POLITICAL INSTITUTIONS AND LESBIAN AND GAY RIGHTS IN THE UNITED STATES AND CANADA, by Miriam Smith. New York: Routledge. 244pp. Hardback $95.00/CDN$120.95. ISBN: 9780415988711.
Reviewed by Daniel R. Pinello, Department of Government, John Jay College of Criminal Justice of the City University of New York. E-mail: dpinello [at] jjay.cuny.edu.
Oh, Canada, shall I compare thee to a Summer’s day?
Thou art far more tolerant than thy southern neigh’.
[Apology to Shakespeare]
Andrew Reynolds (2008) ranked 76 developed and developing countries using six measures of how nations treat their gay and lesbian citizens: “(i) Are same-sex acts between consenting adults legal? (ii) Are same-sex couples allowed to marry or form civil unions? (iii) Can same-sex couples and gay individuals adopt children? (iv) Are there national/federal laws against discrimination on the grounds of sexual orientation? (v) Is homophobia a distinct category of hate crime law? (vi) Does the state ban gay people from military service?” Scores ranged from a high of 5 (for Belgium, Canada, Netherlands, and Spain) to a low of –2 (for Egypt, Malaysia, Saudi Arabia, and Singapore). The United States got a rating of 1.5 and tied with Argentina, Brazil, Ireland, and Israel for 22nd place.
Two leading scholars of comparative lesbian, gay, bisexual, and transgendered (LGBT) politics mount cross-national analyses of similar systems to understand why the Maple Leaf so significantly trumps the Stars and Stripes in the respectful treatment of lesbian and gay citizens. Published within two months of each other, David Rayside’s QUEER INCLUSIONS, CONTINENTAL DIVISIONS: PUBLIC RECOGNITION OF SEXUAL DIVERSITY IN CANADA AND THE UNITED STATES and Miriam Smith’s POLITICAL INSTITUTIONS AND LESBIAN AND GAY RIGHTS IN THE UNITED STATES AND CANADA are impressive contributions to the literatures of both LGBT politics and comparative politics.
Smith employs an historical institutionalist approach to understand the policy variation affecting LGBT communities in the two countries. Differences between the North American neighbors in two major policy legacies – prompted by political events far beyond the influence of the sexual-minority community – provide the pivotal setting for her discussion. First, as part of a broad drive to update the Canadian criminal code to reflect changing social mores, the controlling Liberal Party in Ottawa decriminalized private acts of sodomy between consenting adults in 1969, [*1070] the same year that the Stonewall riots in New York City marked the advent of the modern gay rights movement on the continent. In contrast, the wholesale governmental rejection of the criminal sanction against same-sex sexual behavior did not occur in the United States until 34 years later, with the Supreme Court’s decision in LAWRENCE v. TEXAS (2003). That one-third-century lag in a crucial policy change greatly hobbled sexual-minority activists south of the 49th Parallel in their quest to secure broadly based civil rights. If gay and lesbian Americans were presumptive criminals in many states prior to LAWRENCE, what legal or moral basis did their advocates have to argue for protection against employment or housing discrimination, or for custody of, or visitation with, children, or for government recognition of intimate relationships?
The second policy legacy that Smith reasons virtually predetermined substantial disparity between how the two countries treated LGBT citizens was the nations’ very different constitutional histories regarding civil rights. The United States’ equal-protection structure, dependent on a 19th-century remedy for the institution of chattel slavery, begot a complicated three-tiered system that privileged certain groups (most notably African-Americans) over others. What is more, the Democratic Party’s mid-20th-century implementation of the Civil War amendments generated substantial grass-roots backlash against minority groups and ushered in decades of Republican dominance of the White House. Thus, when American lesbians and gay men began pressing in the 1970s for a piece of the equality pie, their claims were dismissed politically as those of just another interest group that, like blacks and feminists, wanted “special rights.”
