Home | Databases | WorldLII | Search | Feedback Edited Legal Collections Data

Bamforth, Nicholas --- "Legal Protection of Same-sex Partnerships and Comparative Constitutional Law" [2011] ELECD 390; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 30

Section Title: Legal Protection of Same-sex Partnerships and Comparative Constitutional Law

Author(s): Bamforth, Nicholas

Number of pages: 18

Extract:

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 obliga-
tions are the same ...