A gay marriage ban could start international debate
By SUSAN TAYLOR MARTIN
Published February 26, 2004
A constitutional amendment banning same-sex marriages would be a simple, if controversial, way of addressing a complex social issue. But in outlawing such unions, the United States would be bucking international trends and potentially creating new problems for itself.
Already, Canada and most Western European countries recognize some form of gay partnerships. What would happen if gay couples from those nations took jobs in America? Would they be entitled to the same spousal benefits here as at home?
Or if they vacationed in, say, Florida or California, would the surviving partner have legal standing to sue if the other was killed in an accident?
"As long as one country in the world has introduced a form of registered partnership, people could end up in your jurisdiction, and then the question arises, "What do you do with them?' " says Ian Sumner, a lecturer in European family law at Utrecht University in the Netherlands.
"I think one of the lessons (for the United States) is not to ignore the international implications of introducing legislation."
But even European countries that recognize same-sex partnerships are struggling with ways to ensure consistency across international borders. The European Union has no jurisdiction in matters of family law, so it has been up to each of its 15 member states to set its own policy. Thus, a gay partnership registered in the Netherlands is accepted in Sweden, but not in Italy or Greece.
"At the moment, it's a bit of a mess," Sumner says.
In 1989, Denmark became the first nation in the world to recognize and regulate intimate relationships between people of the same sex. Within the next few years, similar laws were passed in other socially progressive countries - Norway, Iceland and Sweden.
The Netherlands introduced a new twist on "registered partnerships," opening them not just to gay couples but also to heterosexuals who oppose traditional marriage "but still want the benefits of marriage and a public celebration of intimate relations," Sumner says.
Today, gay partnerships are legal in most EU countries, although variations abound: In France, they're called "civil pacts of solidarity," in Belgium, "statutory cohabitation." The idea is also under discussion in Switzerland, Luxembourg and the United Kingdom.
The only three EU members that have yet to recognize or consider gay unions are Italy, Greece and Austria, all highly religious countries with a traditional view of marriage. That can cause problems when couples move.
"We've had cases of same-sex couples in the Netherlands going back to their home countries - two Italians went back to Italy, and the marriage was not recognized, and one couple went to Israel, and the marriage was not recognized," says Sumner, who is doing his doctoral thesis on the complex legal issues arising from such unions. "So there are problems already."
Although it cannot force a member country to recognize gay relationships, the EU has taken steps to protect the rights of gay couples. In regard to family reunification, for example, it issued a directive allowing an individual to bring a registered partner into a country that accepts same-sex unions. But the measure is not binding on Italy or other countries that don't recognize such partnerships.
Judging from the Netherlands' experience, gay couples "marry" with about the same frequency as heterosexuals. Since 1998, it has registered 25,000 or so partnerships, at a rate roughly comparable to that of traditional marriages.
"At the beginning, we had a huge number of people entering into these regulated relationships, but that has decreased," Sumner says. "Surveys in European literature estimate that 5 to 7 percent of the population is homosexual, and these (Dutch) figures suggest that 3 percent are entering into" legal unions.
Any move by the United States to ban gay marriages could further strain relations with EU countries, already frayed by the war in Iraq and other issues. Article 13 of Europe's Treaty of Amsterdam prohibits discrimination based on sexual orientation, and 400-million Europeans now live in countries where gay relationships are protected by law.
Says Sumner, "When you put down words in the Constitution that you discriminate against couples of the same sex, that's a move that won't go down very well."