Canada, by comparison, had no bill of rights enshrined in its constitution until 1982, when the Charter of Rights and Freedoms was added as part of the federal government’s response to Quebec’s threat of secession. Prime Minister Pierre Elliott Trudeau sought to appease the demands of French-speaking Canadians by including explicit protections for francophones in the nation’s premier legal document. The Liberal Party then promoted a unifying political faith that Charter rights were Canadian rights, thus celebrating civil rights protections as positive governmental achievements and boosting public opinion in support of them. Although sexual orientation was not expressly included in the list of the Charter’s protected categories, the document’s itemization was acknowledged to be suggestive and not exclusive. Accordingly, by the following decade, Canadian courts read gays and lesbians into the Charter, and the federal government (now controlled by the Progressive Conservative Party) acquiesced in the judicial decrees. Most notably, in M. v. H. (1999), a case involving a spousal-support claim after the breakup of a same-sex relationship, the Supreme Court of Canada ruled that lesbian and gay couples deserved exactly the same “concern, respect, and consideration” that their opposite-sex counterparts enjoyed. That seminal holding paved the way for favorable outcomes in subsequent provincial litigation over marriage equality, which in turn prompted Ottawa to pass a same-sex marriage bill in 2005. [*1071]
Thus, Smith believes that national histories conspired in important ways to advance gay rights in Canada and to suppress them in the United States. But these policy legacies comprise only the first of the two major arguments in POLITICAL INSTITUTIONS AND LESBIAN AND GAY RIGHTS IN THE UNITED STATES AND CANADA. The book’s other principal contention is that the countries’ disparate institutional structures greatly exacerbated policy differences on LGBT rights. Most consequentially, Canada’s Westminster parliamentary system engenders strong, hierarchically structured political parties and centralizes power in the executive. This comparatively hermetic arrangement afforded little meaningful access to government decision making by social conservatives seeking to thwart the advance of gay rights. Canadian political executives, and the governing party mechanisms they tightly controlled, were largely unencumbered by organized religious opposition to LGBT rights. In contrast, the separation of powers in the United States disperses authority among multiple governmental actors who are much more free from significant party control than up north. In fact, the American religious right successfully infiltrated the Republican Party at both the state and national levels by means of candidate-centered direct primaries. Accordingly, government policymaking in the United States has been far more hostile to sexual minorities than in Canada.
Moreover, Canadian federalism vests the national government with power to regulate both the criminal law and the definition of civil marriage. In the United States, by comparison, states possess both the police and domestic relations powers. Furthermore, unlike Canadian provinces, states have their own constitutions, which often are easily amended by legislatively proposed referenda and by citizen initiatives. Thus, the American fight for gay rights has been highly decentralized, and policy advances have frequently been offset by conservative local and state backlash.
LGBT interest groups in the United States have had to marshal massive resources both to initiate change and to resist counter-movements at the national, state, and local levels. At the beginning of the 21st century, for example, the combined annual incomes of the largest American LGBT advocacy organizations exceeded $50 million, while the assets of the principal interest groups opposing marriage equality surpassed $200 million (Cahill 2004). Smith notes that, “the budget of Egale, the main gay and lesbian group favoring same-sex marriage in Canada, was less than $350,000 in 2004 at the height of the same-sex marriage campaign” (p.160). In other words, with more than a hundred times the financial resources of their Canadian counterparts, American LGBT advocates, facing adversaries four times as wealthy, achieved just a fraction of the enduring policy successes enjoyed by Canada’s sexual minorities. The estimated $70 million spent by both sides in the 2008 campaigns for and against California’s Proposition 8 highlights the costly interest-group warfare over marriage policy in the United States. Such expensive extra-party policy contestation is unknown in Canada. What a difference institutions do make. [*1072]
QUEER INCLUSIONS, CONTINENTAL DIVISIONS: PUBLIC RECOGNITION OF SEXUAL DIVERSITY IN CANADA AND THE UNITED STATES is a rich and sprawling chronicle that is less theoretically driven than Smith’s work. Instead, David Rayside’s book focuses on the empirical complexity of differences between the two nations in three issue areas: relationship recognition, parenting, and schooling. While the volume is a superb overview of late 20th-century North American histories on the first two topics, those ample narratives are already substantially covered in the political science and legal literatures. Rather, the extensive investigation of concerted action in primary and secondary education to confront bullying and harassment based on sexual diversity or gender deviation, as well as to acknowledge such human variation in school curricula, constitutes the most notable contribution of Rayside’s new work.
