Challenging the Heteronormativity of Marriage: The Role of Judicial Interpretation and Authority
| Author | Paul Johnson |
| DOI | 10.1177/0964663911406314 |
| Published date | 01 September 2011 |
| Date | 01 September 2011 |
| Subject Matter | Articles |
Article
Challenging the
Heteronormativity of
Marriage: The Role of
Judicial Interpretation
and Authority
Paul Johnson
University of Surrey, UK
Abstract
This article considers three recent court judgments that resulted from challenges by
homosexual men and women to laws that prohibited them from contracting civil
marriage. In examining these judgments, my focus is on the different ways in which
courts interpret the social, cultural and legal heteronormativity of marriage. Whilst the
issue of judicial interpretations of heteronormativity has not been a significant cause for
concern in either lay or academic discourse, I argue that judicial ‘ways of thinking’
about heteronormativity are vitally important in both the reproduction and disruption of
heteronormativelaw. To demonstrate this, I show how the standpoint of sittingjudges in
respect of heteronormativity was a key factor determining the outcome of the cases
considered here. In contrast to popular accounts of these standpoints, which focus on
the ‘activism’ of individual judges, I argue that judicial standpoints that are critical of
heteronormativity reflect social, rather than personal, ‘points of view’. In conclusion, I
argue that current debates about judicial diversity must acknowledge the importance of
these interpretative standpoints within the law and the social processes through which
they are both producedand maintained.
Keywords
heteronormativity, homosexuality, judicial diversity, judicial standpoints, same-sex
marriage
Corresponding author:
Paul Johnson, Department of Sociology, University of Surrey, Guildford GU2 7XH, Surrey, UK
Email: p.johnson@surrey.ac.uk
Social & Legal Studies
20(3) 349–367
ªThe Author(s) 2011
Reprints and permission:
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DOI: 10.1177/0964663911406314
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Introduction
This article examines three recent judgments issued by the final courts of appeal in the
legal jurisdictions of California (USA), South Africa and the Council of Europe. These
judgments – the result of challenges made by homosexual men and women to laws that
prohibited them from contracting civil marriage – arise from cases originating in very
different social, cultural and legal contexts, but they share a common concern to resolve
one issue: the extent to which law should support the exclusion of one class of persons
from the rights, benefits and responsibilities of a key social and legal institution enjoyed
by others. In addressing this issue, all three judgments engage in extensive considera-
tions of the social and legal organization of marriage in contemporary societies and offer
a critical analysis of it. As such, the judgments are both reflections on the complex sexual
politics that characterize contemporary societies, and authoritative pronouncements on
how political disputes about sexual orientation should be resolved in law.
In examining these judgments, my focus is on the different ways in which courts inter-
pret the social, cultural and legal ‘heteronormativity’ of marriage. Following a discus-
sion of the relationship between heteronormativity and law, and of the role and scope
of judicial interpretation and authority, I go on to explore the contrasting judicial
interpretations of heteronormativity contained in the three judgments. I argue that the
interpretative standpoint of sitting judges in respect of heteronormativity was a key fac-
tor in determining the outcome of the cases. I show how the adoption by courts of inter-
pretative standpoints critical of heteronormativity was decisive in their rejection of
arguments that marriage can be defensibly limited to opposite-sex couples. In conclu-
sion, I argue that current debates about judicial diversity must acknowledge the impor-
tance of these interpretative standpoints within the law in order to facilitate greater legal
equity for non-heterosexuals.
The Heteronormativity of Law
As an increasing number of scholars recognize,law is central to the creation, maintenance
and reproductionof heteronormativity within contemporary societies(e.g. McGhee, 2001;
Stychin, 2003). By heteronormativity I mean what Berlant and Warner call ‘the institu-
tions, structures of understanding, and practical orientations that make heterosexuality
seem not only coherent ... but also privileged’ (1998: 548). Whilst Berlant and Warner
understand heteronormativity to comprise less a body of norms that can be located in par-
ticular practices,processes or doctrines, and more a ‘sense of rightness’ that characterizes
heterosexuality in the contemporary, the practices, processes and doctrines of law are one
of the most important mechanisms for ensuring the ‘privilege’ of heterosexuality and the
‘effortless superiority’ that it commonly achieves in social life (Smart, 1996: 173).
The three judgments examined here all originate in challenges by non-heterosexuals
to laws that sustain the social and cultural privilege and superiority of heterosexuality.
They are laws that support a form of social organization that, to use Adrienne Rich’s
term, ‘flickers across and distorts our lives’ (1986: 64). Heteronormative law ‘distorts’
lives because it helps to enforce a ‘silence’ in contemporary societies about heterosexu-
ality which means that, instead of speaking about heterosexuality as a social and political
350 Social & Legal Studies 20(3)
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