Happy Together as Husband and Wife?
On The Symbolic Power of Same-Sex Marriage and A Missed Piece of Bourdieu’s Family Photographs

Maurice Hong-Cheng Chang

If they be two, they are two so
As stiff twin compasses are two;
Thy soul, the fix’d root, makes no show
To move, but doth, if th’ other do.[1]

Introduction

The current debate within the gay rights movement about strategies regarding legal protection of same-sex partnership reflects the continuing dispute between postmodernists and constitutional liberalists since the first legislation of same-sex partnership enacted in Denmark in 1989[2]. On one side are postmodernists, radical feminists and queer theorists[3] who reject fundamental values of marriage and family, and also deny that there is a natural or essential component to sexual orientation and same-sex marriage. They argue that the conceptions of gender, family or marriage are not fixed and do not determine who we are and what the relation between same-sex couples should be. The idea of same-sex marriage is socially constructed and reproduced by the male-dominant hierarchical structure in the heterosexual institution of marriage.[4] On the other side are constitutional, egalitarian and pragmatic liberalists who believe the battle for justice for lesbians and gay men can be fought with the force of fundamental rights and universal principles, such as equality, privacy, and autonomy. I agree on queer theory that there is nothing essential or universal about sexual orientation and gender identity. Although sexual orientation and gender are manifested are socially constructed, it does not mean that certain needs and capabilities relating to sex, gender and sexual orientation that we all share as human beings, such as love and sexual intimacy, are also socially constructed. In fact, for those who oppose legalization of same-sex marriage, the rhetorical or metaphysical argument of marriage (for spouses) and family (for parents) occupies an ideological but powerful position within their discourses. In Bourdieusian terms, marriage and family are places for struggle (“field”) between lesbians, gay men and heterosexuals (agents or players), who internally share “the habitual, patterned ways of understanding, judging, and acting which arise from their particular position” as members of marriage (husband and wife) and family (father and mother)(“habitus”), hold different positions according to how much “capital” (economic, cultural, social and symbolic) they possess and that then decide their influences on the functioning of marriage and family.

In this essay, I apply Bourdieu’s theory “as a starting point for the analysis of adversarial practices as complementary strategies”[5] by the positions and resources of lesbian and gay men with “diversified social spaces with bonds to law [marriage and partnership laws] and legal agents [courts and judges].” I will begin by looking at disputed opinions from national court decisions and the internationalized discourses of same-sex marriage and will then relate these debates to Bourdieu’s writings on family, gender and cultural capital. My thesis is that symbolic power and capitals of marriage are as universal to homosexuals as to heterosexuals. Finally, I will rethink the application of Bourdieu’s sociology and legal recognition of same-sex partnership.

Same-Sex Marriage in the Internationalization of Legal Field

When the international or national courts decide legality and constitutionality of same-sex marriage, the habitus of judges is to apply the formalist approach of interpretation of the Constitution. Those concepts, such as equality and autonomy, drive the reasoning of the constitutional jurisprudences involving gay rights issues, especially in the United States and Canada. They are also reflected in legislative trends towards equal status between heterosexual and same-sex marriages, like in the Netherlands, Belgium, and recently in Spain.

In the U.S., the landmark case that addresses the constitutional right to equal protection of lesbians and gay men is Romer v. Evans.[6] In Romer, the lesbian and gay plaintiff successfully challenged a Colorado constitutional amendment that prohibited the enactment of state and local anti-discrimination law on the basis of sexual orientation. The U.S. Supreme Court concluded that the concerned amendment was “ a classification of persons undertaken for its own sake, something the Equal Protection Clause [of the Fourteenth Amendment of the U.S. Constitution] does not permit.”[7] As to sexual autonomy, the Court also delivered an affirmative opinion of the constitutionality of sodomy law in Lawrence v. Taxes[8], which overruled the notorious decision in Bowers v. Hardwick[9]. On the other hand, when the same-sex marriage issue goes to the Court, it tends to avoid dealing with the this issue and uses stricter formalist interpretation of the right to marry, which generates from fundamental rights like privacy.[10] Indeed, after Romer, more state courts then pay their attentions on equality and adopt functionalist approach for constitutionality of same-sex marriage. For example, the state of Vermont enacted the institution of Civil Union[11] for same-sex couples, and also Massachusetts as the first state in the U.S. opened the institution of marriage equally to gay couples.[12]

