Journal Archive

Marriage Equality would like to thank Jennifer Crowley and Robert Murtagh for their hard work in collecting and summarising these articles.

Irish Context

Aylward, R., (2006) "The Problem with Defining Marriage" 9(4) Irish Journal of Family Law 21
This article puts forward problems with defining "marriage". In particular, the author notes that since the divorce referendum in 1995, the permanency aspect of marriage no longer applies, which undermines any definitional argument in relation to same-sex marriage. The author concludes that abandoning any definition of marriage would foster a new found appreciation for family diversity.

Crompton, L., (2004) "Civil Partnerships Bill 2004: The Illusion of Equality" 34 Family Law 888 at 889
This article discusses the assumption that the Civil Partnership Bill will provide equality to same-sex couples. The author suggests that if the Bill is enacted it will give rise to a three-tier system: marriage, civil partnership and cohabitation.

Eardly, J., (2006) "The Constitution And Marriage - The Scope Of Protection" 24 ILT 167
This article considers the merits of the constitutional assertion to the recognition of same sex marriage within Ireland. While the Constitution does encompass a traditional Christian (and/or common law) notion of marriage, it is not limited by this notion. The author discusses the definition of marriage and the common good argument.

Mee, J., (2009) "A Critique of the Cohabitation Provisions of the Civil Partnership Bill 2009" 12(4) Irish Journal of Family Law 83
This article examines the provisions of the Civil Partnership Bill 2009; in particular, issues relating to the definitions of "cohabitant" and "qualified cohabitant" which determine who is eligible to seek redress under the scheme and considers the redress scheme itself.

Moynihan, Y., (2008) "God has given you one face and you have given yourself another": The implications of transsexual recognition in matters ofmarriage: Dr Lydia Foy's laudable victory spawns reform in terms of same-sex unions, 11(2) Irish Journal of Family Law 38
This article examines the implications of the Foy case with respect to same sex partners. The article considers the social exigency which demands that the government and the courts review existing legal arrangements.

O'Sullivan, A., (2009) "Same-Sex Marriage and the Irish Constitution" 13(2) International Journal of Human Rights 477-492
This article examines the Irish High Court case of Zappone and Gilligan. It also discusses the 'living document' approach to constitutional interpretation and argues that the High Court misapplied the methodology of Supreme Court Justice Murray in Sinnott v Minister for Education - a methodology which may offer the means to interpret the Irish Constitution as protecting the right to marry another person of the same sex.

Power, C., & Shannon, G., (2009) "Practice and Procedure" 12(1) Irish Journal of Family Law 22
This article examines the introduction of civil partnerships in Ireland. The author discusses the procedure which operates under civil partnership, in light of particular provisions and in contrast to the UK's equivalent legislation, the Civil Partnership Act of 2004.

Ryan, F., (2008) "The General Scheme of the Civil Partnership Bill 2008: Brave New Dawn or Missed Opportunity?" 11(3) Irish Journal of Family Law 51
This article compares civil partnership to marriage in the Irish context. While accepting the significance that the Civil Partnership Bill has for rights, privileges and obligations for same-sex couples, the article also presents the differences to full marriage equality and suggests that the legislature might not have gone far enough.

Tobin, B., (2008) "Relationship Recognition for Same-Sex Couples in Ireland: The Proposed Model Critiqued" 11(1) Irish Journal of Family Law 10
This article outlines the current position of same-sex couples under Irish law and analyses the two main reform proposals; the presumptive scheme and the registered civil partnership. The article highlights that each of the proposals are somewhat flawed.

European Context

Borghs, P., (2010) "LGB Rights in Belgium, 1999-2007: a Historical Survey of a Velvet Revolution" International Journal of Law, Policy and the Family 1
This article sketches the legal and social position of Belgian LGBs before the federal elections of 13 June 1999 and goes on to provide a detailed, step-by-step historical survey of how the subsequent revolution with respect to LGB rights came about. It also discusses the effects of the recently adopted same-sex marriage legislation in Belgium.

