The Recognition of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, and Strategic Institutional Choice

The emerging field of comparative institutional analysis (CIA) has much to offer public policy analysts. However, the failure of CIA to address the dynamic process through which social goals are articulated limits the scope of its application to the largely prescriptive pronouncements of legal scholars. By examining the movement for equal recognition of same-sex relationships, this Essay builds on the basic observations of CIA and introduces a new dimension, namely the dynamic process through which social goals are articulated and social change is pursued. The acknowledgment that the production of social goals involves institutional behavior, as well as multiple sites of contestation, can enhance the analytic power of CIA and offer a comparative institutional method of analysis to social movement theory. When CIA encounters contested social goals, the result is a program of “strategic institutional choice” which evaluates not simply an institution’s competency to supply the desired rights or status, but also its responsiveness to demands for such rights or status and its resilience against attempts by opponents to subvert the process or to reverse gains. This three-part “strategic” analysis does not identify the optimal institution, but instead informs the allocation of resources among institutions as advocates simultaneously pursue their goal in a variety of complementary institutional settings. The debate over same-sex relationships has been conducted through a creative and combative program of institutional one-upmanship where gains secured by pro-recognition advocates through the market or courts are frequently reversed by the traditional values movement through the political process, with increasing emphasis on the constitutional amendment process. After a brief Introduction, Part II of the Essay examines CIA’s failure to consider the production of social goals, the single institutionalism practiced by social movement theory, and the nature of strategic institutional choice. Part III describes the forces aligned on either side of the struggle over the recognition of same-sex relationships and outlines the costs and benefits associated with participation. Part IV evaluates the pro-recognition gains made in various institutional settings in terms of the three core components of strategic institutional choice: competency, responsiveness, and resilience. Part V discusses the constitutional amendment process, as the ultimate majoritarian prerogative. It offers some final thoughts on the potential transitory nature of minority gains that take place within a democratic frame where a motivated majority can choose to rewrite the rules that define institutions and their decision-making authority

Testimony on Pennsylvania SB1306: No Additional Protections for Religious Freedom

On behalf of the Public Rights/Private Conscience Project (PRPCP) at Columbia Law School I offer the following legal analysis of Senate Bill 1306. Overall, the current version of the bill promises to modernize Pennsylvania’s Human Relations Act by expanding antidiscrimination protections in employment to include sexual orientation and gender identity-based discrimination. Were the Pennsylvania legislature to pass SB 1306, the Commonwealth would join twenty-two states that include sexual orientation and nineteen states that include gender identity in their laws assuring equal employment opportunities for their citizens

“A very orderly retreat”: Democratic transition in East Germany, 1989-90

East Germany's 1989-90 democratisation is among the best known of East European transitions, but does not lend itself to comparative analysis, due to the singular way in which political reform and democratic consolidation were subsumed by Germany's unification process. Yet aspects of East Germany's democratisation have proved amenable to comparative approaches. This article reviews the comparative literature that refers to East Germany, and finds a schism between those who designate East Germany's transition “regime collapse” and others who contend that it exemplifies “transition through extrication”. It inquires into the merits of each position and finds in favour of the latter. Drawing on primary and secondary literature, as well as archival and interview sources, it portrays a communist elite that was, to a large extent, prepared to adapt to changing circumstances and capable of learning from “reference states” such as Poland. Although East Germany was the Soviet state in which the positions of existing elites were most threatened by democratic transition, here too a surprising number succeeded in maintaining their position while filing across the bridge to market society. A concluding section outlines the alchemy through which their bureaucratic power was transmuted into property and influence in the “new Germany”