The Feasibility of Opening Up Marriage to Same-Sex Couples
The Feasibility of Opening Up Marriage to Same-Sex Couples
We find in different regions and countries a common process for the recognition of gay partnerships that comprises three levels, each successive level reflecting greater tolerance. The first and basic level is to remove from the criminal code (if they exist) sanctions against homosexual and lesbian conduct; the second is to prohibit discrimination against gay men and lesbians on the basis of their sexual orientation; and the third is to affirmatively recognize same-sex partnerships as equal to opposite-sex unions for various purposes, beginning with “soft” rights such as various economic benefits and following that step with comprehensive recognition of same-sex partnerships. This is called the necessary process for expansive recognition of same-sex partnerships, since the repeal of sodomy laws and the enactment of antidiscrimination legislation are prerequisites for such recognition. Before same-sex marriage becomes possible, the final step of the “necessary process” must be completed, namely, broad recognition in the form of registered partnership or civil union—not merely a version of U.S. domestic partner schemes as currently construed. For example, it became a viable possibility to open up marriage to same-sex couples in the Netherlands only after (and as a consequence of) the passage and success of the Dutch Registered Partnership Act. The process and experience of the northern European countries have shed a new and instructive light on the legal and social processes that need to take place in order for U.S. states to open up marriage to same-sex couples.
Keywords: same-sex couples, criminal code, necessary process, same-sex partnerships, civil union, soft rights
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