THE POLICY CHANGES IN SAME SEX MARRIAGE
The marriage institution has changed considerably over the world as a result of changes in marriage legislations in many countries in modern times. More than 21 countries of the world now recognise same sex partnership and marriages. Homosexuality has largely become both a current social phenomenon and a major change in the legal configuration of many countries of the world. The homosexual debate has broadly divided the world while some countries in Europe and the Americas have made protection for gay partners or legalized gay marriages but in many other countries, gay union carries serious penalties ranging from death sentence, imprisonment and is some cases, these laws are part of the criminal codes of the country as it applies in Nigeria, Yemen, Somalia and Sudan while in some cases they are recognised as civil unions and not as marriages as it applies in Czech Republic.
The first country to have legalised same sex marriage is the Netherlands, a decision which was followed by Belgium and later Spain and Canada before countries like Iceland, Argentina, Norway, South Africa, Portugal, Sweden, the United States and later Mexico followed to allow those who consider themselves as homosexuals be able to marry and live a life which they consider honourable and pleasurable. The legal changes made by these countries inspired several others like Ecuador, Uruguay, Hungary, Luxembourg, Liechtenstein, Andorra, Switzerland, Colombia, Finland, Austria, Green-land, Czech Republic, Slovenia, Ireland, Denmark, Germany, Isle of Man etc. to do same. In many of these countries, there is a nationwide accent to same sex marriage but in the United States, some states legislated the same sex marriage law while other states rejected it. Same sex marriage has been largely considered by activists as a civil right of citizens in any part of the world and this is largely considered an acceptance of people regardless of their sexual orientation preferences.
There has been an uneven spread in globally expansion of gay partners due to the fact that some countries have continued to ban same sex marriage while others have legalised it. Despite pressure from international community and particularly the United States on the legalisation of same sex marriage, the United Nations has also called for it based on human rights stance however the UN lacks the moral and political power to enforce this legislation in these foreign, independent and sovereign states. This paper uses two models of policy change – the Multiple Stream Model and Punctuated Equilibrium to discuss the approaches to policy changes in same sex marriage across diverse political terrain.
The Changing Legislation on Homosexuality
Legal innovation in many cases is inspired by the changes in people’s attitude. The major legal and social change towards homosexuality in Europe began in the early 90’s and this wave took different dimensions and forms in each of the European countries. Some countries like Germany, France and Norway allowed the formal registration of the homosexual unions while countries like Spain, the Netherlands, Sweden and Belgium allowed same sex marriage. In many of these cases, the rights that were applicable to heterosexual partners were also available to homosexuals but in varying degrees even in countries where gay marriage was out rightly legalised.
Anderson stated that one of the events that had led to acceptance of gay marriages is the problems that confront todays marriages where the essence of heterosexual marriages seems to have been defeated and people are largely considering homosexuality (Andersson 2006). The author noted that if prior marriages had been confronted with serious troubles and if previous heterosexual marriages had effectively served the purpose of the marriage institution, there would not have been any consideration for homosexuality. Calvo calls on the recognition of people’s rights and the prevailing models of citizenship by formulators of public policies while democracies must also be ready and tolerant to accepting expensive conditions of citizenship such as the same sex marriage and not impose a moral restraint on people’s behaviour or disregard conditions that determines their humanity but making laws that denigrate their personalities since diversity is an integral part of human configuration.
In 1996, sexual orientation was included in the Canadian Human Rights Act and the country took a bold step in 2005 by granting gay partners the right to marry in 2005. Since this right was granted, the perception of Canadian people towards same sex marriage has since changed dramatically and there is less condemnation compared with the past prior to such legislation. It was the attitude of the Spaniards towards same sex marriage that also led to the legalisation of same sex in the country in 2005 since a survey of the country showed that people had becoming increasingly tolerant of the homosexual act than before.
