PP209
Analítico de Periódico
ISAILOVIC, Ivana
Same sex but not the same : same-sex marriage in the United States and France and the universalist narrative / Ivana Isailovic
The American Journal of Comparative Law, v.66 n.2 (Summer 2018), p.267-315
DIREITO DA FAMÍLIA, CASAMENTO ENTRE PESSOAS DO MESMO SEXO / EUA / França
Jurisdictions around the world are increasingly adopting, or considering the adoption of, legislation to legalize same-sex marriage. The dominant approach in analyzing these reforms has been universalist. According to this view, same-sex marriage represents a legal trend at the global level and will eventually become a global norm. This description lumps together different family law reforms and depicts them as contributing to a broader convergionist global dynamic. This Article argues that universalism has theoretical and practical shortcomings, since it tends to downplay the diversity of processes of legal change by isolating law from local cultural and political dynamics, and, in so doing, obscures arguments and social dynamics that perpetuate the marginalization of gays and lesbians and their families. Using the pluralist socio-legal framework that sees law as a cultural and political artifact, this Article compares two such legal reforms, one in the United States and one in France. It argues that four aspects distinguish these two reforms: First, the different roles played by rights and equality-based arguments, the divergent understandings of law in relation to gay and lesbian historical marginalization and social change, the focus of the debates (on the definition of marriage in the United States and on filiation in France), and finally, the type of expertise underpinning the legal arguments. Pointing to these differences allows us to better appreciate the political, legal, and cultural processes that drive legal change and the obstacles to achieving equality for gays, lesbians, and their families.