This discussion examines whether, and in what ways, the legalization of same-sex marriage in Canada may reinforce some of the existing hierarchies within gay and lesbian culture. Through an analysis of the paradox of multicultural vulnerability and the same-sex marriage debate in Canada, it suggests that same-sex marriage may operate as a vehicle for social respectability. In so doing, it may further marginalize those individuals who do not conform to particular heteronormative notions about sexuality and relationships. This is not an argument against the legalization of same-sex marriage, which is undoubtedly a significant right for several gays and lesbians. Rather, it is an inquiry into the shortcomings of same-sex marriage the aims to enhance its subversive potential for the broader queer community. Our discussion begins by describing two key concepts: multicultural accommodation, and the paradox of multicultural vulnerability. The second part of this discussion briefly associates the legalization of same-sex marriage with multicultural accommodation to suggest that the former may be seen as a functional form of the latter. More significantly, the third part of this discussion puts forward a case for understanding same-sex marriage as a manifestation of the paradox of multicultural vulnerability.
Definitions
Ayelet Shachar (2000) in “On Citizenship and Multicultural Vulnerability” describes two concepts that are critical to our discussion about same-sex marriage. The first concept that Shachar describes is multicultural accommodation. This refers to legal measures that “[aim] to provide identity groups with the option to maintain… their nomos—the normative universe in which law and cultural narrative are inseparably related” [Emphasis in original]. The author further observes, “the move toward multicultural accommodation generally is justified in terms of promoting the ‘participation and inclusion…[of] groups with different circumstances or forms of life… without shedding their distinct identities’” (Shachar 2000: 65). In other words, multicultural accommodation seeks to help members of a minority group maintain some of their ‘different’ norms. This is regarded as being desirable for not only the minority group, but also the dominant group or institution, which benefits from increased participation of members of the minority group. The second part of this discussion briefly puts forward some reasons for understanding the legalization of same-sex marriage as a functional form of multicultural accommodation.
The second concept that Shachar describes is the paradox of multicultural vulnerability. This paradox arises “when state accommodation policies intended to mitigate the power differential between groups end up reinforcing power hierarchies within them” (Shachar 2000: 65). The paradox involves not incidental in-group rights violations, but rather systemic in-group rights violations. The primary concern is “whether or not the multicultural state accommodates a social and legal disadvantage that is already evident in the group’s established traditions” [Emphasis in original] (Shachar 2000: 71). The third part of this discussion adopts Shachar’s description with the minor amendment that social and legal disadvantage need not be “already evident,” but rather it need only exist. It puts forward some reasons for understanding same-sex marriage as a manifestation of the paradox of multicultural vulnerability. Our discussion now turns to the links between the legalization of same-sex marriage and multicultural accommodation.
Same-sex marriage and multicultural accommodation
The legalization of same-sex marriage may be seen as a functional form of multicultural accommodation. As we will see in our discussion about Halpern et al v. Attorney General of Canada (AGC), this legal measure provides gays and lesbians with the option of maintaining the norm of private monogamous unions between two same-sex individuals through its inclusion into the regime of marriage. (Some queer scholars have contested the claim that such unions constitute the norm of gay and lesbian relationships.) This is not to suggest that multiculturalism per se motivates such an inclusion. Rather, certain parallels between the legalization of same-sex marriage and multicultural accommodation suggest that the former is akin to the latter. As stated above, the legalization of same-sex marriage provides gays and lesbians in private monogamous unions with the option to maintain those unions in context of marriage. Some proponents of same-sex marriage suggest that it is beneficial for not only gays and lesbians, whose relationships are legitimized through state recognition, but also the institution of marriage and the dominant culture that supports it, which is strengthened by the participation of gays and lesbians. Since the legalization of same-sex marriage is similar in process and effect to multicultural accommodation, the former may be understood as a functional, if not formal, form of the latter. Having linked these two processes, our discussion below provides some reasons for understanding same-sex marriage as a manifestation of the paradox of multicultural vulnerability.
Same-sex marriage and the paradox of multicultural vulnerability
In Halpern et al v. AGC, the Court of Appeal for Ontario decided that the exclusion of same-sex couples from the common law definition of marriage—“the voluntary union for life of one man and one woman”—breaches s. 15(1) of The Canadian Charter of Rights and Freedoms in a manner that is not justified in a free and democratic society. Seven gay and lesbian couples argued that their reasons for wanting to engage in the formal civil union of marriage—“to celebrate their love and commitment to each other”—are the same as heterosexual couples. They argued that since the definition of marriage creates a formal distinction between opposite- and same-sex couples that discriminates on the basis of sexual orientation, the definition ought to be deemed unconstitutional and amended to include same-sex couples. The court performed s. 15 and s. 1 analyses, the Law test and the Oakes test, respectively, to assess the validity of the couples’ claim, and subsequently accepted their equality-based argument. The successful argument in Halpern in essence upholds the common law definition of marriage, but for the opposite-sex clause. Thus, to a significant extent, it maintains the heteronormative structure of marriage as a private monogamous union between two individuals.
