Sacred Spaces,Sacred Words: Religion and Same‐sex Marriage in England and Wales

This article provides an analysis of the ways in which the spatial and illocutionary requirements of English marriage law – which regulate the spaces in which marriages may be solemnized and the words the parties being married must speak – have been used to maintain distinctions between same‐sex and opposite‐sex couples. It shows how religious opponents of same‐sex partnership recognition have relied upon historically entrenched differences between the spatial and illocutionary aspects of ‘civil marriage’ and ‘religious marriage’ to argue in favour of the enactment of law that enables organized religions to exclude same‐sex couples from religious premises and ceremonies that are open to opposite‐sex couples for the purpose of solemnizing marriage. It extends recent international debates about how faith‐based discrimination against same‐sex couples is accommodated by legislators and legitimized by law, and concludes with a consideration of how English law could be amended to end discrimination based on sexual orientation.     

CHILDREN OF SAME‐SEX PARENTS DESERVE THE SECURITY BLANKET OF THE PARENTAGE PRESUMPTION*

This article considers what rights are important to children of same‐sex couples, and concludes that these children must be protected by the presumption of parentage. In reaching this conclusion, the article first analyzes the limited protections currently provided to children of same‐sex couples. It then concludes that there is no persuasive reason to treat these children differently from children of “traditional” heterosexual marriage. As such, the parentage presumption should apply equally to children born of a same‐sex marriage, domestic partnership, or civil union, as well as to children who live with a same‐sex partner in a parent‐child relationship. Only with such broad protection can these children receive the economic and psychological support that they deserve.     

HIGH TIMES FOR HATE CRIMES: EXPLAINING THE TEMPORAL CLUSTERING OF HATE‐MOTIVATED OFFENDING

This research explains the temporal clustering of hate crimes. It is hypothesized that many hate crimes are retaliatory in nature and tend to increase, sometimes dramatically, in the aftermath of an antecedent event that results in one group harboring a grievance against another. Three types of events are used to test and refine the argument: 1) contentious criminal trials involving interracial crimes, 2) lethal terrorist attacks, and 3) appellate court decisions concerning same‐sex marriage. The results from time‐series analyses indicate that contentious trial verdicts and lethal domestic terrorist attacks precede spikes in racially or religiously motivated hate crimes, whereas less evidence is found for antigay hate crimes after appellate court rulings that grant rights to same‐sex partners. The model put forth in this article complements prior work by explaining in part the timing of hate crime clusters.     

Regulation of Cohabitation and Marriage in Canada

Marriage in Canada had lost much of its legal significance because of the extension of many of the incidents of marriage to unmarried cohabitants of the same or opposite sex. This process has resulted in large part from decisions of the Supreme Court of Canada that discrimination on the basis of sexual orientation or marital status is constitutionally impermissible. In a decision that seemed to many a surprising reversal of this trend, the Supreme Court of Canada in 2002 ruled that legislators could constitutionally exclude unmarried couples from family property laws. The effect of this decision has been to revive the legal significance of marriage. At the same time, courts have resurrected the social significance of marriage by accepting the argument of same-sex marriage advocates that a "separate but equal" civil union institution would not respect the constitutional guarantee of equality and by endorsing the constitutional right of same-sex couples to the symbolic value of marriage as a public and legal celebration of a relationship. Same-sex marriages may now be legally celebrated in three Canadian provinces, and the federal government has made a commitment to open up civil marriage to same-sex couples across the country. While some same-sex couples and unmarried cohabitants have fought for spousal or marital status, others have sought to avoid the burdens associated with spousal status. After the same-sex marriage debate is concluded, Canada will be ready to move on to consider whether all of the legal privileges and burdens now assigned to those in conjugal relationships, whether married, unmarried, same-sex or opposite-sex, can be justified.     