Laying the groundwork for subsequent empirical chapters, Rayside argues that “Inclusive schools would need to acknowledge sexual diversity respectfully, from elementary grades on” (p.72) and condemns the harm done by the traditional silence of educators with regard to sexual diversity and their inaction when sexual-minority students are faced, often violently, with homophobic intolerance. Among the book’s wealth of facts and figures is the horrifying statistic that “Every significant study of youth suicide in Canada and the United States shows that gay youth are at least three times more likely than heterosexual youth to attempt suicide and succeed in the attempt, and many studies show much more alarming ratios than that” (p.73). Then, in more than 60 pages, the narrative chapters on schooling provide abundant details about specific school system incidents and court cases.
Surprisingly, unlike virtually every other policy issue addressed in these two cross-national studies, public education reveals greater progress for LGBT citizens in the United States than in Canada. Rayside is particularly heartened by the widespread presence of Gay-Straight Alliances in American schools, as well as the vibrancy of the country’s Gay, Lesbian, and Straight Educators Network (GLSEN). He attributes the United States’ comparative success in part to its far more highly developed LGBT interest-group system, which provided significantly enhanced opportunities for sympathetic teachers and parents to confront homophobic bullying and harassment in school houses and yards.
To the degree that QUEER INCLUSIONS, CONTINENTAL DIVISIONS: PUBLIC RECOGNITION OF SEXUAL DIVERSITY IN CANADA AND THE UNITED STATES is concerned with unifying theoretical explanations for the volume’s spacious empirical vista, the work attributes LGBT-policy variation between the two countries in large measure to differences in political culture, placing particular importance on the influence of American religious fundamentalists. Americanists with little consequential knowledge about politics in Canada would likely agree with Rayside’s assessment. Yet POLITICAL INSTITUTIONS AND LESBIAN AND GAY RIGHTS IN THE UNITED STATES AND CANADA [*1073] persuasively challenges whether a political-culture account for the cross-national policy variation is adequate. Consider this passage from Miriam Smith’s book: “Same-sex marriage opponents [in Canada], including evangelicals, were outflanked by party leaders, and because of the system of party discipline, [marriage-equality adversaries] were not able to exercise influence. In addition, the logic of the Charter [of Rights and Freedoms] was the logic of the Liberal Party, which created a conflict between Charter values and religious values in the case of some MPs, almost certainly including Prime Minister Jean Chrétien and his successor, Paul Martin. In the face of the conflict between the Roman Catholic religion in which they had been raised and the logic of the Charter rights and values which they saw as central to the success of the Liberal Party and as attributes of Canadian nationhood, religion lost and the Charter won” (p.160).
The Smith volume will likely emerge as the definitive analysis of its comparative politics topic. Yet the work does raise concerns. For example, the “historical” part of historical institutionalism is troublesome. As noted, the scholarly examination here begins around 1969, when consequential gay activism first appeared in North America. Indeed, the year of the Stonewall riots marks the chronological starting point of much LGBT scholarship, in both political science and other disciplines. Nonetheless, from the perspective of an institutionalist investigation, the choice of 1969 is arbitrary – and convenient. As Smith convincingly argues, the Canadian federal government’s decriminalization of consensual sodomy – coincidentally occurring in 1969 – was crucially important to later political progress for LGBT citizens living under the Maple Leaf. But criminal code reformations in the 1960s were not unique to Canada. In fact, the American Law Institute’s Model Penal Code decriminalized consensual sodomy and formed the basis for that crime’s repeal in Illinois as early as 1961. In other words, institutional differences may, or may not, account for the policy legacies so vital to Smith’s historical institutionalism.
Cahill, Sean. 2004. SAME-SEX MARRIAGE IN THE UNITED STATES: FOCUS ON THE FACTS. Lanham, MD: Lexington Books.
Reynolds, Andrew. 2008. “The Presence and Impact of Openly Gay and Lesbian Politicians in the Parliaments of the World.” Paper presented at the Annual Meeting of the American Political Science Association, Boston, August 28-31.
LAWRENCE v. TEXAS, 539 U.S. 558, 123 S.Ct. 2472 (2003).
M. v. H., S.C.J. No. 23 (1999).
© Copyright 2008 by the author, Daniel R. Pinello.