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About the Author
Louise Richardson-Self is a lecturer at the University of Wollongong and a research affiliate at the University of Sydney. She has published articles in Parrhesia, Australian Review of Public Affairs Digest, Australian Feminist Studies and M/C Journal: A Journal of Media and Culture.
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Justifying Same-Sex Marriage
A Philosophical Investigation
By Louise Richardson-Self
Rowman & Littlefield International, Ltd.Copyright © 2016 Louise Richardson-Self
All rights reserved.
Rights, Norms, and Small Change
Same-sex relationship recognition first started gaining momentum in the 1980s and has achieved rapid political uptake. Rights discourse has become the dominant discourse surrounding LGBT issues, surpassing the rhetoric of gay liberation that formerly characterized the movement. Certainly, it is politically expedient to frame one's complaints in accordance with an already established and largely accepted transnational framework. Moreover, there is an emerging transnational soft law norm of same-sex relationship recognition. To say that same-sex relationship recognition is emerging as a transnational soft law norm means that the dominant Western social imaginary has shifted to incorporate the belief that same-sex couples ought to have their relationships legally recognized (or that to legally recognize these relationships is appropriate, to the extent that this can be characterized as a guiding rule). Of course, this does not mean that same-sex marriage is normative. It is far more common for countries to (initially) introduce some form of civil union scheme, which, depending on its laws, may be more or less similar to marriage. In other words, it is not yet seen as entirely appropriate to amend marriage itself so as to include same-sex couples; but popular opinion is slowly changing.
The introduction of civil unions and de facto status are common variations of same-sex relationship recognition, but LGBT activists often argue that this type of recognition is inadequate; they continue to demand access to marriage itself. For example, Kees Waaldijk, reporting on the Dutch registered partnership scheme, notes that 'after the 1998 reforms relating to parenting, the number of legal reasons why a same-sex couple could prefer marriage to registered partnership became almost zero. ... However, this did not silence the call for the opening up of marriage. On the contrary, the social and political pressure increased.' Similar evidence is displayed transnationally. In 2000, the Canadian government allowed same-sex couples to enter into common law partnerships. This victory also stimulated activists to call for full marriage rights. One policy activist responded that 'marriage still has meaning' beyond the pale of material benefits. Presently, activists in the United States and Australia put forward arguments which claim that the ban on same-sex marriage disadvantages all same-sex attracted people by 'send[ing] out the message that discrimination on the grounds of sexual orientation is acceptable', and that 'marriage says "We are family" in a way that no other word does'.
The continued demand for access to marriage — rather than some form of civil union scheme — indicates that formal legal equality is not all that is at stake in the demand for equal marriage rights. And the activism works. Several countries, including Canada and the Netherlands, as well as Demark, Belgium, Norway, Sweden, the United Kingdom, and New Zealand, among others, have progressed from civil union or de facto schemes to marriage equality. Marriage itself may soon become the norm for same-sex relationship recognition.
This progression can be attributed to what Waaldijk calls the 'law of small change', where LGBT law reform occurs by building one small legislative change upon another, according to a certain pattern. It starts with '(1) decriminalisation ... after which (2) anti-discrimination legislation can be introduced, before the process is finished with (3) legislation recognising same-sex partnership'. The law of small change also dictates that the actualization of this pattern typically possesses a linear trajectory. But a simple focus on legal reform largely overlooks the social situation of LGBTs. In the introduction, I proposed that what is at stake in the same-sex marriage debate is the equal regard of LGBT people. What matters, in other words, is LGBT people coming to be respected as sexual citizens. The question, then, is this: once formal legal equality is achieved, will matters of social discrimination also be resolved? Data from the recent European Union (EU) LGBT survey suggests not. For example, although the Netherlands was the first country to introduce same-sex marriage (2001), 30 percent of Dutch respondents reported feeling discriminated against or harassed in the previous twelve months based on their sexual orientation.
Why is legal equality not translating into equal regard? This must be investigated. Since one aspect of access to the institution of marriage is socially symbolic, any account arguing for same-sex marriage and seeking the end of LGBT discrimination ought to consider what marriage equality will mean on this level. It is also imperative to investigate the difficulties that arise in framing same-sex marriage as a matter of human rights. There are two such difficulties: First, appealing to human rights need not imply an explicit challenge to the characterization of homosexuality as immoral. Second, appealing to human rights may be assimilative in character. Again, it bears repeating, this matters because in principle LGBT people ought not to be required to match heteronormative standards of acceptability in order to be treated with dignity. Thus, for any justification of same-sex marriage to be acceptable, it must circumvent these difficulties.