A similar case happened in the Canadian Supreme Court’s decision on the legalization of same-sex marriage in M. v. H.[13]. The Court held that the opposite-sex definition of “spouse” in Ontario’s Family Law Act (FLA) is unconstitutional. The majority opinion of the Court delivered by Justice Cory, sets forth a powerful argument for same-sex marriage:

…the interest protected by s. 29 of the FLA is fundamental, namely the ability to meet basic financial needs following the breakdown of a relationship characterized by intimacy and economic dependence. Members of same-sex couples are entirely ignored by the statute, notwithstanding the undeniable importance to them of the benefits accorded by the statute. The societal significance of the benefit conferred by the statute cannot be overemphasized. The exclusion of same-sex partners from the benefits of s. 29 of the FLA promotes the view that […] individuals in same-sex relationships generally, are less worthy of recognition and protection. It implies that they are judged to be incapable of forming intimate relationships of economic interdependence as compared to opposite-sex couples, without regard to their actual circumstances…such exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence.[14]

In Europe, judges of national courts (e.g. German Constitutional Court), European Court of Human Rights (ECtHR) or Court of Justice of the European Communities (ECJ) come of the argument of constitutional liberalists as in the U.S. but draw a different conclusion about same-sex couples and the marriage model. For example, in Grant v. South West Trains[15], the ECJ held that a refusal by an employer to grant travel concessions to a person of the same-sex with whom a worker has a “stable relationship” does not constitute discrimination based directly on the sex of the worker, as prohibited by Article 141 of the Treaty of Establishing European Communities (EC Treaty), even where such concessions are allowed to a person of the opposite-sex with whom a worker has a stable relationship outside marriage. It is fair to say that the main issue in Grant is how to interpret the EC sex equality law, whilst the focus in Grant or other national cases is actually how to interpret the conception of marriage and family in the contexts of EC law and national law. This is what the ECtHR in Karner v. Austria[16] held for the first time that a same-sex couple has a right to “family life” under Article 8 of the European Convention for Human Rights (ECHR), and the different treatment of same-sex couples are unjustifiable discrimination based on sexual orientation, contrary to Article 8 and 14 of the ECHR, in relation to the applicant’s “private life” or “family life” or “home.” The Court found that:

The aim of protecting the family in the traditional sense is rather abstract and a broad variety of concrete measures may be used to implement it. In cases in which the margin of appreciation afforded to States is narrow, as is the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the measure chosen is in principle suited for realising the aim sought. It must also be shown that it was necessary in order to achieve that aim to exclude certain categories of people–in this instance persons living in a homosexual relationship…[17]

Therefore, the same-sex couples and parents then found the Strasbourg’s will and asked for the legal recognition of same-sex partnership in national courts, such as in the United Kingdom. Recently, in Ghaidan v. Godin-Mendoza[18], the U.K. House of Lords upheld the right of a man to succeed to the tenancy of his deceased same-sex partners as if he had been the husband or wife of the deceased. In sum, the center of the issue of same-sex marriage in the internationalized legal field is epistemological: what is our understanding and legal consciousness of family, marriage, intimacy and love.

Sexual Field in a Realized Category of Family

Marriage and family are often socially constructed each other. Bourdieu defined the family “as an objective social category,” which based on a subjective social category that exists “the matrix of countless representations and action (e.g. marriage) which help to reproduce the objective social category.”[19] Because the family provides the model for all social bodies, and functions as a classificatory scheme and a principle of construction of the social world in habitus, it always “tends to function as a field.”[20] Family produces division of labour and the labour of institutionalization also reproduce the family. The crucial characteristic of family is therefore to constitute a legitimate “site of social reproduction,” a symbolic privilege to construct structures of the social spaces and social relations. The habitus of roles and sexual division of labour are determined with the cultural capital or “sexual capital” the players possess in the family and marriage. As a result, inside the family it creates and maintains social classes and male-domination/female-submission distinction. Outside the family, this cultural capital also creates a distinction of normal/abnormal family and marriage. This principle is also true within the case of same-sex marriage.

