Love, Freedom and Governance: Same-Sex Marriage in Canada
| Date | 01 March 2009 |
| DOI | 10.1177/0964663908100335 |
| Published date | 01 March 2009 |
| Subject Matter | Articles |
GOVERNANCE: SAME-SEX
MARRIAGE IN CANADA
KATHERINE OSTERLUND
York University, Canada
ABSTRACT
Recent developments in Canadian marital jurisprudence require that we ask: what if
love could be mobilized as a technology of power? In this article I propose such an
analysis. I establish a recent discursive shift in the meaning of marriage in law,
amounting to what I will call a ‘normalizing love discourse’. I argue that this process
of transformation reflects a broader synthesis within liberal governance of freedom,
aspiration, feeling and the exercise of power. The shift has operated in two ways:
marriage is now defined by love (and the state’s sanction of it), and second, love
among heterosexuals or among lesbians or gay men has been rendered legally equiv-
alent for the purpose of marriage law. I then draw upon accounts of neo-liberalism
to suggest several lines of inquiry that may be fruitful for developing a critical analysis
of legal love discourse. I argue that love is being opened as a space for and method of
governance, at the paradoxical moment of its (re)privatization in/as marriage.
KEY WORDS
governmentality; Halpern; jurisprudence; liberal governance; love; neo-liberalism;
same-sex marriage
INTRODUCTION
. . . as a way of thinking about legal marriage, the notion of pure love, like so
much else in U.S. politics is an image of sentimental privacy. Love, it says, is
beyond criticism and beyond the judgements of the law. Where law adjudicates
conflict and competing claims, love speaks an inner truth in a space where there
is no conflict and no politics. It is of the human heart, not ideology. Its inten-
tions are pure. It has no unconscious. (Warner, 1999: 133)
Love is love is love. (Respondent 485, cited in Harding, 2006: 521)
SOCIAL & LEGAL STUDIES Copyright © 2009 SAGE Publications
Los Angeles, London, New Delhi, Singapore and Washington DC,
www.sagepublications.com
0964 6639, Vol. 18(1), 93–109
DOI: 10.1177/0964663908100335
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SOCIAL & LEGAL STUDIES 18(1)
Love is the ultimate private matter, typically conceived of as at least benign,
if not the height of human experience. Love may end, hearts break, we might
see it where it is not, it surrounds and sometimes papers over deeply troubled
relations. Yet love itself is rarely challenged, remaining the sacred and true
(Warner, 1999). As Canadian courts have responded to petitions to open civil
marriage for same sex couples, ideas about love have become central to the
legal transformation of marriage. In this article, I explore the relation of these
ideals with the modes of (late) modern governance characteristic of liberal
democratic societies.
I aim to contribute to the queer-critical literature that has emerged around
the issue of same-sex marriage and propose a novel direction. Typically,
questions are raised concerning ‘normalization’ – processes that foster and
discipline so-called normality – pointing to the dangers and violence of the
standardization of human variety and conduct (Boyd, 1999; Boyd and
Young, 2003; Halley, 2001; Harding, 2006; Richardson, 2004; Warner, 1999).
The literature examining interrelated practices of governance, regulation,
and the realization of selves is also now extensive, but I have found few
specific comments on the ways that affect and emotion come to be impli-
cated, operationalized and managed in governing regimes. That this is occur-
ring is suggested by Foucault’s account of the incitation, mobilization and
management of human desire through the modern ‘deployment of sexuality’
(Foucault, 1978/1990). In contemporary Western society, both sexuality and
emotions are increasingly subject to ‘rational management’ (Jackson and
Scott, 1997) and we must be critically attentive when self-actualization, affect,
even the ‘soul’, are incorporated into processes of government (Foucault,
1975/1995; Giddens, 1992; Rose, 1989/1999).
In Canada, contemporary marriage jurisprudence has come to reflect a
‘normalizing love discourse’. By this I mean two things. As is exemplified in
the definitive case, Halpern v Canada (henceforth Halpern), Superior Court
decisions in Canada since at least 2003 have participated in the legal (and
broader social) normalization of lesbian and gay dyadic love. At the same
time, implicitly monogamous, responsibilized, and explicitly devoted and
caring love has been established as the legally recognizable love, marking
acceptable love from the unacceptably and unspeakably queer.
