Political Institutions and Lesbian and Gay Rights in the United States and Canada

Miriam Smith

• Publisher: Routledge
• Year: 2008
• eBook ISBN: 9781135859190
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: LGBT Studies
• Index: Politics & International Relations

Lesbian and gay citizens today enjoy a much broader array of rights and obligations and a greater ability to live their lives openly in both the U.S. and Canada. However, while human rights protections have been exponentially expanded in Canada over the last twenty years, even basic protections in areas such as employment discrimination are still unavailable to many in the United States. This book examines why these similar societies have produced such divergent policy outcomes, focusing on how differences between the political institutions of the U.S. and Canada have shaped the terrain of social movement and counter-movement mobilization. It analyzes cross-national variance in public policies toward lesbians and gay men, especially in the areas of the decriminalization of sodomy, the passage of anti-discrimination laws, and the enactment of measures to recognize same-sex relationships. For political science, sociology, and queer studies alike, this book will prove vital as movements for lesbian and gay rights continue to recast the social landscape in North America and beyond.

1
The Comparative Politics of Lesbian and Gay Rights

In February 2004, the newly elected mayor of San Francisco, Gavin Newsom, surprised the city and the nation by announcing that he would authorize municipal authorities to issue marriage licenses to same-sex couples. Newsom decided to take the action after hearing President Bush oppose same-sex marriage during the January 2004 State of the Union address. On the first weekend, 2,000 couples lined up around the block at San Francisco City Hall to obtain a marriage license. Phyllis Lyon and Del Martin were the first to be married. The couple, who had been together for more than fifty years, led the fight for lesbian rights in the 1950s and 1960s, prior to the rise of the women’s liberation and gay liberation movements, and had founded the lesbian organization Daughters of Bilitis in 1955 (National Organization of Women 2004). Of his decision to sanction same-sex marriage at San Francisco City Hall, Newsom commented, “While some may believe that separate and unequal institutions are acceptable, we will oppose intolerance and discrimination every step of the way. San Francisco is a city of tolerance and mutual respect and we will accept nothing less than full civil rights for all our residents” (San Francisco 2004). On August 12, 2004, the California Supreme Court invalidated Lyon and Martin’s marriage, ruling that Newsom did not have the right to issue marriage licenses to same-sex couples. Of the Court’s decision, Lyon remarked, “Del is 83 years old and I am 79. After being together for more than 50 years, it is a terrible blow to have the rights and protections of marriage taken away from us. At our age, we do not have the luxury of time” (cited in American Civil Liberties Union 2004).

At the same time, same-sex couples in Canada began challenging exclusionary marriage laws by applying for marriage licenses and by seeking alternative means of legalizing their unions. In January 2001, two same-sex couples were married at the Metropolitan Community Church Toronto (MCCT), a gay- and lesbian-friendly congregation, after the reading about banns of marriage. The weddings of Kevin Bourassa and Joe Varnell, and Elaine and Anne Vautour, were witnessed by a packed church and the nuptials were reported in the Canadian and international media. The couples applied for the registration of their marriages and, when denied, filed a case against the federal government along with other same-sex couples, claiming that their equality rights had been violated. The MCCT also participated, arguing that its freedom of religion had been denied. In June 2003, the Ontario Court of Appeal ruled in favour of the couples and the church and ordered the issuing of marriage licenses to same-sex couples in Ontario and the registration of the weddings that had taken place at MCCT. These marriages provided the spark for the eventual passage of pan-Canadian legislation legalizing same-sex marriage in June 2005.¹