Masculine Domination: Habitus between Active and Passive

As mentioned above, refusing the male-dominantly parental hierarchy is the main argument by the postmodernists, feminists and queer theorists to reject the idea of same-sex marriage. It is also borrowed by opposites of the same-sex marriage to legalize an alternative institutions to same-sex couples, such as registered partnerships. This can be interpreted that the opposites believe there is another habitus for two men or women living together not as husband and wife. In fact, lesbians and gay men replicate this divisive distinction by reproducing the division of masculine-domination and feminine-submission roles in their relationships. In other words, this “sexually characterized habitus”[21] also functions in the lifestyle and interaction of same-sex couples. Besides, there is a particular form of “symbolic domination suffered by homosexuals, who are marked by a stigma which […], is imposed through collective acts of categorization which set up significant negatively marked differences, and so create groups-stigmatized social categories.”[22]

This habitus of lifestyle between same-sex couples can be referred to the preference for insertive anal intercourse and preference for receptive anal intercourse respectively. Psychologists usually dichotomize this division of sex roles as Top and Bottom -- between gay men, and Tomboy and Dyke -- between lesbians. Will Damon found trends that power motivations correlated with sex role preference: men who prefer insertive anal intercourse like to exert power over their sexual partners during sexual intercourse, while men who prefer receptive anal intercourse like to be overpowered.[23] In Bourdieusian terms, it reproduces the masculine domination in the relationship of gay men. There is a clear distinction between masculine “active” inserter and the feminine “passive” insertee, who regard their sexual and gender identity as a heterosexual man and woman respectively. This socially recognized separation between active and passive roles in sexual behaviors of gay men enables them to engage in the homosexual relation which satisfies a masculine “heterosexual” self-recognition. This cultural capital of the active inserter also leads some gay men to prefer insertive rather than receptive in anal intercourses. Without doubt, the social/sexual identities of gay men are constructed with a social framework of inequality. Yet, what we have to refuse is this unequal habitus in the field of marriage and family, not the intimate need of lesbians and gay men who should be considered as members of our society. In fact, there is recently a very interesting sociological research about how same-sex couples behave in civil union from perspectives of “division of finances”, “division of household tasks” and “sex and monogamy.” The research shows that “same-sex couples would have a more egalitarian division of tasks, including division of finances, household tasks, and relationship maintenance behaviors, than would heterosexual married couples, even with the added rigor of similarity in family of origin.” [24]

Intimacy as Both Capital and Habitus

For Bourdieu, capitals are “synonymous” and transferable. For example, cultural capital may be indirectly transferable into economic advantages. This is very true in the case of same-sex marriage. With a habitus of marriage and family, gender is actually a form of capital that transfers into financial and economic advantages and benefits underlying the family and marriage. Family and marriage are the foundation for social capital generating “trust and networks and explicitly linking their measurement to economic growth and the health and well being of populations.” And the social capital, as Bourdieu said, is a combination of economic capital, cultural capital -- institutional status and personal values, and symbolic capital -- legitimate construction of other capital with symbolic power. He also sees families as motors of social capital -- reproduces gendered habitus and maintains this social order. The status of marriage and intimate relations therefore somehow describes the social processes and practices individuals engaged in.

There is an alternative type of intimacy emerged with same-sex relationships. With this “disclosing intimacy”, the notion of marriage moves from social obligation to negotiated intimacy. This is the contractualization of marriage[25], or sociologists called “democratization of personal relationships.”[26] Based on the research mentioned above, same-sex marriage or gay parents represent “an ideal model of postmodern kinship because their conscious efforts to devise intimate relationships are free from the constraints and the benefits of traditional patterns of family life.” The positive values of love, responsibility and intimacy of same-sex marriage also reproduce the symbolic capital on their egalitarian notion and democratic negotiation.