Requena however holds that in all society, there is a marked difference in the acceptance of same sex marriage between the older and younger population while there is also a countrywide difference among nations of the world. The percentage of those who approve of same sex marriage in Canada is smaller compared to the percentage in the United States and other countries. Within Canada for instance, people in Quebec are seen to be more tolerant than those in other parts of the country and this explains how conservative other parts of the country are when brought in comparison.
Based on the Punctuated Equilibrium model, it is stated that political processes are characterized by incrementalism and stability but in some cases, there could be a fundamental change which becomes quite different from what was obtainable in the past. It posits that in many cases, policies undergo stasis instead of crisis this largely explains the policy change in same sex marriage as this is largely a deviation from the age-long tradition of heterosexual relationship. Baumgartner and Jones once noted that policy making undergoes a period of stasis in which policies recede and also emerge and that the institution tends to create a punctuated equilibria and that some people have special interest in policies thereby causing policy monopolies. It is also stated that as a result of overlapping jurisdiction and separated institutions across the world, there could by dynamism in policy change in marriage.
However, the basic fundamental assumption of the Multiple Stream Model (MSM) is that policy making across the world is a dynamic process and cannot be predicted and there is an ambiguity in the environment which also makes it complex. It is stated that there are three streams which affects policies which are the politics stream, policy stream and the problem stream. These three streams have different effects on the formulation or repeal of policies. The politics stream centres on the opinion of the public in the state as regards a public policy while the policy stream deals with the policy formulation and the problem stream deals with the issue which captures the attention of everyone in the state including the government. It can be realised that in many of these state where same sex marriage have been legalised, it has become an issue which captured the attention of people and the government and there was a necessity to make a policy that favours public opinion on the issue.
The problem with the Multiple Stream Model is that sometimes, policies are made without necessarily considering public opinion in some states and the fact remains that the theory did not consider the role of the media which in many cases may not present the reality but have considerable effect on public opinion and government policy as there are people who are policy entrepreneur and could change public opinion for personal benefits.
Same Sex Marriage and International Democratic Norms
Human rights groups have stated that there is a correlation between the level of freeness of a society as a result of its democratic leanings and it acceptance of gay marriage. It is established that societies that are highly democratic tend to accept homosexuality more than societies that are less democratic. Countries where there are restrictions on individual rights, speech and movement tend to be more strict on gay marriage. According to Javier Corrales who is currently serves as a professor at Amherst College, he noted that the strength of democracy of a state largely determines the acceptance and legislation of same sex marriage. One of the forces that it is largely improving the changes in laws against same sex marriage is the antidiscrimination laws that abound in most democracies which also have laws which protect sodomy and employment discrimination of people based on sexual orientation.
However, there is seemingly a gradual building of consensus on gay rights as the Human Rights Council of the United Nations has for the first time in 2011 passed a resolution on the rising concern for over the high level of discrimination and violence visited on members of the gay movement based on their sexual orientation preference. States are now being morally pressured into accepting the reality of same sex marriage. Same sex marriage became legal in the United States as a result of the Supreme Court legislation of June 26, 2015 in the country and this shifted the public opinion in favour of same sex marriage as over 65% of Americans approved of same sex marriage in 2017 compared with the 35% who approved of it in 2011.
The international organisation which advances the rights and privileges of gay people all over the world, the International Gay and Lesbian Human Rights Commission (IGLHRC) attended a Ministerial Meeting of the United Nations on September 26, 2013 where the representatives of the organisation discussed the various forms of discriminations against gay people and in which the representatives of the counties available in that meeting declared that they will implement policies that will safeguard people from discrimination based on their sexual orientation. The resolution made at that meeting considered Lesbians Gay Bisexual and Transgender rights as an integral part of human rights.
Global Review of Same Sex Marriage Policies
Among the nations of the world, there are diverse policies which regulate sexual activities and marriages and these policies range from harsh to subtle laws. In some states, same sex marriage is allowed while in others death sentence or jail term or imprisonment is pronounced on those found to be engaged in the act of same sex marriage.
