Talbert-Goldstein, David Bimbat, and Tom Gur. Their work in data collection, compilation, and visualization was vital. Funding support has been invaluable in making this project possible. I would like to thank the Marie Curie Grant for their support. Additionally, two internal grants at Tel Aviv University supported some of the research assistance necessary for this project.
At SUNY Press I have benefitted from the enthusiasm, efficiency, and wit of Michael Rinella. The reviews of the manuscript by anonymous readers were astute, constructive, and extremely useful. This book will, I hope, live up to their recommendations, and it was surely improved thanks to their efforts. Earlier versions of some of the analyses in this book appeared in various conference papers as well as in the Comparative Political Studies piece “Original Sin” and in the Law and Society Review article “Institutional Paths to Policy Change.” I am grateful to the editors and the reviewers at the journals for their invaluable help and insightful comments. Likewise, elements in the GRI index presented in Chapter 6 appeared in an article in International Political Science Review . I would like to thank the editor and the reviewers for their help and comments.
My colleagues were a source of support and inspiration and, when necessary, had the critical perspective that allowed me to refine and improve my work both at Rockefeller College of Public Affairs and Policy at the University at Albany, State University of New York and at the political science department at Tel Aviv University. In particular, I would like to thank Julie Novkov, David Rousseau, Sally Friedman, Anne Hildreth, Rey Koslowski, Peter Breiner, Azar Gat, Yossi Shain, Michal Shamir, and Yael Shomer. I would also like to thank the Royal Norwegian Embassy in Israel, the Norwegian Ambassador, and Mr. Henrik Width for the Norwegian-Israeli Research Grant in the Social Sciences, which supported the presentation of parts of this research at the World Conference on Constitutional Law at the Department of Public and International Law at the University of Oslo.
I am deeply grateful to my parents, Pnina and Zvi Sommer, for their support of various sorts. I am indebted to Yael (Jane) Yahil, who bigheartedly adopted us as if we were her own. Stan and Iris Salomon are our closest relatives in America. Their kindheartedness and material and moral support were crucial. Our friends Michal(s), Idan, Guy, Dana, Ron, Hila, Kelly, Daniel, Ayala, and close family Amity, Amnon, and Olga all gave me the supportive community I so vitally needed when working on this book. Without my three kids, Talia, Ori, and Inbal, this project would probably have been much easier but then again utterly unimaginable. Last but certainly not least, I would like to thank Michali, the love of my life. Without her this would not have been possible.
Victor: I would like to thank my coauthor Udi Sommer who has shown admirable patience with me over the course of years. I would like to thank Michael Rinella and the team at SUNY Press without whom this book would not exist. I would like also to thank my family, Nadav, Gilad, and Barbara for their support. Finally, I would like to thank my parents, Ruth Asal and Tsvi Asal (Z”L), who worked hard to instill in me the belief that everyone should be treated fairly and that prejudice is never okay.
1
I NTRODUCTION
I n 1998, while responding to a report of a shooting in a private dwelling, the Houston police entered the apartment of John Lawrence. Upon entering the residence, the Texan policemen found Mr. Lawrence, an adult man, engaging in consensual homosexual sex with another adult male by the name of Tyron Garner. Lawrence and Garner were arrested and convicted on charges of violating a legal ban on sodomy in the state of Texas. The state court of appeals upheld the provision, prohibiting two adults of the same sex from engaging in certain sexual acts. The Texas court used a 1986 decision of the United States Supreme Court, Bowers v. Hardwick (478 U.S. 186) as controlling precedent. In Bowers , the court had recognized the constitutionality of prohibitions on same-sex sexual relations, which in some states had been in place for centuries. However, when the United States Supreme Court later reviewed Lawrence v. Texas (539 U.S. 558) in 2003, the justices handed down a 6 to 3 decision, not only reversing the decision of the state court but also overruling their own court’s precedent in Bowers . The res