Migration of the Same-Sex Family

Abstract

Although some opponents of decriminalization or legal recognition of same-sex relationships have strategically cast homosexuality as a non-indigenous practice of an invasive external group, same-sex relationships are native to every country. What varies from jurisdiction to jurisdiction and across time is the legal treatment of such relationships. At various times and places, the law has constructed same-sex relationships as accepted or even expected associations, as criminal activity, as pathological behavior, and, more recently, as families. The legal construction of same-sex relationships does not determine but does affect the experience and behaviors of parties in such relationships. Popular culture and modern information technology have efficiently circulated around the world stories and information about the expansion of the family law regime to include same-sex relationships. Information about foreign laws is also collected in a formal way by law reformers, who routinely undertake comparative analysis to see how other countries, or at least those within their own legal tradition, deal with particular issues. For example, countries dealing with the elimination of discrimination against same-sex couples or with family regulation may look to The Netherlands, the first country to open up civil marriage to same-sex couples, as an example of one law reform possibility. Adoption of the legally constructed same-sex family developed abroad may result from proactive government efforts, when governments resist such reforms, advocates fighting for the importation of the new species of legally constructed family may invoke foreign models in support of their cause. For example, advocates for the opening up of civil marriage to same-sex couples can point to The Netherlands to counter the argument that the definition of marriage as a union for life of one man and one woman is universally accepted by society. Popular culture, information technology and comparative law analysis spread the news of the legally constructed same-sex family very quickly and may support law reform efforts in other countries. Another important driver of the migration of the same-sex family is the movement of people between countries that have different definitions of family. Movement between countries with different legal constructions of the family raises questions about the portability of connected to particular constructions of the family. The portability of these goods can be considered in the context of the opening up of civil marriage to same-sex couples.