The early 2000s were a critical juncture in lesbian and gay politics in the U.S. and Canada. In the 2004 U.S. elections, state constitutional amendments banning same-sex marriage in thirteen states were credited with having increased voter turnout among conservative Christians and with having helped to seal Republican electoral success.² The re-election of George W. Bush led to a new pessimism in national lesbian and gay organizing in the U.S., as national gay and lesbian groups such as the Human Rights Campaign and National Gay and Lesbian Task Force (Task Force) sought to regroup in the wake of the Bush victory and the passage of gay marriage bans. Despite the U.S. Supreme Court decision in Lawrence v. Texas in 2003, in which the court ruled that statutory bans on homosexual sexual behavior were unconstitutional, only 48% of Americans lived in jurisdictions with basic anti-discrimination protections for lesbian and gay men (Cahill and Tobias 2007:44). In contrast, in Canada, by 2004, all jurisdictions prohibited discrimination based on sexual orientation, several prohibited gender identity discrimination,³ and all provided clear procedures for bringing a claim of discrimination on these grounds against governments or in the private sector. Courts in the three most populous provinces had ruled in favour of same-sex marriage and the federal government had proposed legislation that would legalize same-sex civil marriage throughout Canada. While the rise of the Christian Right in the Bush era in the U.S. seemed to portend a return to traditional morality and a reassertion of the superiority of heterosexual family relationships, Canada was touted as a haven for gay “refugees” from the Bush administration and as a model of tolerance and diversity. While George W. Bush sought to reassert his opposition to same-sex marriage, especially after the victories for same-sex couples before state courts in Vermont and Massachusetts, politicians in the governing Liberal Party in Canada, regardless of their private doubts about same-sex marriage, were at pains to defer to the Supreme Court of Canada’s view that lesbian and gay rights were protected in the Canadian Charter of Rights and Freedoms (Charter), Canada’s constitutionally entrenched bill of rights. Even the leader of the opposition Conservative Party, Stephen Harper, who, in January 2006, became prime minister, was careful to couch his opposition to same-sex marriage in terms that were respectful of existing lesbian and gay rights protections in Canadian law. While Harper opposed same-sex marriage and indicated that he might reopen debate on the measure in Parliament, he gave no indication that he opposed the existing recognition of same-sex relationships that had been previously implemented.

This book aims to explain the policy differences in human rights policies for lesbians and gays between the two countries. By international standards, the U.S. and Canada are similar systems, developed capitalist democracies and continental neighbours, sharing a common history and legal heritage. These societies have seen major changes in social, family and gender norms since the 1960s with the entry of women into the labour force, the advent of reproductive freedom for women, rising divorce rates and declining religiosity and church attendance. Both countries saw the rise of the gay liberation and lesbian feminist movements in the late 1960s and early 1970s, movements that challenged the patriarchal and heteronormative organization of gender, sexuality and the family. I ask why these two countries, which are similar in so many ways, at least compared to other countries and cultures around the world, have produced such different policy outcomes in the area of lesbian and gay rights protections. I outline the most important policy differences between the two countries, demonstrating the depths of the differences that currently divide policies and practices across the border and focusing on several centrally important areas of policy divergence: the criminal regulation of sodomy, anti-discrimination provisions, relationship recognition, and same-sex marriage. Inspired by studies of American political development and drawing specifically on historical institutionalist theory as well as on insights from sociolegal studies (especially, the legal mobilization literature), I argue that the legacies of previous policies as well as political institutional differences play a structuring role in this policy area, creating obstacles to policy change for the U.S. lesbian and gay movement while providing institutional opportunity for the gay and lesbian movement in Canada.

Political institutions do not create societal demands or social movements. However, institutions provide the strategic context for political actors, structuring the play of social forces in the policy process. Differences in core political institutions (federalism, separation of powers, and the role of courts) combined with differences in constitutional rules and practices between the two countries, have played a major role in facilitating very rapid policy change in Canada over the last decade while blocking policy change in the U.S. While courts have played a central role in policy changes in the U.S. and Canada, the impact of courts can only be assessed in relation to the larger political institutional structure of which they are a part. In Canada, since the entrenchment of a constitutional bill of rights (the Charter) in 1982, courts are uniquely powerful in part because they are not as hemmed in by institutional limits, as U.S. courts. The analysis shows how these limits and constraints play out over time in shaping the recent development of human rights policies in this area.

DIVERGING PATHS IN LESBIAN AND GAY RIGHTS

The U.S. and Canada increasingly demonstrate substantial differences in the extent to which lesbian and gay citizens are recognized in law and public policy. As Barry Adam has remarked, “legislation to bring gay and lesbian Americans full citizenship rights has been proceeding at a glacial pace,” a situation he characterizes as yet another form of American exceptionalism (2003:261). The most visible recent public issues—same-sex marriage—offer symbolic contrasts between the two countries. In the U.S., courts in Hawai’i (1993, 1996), Alaska (1998), Vermont (1999) and Massachusetts (2003, 2004) supported same-sex marriage, while, in Canada, court rulings in the three most populous provinces (Ontario, B.C. and Quebec) in 2002–2004 favoured same-sex marriage. Following these victories, especially the Ontario victory in the pivotal Halpern v. Canada (2003) case, in which the Ontario Court of Appeal ordered Toronto City Hall to issue marriage licenses to same-sex couples, the federal government crafted legislation to recognize same-sex marriage and referred the legislation to the Supreme Court of Canada for a ruling on its constitutionality. In 2004, the Court ruled that the legislation was constitutional and it was eventually passed during the minority Liberal government of Paul Martin in 2005, legalizing same-sex marriage throughout Canada.

