IV.
Foreign law.
A. An overview of domestic partnership
and same-sex marriage laws and judicial decisions:
The vast majority of legislation on gay and lesbian issues tends
to prohibit discrimination on the basis of sexual orientation or
actively seeks to make certain privileges of marriage applicable
to same sex couples. Canada and its provinces, Israel,
Scandinavian countries, New Zealand, and South Africa have
provisions that prohibit discrimination against gay and lesbians.
The Scandinavian countries, following Denmark’s lead, have
gone one step further and passed Registered Partnership Acts. The
Acts provide same-sex couples with most of the same benefits of
marriage, particular old-age and pension benefits, however some
Acts do not affect pre-existing laws regarding children and
family relationships. Finally, throughout the world and in many
unexpected places, the courts have required same-sex couples to
be treated equally as opposite-sex couples. For example, in
Canada, a federal justice recently held that unless
"spouse" includes same-sex partners, the government is
engaging in illegal sexual orientation discrimination, and in
Argentina, a court found a same-sex couple qualified for a
common-law marriage. For a more detailed and constantly updated
list of statutory and case law changes on the subject, see
International Gay and Lesbian Human Rights Commissions, Domestic
Partnership Fact Sheet, http://www.iglhrc.org/news/faqs/marriage_981103.html.
B.
Researching specific country:(see Pathfinder.countries)
C. Public International Law:
Regional pacts, treatises, and organizations
In 1988, the United Nations authored a study concerning
discrimination against sexual minorities (E/CN.4/Sub.2/1988/31
(13 June 1988); however it appears to have done nothing in the
last decade on the issue. Currently, discrimination on human
rights grounds is limited to religious, national, racial, and
linguistic minorities. If the UN were to address the issue, the
relevant body would be the Commission of Human Rights or its
Subcommission on Prevention of Discrimination and Protection of
Minorities. To find out whether there has been any action, the
researcher will need access to UNBIS Plus database. UNIBIS is a
cd-rom database that is authored by the United Nations and is the
only comprehensive bibliographic index of UN materials available.
A UN depository library will likely have UNBIS.
In UNBIS, choose the current file (1993 to present); the start in the UN materials only database, and search by subject with the headings "HOMOSEXUALITY" and "MARRIAGE LAW". An important note: The UN does not use Library of Congress subject headings, but creates its own. To search non-UN materials, hit escape until the choice of database screen returns, choose non-UN materials and repeat the search. It is also possible to search for both simultaneously. This option is fine when you don’t expect to find anything, but warrants caution when searching for a more "popular" UN subject.
D.
General Search Techniques:
(1)On-line:
(a)For
multi-nations searching by subject:
Martindale Hubbell (proprietary, available on Lexis and Westlaw) has foreign country digests that are subject matter searchable and is the easiest way to search for foreign laws concerning a particular subject across countries. The law digests summarizes the statutory law of over 60 countries, including the provinces of Canada and Australia. The digest are in English, written by lawyers and scholars in the respective countries or by authorities in the U.S. with advice and assistance of local experts, and are revised annually on a rotating schedule. In addition, because Martindale Hubbell is a legal research database, the digests almost always provide you with the statutory citation. Best of all, a description of citation abbreviations is located at the end of each digest.
Although natural language search techniques is often recommended, one should be cautious in the subject matter of partnerships because the search will retrieve results on business partnership as well as domestic partnership. For example, the natural language search "What laws or cases are available regarding same sex marriage, domestic partners, registered partners, anti-discrimination based on sexual orientation" retrieved 50 results, the vast majority being business organizations and partner law, and only a few concerning domestic partners or employee benefits for partners.
A boolen search for "same
sex" or "homosexual" or "domestic
partner!" or "registered partner" or sexual
orientation /15 discrimin! retrieved only one site, the
Canadian Law Digest. By selecting the most relevant section of
text and clicking on More Like This, Lexis provided an additional
fifty sites, the first 18 or so being extremely relevant.
(b)
To search by a specific country:
Go to the most current version of Lexis-Nexis Directory of Online Services. This is the phone book to LEXIS libraries and filenames, and although all the information is also online, the paper directory works best. In the Alphabetical List, looking up the specific country will tell you what is available online from Lexis and tell you the library and filename in which to search.
For example, looking up Australia, quickly tells one that statutory rules, family court decisions, federal court decisions (reported and unreported), high court (reported and unreported), Supreme Court of the Northern Territory decisions, and Supreme Court of the Southern Territory decisions are all available online from LEXIS.
Then, before logging on and starting to search, call the Lexis representative who serves your LEXIS access. (For government and law firm access, call 1-800-543-6862; for law schools, call 800-455-3947; and for business, media, or other professionals, call 800-346-9759.) Work with the representative to help formulate an quality boolean or natural language search for the particular library and file at issue. The representatives will try several searches using different search terms until they can recommend a particular search tailored to your needs. The time spent on the telephone call (including the time spent on hold) is well is worth it because you can immediately duplicate the "best search" rather than fuddling around with several different searches which are costly both in time and money.
Finally, run the search recommended by the LEXIS representative and follow the leads.
(2) Searching for Free on the Internet:
There are two types of sites to
start research on the web -- sites that specialize in collecting
foreign law links and sites that specialize in gay and lesbian
issues.
