John Hart Ely and LGBTQ+ rights, 41 years later

In 1981, John Hart Ely wrote that “homosexuals” require special judicial protection due to being systematically disadvantaged by the majority. Forty-one years later, there is backslash against LGBTQ+ rights in many places, even in Member States of a (European) Union which (cl)aims to be founded, inter alia, on equality and respect for human rights, including the rights of persons belonging to minorities. In the context of political disadvantaging of LGBTQ+ people, effective judicial protection is as important as ever. Building on Ely´s theory, this paper puts forward a relatively new theory justifying strong judicial review, allowing courts to advance rights in areas considered political by some, such as equal (same-sex) marriage, parenting or other rights of LGBTQ+ people. The paper concludes that judicial advancement of LGBTQ+ rights is necessary and – in line with Ely´s underlying thoughts – democratic, as it enforces representation.