A Comparative Analysis of Laws Pertaining to Same-Sex Unions

16 Pages Posted: 16 Mar 2014

See all articles by W. Cole Durham

W. Cole Durham

Brigham Young University - J. Reuben Clark Law School

Robert Smith

Brigham Young University - J. Reuben Clark Law School

William Duncan

Marriage Law Foundation

Date Written: March 14, 2014

Abstract

While the global trend toward redefining marriage to include same-sex couples is evident in a number of jurisdictions, the trend thus far has reached only a relatively small number of countries. The vast majority of states still do not permit same-sex marriage. Those states that do have done so by redefining their marriage law through a legislative process, with Brazil and a few U.S. states being the sole exceptions. These legislative processes have permitted a more nuanced approach to the redefinition of marriage and the array of legal and social changes that a major shift in family law systems necessarily entails. It is not unreasonable to allow the legislative institutions to deal with the complex issues involved in a way that minimizes the risks of precipitous change. This approach allows legislative institutions to address acknowledged injustices of the past without dismantling the traditional institution of marriage with a single judicial stroke. Judicial imposition of a constitutional result in this domain could lock in patterns of polarization that could get in the way of legislative compromises that may ultimately provide better long-term solutions for society as a whole. Care needs to be taken to avoid putting at risk fragile and sometimes unseen virtues of family institutions that have served humankind well down through the ages and across civilizations. The assumption that mere animus or bigotry is the only explanation behind the legal structures of most nations of the earth is a charge aimed at blocking the quest for genuinely reasoned and good faith solutions that can be reached best in the political arena. Accordingly, with very few exceptions, national and supranational courts have held that such decisions must be left to democratic action by citizens or their legislative representatives.

Keywords: Same-sex marriage, comparative law

Suggested Citation

Durham, W. Cole and Smith, Robert and Duncan, William, A Comparative Analysis of Laws Pertaining to Same-Sex Unions (March 14, 2014). Available at SSRN: https://ssrn.com/abstract=2409282 or http://dx.doi.org/10.2139/ssrn.2409282

W. Cole Durham (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

Robert Smith

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

William Duncan

Marriage Law Foundation ( email )

United States

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