Coester, M., (2002) "Same-Sex Relationships: A Comparative Assessment of Legal Developments Across Europe" 4(4) European Journal of Law Reform 585
This article maps the various waves of legislation that have arisen in Europe since 1989 in relation to same-sex partnerships, from registered partnerships, to civil unions, to marriage equality. It also outlines the European law stance on the issue. It provides a good analysis of each of the forms of partnership available across Europe.

Fiorini, A., (2003) "New Belgium Law on Same Sex Marriages and its PIL Implications" 50(4) International and Comparative Law Quarterly 1039
This article examines the path taken by the Belgian legislature to introduce same-sex marriage to the country. The article highlights that it is not logical to introduce a form of registered partnership that does not equate to heterosexual marriage, given apparent political commitment to ending discrimination. The article also argues that same-sex marriages should be recognised in foreign countries that do not provide for same-sex marriage.

Johnson, P., (2010) "An Essentially Private Manifestation of Human Personality: Constructions of Homosexuality in the European Court of Human Rights" 10(1) Human Rights Law Review 67
This article discusses the continuing evolution of the ECHR in respect of homosexuality. In considering the Court's case law as a mechanism through which homosexuality is discursively constructed, the article examines how this discourse both enables and constrains human rights in relation to sexual orientation in contemporary Europe. The author reviews the European Court of Human Rights jurisprudence on human rights infringements suffered by homosexuals including - sexual orientation discrimination under s.14 and the right to manifest a homosexual identity in public under arts 10 and 11

Tobin, B., (2008) "EB v. France: Endorsing Un-"Convention"-al Families?" 11(4) Irish Journal of Family Law 78
This article provides a critical analysis of the European Court of Human Rights case of EB v. France where the contracting State's refusal of the authorisation to adopt a child on the grounds of her sexual orientation was contrary to article 14 and article 8 of the European Convention on Human Rights. A trace of the evolution of the protection of homosexual rights is outlined under articles 8 and 14 of the Convention.

Tobin, B., (2009) "Same-Sex couples and the law: Recent Developments in the British Isles" 23(3) International Journal of Law, Policy and the Family 309
This article documents the treatment of same sex couples in England and the Republic of Ireland in recent years with a focus on the domestic impact of the European Convention on Human Rights; the introduction of civil partnership into the debate; and the prospect of same-sex adoptive parents. The author suggests that the European Convention has been of little benefit to same sex couples and that civil partnership may sound the death knell for same-sex marriage.

Waaldijk, K., (2004) "Symposium Articles Others May Follow: The Introduction of Marriage, Quasi-Marriage, and Semi Marriage for Same Sex Couples in European Countries", New England Law Review [Vol. 38:3] 569
This article distinguishes the three types of statuses that are being made available to same-sex couples. They are marriage, quasi-marriage and semi-marriage. The author provides an overview of the fairly similar laws passed in the Netherlands and in Belgium that legally recognise same sex relationships through the civil institution of marriage. It discusses the character of the legislation, and compares the few remaining differences between same-sex marriage and different-sex marriage in each country who have adopted it. It finally reviews the steps by which the amendments were introduced.

Wright, W.K., (2006) "The Tide in Favour of Equality: Same-Sex Marriage in Canada and England and Wales" International Journal of Law, Policy and the Family 249
This article provides a comparative assessment of the introduction of same-sex marriage in Canada and the introduction of Civil Partnership in England and Wales. The author examines whether England and Wales will also facilitate the legal recognition of same-sex civil marriage, like their Canadian counterparts, in the near future. The author concludes that there is an increasingly strong argument that the opposite-sex marriage requirement in England and Wales violates Article 14 of the ECHR, but he also reserves caution that there may not be a positive result, at this point, from a domestic court challenge to the opposite-sex marriage requirement.

