The Role of Philosophical and Constitutional Arguments in the Same-Sex Marriage Debate: A Response to John Murphy

19 Pages Posted: 27 Mar 2012

See all articles by Nicholas Bamforth

Nicholas Bamforth

University of Oxford - Faculty of Law

Date Written: March 27, 2012

Abstract

It is suggested in this article, in response to claims made by John Murphy in a previous article in this journal, that there is an important role to be played by philosophical and constitutional arguments in the debate concerning the possible legal recognition of same-sex marriage. Murphy’s claim, that a purely ‘legalistic’ approach based on European Convention case-law is enough to make out the case for same-sex marriage, is insufficient either to make that case or to explain how courts have in fact been deciding cases since the Human Rights Act 1998 came into force. Those who are concerned to present a plausible case for the legal recognition of same-sex marriage must, and inevitably do, take their arguments beyond the purely ‘legalistic’ level. Arguments for legal recognition will be gravely weakened unless this point is recognised.

Keywords: family law, child law, same-sex marriage, Human Rights Act 1998

Suggested Citation

Bamforth, Nicholas, The Role of Philosophical and Constitutional Arguments in the Same-Sex Marriage Debate: A Response to John Murphy (March 27, 2012). Child and Family Law Quarterly, Vol. 17, No. 2, pp. 165-183, 2005, Available at SSRN: https://ssrn.com/abstract=2029629

Nicholas Bamforth (Contact Author)

University of Oxford - Faculty of Law ( email )

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