In the U.S., reaction to court rulings led to a widespread movement to reassert the heterosexual nature of marriage. In 1996, Congress passed the Defense of Marriage Act (DOMA), which defines marriage as heterosexual for the purposes of federal law and policy⁴ and which recognizes the right of states to deny the legality of marriages or civil unions between same-sex couples from other states.⁵ Many states do not recognize same-sex marriages or civil unions performed in other states or jurisdictions. As of 2007, twenty-six states have passed constitutional amendments restricting marriage to opposite-sex couples while another nineteen states have passed legislation prohibiting same-sex marriage. Of these, seventeen states have laws or state constitutional amendments that might be interpreted to bar same-sex domestic partners (Human Rights Campaign 2007a). Only one state—Massachusetts—permits same-sex marriage. Four other states—Vermont, New Hampshire, New Jersey and Connecticut—recognize civil unions while other jurisdictions (Hawai’i, California, Maine, Washington) offer domestic partnership arrangements in which some rights are provided to same-sex couples (Lambda Legal 2006). Oregon is slated to institute the recognition of same-sex domestic partnerships in 2008. New York currently honors marriages contracted in other jurisdictions. However, as of 2007, legal challenges on same-sex marriage continue in California, Connecticut, and Iowa (Lambda Legal 2007).

Cross-national differences in human rights policies between the U.S. and Canada do not end on the same-sex marriage issue. In Canada, same-sex marriage is the culmination of a decade of legal and legislative change in the status of lesbian and gay citizens in Canadian society, changes that include broad measures recognizing same-sex relationships and parenting rights as well as systematic and constitutionally protected bans on public and private discrimination. In the United States, same-sex marriage is a potent issue for the lesbian and gay communities in part because, in many jurisdictions, it is legal to discriminate against lesbians and gays in areas such as employment and housing and, despite recognition of LGBT parenting rights in some states, the recognition of same-sex relationships is not nearly as widespread as it is in Canada. While anti-discrimination measures have been solidly in place for ten years in most Canadian jurisdictions, such measures are non-existent in many U.S. jurisdictions. In 2007, only eleven U.S. states prohibited employment discrimination against lesbians and gay men at the state level and anti-gay ordinances are often used to forestall discrimination protection in cities and states across the U.S. (Human Rights Campaign 2007b; see also Solokar 2001). Local and city level bans on sexual orientation discrimination are usually restricted to the public sector and often lack effective mechanisms for enforcement (Wald, Button and Rienzo 2000). Proposals at the federal level to add sexual orientation to the 1964 Civil Rights Act⁶ have failed and, to date, the proposed federal Employment Non-Discrimination Act (ENDA) to ban discrimination in employment based on sexual orientation and gender identity has not been passed.⁷ On the issue of relationship recognition for co-habiting same-sex couples, the Liberal government in Canada passed comprehensive federal legislation in 2000 to extend benefits and recognition to these couples, and this has been followed by many provinces and territories (Smith 2005a). In contrast, in the U.S., relationship recognition has developed piecemeal across public and private sector employers. In Canada, same-sex marriage is a final and to some extent symbolic step in a successful legal and political campaign for the recognition of same-sex partners in Canadian law and policy. In the U.S., same-sex marriage is seen as the means to the achievement of many of the parenting and relationship rights that are already available to lesbians and gay men in Canada (Moats 2004).

The U.S. and Canada also differ greatly with regard to the history of the criminalization of homosexual behavior. Until the U.S. Supreme Court’s 2003 decision in Lawrence, sodomy laws prohibited a range of private sexual practices by heterosexuals and homosexuals, usually including oral and anal sex. In the modern era, such laws have been principally aimed at regulating same-sex sexual behavior. Prior to the Lawrence decision in 2003, four states—Texas, Kansas, Missouri, and Oklahoma—prohibited such consensual sexual behavior between same-sex couples while nine other states—Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Virginia, and Utah (and Puerto Rico)—prohibited such behavior by opposite-sex or same-sex couples. In practice, such laws were rarely applied, although, when they were, they were applied almost solely to same-sex couples (Lambda Legal 2003). As I will discuss in detail later in the book, despite the lack of enforcement, sodomy laws in the U.S. had important effects on the overall shape of public policies toward lesbian and gay citizens. By stigmatizing lesbian and gay people as criminals, these laws impeded the passage and implementation of anti-discrimination laws and the extension of relationship recognition and parenting rights to lesbian and gay people in the U.S. In contrast, in Canada, homosexuality was “decriminalized” by the passage of an amendment of the criminal law in 1969. As part of a package of measures that loosened the divorce laws, homosexual sexual conduct between consenting adults twenty-one years of age or older was removed from the Criminal Code, the federal legislation that codifies most criminal law in Canada. The decriminalization measures followed British thinking about the regulation of homosexuality, stemming in particular from the findings of the U.K. Wolfenden Report (1957), which defined homosexuality as a private question that should not be regulated or criminalized by the state. The Canadian and British practice was not exactly liberatory for lesbian and gay people as it demarcated a realm of privacy that was not far removed from the realm of secrecy. Nonetheless, this change cleared the policy agenda in Canada for subsequent steps such as anti-discrimination measures and, eventually, relationship and parenting rights and same-sex marriage.

