Law: Same-Sex Marriage

Public controversies, for example around same-sex marriage or reproductive rights, put specific issues to the legal test, but they also give space for public debate about the kind of society we want to live in.  

Over the past fifteen years, same-sex marriage has become legal in all of our project countries (from 2009 in Norway to 2017 in Australia), either through legislation, court decisions, or referendums. These processes of legalization followed sometimes contentious debates between activists both in favour and opposed to same sex-marriage. The debate around same-sex marriage is a valuable case study since the issue concerns broader questions like the morality and regulation of sexuality, the definition of the family, reproduction, and understandings of history. 

We’re using the example of same-sex marriage to see how religion and nonreligion shaped – and were shaped by – legal outcomes. We want to understand how the boundaries between religion and nonreligion are constructed through public and legal arguments. Understanding this is important to other current debates about, for example, reproductive rights.  

We collected thousands of pages of court cases and decisions, senate reports, federal and provincial legislation, parliamentary transcripts, and media reports about the same-sex marriage debates in Argentina, Australia, Brazil, Canada, Denmark, Norway, and the United States. We then analyzed the language used by religious and nonreligious actors to make their arguments about same-sex marriage. 

While all the countries we’re studying have historically had a Christian majority (in some instances this relates to colonization), there are differences about whether this majority was Protestant, Catholic, or a mixture of both. There are also differences in the legally defined relationship between religion and state in each country. And not everyone uses the same language. Rather than “the same-sex marriage debate,” in Australia the discussion was framed as being about “marriage equality.”  

Despite these differences, there are a number of common themes we’re noticing in the analysis: 

In our study countries, marriage has traditionally been defined in relation to particular Christian conceptions of the family, where marriage was between a man and a woman and for the purposes of raising children. (Historically, however, there were added layers of complexity to this definition, with restrictions on who could get married, for example on the basis of class or race.)  

Opponents of same-sex marriage often used “past-preserving” and natural law arguments to make their case. These narratives considered marriage as an institution that existed beyond human society and derived from a transcendent or natural order. In this view, law should not seek to challenge this transcendent order since its institutions have stood the test of time. For example, one submission from the Canadian Conference of Catholic Bishops stated, “Marriage is a natural institution as it predates all recorded, formally structured, social, legal, political and religious systems.” 

Opponents of same-sex marriage often drew upon these past traditions as reasons why the definition of marriage could not be expanded. These arguments were also sometimes linked with the Christian heritage of each nation. 

One other important finding was that the supporters and opponents of same-sex marriage do not line up in straightforwardly nonreligious and religious camps. In fact, we see religious actors on both sides of the debate. For example, it was the Metropolitan Community Church of Toronto that performed the first same-sex marriages in Canada in 2001. Such examples challenge the idea that all religious groups were opposed to same-sex marriage and that it was a purely “secular” initiative. They also lend nuance to Christianity in particular, which is sometimes imagined to be monolithic and uniformly opposed to same-sex marriage. Instead, we find places of complexity, where a binary between religion and nonreligion doesn’t always fit. 

There is also complexity in the range of arguments used by different actors. For example, opponents of same-sex marriage often used arguments based on tradition, but supporters of same-sex marriage could also draw upon national history, as in the Australian case, where the country’s multicultural heritage was seen as a reason why the law should “catch up” to society. Likewise, we see opponents adopting language around rights and freedoms, particularly around their own religious freedom. They argued that legalizing same-sex marriage would impinge upon their own freedom of religion. Thus, there seems to be a shift as opponents move away from arguments based in religious language and instead adapt their arguments to better fit the language of the public square. 

This project is led by: Paula Montero, Juan Marco Vaggione, Lori Beaman 

Working group members: Luma Góes, Edmundo Maza, Giovanna Paccillo, Guadalupe Allione Riba, Vanessa Warren, Cory Steele, Camila Nicácio, Helge Årsheim, Hugo Rabbia, Karoline Marie Donskov Dige, Renata Nagamine, Lene Kühle