The Recognition of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, and Strategic Institutional Choice

Abstract

The emerging field of comparative institutional analysis (CIA) has much to offer public policy analysts. However, the failure of CIA to address the dynamic process through which social goals are articulated limits the scope of its application to the largely prescriptive pronouncements of legal scholars. By examining the movement for equal recognition of same-sex relationships, this Essay builds on the basic observations of CIA and introduces a new dimension, namely the dynamic process through which social goals are articulated and social change is pursued. The acknowledgment that the production of social goals involves institutional behavior, as well as multiple sites of contestation, can enhance the analytic power of CIA and offer a comparative institutional method of analysis to social movement theory.

When CIA encounters contested social goals, the result is a program of "strategic institutional choice" which evaluates not simply an institution's competency to supply the desired rights or status, but also its responsiveness to demands for such rights or status and its resilience against attempts by opponents to subvert the process or to reverse gains. This three-part "strategic" analysis does not identify the optimal institution, but instead informs the allocation of resources among institutions as advocates simultaneously pursue their goal in a variety of complementary institutional settings. The debate over same-sex relationships has been conducted through a creative and combative program of institutional one-upmanship where gains secured by pro-recognition advocates through the market or courts are frequently reversed by the traditional values movement through the political process, with increasing emphasis on the constitutional amendment process.

After a brief Introduction, Part II of the Essay examines CIA's failure to consider the production of social goals, the single institutionalism practiced by social movement theory, and the nature of strategic institutional choice. Part III describes the forces aligned on either side of the struggle over the recognition of same-sex relationships and outlines the costs and benefits associated with participation. Part IV evaluates the pro-recognition gains made in various institutional settings in terms of the three core components of strategic institutional choice: competency, responsiveness, and resilience. Part V discusses the constitutional amendment process, as the ultimate majoritarian prerogative. It offers some final thoughts on the potential transitory nature of minority gains that take place within a democratic frame where a motivated majority can choose to rewrite the rules that define institutions and their decision-making authority.

Keywords: institutional choice, comparative institutional analysis, social movement theory, social change, Neil Komesar, same-sex marriage, marriage equality, civil union, domestic partnership, LGBT, gay, lesbian, homosexuality, same sex couples, gay couples, DOMA

JEL Classification: D71, J12, J7, K10