14 Pages Posted: 6 Sep 2017
Date Written: February 1, 2017
This Article explores the topic of family diversity through a comparative analysis of law in the United States and South Africa. Juxtaposing these countries sheds light on shortcomings of the United States’s jurisprudence on family diversity. The comparative analysis also helps illuminate the path ahead for reforming both countries’ laws to better respect family diversity.
The Article proceeds in two parts. Part I examines the United States’s and South Africa’s competing approaches to same-sex marriage. Both countries’ highest courts ruled that excluding same-sex couples from marriage is unconstitutional, but they took divergent paths to reach that conclusion. This Article contends that the Constitutional Court of South Africa paved a better road for other countries to follow because it developed a superior conceptualization of the right to marry. Part II looks beyond same-sex marriage to explore new frontiers for reforming laws to address family diversity both in the United States and in South Africa. Specifically, Part II examines proposals to extend rights and responsibilities to couples who choose not to marry.
Keywords: same-sex marriage, Obergefell, Fourie, comparative family law, family diversity
Suggested Citation: Suggested Citation
Lau, Holning, Marriage Equality and Family Diversity: Comparative Perspectives from the United States and South Africa (February 1, 2017). Fordham Law Review, Vol. 85, 2017; UNC Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3030688