Same-sex Marriage Cases Research Articles

The common law marriage in Australian private international law

The common law marriage is a curiosity in the private international law of marriage in the Commonwealth and Ireland. In some cases, a marriage that is invalid under the law of the place where it was solemnised (lex loci celebrationis) may nevertheless be recognised as valid if it meets the requirements of a common law marriage. These originate in the English canon law as it stood in the eighteenth century and include the central requirement of the parties’ present declaration that they are married. The parties also had to meet the essentials of a Christian marriage as described in Hyde v Hyde (1866): “a voluntary union for life of one man and one woman to the exclusion of all others”. There are more reported cases on common law marriages in private international law in Australia than any other country. Although its Australian development coincided with that of other countries, in the twenty-first century the Australian common law marriage is now in an unusually amorphous condition. The preconditions for a court to ignore the lex loci have been significantly liberalised. Additional uncertainty in the nature of a common law marriage is created by a combination of repeated misinterpretations of the Marriage Act, the failure to use precedent outlining its requirements and the dismantling of the Hyde definition of marriage in the Same-Sex Marriage Case (2013). The article considers that the common law marriage might still serve a useful purpose in Australian private international law, and how it could better do so.

The supply and demand of marital contracts: the case of same-sex marriage

The supply and demand of marital contracts: the case of same-sex marriage

Jim Obergefell, Lead Plaintiff in Landmark Same-Sex Marriage Case, to Address APA

Jim Obergefell, Lead Plaintiff in Landmark Same-Sex Marriage Case, to Address APA

Discussion on the Application of Reservation of Public Order in Foreign-related Same-sex Marriage in China

With the development of globalization, Same-sex marriage has become more and more common and has achieved legal effect in some countries. Reservation of public order is generally applicable in dealing with Foreign-related Same-sex marriage. However, the abstract nature of it allows judges to abuse their discretion, and applying it regardless of the situation has also resulted in the difficulty of maintaining the legitimate rights and interests of the parties, and has brought adverse effects to the judgments of Chinese courts in the international arena. Therefore, China should face up to the objective fact of the universalization of Foreign-related Same-sex marriage, deal with Foreign-related Same-sex marriage cases on a case-by-case basis, and prudently apply the reservation of public order, so as to safeguard the personal and property rights and interests of the parties on the basis of preserving the social interests of China.

Sexual Orientation and the right to marry: a case study of ECtHR Oliari and others v. Italy

Same-sex marriage is one of the important issues that have not yet reached full European consensus among EU member states. In particular, in relation to same-sex marriage, ‘The Margin of Appreciation Doctrine’ applied by the European Court of Human Rights has a very important meaning in analyzing same-sex marriage cases. The European Court of Human Rights held that the ‘European Consensus’ or ‘Consensus Argument’ is particularly important when issues in question are morally or ethically sensitive or complex and relate to the choice of social strategy. Specifically, the Oliari case is considered as leading case that has paved the way for full legal recognition of same-sex relationships in Europe. Furthermore, it is the first case to regard legal recognition and protection for same-sex couples as a Positive State Obligation . The fact that the European Court of Human Rights did not respond to the claim of violation of Article 14 (the principle of non-discrimination) in conjunction with Article 8 of the European Convention on Human Rights has naturally been criticized. Nevertheless, it should be emphasized that the Principle of Proportionality played an important role in the reasoning process of the Oliari decision. In addition, there are good lessons that Korea can learn from the Oliari decision particularly in the relation to Positive State Obligation to recognize same-sex relations as well as making progressive interpretation to sufficiently protect the rights of sexual minorities.

