‘Dogs Are “Registered”, People Shouldn’t Be’: Legal Consciousness and Lesbian and Gay Rights

Date01 December 2006
DOI10.1177/0964663906069545
Published date01 December 2006
AuthorRosie Harding
Subject MatterArticles
‘Dogs Are “Registered”,
People Shouldn’t Be’: Legal
Consciousness and Lesbian and
Gay Rights
ROSIE HARDING
University of Kent, UK
ABSTRACT
In this article I examine lesbians’ and gay men’s attitudes towards the legal recog-
nition of same-sex relationships, using the theoretical framework of legal conscious-
ness. I f‌irst provide a brief overview of the legal consciousness literature, before
outlining some of the critiques of legal consciousness. Lesbian and gay legal
consciousness is then examined through an analysis of qualitative responses to a large-
scale online study of perceptions of and attitudes towards same-sex marriage and the
legal recognition or regulation of same-sex relationships. Responses are analysed
using thematic analysis to elaborate on f‌ive main themes within these data: formal
equality, the relationship between legal and social change, the naming of legally recog-
nized same-sex relationships, human rights discourse and citizenship claims. I argue
that legal consciousness studies can help to interrogate the pervasiveness of discourses
around formal equality and discrimination in the ways in which lesbians and gay men
think about, use and position themselves in relation to law.
KEY WORDS
citizenship; equality; human rights; legal consciousness; lesbian and gay rights;
same-sex marriage
INTRODUCTION
SINCE THE early 1990s, same-sex marriage and the legal recognition and
regulation of same-sex relationships have become a key site in the
struggle for lesbian and gay legal equality. The centring of claims for
SOCIAL &LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(4), 511–533
DOI: 10.1177/0964663906069545
same-sex relationship recognition has given rise to a wealth of academic and
media commentary. There are commentators who support same-sex marriage
(e.g. Eskridge, 2002; Kitzinger and Wilkinson, 2004), and those who criticize
it (e.g. Clarke, 2003; Jeffreys, 2004). There are also commentators who are
critical of the (hetero)patriarchal concept of marriage, but who see same-sex
marriage as inevitable (e.g. Auchmuty, 2004). This rich debate has rarely,
however, investigated the attitudes and perceptions of ‘ordinary’ lesbians and
gay men to the legal recognition of same-sex relationships (cf. Hull, 2003).
In this article I take lesbians and gay men’s attitudes towards and perceptions
of law and the legal recognition of same-sex relationships as my focus, in
order to bring a different dimension to the academic debates surrounding
same-sex marriage. I use the theoretical framework of legal consciousness to
analyse the qualitative comments from lesbian and gay respondents to a
large-scale online study of perceptions of and attitudes towards same-sex
marriage.
In the f‌irst section, I begin by outlining the meanings ascribed to the phrase
‘legal consciousness’ and the theoretical basis of legal consciousness studies.
Second, I explore some critiques of legal consciousness, and suggest ways in
which legal consciousness can be expanded to address some of the limitations
posed by these critiques. I will then focus on the application of legal
consciousness to lesbians’ and gay men’s views about law and legality, specif‌i-
cally in relation to the legal recognition/regulation of same-sex relationships.
I examine lesbian and gay legal consciousness through the qualitative results
of a large-scale multi-method online study of lesbians’ and gay men’s percep-
tions of and attitudes towards equality and the legal recognition of same-sex
relationships. I argue that legal consciousness studies can help to interrogate
the pervasiveness of discourses around formal equality and discrimination in
the ways in which lesbians and gay men think about, use and position them-
selves in relation to law.
WHAT IS‘LEGAL CONSCIOUSNESS’?
Legal consciousness studies are a form of socio-legal scholarship which
examines the role of law in everyday life. Studies of legal consciousness have
been predominantly US based, although this theoretical framework is
becoming increasingly popular in European socio-legal research (e.g. Cooper,
1995; Garcia-Villegas, 2003; Gies, 2003; Cowan, 2004; Hertogh, 2004). In
general, the study of legal consciousness relates to the ways in which ordinary
people approach, use and think about law in everyday life. Different def‌i-
nitions of what, exactly, legal consciousness ‘is’ have been propounded by
different researchers, and the focus of legal consciousness studies has changed
over time. Early studies in the 1970s focused on levels of public knowledge
of, understandings of and opinion(s) about law (Sarat, 1977). These studies
used large-scale quantitative survey data to examine levels of awareness about
law and compared these to the content of legal provisions (Hertogh, 2004).
512 SOCIAL & LEGAL STUDIES 15(4)

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