SAME‐SEX MARRIAGE AND DIVORCE: A PROPOSAL FOR CHILD CUSTODY MEDIATION*

Same‐sex marriage is a contentious, politically charged issue full of diverse, complicated considerations. In 2003, Massachusetts joined the list of jurisdictions to legalize same‐sex marriage, the first in the U.S. Now that same‐sex couples can marry in particular international jurisdictions, governments must address how to sensitively allow these couples to divorce. Same‐sex couples have a unique set of needs and issues, most clearly demonstrated if children are involved in the marriage. This Note argues for the creation of mediation programs in American jurisdictions with same‐sex marriage, to specifically determine child custody agreements upon divorce.     

MARRIAGE IN CANADA—EVOLUTION OR REVOLUTION?*

On July 20, 2005, the Canadian Civil Marriage Act became law, extending equal access to civil marriage to same‐sex couples while respecting religious freedom. This article briefly traces the distinctive juridical factors that have contributed to the legislation: the constitutional comity or dialogue among Parliament, the courts and the people resulting from the constitutional entrenchment of a Charter of rights and freedoms; the growth of the substantive concept of equality in Canadian law; and the impact of the constitutional division of powers and the nature of Canadian federalism. Together, these factors contributed to a constructive debate centered on respect for diversity.     

THE EVOLUTION—OR END—OF MARRIAGE?: REFLECTIONS ON THE IMPASSE OVER SAME‐SEX MARRIAGE

The debate over legalizing same‐sex marriage implicates the question of whether doing so would signal the end—or destruction—of the institution of marriage. The appeal to preserving a millennia‐old tradition of marriage against change fails to reckon with the evolution that has already occurred. Invocations of gender complementarity between parents as essential to child well‐being also conflict with growing recognition in family law that children's best interests can be served by gay and lesbian parents. Canada's path toward same‐sex marriage suggests that impasse need not be inevitable. In the United States, this impasse stems in part from the problem that same‐sex marriage serves as an emblem of everything that threatens marriage.     

论经济管制立法的域外适用——兼评我国《反垄断法》第2条

随着国际民商事交往的扩大,国际私法的调整范围突破了传统的民事关系,开始调整具有"准公法"性质的国际经济关系。基于对一国经济立法的公法性质的分析,进一步剖析了各国经济立法域外适用的各种理论,并结合我国《反垄断法》第2条的规定,指出我国反垄断法有关域外适用原则的缺陷,进而提出完善的建议。     

Punishment and Proportionality: Part 2

This article is a companion to an article by the same author in issue 33.3 of Criminal Justice Ethics on the question of the standard by which the severity of punishment is determined to be proportional to the seriousness of the crime for which it is inflicted. Its chief argument is that basing the determination on what the offender deserves to suffer is morally problematic because it conflicts with principles of humanity that call for our taking the good of human beings as our end. By contrast, it is also argued, basing the determination on promoting public safety or preserving civil order is not similarly problematic because punishment inflicted to serve either of these ends is compatible with principles of humanity. The article concludes with a comment on how the harsh sentencing laws enacted in the United States in the past 40 years should be seen as a product of the former mode of determining punishment and not the latter.     

European Union Constitution-Making, Political Identity and Central European Reflections

Abstract: This article focuses on the European Union's constitution‐making efforts and their specific reflections in the Central European accession states. It analyses both the temporal and spatial dimensions of constitution‐making and addresses the problems of political identity related to ethnic divisions and civic demos. It starts by summarising the major arguments supporting the Union's constitution‐making project and emphasises the Union's symbolic power as a polity built on the principles of civil society and parliamentary democracy. The EU's official rejection of ethnically based political identity played an important symbolic role in post‐Communist constitutional and legal transformations in Central Europe in the 1990s. In the following part, the text analyses the temporal dimension of the EU's identity‐building and constitution‐making and emphasises its profoundly future‐oriented structure. The concept of identity as the ‘future in process’ is the only option of how to deal with the absence of the European demos. Furthermore, it initiates the politically much‐needed constitution‐making process. The following spatial analysis of this process emphasises positive aspects of the horizontal model of constitution‐making, its elements in the Convention's deliberation and their positive effect on the Central European accession states. The article concludes by understanding the emerging European identity as a multi‐level identity of civil political virtues surrounded by old loyalties and traditions, which supports the conversational model of liberal democratic politics, reflects the continent's heterogeneity and leads to the beneficial combination of universal principles and political realism.     