2019 Global Review of Constitutional Law: Taiwan

Taiwan’s constitutional development in 2019 was reactive in character with the legislative arena as the main constitutional theater. In reaction to the constitutionally controversial and politically divisive referenda aimed at curtailing the Taiwan Constitutional Court’s (TCC) historic Same-Sex Marriage Case, the Government introduced legislation both to implement the TCC’s ruling on marriage equality and to amend the Referendum Act again to minimize the impact of referendum politics on elections in the future. To propaganda and other forms of interference imputed to China, which had been blamed for the DPP’s election defeat in 2018, the DPP government reacted with a series of legislative moves to tighten up national security measures to avoid repeating the same misfortune in the elections to come. Paralleling the reactive moves on the legislative front were the seeming constitutional routines as manifested in the president’s judicial appointments in the anticipation of scheduled retirements from the TCC and the TCC’s decisions. Routine as they seem to be, both non-statutory constitutional developments, whether they played out in the judicial forum or not, were of long-term significance in Taiwan’s constitutional development in their own right.

On the helping profession supporting LGBTQ+ community and the equality movement

The advancement of the marriage equality movement in Taiwan in recent years has caught international attention. In 2017, the constitutional interpretation No. 748 (Same-Sex Marriage case) recognise...

Same-sex marriage beyond Charter dialogue: Charter cases and contestation within government

In this article, I argue that the dialogue debate has obscured a much richer story that can be told about Halpern v Canada, same-sex marriage, and the complex relationship between courts and legislatures. The federal government was deeply divided on same-sex marriage. Parliament, the Liberal government, the federal Cabinet, and the liberal caucus were all deeply divided. From the outside, it may have appeared as a ‘courts versus government’ battle, with the federal government defending the opposite-sex definition of marriage right up until the Ontario Court of Appeal struck it down as unconstitutional in Halpern. But a closer look shows that the federal government’s about-face after Halpern had been in the making for years, with supporters trying to use court decisions as well as changing public opinion to wedge open the marriage issue. The same-sex marriage case study can be retold as a story not of dialogue between courts and Parliament but, rather, as a contestation within government. I argue that this story – of conflict and contestation within government and the use of court decisions by proponents of same-sex marriage – can provide a richer account of the evolution of the federal government and the adoption of the Civil Marriage Act.

Public opinion and policy responsiveness: the case of same-sex marriage in Australia

ABSTRACTThis article examines congruence between public opinion and politicians’ positions on same-sex marriage in the Australian House of Representatives from 2012 to 2016. In contrast median voter theorem and other office-motivated frameworks, Australian federal politicians have largely ignored majority opinion, which has been supportive of same-sex marriage for a decade. Using a unique dataset (n = 601,550) of voter preferences collected during the 2013 federal election, and collated Hansard and media data, we compare public opinion on same-sex marriage with politicians’ public positions. We find a status quo bias, suggesting the influence of special interest groups in this policy area. Yet, we also find parliamentarians are responsive to public opinion once it reaches a critical level, and that very low opposition to same-sex marriage in an electorate predicts policy support from its MP, which varies by party and over time.

The Role of Social Science Expertise in Same-Sex Marriage Litigation

This article examines the role of social science in US same-sex marriage (SSM) court cases. The existing literature on the role of social science in courts is inconclusive, with studies suggesting social science exerts influence in some but not all areas of law. The literature on social science in SSM litigation is in its formative stage. This article reviews key SSM cases—including the three SSM trials and recent US Supreme Court cases—and describes how litigants and other interested parties invoked social science to address several key points related to legal recognition of SSM. A review of these cases suggests that social science may have exerted influence in SSM litigation because of the large volume of available evidence, the high level of scientific consensus on key issues, and contextual factors such as shifts in public opinion.

The Brown Moment in Taiwan: Making Sense of the Law and Politics of the Taiwanese Same-Sex Marriage Case in a Comparative Light

