Legal Struggles and Political Resistance: Same-Sex Marriage in Canada and the USA

Abstract

This article explores the nature of legal struggles surrounding same-sex marriage in the USA and Canada, focusing specifically on the ways in which the cultural power of law is used to frame claims of injustice and to develop strategies of political resistance. Drawing on theoretical perspectives from the literatures on 'law and social movements' and 'legal consciousness', the article compares the claims-making discourse and strategies of same-sex couples seeking access to legal civil marriage in the USA and Canada. Based in part on interviews with same-sex couples, lawyers and political activists, the article demonstrates the ways in which the claims of law have been used to frame political strategies in places where same-sex marriage is 'illegal', the ways in which claims of legal equality are enacted, produced and explained by same-sex couples, and the ways in which equality discourse is deployed as a strategic political resource in the struggle over same-sex marriage.

Resisting LGBT Rights Where “We Have Won”: Canada and Great Britain

“…There is a significant body of research on US-based conservative and/or religious organizations and the Christian Right examining their domestic agenda and their growing transnational spheres of influence through participation in United Nations activities and in the World Congress of Families (Buss and Herman, 2003;Burack and Josephson 2005;Crowley 2007;Peterson 2011;Todd and Ong 2012). Political science has examined LGBT legal and policy recognition using cross-national comparative analyses to explore factors such as the impact of multilevel state institutions, the organization, opportunities, and resources of LGBT movements and Christian right and conservative opponents, and the impact of political cultural factors on legal and policy change (Buss and Herman 2003;Smith 2007;Fetner 2008a, 2008b;Fetner 2008;Nicol and Smith 2008;Burack and Wilson 2012;Pierceson et al 2010;Tremblay et al 2011;Holzhacker 2012;Rayside and Wilcox 2012). Less well known is how opposition to LGBT rights and equalities is created through organizations and alliances that operate in British 2 and Canadian contexts where LGBT equalities, including same-sex marriage, are in place.…”

20180423

“…The literature argues that same-sex parents face a variety of legal challenges regarding marriage and gaining equality under the law (Nicol and Smith, 2008;Kubasek, Glass, and Cook, 2011;Riggle, Rostosky, and Prather, 2006). One of the challenges that same-sex couples face is being denied the right to apply for a marriage license.…”

“…Nicol and Smith (2008, p. 679) describe a couple who went to the clerk's office to apply for a marriage license and the clerk, "laughed at them, asking if their request was a prank." Because of such resistance, couples resulted to commitment ceremonies that allowed them to marry on their own terms (Nicol and Smith, 2008;Kubasek, Glass, and Cook, 2011;Riggle, Rostosky, and Prather, 2006). Couples felt that marrying outside of the law was a way for them to contribute to the public changing of social attitudes surrounding same-sex marriage.…”

Northern Enlightenment: Legal Recognition of Same-Sex Marriage in Canada

“…Efforts to obtain equal rights for gay men and lesbians in Canada have a long and contentious history (see Herman, 1994;Hiebert, 2003;Elliot & Bonauto, 2005;Fisher, 2004;Kinsman, 1996;MacDougall, 2001;Nicol & Smith, 2008;Smith, 1999Smith, , 2002Smith, , 2008, with the legal recognition of same-sex unions being one of many issues. It is important to understand this context.…”

“…Thus, Canada is not an entirely anomalous context, although its political culture of human rights is not necessarily operational in other countries, such as the United States (see Smith, 2007, for more information). Second, the legalization of same-sex marriage emerged out of a controversial history that involved a social advocacy and judicial and legislative trajectory, including the strategic use of the law to subvert it (Nicol & Smith, 2008); parts of this trajectory may be instructive in other contexts.…”