Throughout this book I will argue that a feminist human rights framework can provide a stronger and more transformative vision for the ultimate goal of equal regard than standard rights-based justifications of same-sex marriage. The aim of this chapter, then, is to give a brief characterization of the marriage equality movement in the West and to provisionally determine on what grounds same-sex marriage might legitimately be considered a matter of human rights. I will conclude that the same-sex marriage movement, as it stands, presents a bleak outlook for LGBT activists who seek equal regard. If LGBT acceptance is predicated on likeness to the heteronormative mainstream, and if law reform is only awarded in small, homogenizing, normative steps, then at best this approach will redraw the boundaries of acceptability to include only some LGBT people. This does not amount to equal regard.
I. SAME-SEX MARRIAGE AND HUMAN RIGHTS
While international LGBT organizations increased greatly beginning in the 1960s–1970s, it was not until the late 1980s–1990s that these organizations began to specifically frame their demands as matters of human rights. A particularly influential organization in this domain of LGBT law reform is the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). The ILGA is a global organization split into six sectors, with ILGA-Europe its strongest and most influential branch. It is, therefore, unsurprising that same-sex relationship recognition began in Western Europe. The ILGA is credited with convincing already existing international human rights organizations, such as Human Rights Watch and Amnesty International, to recognize sexual orientation as a matter of human rights. This ongoing activism has influenced matters such as the inclusion of sexual orientation as a protected category in the Treaty of Amsterdam (1997), appeals from the European Parliament to allow same-sex marriage, and binding decisions from the European Court of Human Rights (ECHR) prohibiting LGBT discrimination. These, in turn, have reciprocally contributed to the definition of LGBT rights as 'human rights'. Even the United Nations (UN) is a focus of LGBT rights campaigns.
A human right, according to a commonsense definition, is a right that people are entitled to simply by the mere fact of being human. When countries ratify declarations like the Universal Declaration of Human Rights 1948 (UDHR), or the covenants directly influenced by it — the International Covenant on Civil and Political Rights 1966 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights 1966 (ICESC) — the implication is that those particular countries deem the rights listed therein to be essential for any human life. On this basis, LGBT activists may claim that several of their rights are being violated due to the identity-based discrimination they face. Since the UDHR is the direct influence of the binding ICCPR and ICESC and forms the basis of many people's conceptions of what counts as a legitimate ground for human rights, I will consider the articles therein in order to determine whether same-sex couples can legitimately claim they have a right to marriage.
Taken together, articles 1 and 2 of the UDHR provide the grounds for interpreting the remaining articles within. Article 1 states: 'All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.' This article implies two things. It implies that if there is a denial of basic human dignity, then people have grounds for a complaint, and it implies that if basic rights are denied, then people have grounds for complaint. For it is in their being human that people are endowed with this equality. Thus, there must also be a corresponding duty binding all people to recognize the dignity and rights of others and to act in accordance with such duties; this is what it means to 'act toward one another in a spirit of brotherhood.'
Article 2 states: 'Everyone is entitled to the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.' This article can be said to embody the principle of nondiscrimination: it is unjust to discriminate against a person or group of people on the ground of their identity. While sexual orientation is not mentioned specifically in article 2, the presence of the words 'such as' and 'other status' indicates that this is not a closed category of distinctions. This present interpretation is also justified by past events such as the inclusion of sexual orientation as a protected category in the Treaty of Amsterdam. Thus, it is plausible that sexual orientation ought to be considered under the principle of nondiscrimination for the purposes of the remaining articles.
Relevant to same-sex marriage are the following: articles 3, 12, and 16. These fall into the category of 'first generation rights', which refer to liberties, both civil and political. Article 3 states: 'Everyone has the right to life, liberty and security of person.' One may argue that where same-sex marriage is not legal, LGBT people are specifically lacking in liberty. Some activists have argued this point by drawing an analogy to miscegenation laws. On miscegenation laws, Hannah Arendt has argued:
The right to marry whoever one wishes is an elementary human right. ... Even political rights, like the right to vote ... are secondary to the inalienable human rights to 'life, liberty and the pursuit of happiness' proclaimed in the [U.S.] Declaration of Independence; and to this category the right to home and marriage unquestionably belongs.
