Same-Sex But Not the Same: Same-Sex Marriage in the US and France and the Universalist Narrative

58 Pages Posted: 17 Jan 2017

See all articles by Ivana Isailović

Ivana Isailović

University of Amsterdam - Amsterdam Centre for European Law and Governance

Date Written: November 24, 2016

Abstract

More and more jurisdictions around the world are adopting, or considering the adoption of, legislation to legalize same-sex marriage. The dominant approach for analyzing these reforms has been universalist. According to this view, same-sex marriage represents a legal trend at the global level and will eventually become a global norm. This description lumps together different family law reforms and depicts them as contributing to a broader global convergionist dynamic. This article argues that universalism has theoretical and practical shortcomings, however. It tends to downplay the diversity of processes of legal change by isolating law from local cultural and political dynamics and, in so doing, obscures arguments and social dynamics that perpetuate the marginalization of gays and lesbians and their families. Using the pluralist sociolegal framework that sees law as a cultural and political artefact, this article compares two such legal reforms, one in the United States and one in France. It argues that four aspects distinguish these two reforms: the different roles played by rights and equality-based arguments, the divergent understandings of law in relation to gay and lesbian historical marginalization and social change, the focus of the debates (on the definition of marriage in the US and on filiation in France) and finally, the type of expertise underpinning the legal arguments. Pointing to these differences allows us to better appreciate the political, legal and cultural processes that underpin legal change and the obstacles to achieving equality for gays, lesbians and their families.

Suggested Citation

Isailović, Ivana, Same-Sex But Not the Same: Same-Sex Marriage in the US and France and the Universalist Narrative (November 24, 2016). American Journal of Comparative Law, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2897686

Ivana Isailović (Contact Author)

University of Amsterdam - Amsterdam Centre for European Law and Governance ( email )

P.O.Box 1030
Amsterdam, 1000 BA
Netherlands

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