Vol. 12 No. 10 (October 2002)
EQUALITY FOR SAME-SEX COUPLES: THE LEGAL RECOGNITION OF GAY PARTNERSHIPS IN
EUROPE AND THE UNITED STATES by Yuval Merin. Chicago: University of Chicago
Press, 2002. 397 pp. Paper $25.00. ISBN: 0-226-52032-3.
Reviewed by Rob Hennig, Department of Political Science, UCLA. Email:
hennig@polisci.ucla.edu
Yuval Merin has produced an interesting book. EQUALITY FOR SAME-SEX COUPLES: THE
LEGAL RECOGNITION OF GAY PARTNERSHIPS IN EUROPE AND THE UNITED STATES is a
wonderfully thorough comparative analysis of the international state of same-sex
unions. Mr. Merin provides a clear and complete compendium of the differing
states of legal recognition various countries and states afford same-sex unions.
At the same time, political scientists looking for something beyond legal
analysis may be disappointed.
The first part of Merin's work is an examination of the evolving state of
marriage from its roots until the present. Merin finds that marriage has,
historically, served different purposes in different societies and at different
times. He states that the current conception of marriage, at least in advanced
Western democracies, is not necessarily about the raising of children, but love,
companionship, and romance.
He writes, "Love, more than other rationales, has become the widely respected
and generally admitted motive for mate selection, and potential spouses have
come to expect emotional and sexual fulfillment through marriage" (29). As such,
"The demise of the support-service dichotomy that existed from the 1600s through
the 1970s is one of the main factors in making gay marriage a viable concept"
(29). Put in simple terms, Merin claims that the current purposes of marriage
make it suitable for same-sex couples.
The heart of the book, however, is its exhaustive description and comparison of
the international state of same-sex unions in Chapters 3 through 8. Merin has
put together a rich level of detail. Alas, since the book's publication new
events have already occurred around the recognition of same-sex unions (ILGA
2001). Canada, for example, may soon be the second country in the world, after
the Netherlands, to recognize same-sex marriages (HALPERN V. CANADA (2002)).
In Chapters 8 through 10 Merin seeks to explain how nothing but marriage
qualifies as full equality for lesbians and gays. Merin compares domestic and
registered partnerships to the "separate but equal" doctrine rejected in the
landmark case BROWN v. BOARD OF EDUCATION (1954). Merin asserts first that
"there are NO RELEVANT differences between same- and opposite-sex couples for
the purposes of the legal regulation of a couple's cohabitation (in particular,
marriage)" (285, emphasis in original).
Later, using LOVING v. VIRGINIA (1967), the United States Supreme Court
antimiscegenation case, as well as BROWN for support, Merin declares "I view
BOTH analogies combined as making a strong case for rejecting marriage
alternatives and as mandating the inclusion of gay couples in marriage" (290,
emphasis in original).
Merin ends his book with a discussion of the practical attainability of same-sex
marriage. He contends there is a normative progression of rights that occurs for
lesbians and gays. Before same-sex marriage can be attained, first laws
criminalizing same-sex sexual acts must be repealed and then anti-discrimination
laws must be created. It is only after these earlier steps occur that, according
to Merin, gay marriage is possible. Merin also seeks to show historically how
the legal recognition of same-sex relationships has only come after these first
two steps have happened.
I found the first and last parts of the book the most interesting. Merin's
discussion of the evolution of the concept of marriage intrigued me. The same is
true with Merin's claim as to a natural progression of rights and respect for
lesbians and gays. Although the most detailed, I found the actual description of
the global state of same-sex unions a bit of a trudge. Still, the comparative
nature of the discussion kept it interesting for me. It is intriguing how
different countries being faced with the same issue have come up with sometimes
identical and sometimes appreciably different answers.
I was the most doubtful about the chapters dealing with domestic partnerships
and registries and the necessity of same-sex marriage for full equality. There
are basically two problems, as I see it, with Merin's point here. First, he
views same-sex marriage in a vacuum. It is certainly true that only same-sex
marriage achieves all the rights and privileges of opposite-sex marriage.
