Institutional Paths to Policy Change: Judicial Versus Nonjudicial Repeal of Sodomy Laws

Abstract

What variables lead judicial and nonjudicial decision‐making bodies to introduce policy change? In the theoretical framework proposed, the path‐dependent nature of law has a differential impact on courts and legislatures. Likewise, certain political institutions including elections and political accountability lead those bodies to introduce policy change under dissimilar circumstances. Global trends, however, affect both institutional paths equally. We test this theory with data for the repeal of sodomy laws in all countries from 1972–2002. Results from two disparate multivariate models overwhelmingly confirm our predictions. The unique institutional position of courts of last resort allows them to be less constrained than legislatures by either legal status quo or political accountability. Globalization, on the other hand, has a comparable effect on both. This work is path breaking in offering a theoretical framework explaining policy change via different institutional paths, systematically testing the framework comparatively and with respect to a policy issue still on the agenda in many countries.

Contested norms in new-adopter states: International determinants of LGBT rights legislation

“…The answers to these questions are theoretically and practically important for the study of politics. There are few social issues that incite as much controversy in contemporary world politics as LGBT rights; yet, despite their contested nature, a growing number of states are adopting these norms into their legal frameworks (Asal et al, 2013; Barclay et al, 2009; Fernández and Lutter, 2013; Helfer and Voeten, 2014; Kane, 2003, 2007; Sommer et al, 2013; Waaldijk and Bonini-Baraldi, 2006). Understanding the differential levels of adoption brings to light the international channels and domestic conditions of diffusion.…”

The sex ratio and global sodomy law reform in the post-WWII era

“…For instance, Frank et al (2009Frank et al ( , 2010 argued that after WWII a worldwide support for criminal laws has shifted from protecting collective entities to protecting individuals, leading to decriminalization of sodomy and other sex laws around the world. Sommer et al (2013) focused on the differential effect of legal system, religion and globalization on the repeal of sodomy laws across countries. In her study of the American state-level repeal of sodomy laws, Kane (2003Kane ( , 2007 stressed the importance of social movement and its timing.…”

“…To find out why, scholars have studied the crosscountry variation in the legality of sodomy and related legislative changes from the perspective of colonialism, religion, legislative process, economic conditions etc. (Asal et al 2012;Sommer et al 2013;Han and O'Mahoney 2014). This small thriving literature, 1 The word, sodomy, originates from a biblical city Sodom, which was destroyed by God for the sins of its inhabitants (the Book of Genesis).…”

A cross-national analysis of the guarantees of rights

“…EU legislation provides for minimum requirements (with Member States having the ability to provide higher levels of protection in their laws) for protection against discrimination in vocational training, membership in employer and employee organizations, and any other type of discrimination in employment and occupation. The EU has put a general emphasis on the human rights of sexual minorities, for example, in pushing for the rights of such minorities by strong-arming Romania to lift its sodomy prohibition (Somner et al, 2013). 8 Furthermore, the institutions of the EU have been historically committed to human rights and equality (Beger, 2004: 130).…”