Same-Sex Marriages in Canada Although the Debate Essay

  • Length: 5 pages
  • Sources: 4
  • Subject: Women's Issues - Sexuality
  • Type: Essay
  • Paper: #38871895

Excerpt from Essay :

Same-Sex Marriages in Canada

Although the debate over whether same-sex marriages should be allowed, a number of countries have legalized these unions in recent years, and the same trends are taking place through North America as well. In fact, given the increasing pace of reform, it is reasonable to suggest that most if not all states in the United States and Canada will have legalized same-sex marriages someday, a process that transform the debate over whether same-sex marriages should be allowed to one that focuses on why it took so long. Because many social and legal benefits accrue to the legal institution of marriage, these are important issues since the legalization of same-sex marriages will convey these social and legal benefits to homosexual partners who believe they are entitled to the same treatment as their heterosexual counterparts. To gain some additional insights into these recent trends and provide an overview of these issues as they apply to North America in general and Canada in particular using structural-function theory and sociological implications, this paper provides a review of the relevant literature, followed by a summary of the research and important findings in the conclusion.

Review and Discussion

Background and Overview

Key concepts:

1. Homosexuality. This term refers to individuals with a sexual orientation for partners of the same sex (commonly used terms include gays for males and lesbians for women).

2. Heterosexuality. This term refers to people whose sexual orientation is traditional (e.g., preferences for partners of the opposite sex).

3. Bisexuality. This term refers to people who demonstrate a sexual orientation for both sexes, either with or without a specific preference for one over the other.

Structural-Function Theory and Recent Trends in Same-Sex Marriages

From a structural-function theoretical perspective, the efforts by the homosexual community to gain further legal inroads that legitimize their status in society may be perceived as a threat to the status quo by many members of mainstream society (Hildebrand, 1991). The reluctance of mainstream society to grant wholesale legalization to same-sex marriages can be seen in the half measures such as the creation of so-called "civil unions" that have been used to date. For instance, Wardle et al. argue that, "Civil unions are a tremendous step forward, but they are not good enough. They do not provide equal benefits and they leave couples and those who deal with them exposed to legal uncertainty. What we want is not separate and unequal 'gay marriage' but marriage itself, the full range of choices and protections available to our nongay sisters and brothers" (2003, p. 5). The need to identify the complete spectrum of individual choices and legal protections that are related to the institution of marriage therefore requires an examination of the context in which they exist. This requirement means that structural function theory can help illuminate the response of mainstream society to same-sex marriages, but it fails to include the broader spectrum of factors that either justify or refute the legal institution of same-sex marriages in general and same-sex marriages vs. traditional marriages (e.g., a man and a woman) and how these traditions developed and were codified into laws. In this regard, Hustedda and Ganowicz (2002) emphasize the inability of structural-function theory in providing a more robust analysis of same-sex marriages and its sociological implications. According to these authors, "While structural functionalism is an important tool, it is limited because it does not fully explore issues that can be found in other theories" (Hustedda & Ganowicz, 2002, p. 2).

Half-measures such as the "don't ask, don't tell" policy that has guided the military's response to homosexuals in the military is a good comparable example of these stop-gap and knee-jerk reactions to a problem that refuses to go away. Although a tremendous amount of pressure can be applied by proponents of same-sex marriages through grass-root campaigns, a far more powerful influence is the law itself. Nations that espouse equal rights for all cannot equivocate on the issue of same-sex marriages without violating basic legal tenets. Although these legal tenets may take various forms (in the United States for example, these protections are largely contained in the Constitution while the UK does not have a constitution but rather relies on a variety of sources), these protections must be applied equitably to all citizens. Arguments to the contrary will ultimately hold little water when confronted with fundamental legal protections. In this regard, McMurty (2008) cites the process by which same-sex marriages were legalized in Canada, with policymakers responding to the legalities that were involved with same-sex marriages rather than the religious or sociological arguments against them. According to McMurty, "Hard-fought cases can often help to bring significant change to the very social, economic, and political structures in which the legal system is embedded. For instance, recent judicial decisions have supported same-sex marriages in Canada, despite the reluctance of a large portion of the population" (p. 266).

In countries with common law traditions, these are particularly touchy issues since they directly conflict with longstanding views about marriage. For instance, according to Black's Law Dictionary, marriage is "legal union of one man and one woman as husband and wife. Marriage is a legal status, condition or relation of one man and one woman united in law for life or until divorced for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex" (p. 972). An increasing number of enlightened legislatures, though, have discarded this obsolete legal definition in favor of more egalitarian approaches. For example, in 1991, Denmark became the first nation to create the institution of so-called "gay marriage"; although this institution is not deemed marriage per se, it is legally regarded as a parallel marital status for same-sex couples) (Wardle, Strasser, Duncan & Coolidge, 2003). A decade later, the Netherlands became the first country to grant complete legal status to same-sex marriages and other European Union nations are expected to follow suit in the years to come (Wardle et al., 2003).

According to Basham and Miehls (2004), the first signs of the push for same-sex marriage legalization in Canada were emerging at this time as well. In this regard, Wardle et al. report that, "Meanwhile, Canada -- which already has recognized same-sex couples' legal entitlement to 'all but marriage' -- is also in the midst of a campaign aimed at securing the freedom to marry" (p. 5). In 2005, following the example of the Netherlands, Canada passed the Civil Marriage Act that eliminated the distinction of sex in the legal definitions of marriage. According to Somerville, "In the same-sex marriage cases that led to the Civil Marriage Act (2005), the Canadian courts ruled that the human rights of same-sex couples not to be discriminated against on the basis of their sexual orientation (that is, their rights against discrimination) were breached by the law (that is, state action) that restricted marriage to a man and a woman" (p. 180).

By sharp contrast, the legalization of same-sex marriages is proceeding at a difference pace in the United States. At the state level, a growing number of states have approved the institution in recent years and these trends are expected to continue until all of North America has legalized same-sex marriages (Basham & Miehls, 2004). Further, in the very near future, homosexuals will be allowed to serve openly in the United States military, obviating the longstanding but unwieldy "don't ask, don't tell" policy and other federal institutions are likewise characterized by a continuum of responses that range from benign, to acceptance to actively encouraging the practice in lieu of foregoing the social benefits that can be realized through informed and enlightened human resource policies in the civil service.

Not surprisingly, these trends have not been met with universal approval…

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