Comparative Law and the Same-Sex Marriage Debate: A Step-by-Step Approach Toward State Recognition

Abstract

I have discussed the conservative and progressive critiques of same-sex marriage in prior publications and have maintained that neither progressives nor conservatives have yet produced a convincing response to my argument that the principle of formal equality requires the state to recognize same-sex unions on the same terms as which it recognizes different-sex unions. In this Essay, I not only demonstrate how the events in Vermont and Hawaii link up with those in the Netherlands and Denmark, but I also correlate those events with the broader constitutional and theoretical debates as well. My general thesis is that not only does comparative law reveal the current plurality of legal regulatory regimes, but it also suggests the likelihood of that pluralism's progressing, slowly but surely, to state recognition of same-sex unions, and to a pluralism of options for same-sex partners within most countries. My specific thesis is that comparative international and domestic experience suggests that, even if some conservative and progressive criticisms of same-sex marriage end up being true in the short term, most will not be borne out in the long term. Not only are the expressed fears of the religious right and radical queer theorists greatly overstated, but they are mutually offsetting as well.