International Context

Bamforth, N., (2007) "Same-Sex Partnerships: Some Comparative Constitutional Lessons" European Human Rights Law Review 47
This article deals with the impact that state constitutions have on the introduction of same-sex partnership laws. It argues that claims for same-sex partnership rights in the UK, the US, South Africa and Canada raise important questions of constitutional law concerning the fundamental rights of citizens and the respective powers of courts and legislatures, as well as analogous arguments of constitutional principle. The article suggests that each of these countries can guide each other in examining claims to same-sex partnerships, despite the apparent political/social paradox. The article provides explanation as to why it is constitutionally correct for either institution (legislature/judiciary) to recognise and defend same-sex partnership rights.

Barclay, S., Fisher, S., (2008) "Said and Unsaid: State Legislative Signalling to State Courts over Same Sex Marriage 1990-2004" 30(2) Law and Policy 254
This article considers the attempt of state legislators to discourage intervention by the state courts around certain policy issues whereby if it appears that further legislation on the topic is imminent courts may be reluctant to make determinant rulings on the policy issue. The data reveals that the expected number of bills climbed as there was an increase in the number of court decisions supporting same sex marriage.

Egan, P.J., & Sherrill, K., (Jan., 2009) "California's Proposition 8: What happened, and what does the future hold?" Commissioned by the Evelyn & Walter Haas, Jr Fund in San Francisco. Released under the auspices of the National Gay and Lesbian Task Force Policy Institute.
This article examines three questions about the result of the Proposition 8 amendment using a new survey of California voters as well as precinct-level election returns and demographic data. It explores the characteristics of voters that were associated with support for and opposition to Proposition 8. Party identification, ideology, religiosity and age had a much bigger impact on the vote than other voter characteristics. It also examines the African American vote for Proposition 8, and provides evidence showing that while African Americans supported Proposition 8 more than voters as a whole, they did not do so in the overwhelming numbers suggested by one exit poll. Black support for Proposition 8 can largely be explained by African Americans' higher levels of religiosity- a characteristic strongly associated with opposition to same-sex marriage. The author also examines how Californians' opinions have shifted dramatically toward support of marriage equality over the short time between the Knight Initiative in 2000 and now, and explores the implications of this change for the future.

Gee, G., (2004) "Same-sex Marriage in Massachusetts: Judicial Interplay between Federal and State Courts" Public Law 252
This article is an examination of the introduction of same-sex marriage in Massachusetts. The article gives analysis of the Supreme Judicial Court decision in Goodridge. The author assesses the impact that the Goodridge decision may have on the federal court's eventual examination of the issue, concluding that this decision could provide a path for the Supreme Court to recognise same-sex marriage.

Greene, J., (Jun., 2005) "Divorcing Marriage from Procreation" The Yale Law Journal, Vol. 114, No. 8, pp. 1989-1996,-issue-8,-june-2005
This article provides a critical analysis of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. It ultimately rejects its rational basis and goes on to explore the fundamental rights approach of cases such as Loving v. Virginia, Zablocki v. Redhail and Turner v. Safley. It is submitted that the constitutional definition of marriage must cohere with constitutional common law, not individual state statutes. Consideration is given as to the view that the possibility of procreation is a necessary affluent of marriage.

Gross, A.M. (2008) "Sex, Love, and Marriage: Questioning Gender and Sexuality Rights in International Law" Leiden Journal of International Law 235
Through a reading of Sex Rights and Gender and Human Rights, this article explores the problems involved in integrating emancipatory struggles around gender and sex, sexuality, and sexual orientation into the international human rights discourse.

Hale, B., (2004) "Homosexual rights" Child and Family Law Quarterly 16:125-34
This article analyses the sequences in recognising homosexuality, from a criminal, civil and familial perspective. It is submitted that there is necessarily an evolutionary process by which the law in this area has adapted to achieve an equality-based treatment of the sexes across the whole legal scene.

Hay, P., (Fall, 2006) "Recognition of Same-Sex Legal Relationships in the United States", The American Journal of Comparative Law, Vol. 54, American Law in the 21st Century: U.S. National Reports to the XVIIth International Congress of Comparative Law, pp. 257-279 (American Society of Comparative Law)
This article examines the future status and effect of same-sex legal relationships and an analysis of the recognition of such status, in view of the fact many Americans may be expected to enter into same-sex legal relationships in states and countries that permit them. It also discusses the impact of the Defense of Marriage Act (DOMA) in depth.