Yet, by developing this thesis in the abstract, it has almost no practical
meaning. Indeed, as Chapter 11 argues, it is necessary to fight and obtain other
levels of dignity and protection before same-sex marriage is even a possibility.
If same-sex marriage is the last stop on a long progression of levels of respect
afforded lesbians and gays, then Merin's forceful arguments for marriage seem
premature.
The other problem I have with Merin's call for the rightness of same-sex
marriage is that it fails to recognize adequately the sources and nature of the
opposition of this claim. That logic may dictate the recognition of same-sex
marriages does not necessarily mean it will ever be achieved. Merin appears to
suggest that same-sex marriage is only being held back by illogical and bigoted
sentiment. He states, "If homophobia were held to be a moral evil equal to
racism . . . then there would be no acceptable reason, under BROWN, to allow
separate but equal marriage-like institutions for gay men and lesbians" (294).
Although Merin does examine the opposition to same-sex marriage from within the
lesbian and gay community (299-307), I thought this discussion rather too brief
and, quite frankly, dismissive. It certainly makes sense for some lesbians and
gays to argue demands for same-sex marriage are too premature and that domestic
partnerships are a more practical and realistic goal at the present time. Claims
for same-sex marriage may not only be ineffective, but may also cause a backlash
as the passing of Defense of Marriage Acts at the federal level and in most
states demonstrates.
A more basic point is that Merin simply ignores the arguments made by opponents
of same-sex marriage from outside the lesbian and gay community. Many religious
opponents of same-sex marriage have advanced a variety of claims. Perhaps most
stem from the strongly and sincerely held belief that same-sex sexual acts are
immoral. Yet, Merin does not address these arguments at all. We never receive
the opportunity to evaluate the arguments made in opposition to same-sex
marriage for their logic or coherence.
In that sense, Merin might be seen as more of an advocate than of an objective
observer. But, the real criticism is that Merin is missing the most interesting
point of the same-sex marriage debate. It is the politics of this debate that
is, at least for me, so compelling. Whether logical or not, a large segment of
the population in the United States and other countries rejects same-sex
marriage--some quite forcefully. Some proponents of same-sex marriage, have
taken the debate to be a symbolic referendum of their dignity as persons. Gay
rights in general and gay marriage in particular have become hot-button
political issues. Again Merin never bothers to analyze why that is the case.
On the ground level, there is a real and passionate debate going on in several
countries about same-sex marriage. To me at least, that debate is important and
captivating in its own right. Merin's analysis here is rather long on legal
concepts while ignoring the politics involved. As I see it, Merin focused on the
least interesting aspect of the same-sex marriage issue.
In short, I guess I wish Merin had written a different book and that is unfair.
As it stands, you can take these criticisms as a critique not on the book's
content itself but on the usefulness of that content for political scientists.
Merin has written a rather lengthy law review article that may appeal to lawyers
and law professors but probably has much more limited use to political
scientists.
While I could not, for example, imagine assigning this book for my lesbian and
gay politics course, I would be much more inclined to use the book if I were
teaching a law school seminar on sexual orientation. For those with an academic
or personal interest in the topic, however, Merin has produced something worth
examining. In particular, Merin's claim of a natural progression of rights for
lesbians and gays culminating in same-sex marriage bears close examination, and
I hope it will spur further research.
REFERENCES
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
HALPERN v. CANADA (A.G.), Ont. S.C.J. (Div. Ct.) 2002 C.R.D.J 1324 (July 12,
2002). The full text of the court opinion is available at http://www.sgmlaw.com/userfiles/filesevent/file_1413620_halpern.PDF
International Lesbian and Gay Association. Last updated October 21, 2001. WORLD
LEGAL SURVEY at http://www.ilga.org/Information/Legal_survey/ilga_world_legal_survey%20introduction.htm
LOVING v. VIRGINIA, 388 U.S. 1 (1967).
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Copyright 2002 by the author, Rob Hennig