It was stated by the former secretary general of the United Nations, Ban Ki Moon that states should repeal laws that criminalize same sex marriage or any form of discrimination based on sexual orientation or the sexual identity of people. In another development, 85 countries who are members of the UN made a joint statement at the human rights council of the organization calling for an end to violence against people as a result of their gender preference of sexual orientation. There is an impressive development in same sex marriage laws the world over as 32 countries already recognize same sex couples and also consider them domestic partnership .
This paper posits that states are now changing their laws and national policies to admit the new realities that same sex marriage is another type of marriage which prior to this time was considered an aberration and unlawful act. This is a proof that in the past century, the institution of marriage and the family generally has undergone remarkable changes and states have realised that same sex marriage has become an integral part of human rights law. It was not until 1989 that same sex marriage was recognised for the first time in Denmark and this has ten place in the Netherlands, the United States, the UK, South Africa and some developing countries. Same sex marriage may have serious economic and political as well as social consequences but the truth remains that there is a policy change globally which favours same sex marriage.
Anthony, Appiah and Henry, Louis Gates, Encyclopedia of Africa, Volume 2 (OUP USA, 2010).
Baumgartner, Frank R and Bryan, D. Jones, Agenda Dynamics and Policy Subsystems (1991) Journal of Politics 53, 1044–1074.
Calvo, K, Recognition, citizenship and public policies for homosexual unions in Europe (2010) REIS, 129, 37-59.
Carey, Glen, Saudi TV ‘sex braggart’ gets 1,000 lashes, five years in prison, Bloomberg News, 7 October, 2009, (online) Available from: http://www.bloomberg.com/apps/news?pid=20601086&sid=amLSL_4ZhrbI#». Accessed June 3, 2018
Cherlin, A, The deinstitutionalization of American marriage, (2004) 5 Journal of Marriage and the Family 66 848-861.
Chris, Pleasance, Gambia’s president warns homosexuals: ‘If you do it here I will slit your throat… no-one will ever set eyes on you again’ (Online) available from: http://www.dailymail.co.uk/news/article-3081640/Gambia-s-president-warns-homosexuals-slit-throat-no-one-set-eyes-again.html Accessed Juune 5, 2018
Christopher, Brocklebank, Police raid headquarters of Zimbabwean LGBT rights group (Online) available from:https://www.pinknews.co.uk/2012/08/14/police-raid-headquarters-of-zimbabwean-lgbt-rights-group/ Accessed June 4, 2018.
Clara, Cortina, Benoît Laplante, Ana Fostik and Teresa Castro Martín, Same-sex marriages and partnerships in two pioneer countries, Canada and Spain (Educational evaluation and policy analysis, 2011).
Council of Foreign Relation, Same-Sex Marriage: Global Comparisons, (Online) Available from: https://www.cfr.org/backgrounder/same-sex-marriage-global-comparisons Accessed June 3, 2018
Federal Eye, Census 2010 to report same-sex marriage data, 3 August 2009 (Online) Available from: http://voices.washingtonpost.com/federal-eye/2009/08/census_2010_to_report_same-sex.html?referrer=emaillink Accessed June 4, 2018.
Festy, P, La légalisation des couples homosexuels en Europe (2006) Population 61, 493-531.
Harmon, Andrew, Senate committee to hold hearing on DOMA repeal, 7 July 2011, (Online) Available from: «http://www.advocate.com/News/Daily_News/2011/07/07/Senate_Committee_to_Hold_Hearing_on_DOMA_Repeal/» Accessed June 3, 2018.
Hungochani, The History of a Dissident Sexuality in Southern Africa (McGill-Queen’s Press, MQUP 2008).
International Lesbian, Gay, Bisexual, Trans and Intersex Association-Europe, Marriage and partnership rights for same-sex partners: Country-by-country, 10 July 2009 (online) Available from: «http://www.ilga-europe.org/home/guide/country_by_country Accessed June 7, 2018.
