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Same-Sex Marriage and the Law

Same-sex couple

Same-sex couple. (iStock Photo)

Embedding principles of international law into the policies and laws of wealthy nation states ultimately is dependent upon the internal conditions and political structures of individual nations, according to a study by UConn researchers published in the December edition of American Sociological Review.

Sociologists Mary Bernstein and Nancy Naples tracked policy outcomes on same-sex marriage from 1993 to 2013 in the study titled “Altared States: Legal Structuring and Relationship Recognition in the United States, Canada, and Australia.”

“International law may help set a political agenda through policy legacies from other countries and via domestication, but policy change then proceeds according to internal political conditions,” the UConn researchers say in the study, which compares the varied internal political structures of the three nations.

The United States has a political structure based on separation of powers, a decentralized judicial system, a Bill of Rights, state-level authority for marriage law, and no de facto recognition of same-sex marriage. Canada and Australia both have a parliamentary political structure, a centralized judiciary, and de facto recognition of same-sex marriage. Canada has its Charter of Rights and Freedoms, but Australia has no established list of citizen rights.

“If you look cross-nationally, what’s interesting is how the courts play into everything,” says Bernstein. “In the U.S. and Canada, the courts have been an important way in which social change has happened. Australians don’t have access to the courts in the same way. The courts are also much more centralized in Canada, so when there is an important decision in one province it has implications for all the others.”

Bernstein says public discussion of same-sex marriage often begins with the idea that morality policies are not tethered to the political structure and that they have no implications for economic issues or other societal concerns. Welfare reform, for example, has economic implications based on whether access to the system is expanded or constricted. Similarly, she says, same-sex marriage has economic consequences for the couple, the state and country in myriad ways.

Earlier this year, the Supreme Court of the United States ruled in Obergefell v. Hodges that gay marriage is a right under the U.S. Constitution and that all states must permit same-sex marriage and all laws against it are invalid. Previously each state could have laws prohibiting same-sex marriage.

Bernstein says the battle over same-sex marriage laws is important because there are so many other laws attached to the legal recognition of a marriage.

“Marriage is a profound social contract that people enter into and often have no idea what they’re getting into from a legal standpoint,” she says. “What’s interesting when you look cross-nationally at marriage law is that both the social recognition and the legal recognition are quite different.”

In the U.S. and Canada, the courts have been an important way in which social change has happened. — Mary Bernstein”

Bernstein notes that Australia has de facto relationships. “The rights and responsibilities don’t just adhere to married people, but they adhere to couples [who live together]. That can work both for and against them. Couples don’t have to get married, but they’re still recognized in terms of the law, both in relationship dissolution and that it’s socially consequential. In the U.S., states are moving in the opposite direction, where states are phasing out common-law marriage.”

The study also examined the role of social movements in explaining agenda-setting and the timing of policy outcomes. An example is how an organized social movement at the appropriate governmental level is necessary to take advantage of political opportunities as they arise. Successful outcomes are also affected by the strength of party discipline and how it is implemented, the researchers note.

“We find that party discipline can work in favor of or against social movements depending on the larger political context and the composition of the parties, especially in cases of social issues,” they say.

The UConn researchers conclude that further study is needed to determine whether their findings can be extended to other policy arenas.

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By: Kenneth Best | Story Courtesy of UConn Today


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