Here I focus on the ways that marriage, in the context of jurisprudence
around same-sex relationship recognition, has become defined as the state
recognition of ‘normal’ love. I argue that this also demonstrates the ‘align-
ment’ of the freedom and aspirations of citizens with operations of liberal
governance (Rose and Millar, cited in Van Krieken, 2001); further, the
emphasis in this jurisprudence is upon ‘love’ as an affective state, involving
caring about another, a commitment to do so in the future, and a desire for
community recognition of this affective tie. But this definition of marriage-
as-love has problematic implications. I apply a deconstructive reading to
reveal the ways that this transformation of marriage – to normal love and
nothing else – articulates love within a rhetoric of care with a dual meaning.
On the one hand is the apparently benign community and state recognition
OSTERLUND: LOVE, FREEDOM AND GOVERNANCE
95
of the feeling-state of the parties to the marriage; on the other, is the rather
more problematic, if subtle, elaboration of the implications of this affective
state as a responsibility to care for each other. This occurs at a historical
moment where neo-liberalism ascends, requiring a responsibilized citizenry
who give and receive ‘care’ in private relations, in a private and expanding
domain.
THINKING ABOUT LOVE
Recent social theory demonstrates a resurgence of interest in love and
intimacy (e.g. Beck and Beck-Gernsheim, 1995; Giddens, 1992 for a critical
perspective; see also Bell and Binnie, 2000; Kipnis, 2003). These theorists of
the ‘new’ intimacy observe the emergence in late modernity of a love char-
acterized by a rejection of hierarchy within relationships and a related
‘democratization’ of love as a site for the meeting of equals and the reflexive
constitution and expression of one’s ‘self’ (Beck and Beck-Gernsheim, 1995,
2002; Giddens, 1992). This modernization and ‘individualization’ of love
have brought with them a parallel shift in the legal relations around marriage
in the West; historical efforts to define and govern marriage ‘from above’
have shifted in the twentieth century to a discourse wherein marriage is
increasingly posed ‘from below’, such that the role of the modern state is
framed mainly as one of recognition of the bond, and not its coercive guar-
antor (Beck and Beck-Gernsheim, 2002: 8–11).
As noted by Elizabeth Beck-Gernsheim, these developments respond in
important ways to the longstanding problematization by feminists of the rela-
tionship between loving, caring and marriage (Beck and Beck-Gernsheim,
2002: 54–84). Key targets of this critique include the privatized and unequal
division of caring labour in the family and its negative implications for
women who are (still) heavily burdened by social organization and rhetorics
that render them largely responsible for caring for children, themselves,
spouses and/or ageing parents.1 But to provide ‘care’ is contradictory in late-
modern societies, offering avenues to a sense of purposiveness, mutuality
and deep affective ties; it can also be a site of burnout, self-annihilation,
inequality and unending and often unrecognized labour. It is important then,
to challenge both the sanctity and benevolence of love. For example, femi-
nists have made considerable effort to challenge the paltry, violent relations
that frequently pass for love among men and women in our culture whereby
love becomes a private hell (Fineman, 1995: 156). Other feminist scholars
have challenged the actual privacy of this ‘private’ realm of love and family,
citing governmental efforts aimed at moral regulation and nation-building
operating in and through families (e.g. Bell and Binnie, 2000; Little, 1998).
In a different vein, psychoanalytic scholars have articulated the deep-seated
ambivalence that is characteristic of love relations (e.g. Benjamin, 1988).
Whatever it is that the (super)ego might have us believe about love, it always
bears with it a deeper conflict.
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SOCIAL & LEGAL STUDIES 18(1)
It is important then, to adopt a scepticism in relation to love (see also Bell
and Binnie, 2000; Kipnis, 2003). Love is and is not all of these things depend-
ing upon its location in discursive and social relations. Love is multivalent,
articulated and mobilized within diffuse, shifting social relations of power,
a fact rather neglected in the new sociological and political discourse of
‘democratized’ love and marriage (Bell and Binnie, 2000: 128). For this reason,
a governmentality analytic is applied here to understand its current meanings,
transformations and (potential) effects. As in other domains of family law,
love discourse is routinely mobilized in the debates surrounding same-sex
marriage; below I offer a case study of the formal jurisprudence as it has
appeared in English Canada.2 Before this, it is useful to understand some of
the key analytic assertions in a governmentality framework.
GOVERNANCE AND THE LOVING CITIZEN
Foucault’s now familiar neologism ‘governmentality’ does not imply a
position either for or against ‘government’....
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