Cossman (forthcoming) in “Queers as Citizens” examines the debate about same-sex marriage—a debate that is, in her view, “vastly dichotomized, inadequately ambivalent, and temporally dislocated”—to advance a nuanced understanding of “a middle zone between marriage and nonmarriage, between legitimate and illegitimate citizenship” (Cossman forthcoming: 6). The author outlines the two most commonly held views about same-sex marriage within gay and lesbian communities. Proponents of same-sex marriage hold inclusion into an important social and legal institution as being vital to the citizenship of gay men and lesbians. In contrast, opponents from within gay and lesbian communities argue that since same-sex marriage will be normalizing and assimilating, it will undermine the subversive aspects of queer identities.
Cossman rightly points out that “the debate performs an either/or of being for or against same sex marriage, and for or against inclusion in citizenship as it is currently constituted” (Cossman forthcoming: 1). However, the author does not adequately consider the underlying premises of the so-called “queer activist” standpoint. Certain queer scholars have argued that although gay assimilation is troubling, the production of gay difference—“limiting what is imaginable as a recognizably gay citizen: usually white, male, affluent, discreetly sexual, apolitical, gay subjects”—is even more problematic (Sender 2005: 23; see also Crimp 2004, and Moore 2004). The debate within gay and lesbian communities exists in a context where public spaces for queer sexual experimentation, which in the 1970s and 1980s were sites of a gay liberation movement, are disappearing (Toub 2007; see also Crimp 2004: 298), and being replaced with more socially “respectable” kinds of queer spaces and visibility.
The same-sex marriage debate and the shift toward respectable queer visibility constitute reasons to think about same-sex marriage in terms of the paradox of multicultural vulnerability. In this particular paradox, the legalization of same-sex marriage provides gays and lesbians with the legal option to conform to a heteronormative structure of marriage. This is supposed to help gays and lesbian maintain the same-sex feature of their unions in the context of marriage. However, as queer scholars have argued, same-sex marriage may also operate as a vehicle for social respectability, which may ascribe respect to gays and lesbians in marital unions. In so doing, it may further marginalize those individuals who do not conform to the particular heteronormative notions that same-sex marriage involves. For example, gays and lesbians who are not in monogamous unions, or those who are in unions of more than two people do not fit into the current scheme of marriage. The social and legal disadvantage such individuals experience is “already evident.” Thus, it is important to think about whether the scope of same-sex marriage could be widened to include such individuals. If so, then we may enhance the subversive potential of same-sex marriage. If not, then several queer individuals may remain outside of an institution that neither reflects nor allows their realities.
References
Cossman, B. (forthcoming). Queers as Citizens, excerpts, from Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging. Stanford: Stanford University Press.
Crimp, D. (2004). Melancholia and Moralism: essays on AIDS and queer politics. Cambridge & London: The MIT Press.
Halpern et al. v. Attorney General of Canada (Ont. C.A., 2003)
Moore, P. (2004). Beyond Shame: reclaiming the abandoned history of radical gay sexuality. Boston: Beacon Press Books.
Sender, K. (2005). Business, Not Politics: the making of the gay market. New York: Columbia University Press.
Shachar, A. (2000). "On Citizenship and Multicultural Vulnerability," Political Theory 28, no. 1: 64-89
Toub, M., (2007, March 24). There goes the gaybourhood. The Globe and Mail, Retrieved 29 March 2008 from personal database.
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The post draws an interesting connection between the accommodation of same-sex unions and its relationship to the paradox of multicultural vulnerability explained by Shachar. The cultural and legal accommodation of same-sex marriage, theoretically, intends to promote the inclusion of same-sex couples, as equal participants in the institution of marriage, as heterosexual couples. However, as the post points out, in practice, the accommodation of same-sex marriage may actually “further marginalize those individuals who do not conform to particular heteronormative notions about sexuality and relationships.” This clearly demonstrates Shachar’s explanation of the paradox of multicultural vulnerability: “when state accommodation policies intended to mitigate the power differential between groups end up reinforcing the power hierarchies within them” (Shachar 2000: 65).
On one hand, in accommodating same-sex marriage, the state includes homosexual couples and provides them with the same access to rights and benefits provided by the legal institution of marriage, as experienced by heterosexual couples. On the other hand though, this accommodation has the unintended consequence of reinforcing the exclusion and marginalization of other sexual relationships that do not fall under these established categories. For example, non-monogamous relationships where participants may all be equally committed to more than one partner are denied the legal rights and benefits provided by marriage, as they are legally excluded from being able to participate in the tradition of marriage. In this sense, although the state accommodates monogamous heterosexual couples by legally recognizing same-sex marriage, it also in effect “accommodates a social and legal disadvantage that is already evident in the group’s established traditions” (Shachar 2000: 71). It praises monogamous homosexual couples and rewards them with access to marriage, while further stigmatizing and marginalizing non-monogamous homosexual as well as heterosexual couples.
