The author, a Dutch law professor, examines the problem of cross-border recognition of same-sex relationships in the European Union. National courts have restricted competence to rule on these cases, depending upon the legislative enactment of specific rules. Thirteen of twenty-seven member states currently provide for some statutory recognition for same-sex couples. The variety of local solutions generate complicated interactions when couples migrate into new countries with differing categories, as illustrated in some intriguing tables to analyze her four scenarios. Local approaches are embedded in a more supportive European position that is grounded in human rights law, and which over time may effect more national uniformity within Europe favoring recognition of same-sex couples.

This brief article examines the treatment of same-sex partners and their families by the European Court of Human Rights (ECHR). It first lists the countries that have either legalized same-sex marriage or some other form of relationship recognition. It examines the ECHR’s definition of family and its treatment of same-sex couples and argues that the ECHR should expand its definition of family to include same-sex families.

Three approaches to applying international materials in judicial decision-making are identified and examined by this author. Each approach is explored in light of the decision in Lawrence v. Texas [539 U.S. 558 (2003)]. The author then considers which approach would be most useful in using comparative analysis in U.S. courts in same-sex marriage cases. Recent changes in the legal status of same-sex couples in other countries are surveyed.

Many nations that have signed international agreements protecting the rights of sexual minorities (e.g., ICCPR) maintain domestic laws in blatant contradiction to those commitments. The author reasons that such situations leave rights advocates with two choices: either use the international legal obligation as a lever to force local changes, or minimize such pressures to allow "incremental change toward human rights for sexual minorities." Differentiating local laws that predate the treaty, those that predate but have been "reinforced to further violate those obligations," and those that have been newly added since the treaty was signed, she concludes that a mix of strategies will be most effective, but that "in situations where the offending legislation predates the treaty, legal arguments will likely be less effective."

"Do nations who do not recognize same-sex marriage have an obligation to recognize same-sex marriage, when such marriages have been consummated abroad?" Yes, replies Samar, if the right to same-sex marriage could be framed as a substantive human right. He defends this proposition by building upon the arguments of Alan Gewirth, whose ethical rationalism posits a supreme "principle of generic consistency" that logically follows from the structure of human agency. The principle states that "everyone should have the same freedom as long as it does not interfere with anyone else's similar freedom," and thus allows for the recognition of same-sex marriage. This approach thus defends same-sex marriage not by special pleading, but because it comports with a more general basis for the recognition of human rights.

Coming from a law professor whose sole claim to fame rests on his vigorous and varied attacks on gays' rights, this particular article is remarkably restrained. The basic question he asks is whether U.S. ratification of the Hague Convention on Intercountry Adoption contains any hidden requirements to allow adoption by gay men and lesbians, something he would view as a regrettable outcome. His analysis suggests -- not least because at the time of the HCIA's writing (between 1988 and 1993), the social landscape concerning homosexuality was markedly different than it stands today -- the treaty contains no such stipulation, and in fact leaves much of the details about adoption to the local law of the countries involved. While this result is perhaps not as positive as gay couples would like, neither is it as negative as the author would prefer, a cause for some encouragement.