The Right to Relate: A Lecture on the Importance of “Orientation” in Comparative Sexual Orientation Law
By Kees Waaldijk
The right to establish and develop relationships with other human beings was first articulated—as an aspect of the right to respect for private life— by the European Commission of Human Rights in 1976. Since then such a right has been recognized in similar words by national and international courts, including the U.S. Supreme Court (Roberts v. United States Jaycees), the European Court of Human Rights (Niemietz v. Germany), the Constitutional Court of South Africa (National Coalition for Gay and Lesbian Equality v. Minister of Justice), and the Inter-American Court of Human Rights (Fernández Ortega v. Mexico). This lecture traces the origins of this right, linking it to the meaning of the word “orientation” and to the basic psychological need for love, affection, and belongingness. It proposes to speak of “the right to relate” and argues that this right can be seen as the common theme in all issues of sexual orientation law (ranging from decriminalization and anti-discrimination to the recognition of refugees and of same-sex parenting). This right can be used as the common denominator in the comparative study of all those laws in the world that are anti-homosexual or that are same-sex-friendly. The right to establish (same-sex) relationships implies both a right to come out and a right to come together. The right to develop (same-sex) relationships is being made operational through legal respect, legal
*Published in the Duke Journal of Comparative & International Law.