Same-Sex Relationships, Law and Social Change PDF
Preview Same-Sex Relationships, Law and Social Change
Same-Sex Relationships, Law and Social Change This edited collection provides a forum for rigorous analysis of the necessity for both legal and social change with regard to regulation of same-sex relationships and rainbow families, the status of civil partnership as a concept and the lived reality of equality for LGBTQ+ persons. Twenty-eight jurisdictions worldwide have now legalised same-sex marriage, and many others some level of civil partnership. In contrast, other jurisdictions refuse to recognise or even criminalise same-sex relationships. At a Council of Europe level, there is no requirement for contracting states to legalise same-sex marriage. Whilst the Court of Justice of the European Union now requires contracting states to recognise same-sex marriages for the purpose of free movement and residency rights, unlike the US Supreme Court, it does not require EU Member States to legalise same-sex marriage. Law and Sociology scholars from five key jurisdictions (England and Wales, Italy, Australia, Canada and the Republic of Ireland) examine the role of the Council of Europe, European Union and further international regimes. A balanced approach between the competing views of critically analytical rights-based theorists and queer and feminist theorists interrogates the current international consensus in this fast-moving area. The incrementalist theory, whilst offering a methodology for future advances, continues to be critiqued. All contributions from differing perspectives expose that even for those jurisdictions which have legalised same-sex marriage, still further and continuous work needs to be done. The book will be of interest to students and scholars in the fields of human rights, family and marriage law, and gender studies. Frances Hamilton and Guido Noto La Diega are Senior Lecturers in Law, both at Northumbria University. Same-Sex Relationships, Law and Social Change Edited by Frances Hamilton and Guido Noto La Diega First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business A glasshouse book © 2020 selection and editorial matter, Frances Hamilton and Guido Noto La Diega; individual chapters, the contributors The right of Frances Hamilton and Guido Noto La Diega to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-0-367-07609-2 (hbk) ISBN: 978-0-429-02158-9 (ebk) Typeset in Galliard by Apex CoVantage, LLC Contents List of contributors viii Introduction 1 PART 1 The role of the European Court of Human Rights and the European Union in relation to the treatment of same-sex couples’ relationships 9 1 The potential of European Union law to further advance LGBTQ+ persons and same-sex couples’ rights 11 FRANCES HAMILTON 2 The European approach to recognising, downgrading, and erasing same-sex marriages celebrated abroad 33 GUIDO NOTO LA DIEGA 3 Harmonisation of choice of law rules on same-sex marriage: an international perspective 51 LAUREN CLAYTON-HELM PART 2 Differing paths towards legalisation of same-sex marriage 69 4 Marriage equality in Ireland: the politico-legal context 71 BRIAN TOBIN vi Contents 5 The aftermath of marriage equality in Australia: religious freedom and LGBTQ+ non-discrimination 91 LOUISE RICHARDSON-SELF, BRONWYN FIELDER, AND DOUGLAS EZZY 6 The role of constitutional courts in promoting marriage equality and their relationships with movements and legislators 109 ANGIOLETTA SPERTI PART 3 Rainbow families 125 7 The European Court of Human Rights and the notion of family life: a common European standard for the EU framework 127 ALEXANDER SCHUSTER 8 EU law and the rights of rainbow families to move freely between EU Member States 150 ALINA TRYFONIDOU 9 Same-sex relationships and the child law perspectives: another child protection concern, or simply a new way of creating the modern family? 168 FRANCES BURTON PART 4 The importance of civil partnership in an era of same-sex marriage 187 10 Relationships with status: civil partnership in an era of same-sex marriage 189 ANDY HAYWARD 11 The hierarchy of marriage and civil partnerships: diversifying relationship recognition 209 ALEXANDER MAINE Contents vii PART 5 The heteronormative underpinnings of same-sex marriage 229 12 Repackaged goods? Interrogating the heteronormative underpinnings of marriage 231 FERGUS RYAN PART 6 Consideration of the necessity of both social and legal change, and the interaction between them 251 13 Why legal equality is not enough: the case of domestic violence and abuse in the relationships of LGBTQ+ people 253 CATHERINE DONOVAN 14 Incrementalism in same-sex marriage legalization 272 EREZ ALONI Conclusions 292 FRANCES HAMILTON Index 312 Contributors Erez Aloni is an Assistant Professor at the Peter A. Allard School of Law, Uni- versity of British Columbia. Aloni’s primary research interests lie in the legal regulation of adult relationships and complex family structures. His work examines the diverse laws that together affect a family’s composition and well-being, and explores how those laws create effects – socioeconomic and otherwise – on society at large. Prior to joining UBC in 2017, he served as an assistant professor at Whittier Law School, where he taught contracts and domestic relations. Previously, he was an academic fellow at the Center for Reproductive Rights and Columbia Law School. He received his LL.M. and S.J.D. from the University of Pennsylvania Law School, where he also taught a seminar on law and sexuality. Frances Burton, PhD, is a Senior Lecturer in Law, Buckingham University. She began to read Law at St Anne’s College, Oxford, before transferring to the University of London for her first degree, to which she has added a Mas- ters degree in Employment Law and Industrial Relations from Leicester Uni- versity, a Masters degree in Education from the School of Education of the Open University and a PhD from LJMU on the basis of a comparative study of Cohabitants’ Rights in both common law and civil law jurisdictions. She was initially called to the Bar by Middle Temple (from which she received a Harmsworth Major Exhibition) and then proceeded ad eundem to Lincolns Inn, where she is a member of leading Chancery Chambers at 10 Old Square, and now practising from there as a Mediator and Family Law Arbitrator, MCIArb. Her research interests are mainly in Family Law and Property, but also in the English Legal System, Legal Method and Skills, Access to Justice, and particularly Dispute Resolution. She has published widely in these fields, including textbooks, articles in academic journals and professional publica- tions, conference papers and professional newsletters, in hard copy and online. Lauren Clayton-Helm, PhD, is a Senior Lecturer in Law at Northumbria Uni- versity at Newcastle. Upon completing her PhD within the Conflict of Laws, she has continued to research and publish in this area. Other areas of interest include International Family Law and Family Law more generally. Contributors ix Catherine Donovan, PhD, is Professor of Sociology at Durham University. She has spent nearly thirty years researching the intimate and family lives of lesbians, gay men and, more recently, bisexual and transpeople. After her early work on family and parenting relationships, her most recent work has included the first comparative study of love and violence in same-sex and heterosexual relation- ships and the first multi-method study exploring the use of violent and abusive behaviours in the relationships of LGB and/or T people. Other research inter- ests have included LGB and/or T child sexual exploitation, austerity and the emotional impacts of austerity for practitioners. She led on a project develop- ing a bystander intervention initiative, Be the Difference,’ based on a campus survey of students’ experiences of violence, abuse and harassment. Currently she is also developing work on hate crime/incidents with a project exploring the usefulness of ‘hate relationships’ to explain some experiences of hate that involve on-going experiences from one or more perpetrators; and a project exploring ‘cuckooing’, whereby offenders inveigle themselves into the homes of situationally vulnerable individuals in order to use them as a base for their nefarious activities. Douglas Ezzy, PhD, is Professor of Sociology at the University of Tasmania, Australia. He is editor of the Journal for the Academic Study of Religion. His research includes both health sociology and contemporary religious diver- sity. His books include Lesbian, Gay, Bisexual and Transgendered Christians (2018, with Bronwyn Fielder), Reinventing Church (2016, with Helen and James Collins), Sex, Death and Witchcraft (2014), Teenage Witches (2007, with Helen Berger) and Qualitative Analysis (2002). Bronwyn Fielder, PhD, is a postdoctoral researcher at the University of Tasma- nia. Her research focuses on the reproduction of inequalities in society and ways in which these inequalities can be addressed. She has presented at numer- ous conferences on the ways LGBT Christians negotiate seemingly disparate identities and seek to live a life that is both authentic to their sexuality and/or gender, as well as their religious selves. Her book, Lesbian, Gay, Bisexual and Transgendered Christians: Queer Christians, Authentic Selves (co-authored with Douglas Ezzy), was published in 2018. Frances Hamilton, PhD, is a Senior Lecturer in Law at Northumbria University. She holds an MA from the University of Cambridge together with an LLM from Trinity College Dublin. She is also a qualified solicitor. Her research interests involve the difficulties facing individual countries and international courts in recognising same-sex relationships. She takes a comparative law approach, as well as looking at human rights law and an EU free movement perspective. She is also interested in the necessary interaction between legal and social change in this area. She has worked as a Senior Lecturer in Law at Northumbria University since 2009 and prior to this worked as a solicitor in London firms Reed Smith Richards Butler LLP and Hogan Lovells LLP.
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