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Incrementalism, Civil Unions, and the Possibility of Predicting Legal Recognition of Same-Sex Marriage

57 Pages Posted: 19 Mar 2011  

Erez Aloni

University of British Columbia (UBC), Faculty of Law

Date Written: December 1, 2010

Abstract

Scholars who have examined the legal recognition of same-sex partnerships in European countries have concluded that the path to the legalization of same-sex marriage follows an incremental process involving specific stages. They suggest that it is possible to predict, based on certain visible social and legal processes or assessable parameters, which U.S. states will be the next to recognize same-sex marriage. These scholars argue that such small cumulative legal changes at the state level constitute the best means of legalizing same-sex marriage in the United States, and that civil unions are a necessary step in this process. This article shows that predictions based on these theories have not been accurate and that attempts to generalize the experience of legalizing same-sex marriage overlook a variety of often significant and sometimes subtle social, political, and legal differences between the United States and Europe. Therefore, these theories cannot sufficiently explain how social change happens and cannot be used to formulate strategic plans for legalizing same-sex marriage in the United States. This article also proposes that the adoption of civil unions can significantly delay legal acceptance of same-sex marriage. It suggests that the theories overlooked the fact that in some European countries, lesbian and gay organizations were more interested in securing partnership rights for same-sex couples, rather than marriage itself. This path is the one that advocates in the United States should take.

Keywords: Marriage, same-sex marriage, civil unions, gay rights, incrementalism, Predicting Legal Recognition of Same-Sex Marriage

Suggested Citation

Aloni, Erez, Incrementalism, Civil Unions, and the Possibility of Predicting Legal Recognition of Same-Sex Marriage (December 1, 2010). Duke Journal of Gender Law & Policy, Vol. 18 , No. 1, p. 105, 2010. Available at SSRN: https://ssrn.com/abstract=1789742

Erez Aloni (Contact Author)

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

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