The Taiwan Constitutional Court (TCC) recently issued a landmark decision in Interpretation No. 748 (the Same-Sex Marriage Case), declaring the definition of marriage as a gender-differentiated union of a man and a woman under the Civil Code unconstitutional and setting the stage for Taiwan to become the first in Asia to legalize same-sex marriage. This decision has been compared to Obergefell v. Hodges. However, reading Obergefell in the broad context of the gay rights movement and the role of judicial review in Taiwanese constitutional politics, we challenge this analogy. Due to the discrepancy between the social movement and the law in the fight for constitutional rights for gays and lesbians in Taiwan, the Same-Sex Marriage Case is Taiwan’s Brown v. Board of Education moment in her constitutional law and politics. To make sense of the law and politics of the Same Sex Marriage Case, we evaluate its political context and the text and style in its reasoning. We observe a discrepancy between law and politics in the pursuit of the constitutional rights of gays and lesbians in Taiwan. The rise of same-sex marriage to the top of the antidiscrimination agenda resulted from the continuous effort of gay rights activists, while the TCC watched this movement from the sidelines until the Same-Sex Marriage Case. This case thus mirrors Brown in two respects. First, the role of the TCC has been publicly questioned after its Brown-like contentious decision on the issue of same-sex marriage. Second, the text and style of the Same-Sex Marriage Case is evocative of the exceptional brevity, managed unanimity, and scientific rationality in Brown. Echoing the Brown Court, the TCC attempts to manage judicial legitimacy, anticipating and answering the political reaction to its ruling in light of its intervention in gay rights issues by tackling the fundamental question of same-sex marriage head-on.

The Unconstitutionality of Constitutional Amendment for Introducing A ‘Same-Sex Marriage’ -The Analysis on the Interpretation of Human Dignity in Same-Sex Marriage Case of US Federal Supreme Court-

The Unconstitutionality of Constitutional Amendment for Introducing A ‘Same-Sex Marriage’ -The Analysis on the Interpretation of Human Dignity in Same-Sex Marriage Case of US Federal Supreme Court-

Amici Curiae Brief of Family Law Professors in Obergefell v. Hodges

This Amici Curiae brief was filed in the Supreme Court on behalf of 74 scholars of family law in the four consolidated same-sex marriage cases. The two questions presented in the cases concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Those defending the marriage bans rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the “optimal” setting for raising children is a home with their married, biological mothers and fathers. The brief demonstrates that these asserted rationales conflict with basic family laws and policies in every state, which tell a very different story.

Family Law as a Right to Freedoms: The Case of Same-Sex Marriage in Spain†

Family Law as a Right to Freedoms: The Case of Same-Sex Marriage in Spain†

The European Court of Human Rights and Same-Sex Marriage. The Consensus Approach

The European Court of Human Rights and Same-Sex Marriage. The Consensus Approach

The latest US Supreme Court on same-sex(同性) marriage case of OBERGEFELL ET AL. v. HODGES and its implications

The latest US Supreme Court on same-sex(同性) marriage case of OBERGEFELL ET AL. v. HODGES and its implications

