Duke Journal of Gender Law & Policy
Marriage, same-sex marriage, civil unions, gay rights, incrementalism, Predicting Legal Recognition of Same-Sex Marriage
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.
Erez Aloni, "Incrementalism, Civil Unions, and the Possibility of Predicting Legal Recognition of Same-Sex Marriage" (2010) 18:1 Duke J Gender L & Pol'y 105-161.