This argument rests on the distinction Arendt draws between the private, social, and political realms. In the instance of miscegenation laws, Arendt believes the political has overstepped its bounds into the private and that it cannot be justifiable to legally prevent one's free associations in this realm. Rodney Croome, national convenor of Australian Marriage Equality (AME), uses Arendt's argument to draw the analogy to same-sex marriage: just as blacks and whites were unfairly prevented from marrying one another, so too is it unfair to prevent two people of the same sex from marrying. This interferes with their liberties and fails to treat LGBTs as equals to heterosexuals.
Another way to interpret the matter of individual liberty is to say that same-sex attracted people face a 'paucity of options'. According to James Griffin, there is a difference between a denial of liberty and a paucity of options; a denial of liberty typically involves constraint or compulsions, whereas a paucity of options involves an unnecessary narrowing of options. If a society finds itself in a position where it can allow further options to its citizens, and there is no good reason not to do so, then that society has a duty to create these alternatives. On this basis, it seems as though one can make the case for same-sex marriage: if one group (different-sex couples) has legal opportunities available to them while another group (same-sex couples) has the very same legal opportunities unreasonably curtailed, such inequalities ought to be rectified. The obvious question is whether there is any justifiable reason to continue excluding same-sex couples from marriage. I will argue that there is no such justifiable reason. However, whether or not liberty-based justifications of same-sex marriage are suitable for endorsement is still an additional question.
On first blush, these responses seem compelling. Same-sex couples should be free to marry, regardless of whether LGBT people would actually choose to enter into a marriage. However, there are also reasons to be sceptical of this approach. If one successfully argues their case on the ground of liberty (that is, they do not rely upon assimilative justifications to make their case), this does not guarantee any change in the social reception of LGBTs. LGBTs may become legally equal and free to do as they please, but they are likely to continue to face identity-based discrimination. These justifications have a strong appeal, but since what is at stake in the same-sex marriage debate is the equal regard of LGBT people, we will need to take care to ensure that equal regard is a likely consequence of such justifications.
Article 12 pertains to privacy. It reads as follows: 'No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.' Privacy has been commonly employed as a ground for LGBT law reform and was particularly influential in arguments seeking to decriminalize homo-sex, given that 'sexual orientation' was not explicitly listed as an axis of discrimination until the Amsterdam treaty. For example, consider the Wolfenden Report (1957): the British Wolfenden Committee recommended that homo-sex between two consenting adults in private ought to be decriminalized. They found that 'it is not, in our view, the function of the law to intervene in the private lives of citizens'. In other words, the committee was convinced that there is a realm where the arm of the law does not belong: the private realm. The justification for decriminalising homo-sex stood regardless of the fact that there was much social opposition to the practice at the time. Consider also a more recent example: In 1994 Toonen v. Australia came before the United Nations Human Rights Committee (UNHRC). Toonen claimed that his right to privacy, in accordance with article 17 of the ICCPR, was being violated by Tasmania's antisodomy laws. Importantly, article 17 of the ICCPR reads exactly the same as article 12 of the UDHR and is the second schedule to the Australian Human Rights Commission Act 1986. The UNHRC found that 'in so far as article 17 is concerned, it is undisputed that adult consensual sexual activity in private is covered by the concept of "privacy"'. Thus, given the success of privacy claims in other areas of LGBT law reform, privacy seems to be a plausible ground on which to claim the right to marry. This also recalls Arendt's claim about miscegenation laws: the political realm has overstepped its bounds into the private realm, but it cannot be justifiable to legally prevent one's free associations therein.
Excerpted from Justifying Same-Sex Marriage by Louise Richardson-Self. Copyright © 2016 Louise Richardson-Self. Excerpted by permission of Rowman & Littlefield International, Ltd..
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Table of Contents
Introduction: Same-Sex Marriage and LGBT Non-Discrimination / 1. Rights, Norms and Small Change / 2. Assimilative Justifications of Same-Sex Marriage / 3. Feminist Criticisms of Human Rights / 4. Toward a Feminist Human Rights Framework: the Intersubjective Justification Theory / 5. Advancing the Intersubjective Justification Theory: the Politics of Sexuate Difference / 6. A Combined Approach: Aiming for LGBT Equal Regard / Conclusion: Reflections on Same-Sex Marriage / Bibliography / Index