论民法总则与婚姻法的协调立法*--宏观涵摄与微观留白

在肯认婚姻法属于民法典组成部分的前提下,进一步明确婚姻法与民法总则之间的内在逻辑,辨析婚姻法律制度与民法总则具体制度之间的同异,以期应用于民法典的起草工作。在意旨上,民法总则通过界定调整对象、规定基本原则和阐释价值理念对婚姻法进行涵摄和指引。在体例上,身份法与人格法的分离是民法总则得以构建的重要前提,而身份法与财产法之间的实质性差异也决定了婚姻法的独立自洽是必然的。整体而言,两者的协调立法,需要民法总则有自省式的定位,而婚姻法则有选择性的出位。就条文设计而言,民法总则在界定调整对象、规定基本原则时应充分考虑婚姻法的制度特性和立法诉求。     

MAKING A MOUNTAIN OUT OF A MOLEHILL: A LAW AND ECONOMICS DEFENSE OF SAME‐SEX FOSTER CARE ADOPTIONS

This article explores the methods by which homosexual partners can adopt children from foster care, primarily via the stepparent adoption method because most jurisdictions do not recognize same‐sex marriage or civil unions. In establishing that the children in foster care constitute a market not in equilibrium, I explore the significant barriers to entry that homosexual partners must overcome in order to adopt a child, including the biased rules of intestate succession, the inability of homosexuals to secure health insurance or other governmental subsidies for their nonbiological, adopted children, and the apparent misconception that homosexual parenting negatively affects the well‐being of the child. By deconstructing the barriers to entry in the foster care market for children, children will be afforded the opportunity to maximize their utility through permanency, and homosexual parents and the general public can maximize their utility through the reallocation of assets away from the foster care market, given that more children are likely to be adopted once homosexuals are granted unfettered adoption rights. The reallocation of assets away from the foster care market increases social efficiency, which is desired by all.     

Who's Your Daddy?: The Marital Presumption of Legitimacy in the Modern World and its Application to Same‐Sex Couples

Recently, the definition of marriage has been significantly altered. No longer do we find ourselves exclusively in the midst of “traditional marriage” between one man and one woman. Instead, everywhere we experience different kinds of marriages and diverse, nontraditional families. The United States has finally caught up to many advanced democracies in universally recognizing same‐sex marriage through the Supreme Court's decision in Obergefell v. Hodges. However, the next question remains unanswered: what about families of same‐sex couples? This Note explores the nature of same‐sex couples, their families, and in particular, their children. It addresses the issue of the marital presumption of legitimacy and encourages its application to all legally recognized married couples regardless of sexual orientation and biology. Even though prior to Obergefell some states were unwilling to apply the presumption, since the implementation of marriage equality, the next logical step would be to utilize the presumption to ensure that all parents, regardless of gender, are recognized and families are preserved.     

Sexually violent predator laws and the liberal state: an ominous threat to individual liberty

No other country has taken the idea of the liberal state - a government that relies on the rule of law to limit state power and maximize individual liberty - as seriously as the United States. But now many states are manipulating the government's civil commitment authority to indefinitely confine sex offenders who have served their criminal sentences and are entitled to their freedom in the community. This new system of preventive detention masquerading as civil commitment poses an ominous threat to individual liberty and to the continued vitality of the liberal state.     

Very Long Engagements: The Persistent Authority of Bridewealth in a Post‐Apartheid South African Community

This article examines the persistent authority of lobola, the customary practice for forming marriages in many South African communities. South African marriage rates have sharply fallen, and many blame this on economic challenges completing lobola. Using in‐depth, qualitative research from a village in KwaZulu‐Natal, where lobola demands are the country's highest and marriage rates its lowest, I argue that lobola's authority survives because lay actors have innovated new approaches for pursuing emerging desires for marriage via lobola. I argue that dyadic narratives of marriage increasingly circulate alongside “traditional” extended‐family narratives, especially among the young women who strongly support lobola while yearning for gender‐egalitarian marriages. My argument synthesizes actor‐oriented analyses of legal pluralism with Ewick and Silbey's theorization of lay actors’ role in producing legality to illuminate how lay actors contribute not only to the form and content of different legal systems, but also to the reach of their authority.     

