Strategies to achieve Same-Sex Marriage and the Method of Incrementalist Change

Hamilton, Frances (2016) Strategies to achieve Same-Sex Marriage and the Method of Incrementalist Change. Journal of Transnational Law and Policy, 25. pp. 121-153. ISSN 1067-8182

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Abstract

Following the decision of the Supreme Court in Obergefell et al v Hodges, Director, Ohio Department of Health et al (henceforth ‘Obergefell’) all US states are required to license marriages between same-sex couples. This decision although having the effect of immediately introducing same-sex marriage across the US, was taken by an unelected court and in the absence of a democratic mandate. Many other countries worldwide have yet to enact same-sex marriage. This piece considers an appropriate strategy for enacting lasting change for those in favour of same-sex marriage. Comparative constitutionalism is used in order to learn from the experience of other nations in tackling similar social and legal issues. After an analysis of recent international examples this article recommends the use of slow incremental change. This is often characterised by an intermediate stage of civil partnership legislation and by use of the legislative rather than court based approach. This method allows influence upon and engagement with public opinion which is useful to ensure successful change. This article demonstrates by way of case studies that countries which do not follow this method are more likely to see a backlash in public opinion and a subsequent legislative reversal of a court judgement. Alternatively lack of public support could lead to less than substantive equality for same-sex couples.

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