Moreover, confirming same-sex couples with the right to marriage presents a symbolic power in gay politics. Bourdieu said “appearances always support appearance.”[27] And I will add that, not just appearance but appearance with pride -- same-sex marriage expresses the breakdown of being second-class citizens. Some arguments suggest that other separate but equal alternatives of marriage for same-sex couples are acceptable, as long as they are indeed formally equal – provide all the obligations as well as all most the benefits of marriage but not the name. They ignore the fact that these alternative institutions are a product of political compromise “envisioned and created by the heterosexual majority for the purpose of maintaining the segregation of homosexuals and warding off an ultimate ruling by a court in favor of equal marriage rights.”[28] Others then argue that there are unique characteristics of the gay culture and life styles between lesbians and gay men, which make the exclusion of same-sex couples from marriage rational and legitimate. Even if there are differences of habitus and practice between same-sex and opposite-sex couples, does same-sex marriage remain inferior just “for the sake of being different?”[29] Queer theorists opposed to same-sex marriage also argue that “there are often more fundamental reconfigurations of the family, intimacy, and gender relationships, not to mention suspicion of the state,” why should this dominant conception of marriage remain the only point of entry into state protection? My answer will be that marriage is the sole legal gateway to a vast array of tangible and intangible protections and benefits, most of which cannot be replicated in any other way. The name of marriage is indeed the cultural capital and has the symbolic power in our society.

Bad Taste of Queer Family and Gay Marriage?

“To change the world,” as Bourdieu said, “one has to change the ways of making the world, that is, the vision of the world and the practical operations by which groups are produced and reproduced.”[30] In this essay, I found that there exists habitus and practice as well in same-sex partnerships as in heterosexual marriage. Lesbians and gay men reproduce sexual division of labor in the field of heterosexual family and marriage. They share the same cultural capital of family and marriage. I suggest that, under the habitus and practice of intimacy and sexual division of labor, there exists a field of the homosexual marriage and family. Although some people insist that the definition of marriage or spouse combines “a man and a woman,” same-sex couples with habitus and practice in their intimate and sexual relationship fits in the field of heterosexual marriage and family. I also argue that it is necessary for same-sex couples to share the meaning of husband and wife as heterosexuals do in the same field of marriage and family due to the cultural capital and symbolic power.

Further questions may address the degree to which lesbians and gay men should or should not be like heterosexuals’ lifestyle and what that means about the relative social, political and cultural values and legitimacy of sexual difference. If lesbians and gay men obtain access to heterosexuals’ most cherished symbols, i.e. marriage and family, what will be changed? If lesbians and gay men finally live together like married heterosexuals, do they live according to the way that heterosexuals do, or will heterosexuals begin to live according to their own version of marriage? Although Bourdieu’s theory of family, marriage and gender ignores many feminists’ questions, and shows how seriously he took himself as a “heterosexual man,”[31] his theory of cultural capital still helps us to explain the masculine domination in same-sex relationship. The question is, if cultural capital enhances within normal families and by its normality in the world, as Bourdieu said, what is the normal family and it’s practice of sexual orientation and family in different contexts? If we agree that love and intimacy, as cultural/social/sexual capital, are expressions of taste which reflect cultural values in our society, what kind of good taste lesbians and gay men have nowadays? Bourdieu’s theories may allow those of us who believe in romantic love between lesbians and gay men to cast new light on same-sex marriage.