ENGLISH COURTS' TREATMENT OF THE CHILDREN OF SAME‐SEX COUPLES

This article reviews the historical approach of the English Courts to the children who are raised in same‐sex households; it discusses the very recent reformation of attitude of the courts, and of the legislators, to such family arrangements, and it examines the current attitude of the English Courts. The article considers how the courts have struggled historically to apply ordinary welfare principles in the different context of homosexual parenting, and discusses the complex inter‐play of family relationships when children are born into same‐sex families through donor insemination. The article discusses the ongoing challenges for the courts in dealing with cases of this kind.     

Sex, Property Rights, and Divorce

This paper examines how differences in sex drives between husbands and wives affect bargaining strengths during marriage and particularly at times when divorce might occur. The basic argument follows from the fact that sex drives vary over an individual's life cycle, and are systematically different for men and women. The spouse having the lowest sex drive at any time in the marriage has a property right over whether or not sexual intercourse will occur, with a consequent increase in bargaining power at the margin. The paper derives a number of testable implications from its model, and, using several data sources, shows empirically how this difference affects marriage, adultery and divorce.     

How Democratic is Civil Disobedience?

In her book, Conscience and Conviction, Kimberley Brownlee argues that there is nothing undemocratic about the robust, primary right to civil disobedience that she devotes most of her argument to defending. To the contrary, she holds that there is nothing paternalistic about civil disobedients opposing the will of democratic majorities, because, inter alia, democratic majorities cannot claim particular epistemic superiority, and because there are flaws inherent to democratic procedures that civil disobedience addresses. I hold that Brownlee’s arguments fail. In particular, her argument fails because it does not properly construe the nature of the epistemic claim that can be made either by democratic procedures or by civil disobedients, and because it illegitimately conflates the concern about permanent minorities that has been a constant thorn in the side of democratic theorists, with a concern with all outvoted minorities, whether permanent minorities or not.     

The case against the use of polygraph examinations to monitor post‐conviction sex offenders

In this article I caution against the use of polygraph testing in convicted sex‐offenders programs. First, I explain that the prevalent method of polygraph testing, the CQT, suffers from several major flaws and has no scientific basis. These flaws, which characterize all usages of the CQT, including its use with sex offenders, create a considerable risk for false positive as well as false‐negative errors. Second, no methodologically sound research examining the validity of the CQT, neither in its forensic application, nor in its use with sex offenders has been conducted. Finally, I explain why the use of CQT polygraphy with sex offenders is even more problematic than its common use as an aid in criminal investigations. Clearly, rehabilitation programs of convicted sex offenders are highly important, but the use of polygraph testing in this context is misguided and instead of reducing recidivism in sex offenders is likely to achieve just the opposite.     

Strange Bedfellows: How an Anticipatory Countermovement Brought Same‐Sex Marriage into the Public Arena

Since the 1980s, social movement scholars have investigated the dynamic of movement/countermovement interaction. Most of these studies posit movements as initiators, with countermovements reacting to their challenges. Yet sometimes a movement supports an agenda in response to a countermovement that engages in what we call “anticipatory countermobilization.” We interviewed ten leading LGBT activists to explore the hypothesis that the LGBT movement was brought to the fight for marriage equality by the anticipatory countermobilization of social conservatives who opposed same‐sex marriage before there was a realistic prospect that it would be recognized by the courts or political actors. Our findings reinforce the existing scholarship, but also go beyond it in emphasizing a triangular relationship among social movement organizations, countermovement organizations, and grassroots supporters of same‐sex marriage. More broadly, the evidence suggests the need for a more reciprocal understanding of the relations among movements, countermovements, and sociolegal change.