Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment

Abstract Over the past two decades, liberal constitutionalism has been in decline. Yet some courts—including the U.S. Supreme Court, the Supreme Court of India, and the Hong Kong Court of Final Appeal—have continued to progressively realize the rights of lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons. How can the seeming paradox of LGBTQ+ rights advancement amid liberal constitutional regression be understood? And what, in turn, does that tell us about the state of liberal constitutionalism and rights adjudication? The book addresses these questions by exploring rights adjudication within the broader context of declining liberal constitutionalism within the United States, India, and Hong Kong. By analyzing landmark LGBTQ+ rights judgments and topical case studies in increasingly challenging political and institutional contexts, this book provides detailed, qualitative accounts of constitutionalism in these jurisdictions over the past two decades. The book shows how courts in these three societies have strategically advanced one or both of the following objectives through their LGBTQ+ rights decisions: (1) sustain a progressive rights agenda with minimal political backlash and (2) preserve (what is left) of the judicial reputation for independence and commitment to constitutional rights in response to charges of political capture or silencing. These courts have gradually shifted toward the second objective, using LGBTQ+ rights to demonstrate their rhetorical commitment to liberal and global constitutionalism even as their judgments may fall short of, or even undermine, those ideals.