Case Table

European Court of Human Rights
Karner v. Austria, 40016/98 [2003] ECHR 395
European Court of Justice
C249/96 Grant v. South West Trains [1998] ECR I-621
U.K. House of Lords
Ghaidan v. Godin-Mendoza [2004] U.K.H.L. 30
U.S. Supreme Court
Meyer v. Nebraska, 262 U.S. 390 (1923)
Loving v. Virginia, 388 U.S. 1 (1967)
Zablocki v. Redhail, 434 U.S. 374 (1978)
Bowers v. Hardwick, 478 U.S. 186 (1986)
Turner v. Safley, 482 U.S. 78 (1987)
Romer v. Evans, 517 U.S. 620 (1996)
Lawrence v. Taxes, 539 U.S. 558 (2003)
U.S. state courts
Baker v. Nelson, 40 N.W. 2d. 185 (Minn. 1971)
Jones v. Hallahan, 501 S.W. 2d. 588 (Ky. Ct. App. 1973)
Singer v. Hara, 522 P. 2d. 1187 (Wash. App. Dic. 1974)
Adams v. Howerton, 673 F. 2d. 1036 (9th. Cir.), cert. denied, 458 U.S. 1111 (1982)
Baehr v. Lewin, 852 P. 2d. 44 (Haw. 1993)
Baehr v. Miike, 910 P. 2d. 112 (Haw. 1996)
Baker v. State of Vermont, 744 A. 2d. 864, 1999 WL 1211709 (Vt. 1999)
Goodridge v. Department of Mental Health, 440 Mass. 309, No. SJC-08860 (Ma. 2003)
Canada Supreme Court
M. v. H., 2 S.C.R. 3 [1999]

Main References

Adkins, Lisa (2003). ‘Reflexivity: Freedom or Habit of Gender’, in Theory, Culture & Society 20(6): 21-42. London: SAGE.
Bourdieu, Pierre (1996). ‘On the Family as a Realized Category’, in Theory, Culture & Society 13(3): 19-26. London: SAGE.
Bourdieu, Pierre (2001). Masculine Domination. Richard Nice trans.. Cambridge: Polity.
Gillies, Val (2003). ‘Family and Intimate Relationships: A Review of the Sociological Research’, in Families & Social Capital ESRC Research Group Working Paper, No. 2. London: South Bank University.
Jenkins, Richard (1992). Pierre Bourdieu. London: Routledge.
Lambevski, Sasho A. (1999). ‘Suck My Nation – Masculinity, Ethnicity and the Politics of (Homo)sex, in Sexualities 2(4): 397-419. London: SAGE.
Madsen, Mikael R. & Dezalay, Yves (2002). ‘The Power of the Legal field: Pierre Bourdieu and the Law’, in Reza Banakar & Max Travers eds., An Introduction to Law and Social Theory, pp. 189-204. Oxford: Hart Publishing.
Silva, Elizabeth B. (2005). ‘Gender, Home and Family in Cultural Capital Theory’, in The British Journal of Sociology 56(1): 83-103.

