Table Of ContentSame-Sex Relationships, Law and
Social Change
This edited collection provides a forum for rigorous analysis of the necessity for
both legal and social change with regard to regulation of same-sex relationships
and rainbow families, the status of civil partnership as a concept and the lived
reality of equality for LGBTQ+ persons.
Twenty-eight jurisdictions worldwide have now legalised same-sex marriage,
and many others some level of civil partnership. In contrast, other jurisdictions refuse
to recognise or even criminalise same-sex relationships. At a Council of Europe
level, there is no requirement for contracting states to legalise same-sex marriage.
Whilst the Court of Justice of the European Union now requires contracting states
to recognise same-sex marriages for the purpose of free movement and residency
rights, unlike the US Supreme Court, it does not require EU Member States to
legalise same-sex marriage. Law and Sociology scholars from five key jurisdictions
(England and Wales, Italy, Australia, Canada and the Republic of Ireland) examine
the role of the Council of Europe, European Union and further international
regimes. A balanced approach between the competing views of critically analytical
rights-based theorists and queer and feminist theorists interrogates the current
international consensus in this fast-moving area. The incrementalist theory,
whilst offering a methodology for future advances, continues to be critiqued. All
contributions from differing perspectives expose that even for those jurisdictions
which have legalised same-sex marriage, still further and continuous work needs
to be done.
The book will be of interest to students and scholars in the fields of human
rights, family and marriage law, and gender studies.
Frances Hamilton and Guido Noto La Diega are Senior Lecturers in Law,
both at Northumbria University.
Same-Sex Relationships, Law
and Social Change
Edited by Frances Hamilton
and Guido Noto La Diega
First published 2020
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
52 Vanderbilt Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
A glasshouse book
© 2020 selection and editorial matter, Frances Hamilton and
Guido Noto La Diega; individual chapters, the contributors
The right of Frances Hamilton and Guido Noto La Diega to
be identified as the authors of the editorial material, and of
the authors for their individual chapters, has been asserted in
accordance with sections 77 and 78 of the Copyright, Designs and
Patents Act 1988.
All rights reserved. No part of this book may be reprinted
or reproduced or utilised in any form or by any electronic,
mechanical, or other means, now known or hereafter invented,
including photocopying and recording, or in any information
storage or retrieval system, without permission in writing from
the publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British
Library
Library of Congress Cataloging-in-Publication Data
A catalog record for this book has been requested
ISBN: 978-0-367-07609-2 (hbk)
ISBN: 978-0-429-02158-9 (ebk)
Typeset in Galliard
by Apex CoVantage, LLC
Contents
List of contributors viii
Introduction 1
PART 1
The role of the European Court of Human Rights and
the European Union in relation to the treatment of
same-sex couples’ relationships 9
1 The potential of European Union law to further advance
LGBTQ+ persons and same-sex couples’ rights 11
FRANCES HAMILTON
2 The European approach to recognising, downgrading, and
erasing same-sex marriages celebrated abroad 33
GUIDO NOTO LA DIEGA
3 Harmonisation of choice of law rules on same-sex
marriage: an international perspective 51
LAUREN CLAYTON-HELM
PART 2
Differing paths towards legalisation of same-sex marriage 69
4 Marriage equality in Ireland: the politico-legal context 71
BRIAN TOBIN
vi Contents
5 The aftermath of marriage equality in Australia: religious
freedom and LGBTQ+ non-discrimination 91
LOUISE RICHARDSON-SELF, BRONWYN FIELDER, AND
DOUGLAS EZZY
6 The role of constitutional courts in promoting marriage
equality and their relationships with movements
and legislators 109
ANGIOLETTA SPERTI
PART 3
Rainbow families 125
7 The European Court of Human Rights and the notion of
family life: a common European standard for the EU
framework 127
ALEXANDER SCHUSTER
8 EU law and the rights of rainbow families to move freely
between EU Member States 150
ALINA TRYFONIDOU
9 Same-sex relationships and the child law perspectives:
another child protection concern, or simply a new way of
creating the modern family? 168
FRANCES BURTON
PART 4
The importance of civil partnership in an era of
same-sex marriage 187
10 Relationships with status: civil partnership in an era of
same-sex marriage 189
ANDY HAYWARD
11 The hierarchy of marriage and civil partnerships:
diversifying relationship recognition 209
ALEXANDER MAINE
Contents vii
PART 5
The heteronormative underpinnings of same-sex
marriage 229
12 Repackaged goods? Interrogating the heteronormative
underpinnings of marriage 231
FERGUS RYAN
PART 6
Consideration of the necessity of both social and
legal change, and the interaction between them 251
13 Why legal equality is not enough: the case of domestic
violence and abuse in the relationships of LGBTQ+ people 253
CATHERINE DONOVAN
14 Incrementalism in same-sex marriage legalization 272
EREZ ALONI
Conclusions 292
FRANCES HAMILTON
Index 312
Contributors
Erez Aloni is an Assistant Professor at the Peter A. Allard School of Law, Uni-
versity of British Columbia. Aloni’s primary research interests lie in the legal
regulation of adult relationships and complex family structures. His work
examines the diverse laws that together affect a family’s composition and
well-being, and explores how those laws create effects – socioeconomic and
otherwise – on society at large. Prior to joining UBC in 2017, he served as
an assistant professor at Whittier Law School, where he taught contracts and
domestic relations. Previously, he was an academic fellow at the Center for
Reproductive Rights and Columbia Law School. He received his LL.M. and
S.J.D. from the University of Pennsylvania Law School, where he also taught
a seminar on law and sexuality.
