Research Handbooks in Comparative Law series
Edited by Tom Ginsburg and Rosalind Dixon
Chapter 30: Legal Protection of Same-sex Partnerships and Comparative Constitutional Law
Nicholas Bamforth In the past twenty years, courts and legislatures in many constitutional democracies have considered, but not always conclusively resolved, a cluster of questions concerning the law’s treatment of sexual/emotional relationships between persons of the same sex (hereafter referred to as ‘same-sex partnerships’).1 Along one dimension lie what might be described as substantive questions, concerning the content of the legal rights afforded to those in same-sex partnerships in the jurisdiction concerned; along another dimension lie what might be termed institutional questions, concerning the proper roles and powers of different state institutions in resolving the substantive questions. Both sets of questions are of a clearly constitutional, and more specifically constitutional law, character.2 A very basic substantive question is whether any form of legal recognition should be granted to same-sex partnerships, even to the extent of recognising their existence as a social phenomenon.3 At this very basic level falls discussion of whether same-sex partners should have analogous rights to those enjoyed by unmarried opposite-sex partners, for example to succeed to tenancies, or to partnership-related employment or social security benefits.4 A rather deeper-level, but analytically related, question is whether a formal legal status should be available to those in same-sex partnerships, whether such a status is described as marriage or civil/registered partnership and whether or not the accompanying legal rights and obligations are the same as or sometimes subtly different from those associated with opposite-sex state-recognised marriage.5 A further question – albeit one which might be answered as part of a legislative...