Following Same-Sex Marriage : Redefining Marriage and the Impact for Polygamy

Dossier : Should Polygamy be Recognized in Canada ? Ethical and Legal Considerations

The recognition of rights to same-sex couples: the path towards a pluralistic concept of family

This paper presents the final results of the research project undertaken in 2010 and 2011 by the legal research group “Filius”, affiliated with Corporación Universitaria Empresarial Alexander von Humboldt of Armenia, (Quindío). The project’s general objective is “to establish the concept of family used by the Colombian legal system based on the judgments of the Constitutional Court granting rights to same-sex couples”. To this end, a line of jurisprudence was developed from the Court’s rulings that discussed the rights of same-sex couples, concluding that despite the great progress made in Colombia on the recognition of rights to these couples following Decision C-075/2007, in all these judgments the Court had always refused to recognize their family status, and it was not until 2011, in Decision C-577, that the Court accepted that same-sex couples constitute a family, thereby dramatically changing the constitutional doctrine that had maintained the criteria of heterosexuality as defining family.

The sexual constitution of political authority: the 'trials' of same sex desire

The Sexual Constitution of Political Authority argues that there are good reasons to suppose that our understandings of state power quiver with erotic undercurrents. Through a series of case studies where a statesman's same sex desire was put on trial (either literally or metaphorically) as a problem for the good exercise of public powers, the book shows the resilience and adaptability of cultural beliefs in the incompatibility between public office and male same-sex desire.

EU free movement law and the legal recognition of same-sex relationships: the case for mutual recognition

This article seeks to examine the cross-border legal recognition of same-sex relationships in the EU. Although the Member States maintain an exclusive competence in the field of family law and, thus, it is up to them to determine whether they will provide a legal status to same-sex couples within their territory, they need to exercise their powers in that field in a way that does not violate EU law. This, it is suggested, requires that Member States mutually recognize the legal status of same-sex couples and do not treat same-sex couples worse than opposite-sex couples, if the basis of the differentiation is, merely, the (homosexual) sexual orientation of the two spouses/partners. Nonetheless, the current legal framework does not make it clear that Member States are under such an obligation. The main argument of the article, therefore, is that the EU must adopt a more hands-on approach towards this issue.

Conflicts of law and the mutual recognition of same-sex unions in the EU

My thesis uses legal arguments to demonstrate a requirement for recognition of same-sex marriages and registered partnerships between EU Member States. I draw on the US experience, where arguments for recognition of marriages void in some states previously arose in relation to interracial marriages. I show how there the issue of recognition today depends on conflicts of law and its interface with US constitutional freedoms against discrimination. I introduce the themes of the importance of domicile, the role of the public policy exception, vested rights, and relevant US constitutional freedoms. Recognition in the EU also depends on managing the tension between private international law and freedoms guaranteed by higher norms, in this case the EU Treaties and the European Convention on Human Rights. I set out the inconsistencies between various private international law systems and the problems this creates. Other difficulties are caused by the use of nationality as a connecting factor to determine personal capacity, and the overuse of the public policy exception. I argue that EU Law can constrain the use of conflicts law or public policy by any Member State where these are used to deny effect to same-sex unions validly formed elsewhere. I address the fact that family law falls only partly within Union competence, that existing EU Directives have had limited success at achieving full equality and that powers to implement new measures have not been used to their full potential. However, Treaty provisions outlawing discrimination on grounds of nationality can be interpreted so as to require recognition in many cases. Treaty citizenship rights can also be interpreted favourably to mandate recognition, once private international law is itself recognised as an obstacle to free movement. Finally, evolving interpretations of the European Convention on Human Rights may also support claims for cross-border recognition of existing relationships.

The times are they a-changin'? Can the Commonwealth parliament legislate for same sex marriages?

This article considers whether the marriage power contained in the Australian Constitution could support a Commonwealth law that recognised same sex marriages. To this end and after outlining the current constitutional meaning according to the High Court, three methods used for interpreting constitutional terms (connotation/denotation, moderate originalism, non-originalism) are examined to ascertain whether they could source such a law to the marriage power. It is submitted that none can do so without betraying their own core interpretative principle or the text and structure of the Constitution. However an alternative method for interpreting [*2] constitutional terms is proffered which may be able to establish a sufficient connection between a law that recognises same sex marriages and the marriage power. It involves recognising 'marriage' as a constitutionalised legal term of art whose meaning can be informed by developments since federation in common law and statute.

Gendered (s)explorations among same-sex attracted young people in Australia

This paper seeks to import a more complex understanding of gendered subjectivity into discussions of young people and homosexuality, and is based on an Australian national survey (n=749) of same-sex attracted youth (SSAY) aged between 14 and 21. Results revealed significant gender differences with regard to patterns of sexual attraction, behaviour and identity labels among participants. For the young men in the study, there was more congruence between feelings of gender a-typicality, same-sex attractions and same-sex behaviours. Overall, young women displayed more fluidity with regard to their sexual feelings, behaviours and identities. Young women were more likely to be engaged in private explorations of lesbianism, concurrent with participation in heterosexual sex and relationships. Young women were also grappling with more limited and emotionally risky opportunities for sex with other girls who were already known to them as friends. The invisibility of lesbianism as an identity or practice led to confusion about what feelings meant for the future in the arena of lived experience. The paper concludes that more research is needed into the impact of gender on the development of young people's experiences of homosexuality, particularly the manner in which invisibility and lack of social acceptance of a full spectrum of sexual diversity may disadvantage young women's emotional health and well-being.

Homophobia and the production of shame: young people and same sex attraction

Research among same-sex attracted young people in Western cultures has described a minority group of adolescents whose sexuality is negated by the significant institutions and people in their lives. Very often, there is a silence in the family and at school about same-sex sexuality and when a young person's homosexuality is suspected or disclosed s/he suffers from denial, discrimination and abuse. Not surprisingly, living in hostile environments leaves such young people at high-risk of drug abuse, depression and suicide. This paper describes some of the ways young people resist being positioned in these negative ways. Using autobiographical stories from 200 same-sex attracted young Australians, we document the discursive field of sexuality in which these young people struggle to construct positive identities. Young people were well aware of dominant discourses which characterized homosexuality as 'evil, diseased and unnatural'. Yet they use different strategies to fault, deflect and discount these negative understandings and to highlight other discourse which positions them positively.