Legal Path Dependence and the Long Arm of the Religious State

Sodomy Provisions and Gay Rights across Nations and over Time

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Victor Asal, Udi Sommer
  • Albany, NY: 
    State University of New York Press
    , July
     2017.
     208 pages.
     $22.95.
     Paperback.
    ISBN
    9781438463247.
     For other formats: Link to Publisher's Website.

Review

While many nations have fought for the recognition of gay rights, the decriminalization of same-sex intercourse, and the legalization of same-sex marriage, Victor Asal and Udi Sommer argue that these “legal trends concerning sexual minorities are based on legal path dependence and in the influence of religion and the religious state” (10). The goal of the authors is to “develop a theoretical framework explaining the variation in gay rights and to show its advantages in explaining discrepancies between countries as well as changes over time” (143).

Their book is structured in three general sections: a comprehensive analysis of legal developments and thought; how legal theories and systems are imported to colonized nations; and the subsequent influence of those legal theories on sexual minorities. While the book is at times somber in light of the subject matter, the authors maintain a clear and respectful tone throughout. This is highlighted during an examination regarding the presence of the death penalty for same-sex consensual sex around the world. Their data reveals the somewhat unsurprising fact that the more religious a state is, the higher the likelihood that the death penalty for same-sex consensual sex is not only law, but is in fact exercised with disturbing regularity. Asal and Sommer’s argument is not only substantiated by an in-depth examination of law and religion, but also by their extensive quantitative analysis of gay rights around the world and what factors can be utilized to anticipate said rights. These factors include a nation’s religiosity, political systems, legal systems, and, if applicable, their colonial history. 

Their guiding concept of path dependence is explained as “the notion that social structures, human behaviour, and various forms of human activity develop in ways that are dependent on earlier states of their evolution” (15). Consequently, as Asal and Sommer argue, any discursive system, such as law, becomes extremely resistant to change due to the actual costs of creating a new system: the longer a discourse has been present, the stronger is belief in that discourse. In other words, “the legal and political status quo entails sunk costs; and once a certain path is paved due to an initial decision, switching paths becomes particularly tricky” (18). It is this theory of path dependence, combined with the influence (or lack thereof) of a state’s religiosity that the authors argue is a productive way to view the complex intersection of religion, law, and human rights on a global scale. Asal and Sommer’s approach leads them to conclude that “countries where prohibitions on discrimination against gays are on the books are understood to be the ones where legal protections for sexual minorities are at their highest levels” (143). Religion is one of several prominent explanations for the variation in laws and protection for gay individuals, but the authors note, “while the political and legal issues examined all fall into the category of gay rights—and while obviously there is a prima face hierarchy where abolition of death penalty for sodomy is at the most basic level, sodomy repeal is next, and rights guarantees are at the top—in fact, moving up this apparent ladder of rights is a result of a combination of legal and political processes” (144).

The sections I found most engaging were Asal and Sommer’s description of the current state of gay rights around the world and their unique historical arguments regarding the origin of someanti-gay legislation. For example, the authors provide a nuanced reading and explanation of the Buggery Act of 1533 under Henry VII of England, which the authors count as one of the first legal codifications against same-sex intercourse. Legal Path Dependence and the Long Arm of the Religious State is an incredible resource for anyone looking for historical and quantitative data on gay rights around the world and how these rights developed over time. I would warn that those who are not familiar with this kind of data should approach this book with caution. Though the historical analysis provided earlier in the text gives the reader enough information to be convinced of the authors’ arguments, I worry that the significance of the data presented by Asal and Sommer may not be fully grasped or explained by all readers, including myself, due to lack of familiarity with this type of technical writing. While some interpretation of their data is offered, I believe explaining this data further would be useful. But all in all, this is an extremely well-researched and sobering book.

About the Reviewer(s): 

Amy Clanfield is a doctoral student in Religious Studies at the University of Ottawa.

Date of Review: 
September 19, 2018
About the Author(s)/Editor(s)/Translator(s): 

Victor Asal is chair of public ddministration and associate professor of political science at the University at Albany, State University of New York and the coauthor (with Paul G. Harwood) of Educating the First Digital Generation.

Udi Sommer is associate professor of political science at Tel Aviv University and a member of both the Blavatnik Interdisciplinary Cyber Research Center and Israeli Young Academy. He is the author of Supreme Court Agenda Setting: Strategic Behavior During Case Selection.

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