Incrementalism, Civil Unions, and the Possibility of Predicting Legal Recognition of Same-Sex Marriage

By Aloni, Erez | Duke Journal of Gender Law & Policy, Fall 2010 | Go to article overview

Incrementalism, Civil Unions, and the Possibility of Predicting Legal Recognition of Same-Sex Marriage


Aloni, Erez, Duke Journal of Gender Law & Policy


ABSTRACT

Scholars who have examined the legal recognition of same-sex partnerships in European countries have concluded that the path to the legalization of same-sex marriage follows an incremental process involving specific stages. They suggest that it is possible to predict, based on certain visible social and legal processes or assessable parameters, which U.S. states will be the next to recognize same-sex marriage. These scholars argue that such small cumulative legal changes at the state level constitute the best means of legalizing same-sex marriage in the United States, and that civil unions are a necessary step in this process. This article shows that predictions based on these theories have not been accurate and that attempts to generalize the experience of legalizing same-sex marriage overlook a variety of often significant and sometimes subtle social, political, and legal differences between the United States and Europe. Therefore, these theories cannot sufficiently explain how social change happens and cannot be used to formulate strategic plans for legalizing same-sex marriage in the United States. This article also proposes that the adoption of civil unions can significantly delay legal acceptance of same-sex marriage. It suggests that the theories overlooked the fact that in some European countries, lesbian and gay organizations were more interested in securing partnership rights for same-sex couples, rather than marriage itself. This path is the one that advocates in the United States should take.

I. INTRODUCTION

American scholars often look to the experiences of European states' adoption of laws permitting same-sex marriage to lend credibility to their recommendations for optimal political and social change strategies. Some of these scholars have concluded that the legalization of same-sex marriage follows an incremental legal progression through specific stages. They suggest that it is possible to predict, based on certain visible social and legal processes or assessable parameters, which state will be the next to recognize same-sex marriage. Within this incrementalist paradigm, they view civil unions as a necessary step prior to the complete legalization of same-sex marriage. These scholars argue that small cumulative legal changes at the state level constitute the best means of bringing about the legalization of same-sex marriage in the United States.

It is undoubtedly true that the European experience with the legal recognition of same-sex partnerships enables understanding of the way in which social and legal changes occur and provide insight into future changes. Yet predictions based on the proposed theories concerning the path leading to the legalization of same-sex marriage have been disproved and have shown that the application of a general rule falls flat in a cascade of exceptions. An overview of unfolding events on both continents casts more than a little doubt on the accepted theory of incrementalism. In this Article, I argue that the attempt to describe the experience of legalizing same-sex marriage in terms of one overarching, globally shared process overlooks a variety of significant and sometimes subtle social, political, and legal differences between the United States and Europe. To this end, there is always going to be what I call a butterfly effect--small variations of the initial condition of a dynamic system that may produce large variations in the long-term behavior of the system. In this case, unpredictable factors can influence the debate among (as well as strategies used and actions taken by) policy makers and lesbian, gay, and bisexual (LGB) (1) activists in pursuit of the legalization of same-sex marriage.

The most accepted and widely cited (2) theory of the path to the legalization of same-sex marriage is that of Kees Waaldijk, (3) which has been embraced and advanced most notably by William N. Eskridge (4) and Yuval Merin. (5) They call this theory the "law of small change," the "step-by-step" approach, and the "necessary process," respectively. …

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