(a)
Recommended Foreign Law Websites:
The Washburn School of Law Library
at <http://lawlib.wuacc.edu/washlaw/forint/forintmain.html> links to primary foreign and
international legal resources, research aids, and related
websites. The site doesn’t appear to be updated often. For
example, when I viewed the site on 11/11/98, the last update was
06/27/98. In addition, the search engine is only by letter and
not by subject or key word search. Also, information that is
available by country, e.g. gay rights in Argentina, is not likely
to be cross-referenced to Gay rights. Despite these drawbacks,
the site does have an incredible number of links to a
wide-variety of sites. In particular, G: Gay-Legal Status and
Laws contains a lot of links to foreign government and legal
resources sites.
The law librarian at the
University of California has compiled a list of sites
specializing in foreign law research as well as a description of
and tips on conducting foreign law research. See Marcie
Hoffman, Using Internet Resources for International and
Foreign Legal Research at
www.law.umn.edu/mhoffman/intlaw/boalt.htm.
(b)
Recommended Gay-Lesbian subject-matter sites:
Since all research on the web on gay and lesbian issues ultimately leads to the Queer Resource Directory, the directory is a wise place to start. If nothing else, once you know what is (and is not available) at qrd, you will know when to ignore the numerous links from other sites that direct you to qrd. The Directory is HUGE and can be searched by keyword. Although the temptation to use the keyword search function, resist. The site has a robust tree-map (i.e. index) that makes finding a topic in the directory easy and quick. By using the browser’s Find function (CTRL-F), you are more likely to find what you are looking for than through the key search. For example, a key word search argentina law had zero results, but FIND argentina in the tree-map had 31 files, including a file about Argentina’s Supreme Court’s 1991 decision to deny homsexuals the right to form a legally-registered association. An added benefit to the qrd files is that the citations include the dates filed. For international links and information specifically, check out (http://www.qrd.org/qrd/world/legal/). It is important to note that the directory is exactly that -- a directory -- now on the web, but whose roots are clearly gopher-esque.
The International Gay and Lesbian Human Rights Commission is an authoritative (it gets cited in the New York Times) and respected organization that keeps track of developments worldwide regarding registered partnership, domestic partnership, and same-sex marriage. The site is regularly updated. Even better, if you have a specific, hard to find question, sending IIGLHRC an e-mail will usually earn you the answer within the week. (What happens it that they will forward your question to IGLHRC members in the particular country, who then get back to you directly.)
The site keeps a running "Progress of Partnership" that lists where partnership law are in effect or have been passed as well as the status of pending or recently defeated legislation. An easy, quick way to keep track of status of major foriegn same-sex marriage or partnership laws.
Professor Art Leonard of the New York Law School maintains an archive of Gay and Lesbian Law Notes from 1994 to present. The reporter is published by the Lesbain and Gay Law Association of Greater New York each month and contains articles regarding cases, both in the United States and abroad, that relate to gay and lesbian issues. The archive, however, does not provide an index or table of contents and does not have search capabilities. The site includes an annual list of cases of cases with citation and brief description that received mention in the monthly reporter. Again, however, the list is not indexed or searchable, thereby requiring knowledge of the date published in order to find a particular case.
The University of Chicago’s library has a Bibliography and Links Page that specializes in Sexuality, Gender, and the Law. The page has citations to articles as well as links to sites covering national and foreign status of gay and lesbian issues. Although the page is cumulative, rather than selective, the number of links concerning foreign is not overwhelming and the site is regularly updated. The focus of the site tends to be academic papers, published books, and non-government sites.
(3) Taking a break from the
computer and opening a book
(a) Library Card Catalogues:
The best way to find books on a particular subject (other than having your local research librarian run the search for you) is to know the U.S. Library of Congress’s classification number and subject headings. To search by classification number, use K3242.3 (International Human Rights -- Gays).
(b) Foreign Law (aka Reynolds and
Flores):
Flores and Reynolds is a loose-leaf service that
summarizes the political/legal system and the law of
foreign countries by country. For the researcher
interested in a particular country (or small set of
countries), flipping through Flores and Reynolds and
looking for the subject headings Marriage or Family
usually will provide a good indication of whether the
country has passed some major legislation affecting
same-sex couples. As a summary resource, it will not
provide information on minor legislation, details on the
legislation or legislative history, or case law. It will,
however, give the researcher the official citation to the
legislation which will open up door when using other
resources, particularly search engines on the web or
on-line services.
(c) Index to Foreign Legal Periodicals:
To find foreign law review articles, go to the Index to Foreign Legal Periodicals. The Index is comprehensive and easy to use, however since the index is published annually, it can be time-consuming to look for articles for more than a couple of years. This is especially true where there are several different subject headings to check in each annual index. Under each subject heading, articles are arranged by country. Recommended subject headings include: UNMARRIED COUPLES, MARRIAGE, FAMILY LAW, and HOMOSEXUALITY.
I recommend looking under each of these subject headings since the index does not seem to be liberal in placing articles under multiple headings. For example, while the index listed The Legal Definition of Marriage (by Bruns, K. & Kannelly, V. in Responsa Merid 6 no. 5: 487-504 (1995)) under both MARRIAGE and HOMOSEXUALITY, the article Discrimination against Lesbians in Family Law (by Singh, D. in South African Journal of Human Rights 11:571-581 (1995)) was under only FAMILY LAW.
Finally, remember since the index is for foreign legal periodicals, the titles and the articles themselves are often not in English. As a result, an English only researcher looking for the status of same-sex marriage in Germany will probably not have much luck in the index.