Cross-national gay marriage politics, the courts, and the context of activism

Mobilizing Idea’s recent Essay Dialogue on movements and the courts was inspired in part by the DOMA case on the U.S. Supreme Court docket. In her essay, Martinez discusses the role of the Supreme Court in light of a changing political and cultural context regarding gay marriage. While U.S. states have become increasingly polarized on same-sex marriage (SSM), public opinion appears to have shifted in favor of marriage equality. These environmental shifts may be important for legal mobilization. Drawing from classic sociological theory, Martinez writes that “When activists turn to law and demand legal change, it only works when the cultural conditions and political conditions are out of alignment with law. The law changes to match social beliefs and practices.” As Bua of the Huffington Post claims, “the times they are a ‘changin.’”

The marriage equality debate highlights an important confluence of cultural and institutional factors that may help shed light on the movement towards legalizing SSM in Western countries. It is something I sought to address in a paper I began working on in early 2010 titled “Current Explanations for the Variation in Same-Sex Marriage Policies in Western Countries” (now published in Comparative Sociology).  In that paper, I try to situate the role of social movements in a broader political and cultural context. Why did some Western countries legalize gay marriage while other countries did not? It became clear that many cases are “fuzzy.” That is, when the conjuncture of cultural and institutional characteristics are considered, several cases where gay marriage was legalized including Iceland, Canada, the Netherlands and Spain do not conform to expectations. In the case of the former two countries, cultural environments were not particularly favorable but those countries did have favorable institutional arrangements. For instance in Canada, as is the case in several other countries, political entrepreneurs were particularly helpful in advancing SSM within government. Entrepreneurs did this even though public opinion was split on the issue.

The intersection of cultural and institutional environments (whether supportive or obstructive) shapes social movement mobilization around marriage equality. This includes the extent to which movements have access to political elites, the extent to which LGBT groups mobilize resources, whether they have helped shift public opinion in favor of marriage equality or whether they are up against unfavorable public preferences (as might be the case in France). Another important contextual characteristic is countermovement mobilization. That is, how do pro-gay marriage activists contend with often powerful and resource-rich forces against gay marriage (as has been the case in the U.S., and, given anti-gay marriage protests beginning last year, France)?

In light of the February Essay Dialogue on “movements and the courts”, it is necessary in a cross-national comparison to consider the role of courts in different countries as well as their position on social issues. To what extent does that encourage or discourage legal mobilization? The judiciaries in both Canada and Spain did not legislate from the bench (I argue that this was not a case of judicial activism). The Canadian Supreme Court, when asked by the federal government to review marriage equality, opted not to rule on the constitutionality of the definition of marriage. In Spain, the judiciary believed that granting SSM was not required constitutionally (and actually made a recommendation for civil unions). In Portugal, the court ruled in 2006 that it is not unconstitutional to allow only heterosexual marriages, but the court also did not oppose SSM. Following the legalization of gay marriage in that country, the court ruled that the legislation is constitutionally valid (which is far more concrete than the court rulings in Spain and Canada).

In sum, the outcomes of activism in promoting marriage equality are highly dependent on the cultural and institutional atmosphere within which movements mobilize: from existing political arrangements to more deeply rooted attitudes about family, marriage, and children. Not only is the role of courts important to consider, but the content of proposed SSM policy as well. Recent developments in the U.K. and France are salient examples of this.

Last week, British Members of Parliament approved the gay marriage bill despite considerable opposition from Conservative MPs. The issue, however, had key elite supporters including the deputy prime minister and leader of the Liberal Democrats. Political motivation may have also been at work. Wooding of The Sun writes that David Cameron pursued gay marriage as a way to clean up the Tories “nasty party” image. However, Wooding suggests that this may have backfired given that 38 percent of traditional Tory voters do not support gay marriage and many new voters don’t think he’s done enough to modernize the party. Instead, many now see the party as divided on the issue. But legislation in the U.K. also raises ongoing and more fundamental debates about definitions—definitions of family, gender, marriage, sex, and apparently adultery. According to Bowcott of the Guardian, “Those who draft the parliamentary bills have been unable to define what constitutes consummation of a same-sex union. Consequently there is no provision for divorce on the grounds of non-consummation of a gay marriage. That problem also means that same-sex couples who wish to divorce will not be able to cite adultery with someone of the same sex—the civil servants similarly struggled to find a definition of adultery between two men or two women.”

On Feb. 12, the British Parliament’s General Committee held talks regarding the bill legalizing gay marriage. A CNN World News piece that day contrasted the U.K. example with France where the latter has seen quite a bit more public opposition to gay marriage. However, much of that opposition seems focused on adoption rights and in vitro fertilization, and less so on gay marriage itself.  Last Saturday, the French lower house of parliament considered an article that would be a step towards legalization. This was followed by a large demonstration against the proposed legislation. As Coste’s piece “Gay rights in France: How even the U.S. leads the way” argues, the French public and even politicians who support SSM are much less open to adoption. In France, a gay couple must act as a single heterosexual person to apply for adoption. And, when it comes to assisted reproduction and surrogacy in general, France has tended to be fairly conservative.

Is France a fuzzy case? The French upper house is scheduled to hear debate on gay marriage in April. The upper house is controlled by the left and a Feb. 13 BBC News report predicts that France will join the club of countries who recognize SSM. In my paper, I suggested that France is a case with unfavorable institutional arrangements but where public opinion favored gay marriage. However, now that the left is in power, gay marriage is probably likely to happen while the French public is considerably less supportive of gay adoption. Given the nature of proposed legislation particularly in France, does bundling gay marriage with the issue of adoption and assisted reproduction  cause protest against marriage equality legislation more generally?