Notes

[1] John Donne (1572-1631), A Valediction: Forbidding Mourning, Poems of John Donne 51-52 (E. K. Chambers ed.,Vol. I, 1896).
[2] Danish Registered Partnership Act, Law No. 372 of 7 June 1989.
[3] A brief introduction of queer theory and legal study, see e.g. Nico Beger, Putting Gender and Sexuality on the Agenda: Queer theory and Legal Politics, in An Introduction to Law and Social Theory 173-188 (Reza Banakar & Max Travers eds., 2002)[hereinafter Law and Social Theory].
[4] The recent example is the French case. By creating an intermediate status between concubinage and civil marriage, it adopted the alternative institution, the Pacte civil de solidarité (PaCS or “Civil Solidarity Pact), loi no. 99-944 du 15 novembre 1999 relative au pacte civil de solidarité. Ironically, the PaCS in fact institutionalizes the exclusion of lesbians and gay men from the social solidarity. More historical and detailed discussion, see e.g. Carl F. Stychin, Governing Sexuality: The Changing Politics of Citizenship and Law Reform, Chapter 3 (2003).
[5] See Mikael R. Madsen & Yves Dezalay, The Power of the Legal Field: Pierre Bourdieu and the Law, in Law and Social Theory, supra note 3, 189-204, at 203.
[6] 517 U.S. 620 (1996).
[7] Id. at 635.
[8] 539 U.S. 558 (2003).
[9] 478 U.S. 186 (1986).
[10] Meyer v. Nebraska, 262 U.S. 390 (1923), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 (1987); cf. Loving v. Virginia, 388 U.S. 1 (1967). For cases of state courts, see e.g. Baker v. Nelson, 40 N.W. 2d. 185 (Minn. 1971), Jones v. Hallahan, 501 S.W. 2d. 588 (Ky. Ct. App. 1973), Singer v. Hara, 522 P. 2d. 1187 (Wash. App. Dic. 1974), Adams v. Howerton, 673 F. 2d. 1036 (9th. Cir.), cert. denied, 458 U.S. 1111 (1982); cf. Baehr v. Lewin, 852 P. 2d. 44 (Haw. 1993) and Baehr v. Miike, 910 P. 2d. 112 (Haw. 1996).
[11] Baker v. State of Vermont, 744 A. 2d. 864, 1999 WL 1211709 (Vt. 1999).
[12] Goodridge v. Department of Mental Health, 440 Mass. 309, No. SJC-08860 (Ma. 2003). The Massachusetts Supreme Justice Court held that a ban on same-sex marriages violates the state constitution's guarantees of equality and due process. Denial of the right to marry, the Court explained, “works a deep and scarring hardship on a very real segment of the community for no rational reason.” Moreover, the harm to gays and lesbians, as the Court said, is not only the harm that comes from the denial of the benefits of marriage. It is also the harm of being deemed “second-class citizens” in the process.
[13] 2 S.C.R. 3 [1999].
[14] 2 S.C.R., at para. 73.
[15] C249/96 [1998] ECR I-621.
[16] 40016/98 [2003] ECHR 395.
[17] Id. at para. 41.
[18] [2004] U.K.H.L. 30. For facts and more discussion, see e.g. Rebecca Probert, case note, Same-sex Couples and the Marriage Model, 13 Fem. L. Stu. 135-143 (2005).
[19] Pierre Bourdieu, On the Family as a Realized Category, 13(3) Theory, Culture & Society 19-26, at 21 (1996).
[20] Id. at 22.
[21] See Pierre Bourdieu, Masculine Domination 3 (Richard Nice trans., 2001).
[22] Bourdieu, Masculine Domination, supra note 21, Appendix: Some Questions on the Gay and Lesbian Movement, at 118-124, at 118.
[23] Will Damon, The relations of power and intimacy motives to genitoerotic role preferences in gay men: A pilot study, 9 Canadian Journal of Human Sexuality 15-30 (2000).
[24] See Sondra E. Soloman, Esther D. Rothblum & Kimberly F. Balsam, Money, housework, sex, and conflict: same-sex couples in civil unions, those not in civil unions, and heterosexual married siblings, Sex Role, May 2005, available at: http://www.findarticles.com/p/articles/mi_m2294/is_9-10_52/ai_n15341176. (As of 30 October 2005)
[25] The idea comes from American judge Richard A. Posner. See Richard A. Posner, Sex and Reason 569-570 (1992).
[26] See generally Val Gillies, Family and Intimate Relationships: A Review of the Sociological Research, in Families & Social Capital ESRC Research Group Working Paper, No. 2 (2003).
[27] See Bourdieu, Masculine Domination, supra note 21, at 114-115.
[28] See Yuval Merin, Equality for Same-Sex Couples: The Legal Recognition of Gay Partnerships in Europe and the United States 301 (2002).
[29] Id. at 302.
[30] See Pierre Bourdieu, Social Space and Symbolic Power, in In Other Words: Essays Towards a Reflexive Sociology 123-139, at 137 (Matthew Adamson trans., 1990), cited from Wendy Ashall, Masculine Domination: Investing in Gender?, 9 Studies in Social and Political Thought 21-39, at 31 (2004).
[31] See Elizabeth B. Silva, Gender, Home and Family in Cultural Capital Theory, 56(1) The British Journal of Sociology 83-103, at 98 (2005).

narzissmus 發表在 痞客邦 PIXNET 留言(0) 人氣()