Document Type

Article

Publication Date

2014

Journal

Duke Journal of Comparative and International Law

Volume

25

Issue

1

Abstract

Same-sex marriage is a 21st century phenomenon. In less than 13 years more than 15 countries have amended their marriage laws to include same-sex couples. Some countries have made the change through political decisions but others have reached the change through adjudicative processes. A comparative analysis of decisions from the highest courts of countries or states granting marriage to same-sex couples demonstrates: 1. similar arguments are presented to these courts when making the case for and against same-sex marriage; 2. courts are using comparative law to justify their decisions on same-sex marriage; 3. the majority of courts in these countries have based their decisions to grant same-sex marriage on reasons of equality, autonomy and dignity; 4. relatively few courts have based their decisions on an idealist conception of marriage. Decisions on equality/autonomy/dignity have the potential to shift the family law paradigm from a marriage-centered model to one based on equality and autonomy where different types of families are valued. Decisions based on the value of marriage reinforce the marriage paradigm in family law, conforming to a system that marginalizes most families.

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.