Frances Burton, PhD, is a Senior Lecturer in Law, Buckingham University. She
began to read Law at St Anne’s College, Oxford, before transferring to the
University of London for her first degree, to which she has added a Mas-
ters degree in Employment Law and Industrial Relations from Leicester Uni-
versity, a Masters degree in Education from the School of Education of the
Open University and a PhD from LJMU on the basis of a comparative study
of Cohabitants’ Rights in both common law and civil law jurisdictions. She
was initially called to the Bar by Middle Temple (from which she received a
Harmsworth Major Exhibition) and then proceeded ad eundem to Lincolns
Inn, where she is a member of leading Chancery Chambers at 10 Old Square,
and now practising from there as a Mediator and Family Law Arbitrator,
MCIArb. Her research interests are mainly in Family Law and Property, but
also in the English Legal System, Legal Method and Skills, Access to Justice,
and particularly Dispute Resolution. She has published widely in these fields,
including textbooks, articles in academic journals and professional publica-
tions, conference papers and professional newsletters, in hard copy and online.
Lauren Clayton-Helm, PhD, is a Senior Lecturer in Law at Northumbria Uni-
versity at Newcastle. Upon completing her PhD within the Conflict of Laws,
she has continued to research and publish in this area. Other areas of interest
include International Family Law and Family Law more generally.
Contributors ix
Catherine Donovan, PhD, is Professor of Sociology at Durham University. She
has spent nearly thirty years researching the intimate and family lives of lesbians,
gay men and, more recently, bisexual and transpeople. After her early work on
family and parenting relationships, her most recent work has included the first
comparative study of love and violence in same-sex and heterosexual relation-
ships and the first multi-method study exploring the use of violent and abusive
behaviours in the relationships of LGB and/or T people. Other research inter-
ests have included LGB and/or T child sexual exploitation, austerity and the
emotional impacts of austerity for practitioners. She led on a project develop-
ing a bystander intervention initiative, Be the Difference,’ based on a campus
survey of students’ experiences of violence, abuse and harassment. Currently
she is also developing work on hate crime/incidents with a project exploring
the usefulness of ‘hate relationships’ to explain some experiences of hate that
involve on-going experiences from one or more perpetrators; and a project
exploring ‘cuckooing’, whereby offenders inveigle themselves into the homes
of situationally vulnerable individuals in order to use them as a base for their
nefarious activities.
Douglas Ezzy, PhD, is Professor of Sociology at the University of Tasmania,
Australia. He is editor of the Journal for the Academic Study of Religion. His
research includes both health sociology and contemporary religious diver-
sity. His books include Lesbian, Gay, Bisexual and Transgendered Christians
(2018, with Bronwyn Fielder), Reinventing Church (2016, with Helen and
James Collins), Sex, Death and Witchcraft (2014), Teenage Witches (2007,
with Helen Berger) and Qualitative Analysis (2002).
Bronwyn Fielder, PhD, is a postdoctoral researcher at the University of Tasma-
nia. Her research focuses on the reproduction of inequalities in society and
ways in which these inequalities can be addressed. She has presented at numer-
ous conferences on the ways LGBT Christians negotiate seemingly disparate
identities and seek to live a life that is both authentic to their sexuality and/or
gender, as well as their religious selves. Her book, Lesbian, Gay, Bisexual and
Transgendered Christians: Queer Christians, Authentic Selves (co-authored
with Douglas Ezzy), was published in 2018.
Frances Hamilton, PhD, is a Senior Lecturer in Law at Northumbria University.
She holds an MA from the University of Cambridge together with an LLM
from Trinity College Dublin. She is also a qualified solicitor. Her research
interests involve the difficulties facing individual countries and international
courts in recognising same-sex relationships. She takes a comparative law
approach, as well as looking at human rights law and an EU free movement
perspective. She is also interested in the necessary interaction between legal
and social change in this area. She has worked as a Senior Lecturer in Law at
Northumbria University since 2009 and prior to this worked as a solicitor in
London firms Reed Smith Richards Butler LLP and Hogan Lovells LLP.
