Framing Same-sex Marriage in Canada and the United States: Goodridge, Halpern and The National Boundaries of Political Discourse
| DOI | 10.1177/0964663907073444 |
| Date | 01 March 2007 |
| Author | Miriam Smith |
| Published date | 01 March 2007 |
| Subject Matter | Articles |
FRAMING SAME-SEX MARRIAGE
IN CANADA AND THE UNITED
STATES: GOODRIDGE, HALPERN
AND THE NATIONAL
BOUNDARIES OF POLITICAL
DISCOURSE
MIRIAM SMITH
Trent University, Canada
ABSTRACT
The article draws on post-positivist policy analysis and social movement theory to
explore the impact of law in shaping the politics of social movement claims and
discursive construction of same-sex marriage as public policy issue in Canadian and
American politics. Using the concept of framing, the article discusses the ways in
which lesbian and gay rights claimants in Canada and the USA have framed the issue
of same-sex marriage in two landmark North American rulings on same-sex marriage,
Halpern (Ontario) and Goodridge (Massachusetts). The article finds that, despite
differences in legal policy legacies between Canada and the USA, there is a common
rights frame governing lesbian and gay struggles over same-sex marriage. Although
working with different legal frameworks, judicial precedents, statutory law and human
rights protections, courts reached remarkably similar conclusions about same-sex
marriage and largely endorsed nearly all of the elements in the rights frame put forth
by lesbian and gay litigants. Despite similarities in the framing of lesbian and gay
rights issues in the two countries, the article demonstrates that the central difference
in the same-sex marriage debate in Canada and the USA concerns the place of the
rights frame within the broader political culture.
KEY WORDS
Canada and the USA; framing; judicial decisions; same-sex marriage;
social movements
SOCIAL &LEGAL STUDIES Copyright © 2007 SAGE Publications
Los Angeles, London, New Delhi and Singapore, www.sagepublications.com
0964 6639, Vol. 16(1), 5–26
DOI: 10.1177/0964663907073444
INTRODUCTION
IN2002–5, a series of important legal decisions altered the political and legal
landscape on same-sex marriage in Canada and the USA. In Canada, courts
in British Columbia, Quebec and Ontario ruled in favour of same-sex
marriage. In the USA, the Goodridge v Department of Public Health (2003,
hereafter Goodridge) ruling in favour of same-sex marriage in Massachusetts
sparked a new round of political mobilization on lesbian and gay rights issues
in American politics. Despite the similarities in these judicial rulings, lesbian
and gay rights policies differ greatly between Canada and the USA, with
Canada providing much more substantial human rights protections for
lesbians and gay men than the USA. Same-sex marriage has become the law
throughout Canada, while constitutional amendments protecting hetero-
sexual marriage have been passed in the USA (Adam, 2003; Bailey, 2004).
The article draws on post-positivist policy analysis and social movement
theory to explore the impact of law in shaping the politics of social movement
claims and discursive construction of same-sex marriage as public policy issue
in Canadian and American politics. Using the concept of framing, the article
discusses the ways in which lesbian and gay rights claimants in Canada and
the USA have defined the issue of same-sex marriage in two landmark North
American rulings on same-sex marriage, Halpern (Ontario) and Goodridge
(Massachusetts). The article explores the politics of these two cases describing
the competing frames used by lesbian and gay litigants and their allies, the
legal framework of lesbian and gay rights across the different national legal
systems and the relationship between lesbian and gay rights frames and the
broader universe of political discourse in Canada and the USA. The article
evaluates the extent to which differences in the legal toolkit available to
lesbian and gay rights claimants shape the ways in which lesbian and gay legal
and political demands are framed. It treats legal precedents, constitutional
provisions and academic legal discourse as constituting specific discursive
policy legacies faced by social movement claimants. The article finds that,
despite differences in legal policy legacies between Canada and the USA, there
is a common rights frame governing lesbian and gay struggles over same-sex
marriage. Lesbian and gay litigants and plaintiffs in these same-sex marriage
cases deploy similar rights claims. Although working with different legal
frameworks, judicial precedents, statutory law and human rights protections,
courts in Canada and the USA reached remarkably similar conclusions about
same-sex marriage and largely endorsed nearly all of the elements in the
rights frame put forth by lesbian and gay litigants. This rights frame conflicts
with the queer cultural frame of same-sex marriage opponents within the
lesbian and gay communities as well as with the morality frame used by lesbian
and gay rights opponents. The rights frame has a powerful structuring influ-
ence on political discourse because of its fit with the legal legacies of human
rights protections in constitutional law within both legal traditions and with
the model of socio-legal mobilization provided by the African-American civil
rights movement.
6SOCIAL & LEGAL STUDIES 16(1)
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