An International Perspective on Same-Sex Marriage Post Obergefell (and Some Thoughts on Legal Positivism as a Means of Reconciliation): The Israeli Case
Brigham Young University Journal of Public Law, Forthcoming
23 Pages Posted: 22 Mar 2016 Last revised: 25 Jul 2018
Date Written: March 2, 2016
Obergefell v. Hodges has changed the legal status of same-sex marriage in the United States. In some other countries, the legal debate still continues. In both, legal decisions did not reduce the deep controversies that exist between groups in society regarding the general character of marriage and the status of same-sex marriage in particular.
The paper discusses the international side effects of the Obergefell decision, and asks whether these side effects necessarily include social conflict, or are there ways to promote societal agreement on this matter. By examining the Israeli situation as a test case, the paper argues that while in the legal realm Obergefell will strengthen the demand for recognition (and possibly even be decisive in the legal debate), in the social and cultural fields, gaps will continue to characterize the discourse on this matter. Therefore, the paper proposes a different socio-legal model, which is relevant to any divided society. Based on H. L. A. Hart's classic positivistic legal theory, the paper argues that scholarship needs to change the way it (often) understands the law and its social objects. Instead of substantive expectations from the law (which lead to a contest over the rights and duties that are included in it), the law must be treated as an expression of social practices. In this respect, a pluralist approach to law is possible. Despite deep controversies over right and wrong, good and bad, society through its legal system should enable different practices within shared social standards.
In regards to same-sex relationships, the paper thus proposes that both contesting sides of the society will acknowledge each side’s practical right to participate in defining the marital abode, possibly including marriage, as well. This acknowledgement, however, will not derive from a substantive acceptance of the other's values. The law then will become a tool of tolerance, a means for reconciliation between different worldviews, without any of them compromising on its own substantive understanding of family, partnership, and marriage.
Keywords: same-sex, marriage, Obergefell, Israel, hart, legal positivism, family law
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