Therefore, in terms of same-sex marriage, relationship recognition, and the criminalization of homosexual sexual behavior, the U.S. and Canada present a very different picture of human rights for lesbian and gay citizens. No matter what point we choose in the timeline of policy change since 1969—the year in which homosexuality was decriminalized in Canada—Canada has provided more extensive recognition of lesbian and gay rights in law and policy than the United States. Explaining this consistent pattern of policy variation over almost forty years is the main aim of this book.

Some comparative analyses of this policy field have argued that lesbian and gay rights policies follow a predictable pattern, beginning with decriminalization, moving through anti-discrimination measures to protect lesbians and gay men based on their sexual orientation and, finally, the stage of relationship recognition (Merin 2002). Relationship recognition itself can be imagined on a continuum from recognition of same-sex partners by employers through to domestic partnership arrangements, recognition of same-sex relationships as equal to common law heterosexual relationships or through to same-sex marriage itself. Yet, there are a number of problems with positing such a clear teleology of the evolution of human rights policies. While Merin (2002) argues in favour of this pattern, his own analysis shows that the U.S. is far ahead of Europe in granting adoption and parenting rights to same-sex couples and to lesbian and gay parents despite the fact that, according to his linear view of the development of lesbian and gay rights, the U.S. should not grant more parenting rights than European countries, given that it introduced restrictive sodomy laws during the same period that these laws were eliminated in Europe. Merin argues that economic rights are easier to grant than family and domestic rights; yet, in the case of Canada, economic and family rights have been granted while certain rights regarding the equalization of the age of consent for sexual activity have not been changed. In fact, in Canada, following the recognition of same-sex marriage, new campaigns were underway to create a uniform age of consent and to oppose policy proposals from Canada’s Conservative government, elected in 2006, for increasing the age of consent for heterosexual and homosexual sexual activity. Therefore, the argument that economic benefits are easier to grant than family benefits does not hold up to comparative analysis. Although the sodomy laws in the U.S. have had a shaping effect on lesbian and gay politics in the U.S., decriminalization is a complex policy issue and not a simple one-time policy change.

AMERICAN POLITICAL DEVELOPMENT AND HISTORICAL INSTITUTIONALISM

My approach to explaining and interpreting these profound policy differences draws on the developing theoretical traditions of American political development and historical institutionalism, which emphasize the evolution of large-scale political and social changes over longer historical periods. In contrast to political cultural and public opinion approaches, historical institutionalism specifically suggests that the organization of social forces is shaped by institutional factors and by the legacies of previous policies (Pierson and Skocpol 2002; see also Pierson 2004). In thinking about policy divergence in this area, historical institutionalists start with state structures, with the field of political institutions and the legacies of previous policies, to explain divergent policy outcomes, whether between countries or between jurisdictions. That is, rather than focusing on public opinion, political culture, or political economy, historical institutionalists treat the state in the Weberian tradition as an independent player and not simply as the passive reflection of the play of social forces, however conceived (Skocpol 1985; see also Graefe 2007). Despite recent debates on the decline of the state in the era of globalizati...

Table of contents

• Routledge Studies in North American Politics
• Contents
• Preface
• Acknowledgments
• 1 The Comparative Politics of Lesbian and Gay Rights
• 2 Starting Points, 1969–1980
• 3 Bowers and the Charter, 1980–1986
• 4 Discrimination, From Romer to Vriend, 1986–2000
• 5 The Emergence of Same-Sex Marriage, 1991–1999
• 6 Policy Divergence and Policy Diffusion: Same-Sex Marriage in the 2000s
• 7 Conclusions: Historical Institutionalism and Lesbian and Gay Rights
• Notes
• References
• Index