As summarized by the post, in the case of Halpern et al v. Attorney General of Canada, the same-sex couples who challenged the common law definition of marriage at the time based their argument on wanting to celebrate their love and commitment to each other, for the same reasons as heterosexual couples. Although not discussed by the post, the reasons upon which the argument for the challenge was based also had the effect of further excluding and marginalizing sexual relations that do not fall under socially accepted categories. As Lawrence points out, “often judges construct for themselves an unhappy choice between accepting a culture while looking down on it for some problematic (and possibly criminal) practice or requiring assimilation to some construction of Canadian norms” (Lawrence 2001: 112). In the case of the accommodation of same-sex marriage, the court accepted the culture of monogamous homosexual relations, while looking down at non-monogamous relations, and at the same time implicitly requiring those engaged in non-monogamous relations to assimilate into the constructed Canadian norm of monogamy.
As argued by the post, the application of the paradox of vulnerability in the case of same-sex marriage demonstrates how the accommodation of the practices of some members one group, may have the effect of further excluding and marginalizing other members of that same group. This unintended consequence can be ascribed to legal definitions, and legal processes, which result in judicial officials operating in such a way that has the effect that the accommodation of one group’s practices necessarily means the exclusion and stigmatization of another group’s behaviour.
Works Cited
Ayelet Shachar, “On Citizenship and Multicultural
Vulnerability,” Political Theory 28, no. 1 (2000): 64-89.
Sonia N. Lawrence, "Cultural Insensitivity: The Dangers of a Simplistic Approach to Culture in the Courtroom," Canadian Journal of Women and the Law 13 (2001): 107-36.
The author describes “whether, and in what ways, the legalization of same-sex marriage in Canada may reinforce some of the existing hierarchies within gay and lesbian culture” (John Harvard). The author argues that the manner in which the institution of marriage is only an eligible option for certain members of the homosexual community actively marginalizes members of that very subculture who do not conform to the specifications of the term.
The paradox of multicultural accommodation emerges when “when state accommodation policies intended to mitigate the power differential between groups end up reinforcing power hierarchies within them”. (Shachar 2000: 65) John Harvard claims that the marginalization of certain members of the homosexual subculture who are denied entry into all forms of the institution of legalized marriage is analogous to the possible repression of weaker members within the paradox of multicultural accommodation.
I will argue that were all members of the homosexual community outrightly denied entry into the institution for the sake of the smaller sub-category who could not and would not want access to this institution, then in this instance the case would be analogous to that of the oppression that occurs via the paradox of multicultural accommodation. In my opinion, if some members are granted access to this institution and the privileges it entails, then members of the subculture are allowed the possibility to benefit from the inclusion of their entire culture into the normative sphere. Let me explain. For the paradox of multicultural accommodation to occur, the government would otherwise relinquish authority over the legalization of bonds and unions between individuals to the governance of the subculture. In such an instance the elites chosen, whether by election or other means, would determine the possibilities sanctioned for their members. Thus, members of the sub-community themselves, under a guise of self-determination would establish their own legal and codified nomos. Many possibilities emerge from this adjudication: either a new form of marriage is established, which supersedes that of the Canadian government’s or, conversely, the wise sub-cultural governing counsel may determine that no such institution is necessary within the subculture, and this would require members to relinquish the right to this institution altogether. In the latter instance, the renouncement of the entire institution find it’s basis in sound judgment proclaiming that the Catholic-origin institution has no value in a secular and religiously diversified subculture such as homosexuality. There would be many viable justifications for any decision of the sort. In this instance members would be denied palpable physical benefits offered by the state, such as those relating to taxes, child custody, or any other incentives offered. Furthermore, I firmly believe that socially all members of the subculture would suffer a disadvantage. The means for marginalization is the furtive nature of the “other” and a greater mistrust that develops from this misunderstanding. The greater fault would be to allow heterosexual citizens to believe that members of the homosexual community would want no part in the institution of marriage. There would be no mechanism to describe what it is that homosexuals want from their love relationships. Perhaps within the homosexual culture there are various forms of relationships that are accepted and promoted, but without any clear expression of these forms to the greater majority no form of coherent understanding would take place. Without any appreciation for these differences, ignorance would create fear and provide the fertile basis for socially visible discrimination.
In addition, having sectionalized the population into these two distinct entities, I believe that the judgments of the subculture would be unable to effectuate any change upon the ethos of the majority. As the government’s actions are aimed at pacifying its minority subculture, the members of this minority culture may be denied the opportunity to effectuate change on the majority culture, thereby weakening those in the heterosexual community who are also marginalized by the majority definition of marriage.
To conclude, the institution of marriage is itself a culturally derived institution that is legitimated by the governing bodies of the Canadian nation. The monogamous definition of marriage implies limited inclusion of the population, and thus marginalizes many individuals within the society. By allowing members of the homosexual community access to the institution the government is allowing greater cross-cultural access to the institution. That many members of the homosexual community are not accommodated by this inclusion merely highlights that many members across society, and across sexual orientation, face marginalization by many of the state’s basic institutions.
Shachar, Ayelet. “On Citizenship and Multicultural Vulnerability,” Political Theory 28, no. 1 (2000): 64-89.
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