Herek, G.M., (2006) "Legal Recognition of Same-sex relationships in the United States: A Social Science Perspective", American Psychologist, 61(6).
This article reviews the relevant behavioral and social science research to assess the validity of key factual claims in the debate with respect to the legal recognition of same-sex relationships. It is concluded that same-sex couples and their children are likely to benefit in a number of ways from legal recognition of their families, and providing such recognition through marriage will bestow greater benefit than civil unions or domestic partnerships. Trends in public opinion towards greater support for legal recognition of same-sex couples are also discussed.

Hogg, P.W., (2006) "Canada: the Construction and Same-Sex Marriage" International Journal of Constitutional Law 712
This article maps the introduction of same-sex marriage to Canada. In particular, it explains the developments in Canadian Constitutional law that made the decision of the Supreme Court of Canada in Re Same-Sex Marriage, which confirmed that the Parliament of Canada had the power to legalise same-sex marriage, and also the legislation which followed this decision, more or less inevitable.

Jacobi, T., (2006) "How Massachusetts Got Gay Marriage: The Intersection of Popular Opinion, Legislative Action, and Judicial Power" 15 Journal of Contemporary Legal Issues 219
This article maps the introduction of same-sex marriage to Massachusetts. It further provides an explanation for how the Massachusetts Supreme Judicial Court managed to initiate same-sex marriage without provoking civil strife, whereby both judicial and legislative behaviour responded to and simultaneously influenced public opinion.

King, R.D. (2002) "Sexual Minorities and Marriage: The United States Constitution's Equal Protection Mandate" 5(4) Irish Journal of Family Law 13
A discussion on the continuing stigma attached to homosexuality in the United States. The article examines the constitutional basis for the claim that GLBT persons have a legal right to same sex marriage. It examines the legal issues involved and addresses the issue of domestic partnership as an alternative o marriage to same sex couples.

Koppelman, A., (2005) "Interstate Recognition of Same-Sex Marriages and Civil Unions: A Handbook for Judges" 153(6)University of Pennsylvania Law Review 2143
This article examines whether civil unions and marriages will be recognised in States that do not provide for them. The appendix offers a compilation of all the state statutes barring same-sex marriage that were on the books in the US in 2005.

Kramer, L., (May, 1997) "Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception", The Yale Law Journal, Vol. 106, No. 7, pp. 1965-2008
This article discusses the impact of Baehr v. Lewin, where the Hawaii Supreme Court ruled that a restriction on same-sex marriage constituted sex discrimination under the Constitution and the resulting Defence of Marriage Act (DOMA). It is submitted that the public policy doctrine ought to be deemed unconstitutional. It also considers Congress's power to proscribe choice-of-law rules for states as per DOMA.

Silberman, L., (2005) " Same-Sex Marriage: Refining the Conflict of Laws Analysis" 153(6) University of Pennsylvania Law Review 2195-2214 (Symposium: Current Debates in the Conflict of Laws)
This article deals with the conflict between federal and State laws. The author highlights that the current system, which allows each state to make the choice about same-sex marriage for itself based on the set of values accepted in that community, although reasonable, produces problems when relationships act outside their community. The article suggests that the appropriate choice of law should be the law of domicile or residence of the parties at the time of the marriage. States with "defense of marriage acts" should not further their own policies at the expense of the legitimate interest of other states.

Xigen Li; Xudong Liu, (2010) "Framing and Coverage of Same-Sex Marriage in U.S. Newspapers", City University of Hong Kong, Kowloon, Hong Kong Southern Illinois University Carbondale, Carbondale, Illinois, USA
This article examines fairness and balance in the coverage of same sex marriage by the media. Looks at the impact and debate put forward by the media and the consequences thereof, such as the role of public policy formation regarding same sex marriage, and the changing coverage of homosexuals, bisexuals and other sexually discriminated minorities.