Brenda Cossman

Sexing Citizenship, Privatizing Sex

This paper explores different stories of sexual citizenship found in gay and lesbian rights struggles. It uses two recent cultural productions, Kissing Jessica Stein and Queer as Folk , to analyze the stories of sexual citizenship found in two Supreme Court decisions, M. v. H. , and Little Sisters. The paper deploys these contrasting stories of sexual citizenship, of sameness and difference, assimilation and subversion, to animate a complex reading of the sexing of citizenship and the privatizing of sex. It argues that the modality of sexual citizenship produced by rights struggles has been one in which sexual subjects are privatized, de-eroticized and depoliticized. At the same time, it argues for a more disruptive reading, which unearths the public, the erotic and the politicized subject, as well as the normalizing effect of this more subversive subject.

Gender Performance, Sexual Subjects and International Law

In international law the understanding of gender and its relationship to sex remains fairly traditional. In this essay, I explore the subversive possibilities of feminist criticism of this story for international law.

Migrating Marriages and Comparative Constitutionalism

There are at least three dimensions to migration: actual same sex marriages, cultural representations of these marriages, and constitutional ideas about same sex marriage. And some of these are migrating more than others. In this chapter, I argue that Canadian constitutional ideas about same sex marriage have not been migrating to the United States at least not in terms of explicit judicial borrowings. Rather, because of the association of comparative constitutional law with judicial activism, I suggest that any such migration is likely to be minimal. In fact, Canadian same sex marriage jurisprudence is more likely to occur as a negative or anti-model that is, as an example of a path better not taken. However, the chapter argues that the emerging analysis of the migration of constitutional ideas needs to develop alternative and perhaps more subtle modes of inquiry to capture the ways in which constitutional ideas may be migrating in the absence of explicit judicial borrowings. The migration of same sex marriages and its cultural representations are changing the cultural landscape within which constitutional challenges will occur and constitutional doctrine will develop. I argue that the emerging field of the migration of constitutional ideas, as well as comparative constitutionalism more generally, needs to supplement its doctrinal analysis with the lens of cultural studies that can appreciate the multiple migrations of same sex marriages.

CUSTOMS CENSORSHIP AND THE CHARTER: THE LITTLE SISTERS CASE

Little Sisters Book and Art Emporium is Vancouvers only bookstore specializing in gay and lesbian literature. Little Sisters argued that the provisions of the Customs Act and Customs Tariff that together empower officials to stop obscene representations at the border constitute unreasonable restrictions on freedom of expression and equality rights protected by section 2(b) and section 15 of the Charter. In our view, Justice Smiths findings on the importance of sexual expression to the gay and lesbian community, and on the disproportionate impact of Customs censorship on gay and lesbian materials, ought to have led to the conclusion that the legislation in its effects violates section 15. On the question of whether the violation of section 2(b) was a reasonable limit, we believe that Smith J. ought to have exercised greater caution in assuming that the reasoning in Butler could be extended, without hesitation or problematization, to gay and lesbian, sexual imagery. Many of the publications suppressed by Customs are integral to the cultural and political identity of a disadvantaged and stigmatized sexual minority. Thus their distribution fosters goals that lie at the heart of the Charters protection of expression and equality interests in sections 2(b) and 15, respectively. For this reason, we believe that Smith J. erred in not holding the government to a rigourous standard of justification at the section 1 stage of the analysis. We have also taken issue with Smith J.s failure to implicate the procedural deficiencies of the Customs Act in the Charter violations identified by the evidence. In our view, at the very least, a system of administrative censorship cannot constitute a minimal impairment of Charter rights if it makes little or no attempt to ensure that decisions will be made expeditiously by expert decision-makers who have the ability to receive evidence of a publications merits.

Beyond Intersecting Rights: The Constitutional Judge as 'Complex Self'

Frank Iacobucci has been described in many ways: as warm, reasonable, brilliant, and loyal. We talk in this essay about his complexity. The literature on legal complexity attends usually to the transaction costs of complex and uncertain legal rules or to the political economy of legal complexity that inures to the benefit of legal elites. We draw upon a different understanding of complexity. Our use of ‘complexity’ refers less to economic incentives and more to circumstances in which competing and important loyalties come into conflict. The sciences understand ‘complex relationality’ as describing systems that adapt and evolve through modes of continuous interaction. The resulting uncertainty leaves systems in an unsteady equipoise, in a balance between ‘order and chaos.’ We imagine judging under a bill of rights as calling for this sort of organized uncertainty, where indeterminate outcomes are likely because no simple hierarchy or priority of values is self-evident. Complexity, in our view, arises in those hard Charter cases in which seemingly intractable rights claims cannot be resolved easily – in which no obviously correct answers are available. This can be considered the external aspect of complexity. There is also an internal dimension of complexity, premised on the idea of ‘pluralism.’ Individuals, according to pluralist thinking, will have multiple affiliations and loyalties – not only are they citizens of a state, they also are workers, scholars, bloggers, closet Coasians, or S&M devotees. To admit these multiple affiliations to intermediate groups results in the likelihood that, when we make important