Citizenship on Paper. On the Risk of Statelessness of Polish Children Raised in Same-Sex Unions Abroad

Dorota Pudzianowska & Piotr Korzec (download)

The paper discusses a new cause of statelessness of children that is currently emerging under Polish law. Statelessness in children can arise in situations where their foreign birth certificate is not tolerated by the legal system of ex-lege nationality iure sanguinis on the grounds of disclosing persons of same-sex as parents and the place of birth does not confer nationality iure soli. This cause of statelessness can be characterized as technical because it arises where citizenship law does not regulate proof of citizenship and mediates the acquisition of identity and travel documents through other procedures. The children of same-sex couples are thus citizens de iure--purely on paper--but not in any meaningful practical sense, effectively becoming stateless because they do not receive the treatment of nationals by the state of which they are citizens in this manner. This sort of statelessness can be just a temporary hurdle, but it may well be permanent or at least indefinite. The matter has been the subject of strategic litigation in Poland.

Accordingly, this paper discusses the administrative proceedings before consular sections and vital-records registers for identity and travel documents. It also provides an overview of the diverging decisions of administrative courts (following judicial review) concerning the transcription of birth certificates disclosing persons of the same sex as parents. Lastly, it deals with the recent resolution of an extended panel of the Supreme Administrative Court effectively forestalling all such litigation as irrelevant. The SAC held that access to formal citizenship (ID, passport, PESEL number) may be granted on the basis of such a foreign birth certificate; this, however, has led to its own wave of problems with administrative authorities. The paper concludes by highlighting the developments in the Council of Europe and European Union’s law as a potential cure against the palpable malaise of administrative authorities in respect to ‘offending’ birth certificates.

Same-Gender Parenting and the Best Interests of the Child: The European Perspective with the Example of Austria

Helmut Graupner (download)

Austria, like Taiwan, but unlike all the other European countries, opened up marriage to same-gender couples by way of a Constitutional Court‘s judgment. Different from Taiwan, Austria realized equality also in parenting (second-parent adoption, joint adoption, and automatic co-parenthood) with the Constitutional Court’s core argument of the best interests of each individual child. This article presents how Austria, once the first country in the world to repeal the death penalty for homosexual contact and later on one of the last to remove its criminal prosecution, paved the way to full family law equality for same-gender and opposite-gender couples, and elaborates how children’s rights turned out to be crucial in this process.

Transitional Equality in Transnational Context 

 Suzanne A. Kim (download)

The legalization of same-sex marriage in Taiwan in the past few years and emerging legal recognition for same-sex couples in Japan mark important expansions of family recognition in Asia. These developments provide an opportunity to consider the gap between formal and substantive equality in the rights of diverse families in Taiwan, Japan, and other jurisdictions. This essay examines these recent changes in family recognition in Taiwan and Japan alongside experiences of U.S. couples to generate new areas of inquiry into developing equality with full attention to a broad range of socio-legal experience.

This essay considers a framework of “transitional equality” I have discussed in the U.S. context to identify the process of families transitioning into new formal legal status categories. As I have described elsewhere, when a person or class of persons obtains a new status or gains previously denied rights, “the path itself from one legal status to another becomes critically important and may itself be impacted by race, gender, age, and other factors. The process of transitioning to a new status can be complex and burdensome in unexpected ways, and lack of attention to that process can impair persons’ inhabitation of their newly acquired legal rights.” This transitional space is one worthy of socio-legal attention in the effort to build fuller equality for diverse families. Taiwan and Japan introduce further opportunities to examine the role of marriage recognition in reflecting and constructing broader norms concerning national identity, race, ethnicity, gender, age, economic status, access to justice, and in the cultural contingency of societal inclusion and legal subjectivity.

The Status of Marriage 

Mary Anne Case (download)

Focusing chiefly on the efficiency advantages of marriage as a legal status that should be open to couples regardless of sex, rather than on the more familiar constitutional and human rights arguments for same-sex marriage recognition, this article applies the tools of law and economics to an analysis of the legal institution of marriage as it has developed over time and in the recent past in a variety of legal systems, including chiefly the United States and Taiwan, but also, inter alia, Hong Kong, Japan, France, and the Netherlands. While it urges an emphasis on the practical, the article acknowledges and discusses the importance symbolic aspects have played in the evolution of relationship recognition in the last several decades. It builds on the author’s earlier work analogizing the development of the law of marriage to that of business corporations and examining the ways in which feminist claims to liberty and equality in marriage have brought about legal change.

The Prevalence and Psycho-Social Risk Factors of Indiscriminate Murder: No Man Is an Island?

 Kevin Chien Chang Wu & Mau Sheng Lee & Yi Fang Lu & Yuan Zhen Yeh & Jun Kai Wang & Su Syan Jou (download)

The aims of this study are to clarify the definitional issues pertaining to indiscriminate murder and to analyze prevalence and risk factors of such crime. A specially designed questionnaire was distributed to a control group (n=98) who were over age 20 without any court conviction and recruited from internet advertisement and four offender groups (n=209) from nationwide prisons. The valid response rate was 91% for the offender group and 98% for the control group. The offender group was comprised of indiscriminate (5%), stranger (28%), domestic (30%) and acquaintance (37%) murderers. We estimated that the prevalence rate of indiscriminate murder is about 0.04 per100,000 residents in Taiwan. Other main findings are, first, compared with the control group, indiscriminate murderers had much lower empathy, failed to form intimate relationships and with high school dropout rates, there were no significant differences among the five groups on self-esteem, violent attitudes, cynicism, high risk family, psychiatry illness history, anger, depression, substance abuse, unemployment, juvenile/adult prior convictions. Second, among the four murderer subgroups there are no statistically significant differences in the rates of psychological factors such as self-esteem, violent attitudes, cynicism, high risk family factor and psychiatric illness history. However, the indiscriminate murder subgroup has significantly higher antisocial tendency than domestic murder subgroup, and higher loneliness and social alienation than stranger murder subgroup. Our analysis suggests that unlike mass media stereotypes, there is no significant association between indiscriminate murder and mental illness, substance use and prior conviction. The indiscriminate murder subgroup lacked capabilities to build up proper intimate, school and social relationships, and have been isolated psychologically and somehow turned their backs on the world. Nonetheless, to argue it the other way around, perhaps the situation is created by society’s making them socially invisible by leaving them out of social connections. These people finally link with society again only through indiscriminate murder. Limitations of this paper are described and suggestions for further research in terms of developing an evidence-based understanding of indiscriminate murder.