Introduction

Introduction Melvin I. Urofsky The issue in your hands includes articles on many facets of the Supreme Court’s history, which, of course, has been our objective for many years. We hope that our readers will find time to put their feet up and enjoy learning more about our nation’s highest tribunal. When the Court recently handed down its decision in the same-sex marriage case, a number ofcommentators referred to Brown v. Board ofEducation (1954) to make a very important point. While the first case in a new field ofjurisprudence gets the headlines and the attention, the real work of implementing that decision will require years and other cases to determinejust how far the new ruling will go. Brown said that state-required racial segregation in public schools violated the Fourteenth Amendment’s Equal Protection Clause. But what about racial discrimination in places other than schools? Professor Steven P. Brown, the head of the political science department at Auburn, looks at one of these cases and its long history. Steven Girard, a wealthy nineteenthcentury Philadelphia merchant, left the bulk of his estate to found a school for white orphans. Although the gift was private, there were enough connections to the city to warrant a case for state action. Professor Brown traces the history of the bequest, and the fight that took place over integrating Girard College in the 1960s. It is a fine example of the devil being in the details. Evan P. Rothera is a graduate student in history at Pennsylvania State University, and his article on polygamy is the winner of this year’s Hughes-Gossett Student Prize. Most of us who teach constitutional history focus almost entirely on Reynolds v. United Statesem (1879) when we discuss the Court and polygamy. But as Rothera and others are showing, there is far more to the battle against polygamy than that one case, and it involved not only the high court but Congress and the Republican Party as well. It has been my good fortune to have Clare Cushman as the managing editor of the Journal ever since I took over. But Clare is not only a good editor, she is also the author of a number of books about the Court and its members. In 2011 she published 5 6 JOURNAL OF SUPREME COURT HISTORY Courtwatchers: Eyewitness Accounts in Supreme Court History, which has a wealth of little known anecdotes about the high court. The response was so enthusiastic that she is now co-publishing a volume (with Todd Peppers), Of Courtiers & Kings; More Stories by Law Clerks and Their Justices, from which the article on pre-1940 law clerks is adapted. The Framers of the Constitution gave federal judges tenure during good behavior, in other words, a lifetime appointment so they would be free from partisan political pres­ sures. The vast majority of the members of Justices have stayed until they retired or died, but a handful have left the Court to do something else. James F. Flanagan, emeritus professor of law at the University of South Carolina, looks at five of these Justices and helps us to understand why they did some­ thing so rare—resign from the U.S. Supreme Court. Abe Fortas was one of the most success­ ful lawyers in Washington, the head of a politically connected law firm, and the epitome of the old saw about New Deal lawyers who came to Washington to do good and stayed on to do well. He was a friend of Lyndon B. Johnson, who very much wanted him on the Court, a position that neither Fortas nor his wife wanted, but LBJ could not be stopped. Then, when Earl Warren wanted to retire as ChiefJustice, Johnson nominated his friend to take the center chair. Normally that would be the end of the story, but in fact it is just the beginning, as Robert David Johnson of Brooklyn College shows us. It is a tale with not one but many morals. Finally, we have a piece from my book on dissent and the Court. In that volume I try to show that a dissent is more than merely saying “I disagree.” A great dissent forces the...

Roe as We Know It

The petitioners in last year’s historic same-sex marriage case cited most of the Supreme Court’s canonical substantive due process precedents. They argued that the right of same-sex couples to marry, like the right to use birth control and the right to guide the upbringing of one’s children, was among the liberties protected by the Fourteenth Amendment. The Court in Obergefell v. Hodges agreed, citing many of the same cases. Not once, however, did the petitioners or the majority in Obergefell cite the Court’s most famous substantive due process decision. It was the dissenters in Obergefell who invoked Roe v. Wade.

Brief of Douglas Laycock, Thomas Berg, David Blankenhorn, Marie Failinger, and Edward Gaffney as Amici Curiae in Support of Petitioners in Same-Sex Marriage Cases (Obergefell v. Hodges etc.)

The Court must protect the right of same-sex couples to marry, and it must protect the right of churches, synagogues, and other religious organizations not to recognize those marriages. This brief, filed in Obergefell and the other current same-sex marriage cases, is an appeal to protect the liberty of both sides in the dispute over same-sex marriage. Serious issues of religious liberty will arise in the wake of same-sex marriage. But it is not appropriate to prohibit same-sex civil marriage to avoid having to address those issues. No one can have a right to deprive others of their important liberty as a prophylactic means of protecting his own. The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides. Both sexual minorities and religious minorities make essentially parallel claims on the larger society. Both sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity. Both same-sex couples, and religious organizations and believers committed to traditional understandings of marriage, face hostile regulation that condemns their most cherished commitments as evil. The American solution to this conflict is to protect the liberty of both sides. Same-sex couples must be permitted to marry, and religious dissenters must be permitted to refuse to recognize those marriages. Doctrinal tools are available to protect religious liberty with respect to marriage, and this brief summarizes them.

Amici Curiae Brief of Family Law Professors in Obergefell v. Hodges (U.S. 2014, Nos. 14-556, 14-562, 14-571 and 14-574)

This amici curiae brief was filed in the Supreme Court in March 2015 on behalf of 74 scholars of family law in the four consolidated same-sex marriage cases on appeal from the 6th Circuit Court of Appeals. The two questions presented in the cases concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Those defending the marriage bans rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the “optimal” setting for raising children is a home with their married, biological mothers and fathers. The brief demonstrates that these asserted rationales conflict with basic family laws and policies in every state, which tell a very different story.