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