We have arrived at a crossroads in terms of the intersection between law, sexuality, and globalization. Historically, and even today, the majority of accounts of LGBT migration tend to remain focused, in one scholar’s words, on “a narrative of movement from repression to freedom, or a heroic journey undertaken in search of liberation.” Within this narrative, the United States is usually cast as a land of opportunity and liberation, a place that represents freedom from discrimination and economic opportunity. But this narrative also elides the complexity that erupts from grappling with the reality that many other jurisdictions outside of the United States can be even more forward-looking when it comes to recognizing the need for LGBT civil rights and the fact that many immigrants may confront a much more complex reality for many people of color, particularly in a post-9/11 world.
This Article attempts to provide one vantage point in theorizing the bipolar classifications that characterize globalization narratives regarding sexuality. In this Article, I draw on the notion of a diaspora as a theoretical tool with which to highlight some key constitutional hybridities in the terrain of law and sexuality. The notion of a diaspora, I argue, represents a useful way of thinking of the intersection between sexuality, law, and globalization by forcing us to confront hybrid possibilities, particularly in recalibrating and reimagining the lines that we draw between North and South, East and West, home and elsewhere.
Towards that end, this Article introduces two conceptions of a diaspora, one cultural, another constitutional, by engaging in a close comparison between Lawrence v. Texas and the recent Naz Foundation v. Government of NCT opinion overturning sodomy laws in India. Part I introduces the cultural notion of an LGBT diaspora among peoples and the communities, real or imagined, that flow from it. In Part II, I broaden this concept to introduce a secondary conception of a “constitutional diaspora” in evaluating the role of hybridity in the wake of Lawrence’s international implications. Part III takes a more normative approach than the previous Parts and discusses what these two types of diaspora offer us in terms of reimagining the terrains of nationhood and citizenship.57-5-8