The journal Issues in Legal Scholarship published a full issue not too long ago on single-sex marriage.

Among the articles is "Nordic Bliss? Scandinavian Registered Partnerships and the Same-Sex Marriage Debate."

From the abstract:

The proponents of same-sex marriage have long argued that committed lesbian and gay couples should have the same legal options as committed straight couples, including marriage. Same-sex marriage opponents have shifted from one argument to another in an effort to find one that can appeal to the increasing number of Americans open to equal rights for gay people. Since the 1990s, opponents have argued that allowing same-sex marriage would undermine the institution of marriage. In recent publications, Hoover Institute scholar Stanley Kurtz has expanded this argument and provided evidence to support it. He argues that Scandinavian "registered partnerships", which provide same-sex couples with almost all the same rights and responsibilities as marriage, are "both an effect and a reinforcing cause of this Scandinavian trend toward unmarried parenthood." According to Kurtz, "Once marriage is separated from the idea of parenthood, there seems little reason to deny marriage, or marriage-like partnerships, to same-sex couples. By the same token, once marriage (or a status close to marriage) has been redefined to include same-sex couples, the symbolic separation between marriage and parenthood is confirmed, locked-in, and reinforced."

Eskridge, Spedale, and Ytterberg dissent from Kurtz’s speculative causal link between registered partnerships and what he calls the "end" of marriage in Scandinavia. To begin with, the authors question Kurtz’s logic. Family law throughout much of the West has, arguably, undermined marriage as an institution by making it easier to exit and by providing civil alternatives with some of the benefits and few of the obligations. But expanding the eligibility of marriage, or a parallel institution, to same-sex couples who want to take on the civil obligations as well as the benefits of marriage does not logically undermine the institution of marriage. More important, the evidence from Scandinavia refutes rather than supports Kurtz’s logic. Long-range trends in marriage rates, divorce rates, and nonmarital births either have been unaffected by the advent of same-sex partnerships or have moved in a direction that suggests that the institution of marriage is strengthening. Finally, the authors focus on the security of children in Scandinavia and find none of the ill effects posited by Kurtz.

In a concluding section, Eskridge, Spedale, and Ytterberg raise normative questions relevant to the ongoing search for arguments to deny gay people civil equality. The big loser in such a campaign is marriage. By scapegoating gay marriage (or partnerships) as the "cause" of marriage’s decline, pseudo-conservatives tend to reinforce the actual causes of the decline – the options straight couples are utilizing, such as no-fault divorce and cohabitation rights.

The full article is available only to academic institutions and to subscribers. (I have a copy.)

Reviews: (Oct. 21, 2004) offers an extended commentary on the article and the larger problem of the religious-right smear campaign against marriage and gay equality in Europe. (Oct. 17, 2004) offers a hasty dismissal of the article.


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