International Service for Human Rights, Ground-breaking statement on sexual orientation and gender identity by record number of 85 States, 24 March 2011, (Online) Available from:«http://www.ishr.ch/council/376-council/1033-ground-breaking-statement-on-sexual-orientation-and-gender-identity-by-record-number-of-85-states Acccessed June 5, 2018
Kingdon, John W, Agenda, alternatives and public policy (Boston: Little Brown 1995).
Laplante, B, Miller C, and Malherbe P, The evolution of beliefs and opinions on matters related to marriage and sexual behaviour of French-speaking Catholic Quebecers and English speaking Protestant Ontarians (2006) Canadian Studies in Population 33, 205-235.
Lawton, Clive and Peggy Morgan, Ethical Issues in Six Religious Traditions (Edinburgh University Press, 2007).
Luke, Amadi and Steve Wordu, The clash of sexuality or rhetoric of human rights: Exploring same sex marriage and sustainable human development nexus (2016) 2 (7) International Journal of Peace and Development Studies, 1-14.
Nadel, S F, The Nuba; an anthropological study of the hill tribes in Kordofan (online) Available from: https://archive.org/details/TheNubaAnAnthropologicalStudyOfTheHillTribesInKordofan Accessed June 1, 2018.
Nutley, Sandra M, Walter Isabel and Davies Huw TO, Using evidence: How research can inform public services (The Policy Press, 2007).
O’Connell, M. and S. Feliz, Same-Sex Couple Household Statistics From the 2010 Census. US Census Bureau (2011) (SEHSD Working Paper, Num. 2011-26) Avaauilable from: http://www.census.gov/hhes/workingpapers.html, Accessed 2 June, 2018.
Pollitt, Christopher, Time, Policy, Management: Governing with the Past: Governing with the Past: (OUP Oxford, 2008).
Richard, Parkinson, Homosexual Desire and Middle Kingdom Literature (1995) The Journal of Egyptian Archaeology (JEA), 81, 57–76.
Shanahan, Elizabeth A, McBeth Mark K, Hathaway Paul L and Arnell Ruth J, Conduit or contributor? The role of media in policy change theory (2008). Policy Sciences, 41, 115-138. Available from http://dx.doi.org/10.1007/s11077-008-9058-y Accessed June 5, 2018.
Sklar, R, High-Level Meeting on Role of United Nations to End Violence and Discrimination against LGBT People (Online) Available at http://article.wn.com/view/2013/09/26/HighLevel_Meeting_on_Role_of_United_Nations_to_End_Violence
United Nations News Centre, Universal decriminalization of homosexuality a human rights imperative—Ban, 10 December 2010 Available from: http://www.un.org/apps/news/storyAr.asp?NewsID=37026;Cr=human+rights;Cr1 Accessed May 29, 2018
United Nations News Centre, Universal decriminalization of homosexuality a human rights imperative—Ban, 10 December 2010 Available from: http://www.un.org/apps/news/storyAr.asp?NewsID=37026;Cr=human+rights;Cr1 Accessed May 20, 2018.
von Mittelstaedt, Juliane and Daniel Stenvorth, The gay sons of Allah, wave of homophobia sweeps the Muslim world, (Online) (17 September 2009) Available from: «http://www.spiegel.de/international/world/0,1518,647913-2,00.html Accessed May 27, 2018.
Waaldijk, K, ‘More or less together: Levels of Legal Consequences of Marriage, Cohabitation and Registered Partnership for Different-Sex and Same-Sex Partners’ in John Asland et al. A Comparative Study of Nine European Countries, (Institut national d’études démographiques, Paris, 2005).
William, D Leach and Paul A Sabatier, To Trust an Adversary: Integrating Rational and Psychological Models of Collaborative Policymaking (2005) American Political Science Review 99, 491-503.