This paper examines the legalization of same-sex marriages in Canada and across North America, using structural-function theory as a primary analytical lens. It traces the evolution of marriage law from traditional heterosexual definitions to the landmark Canadian Civil Marriage Act of 2005, which eliminated sex as a criterion for legal marriage. The paper reviews key sociological concepts, discusses how legal systems in common-law countries have grappled with equal-rights arguments, and surveys international precedents set by Denmark and the Netherlands. It also considers opposition from institutions such as the Catholic Church and compares Canada's legislative progress with the more incremental approach taken in the United States.
Although debate over whether same-sex marriages should be permitted has persisted for decades, a number of countries have legalized these unions in recent years, and the same trends are taking place across North America. Given the increasing pace of reform, it is reasonable to suggest that most — if not all — states in the United States and provinces in Canada will have legalized same-sex marriages, transforming the debate from whether such unions should be allowed to a question of why it took so long. Because many social and legal benefits accrue to the legal institution of marriage, these are important issues: the legalization of same-sex marriages conveys those benefits to homosexual partners who believe they are entitled to the same treatment as their heterosexual counterparts.
To gain additional insight into these recent trends and to provide an overview of the issues as they apply to North America in general and Canada in particular, this paper reviews the relevant literature through the lens of structural-function theory and examines its sociological implications. A summary of the research and its key findings appears in the conclusion.
Before examining the theoretical and legal dimensions of same-sex marriage, it is useful to define the core terms used throughout this discussion:
Homosexuality refers to individuals with a sexual orientation toward partners of the same sex. Commonly used terms include gay for males and lesbian for women.
Heterosexuality refers to people whose sexual orientation is toward partners of the opposite sex — the orientation traditionally recognized by mainstream legal and social institutions.
Bisexuality refers to people who demonstrate a sexual orientation toward both sexes, either with or without a specific preference for one over the other.
From a structural-functionalist theoretical perspective, the efforts by the homosexual community to gain legal recognition that legitimizes 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 full legalization to same-sex marriages is visible in the half-measures that have been adopted, such as the creation of so-called "civil unions." As Wardle et al. argue:
"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).
Identifying the complete spectrum of individual choices and legal protections related to the institution of marriage requires an examination of the context in which they exist. Structural-function theory can help illuminate mainstream society's response to same-sex marriages, but it fails to capture the broader spectrum of factors that either justify or refute the legal institution of same-sex marriages — and fails to explain how the traditions of marriage between a man and a woman developed and were codified into law. In this regard, Hustedde and Ganowicz (2002) emphasize the limitations of structural-function theory for a more robust analysis of same-sex marriages and their sociological implications: "While structural functionalism is an important tool, it is limited because it does not fully explore issues that can be found in other theories" (p. 2).
Half-measures such as the "don't ask, don't tell" policy that guided the military's response to homosexuality offer a comparable example of the stop-gap reactions to an issue that refuses to disappear. Although grass-roots campaigns can apply tremendous pressure in favor of same-sex marriage recognition, 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. Whether those protections are embedded in a written constitution, as in the United States, or derived from multiple sources as in the United Kingdom, they must be applied equitably to all citizens. Arguments to the contrary ultimately hold little weight when confronted with fundamental legal protections.
In this regard, McMurty (2008) cites the process by which same-sex marriages were legalized in Canada, noting that policymakers responded to the legal dimensions of the issue rather than to religious or sociological arguments against it: "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, same-sex marriage is a particularly sensitive issue because it directly conflicts with longstanding legal definitions of marriage. For instance, according to Black's Law Dictionary, marriage is "the 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 legislatures, however, have discarded this definition in favor of more egalitarian approaches.
In 1991, Denmark became the first nation to create an institution analogous to same-sex marriage. Although this institution was not deemed marriage per se, it was 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 were expected to follow suit in the years that followed (Wardle et al., 2003).
"Civil Marriage Act 2005 and differing U.S. state-level progress"
"Catholic Church response and shifting views on homosexuality"
The research showed that same-sex marriages are becoming the norm rather than the exception in many legal jurisdictions around the world, including many jurisdictions in the United States as well as all of Canada, where the Civil Marriage Act of 2005 provided the same legal protections enjoyed by traditional, heterosexual marriages to same-sex couples. The research also showed that many authorities believe most — if not all — states in the United States will adopt similar laws in the future, paving the way for people of different sexual orientations to participate in a legal institution that has long carried a wide range of social and legal benefits previously denied to gays and lesbians simply by virtue of their sexual orientation.
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