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Historically noticed that social movements have in most cases caused political uprising and thereby changed the laws and policy of states for the betterment of every citizen. Similar to any other law reform was the one regarding the arrival ‘same sex marriage’ being approved. But due to policy institutions there are varied ways of seeing this law reformation.
This paper will show the perspectives of Rational Choice institutionalism and Historical institutionalism in the case of same sex marriage. On one hand the Rational choice will prove that human rights are given much more consideration as it provides maximum benefits to everyone, and on the other hand it shows that historical approach is determined on moral values causing no change in society making the laws more stagnant and hard to reform. Rational Choice institutionalism looks at the society as whole inclusion of actors such as people and institutions. They work towards gaining maximum utility with the actors interest and desire to be at static/fixed from calculated measures taken. Canada’s change in policy reflects with that of rational choice institutionalism with regards to fighting for it as it was a matter of human rights for the country.
The first success that Canada managed towards the LGBTQ was in 1969 with laws reformed regarding sodomy (Smith 2005, 225). It wasn’t just the queer families support or the activist who fought for the same cause, women’s movement had also impacted same sex marriage to get legalized in Canada. It was not just accepted in the three majority provinces but the supreme court of canada had approved of same sex marriage as well. This relationship recognition was the final and successful step towards the legal and political campaigning done by the liberal government. It was a fight of decade of legal and legislative changes that occured and constitutionalized the fact that anyone going against the queer family, would be of offense; leading towards legal actions being taken place. It was not just same sex marriage but also the right to parenting by same sex, not just opposite sexes (Smith 2005, 26). Before the 1960’s when uprising regarding individual protection towards the queer family and same sex marriage took place, Canada was conservative as well and looked at this as a crime against nature, following only religious aspects. But with the help of the charter that came into force in 1982 section 15 of the charter stating “equal rights,” gave voice and legal authority to such social change.
The section (15) of the charter of canadian constitution states that, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability” made it clear that every individual has the right to seeking protection and no discrimination is going to be allowed whether at workplace or elsewhere. This then also helped with the process of legalizing sodomy and parental rights. It was the Prime Minister of that time, Pierre Trudeau who stated that “States have no place in the bedroom” ( Smith 2005, 334), giving every citizen the authority to live by their own interest. Rational Choice theory is all about the ‘principal-agent’ model which means that the principal enters into a contract with the agent being responsible to fulfill certain criterias at the cost of the agent’s interest. In here, the government acts as a principal in order to take responsibility of the agent, being the lgbtq group asking for same sex marriage to be legalized which was their interest. This, thus show that Canada has used Rational choice institutionalism for opportunists to influence the policy agenda of the social movement such as same sex marriage.
Historical institutionalism on the other hand are much more prone to path dependency, the manner of this being that once a thing is done a certain way, change is next to impossible to occur. It is based off rules and regulations of the past and emergence of change is highly difficult. In 2004, 11 states had banned same sex marriage in America (Smith 2005, 225). This is because many believe that for United States to legalize the same sex marriage in certain states, would mean to go against their conservative religious beliefs. Canada, was similar to this, but the driving force for canada to change was the fact of human rights violation according to their charter. But, America has no such violations taking place. For them it is more so based off the moral values, causing no change in the policies, whatsoever. Most of Canada’s policy or law reform occurs based of the charter but for the United States, they are dependent on the first amendment act. It makes it even more difficult for the American government to legalize or provide certain rights because of the order of not breaking the first amendment.
The fact that they are unable to do so, shows how path dependency plays a vital role in the american politics, making the legal forms being looked at from a historical institutionalist view. United States, has legalized every individual to be of any sexual orientation but providing parental rights and same sex marriage was of a a huge political mobilization (Smith 2005, 227). Same sex marriage was a potent issue because many of the state’s jurisdiction it was legal and moral to discriminate the LGBTQ group of employment or housing. Canada on the other hand did not have such a problem to face to begin with.
The LGBTQ members were constitutionally protected publicly and privately as well. To get a better understanding of why rational choice is better of than historical institutionalism, a study of difference between these two countries will help it make it clear. These two cross-national countries have a lot of similarities as they have both undergone the same political uprising with the success of acceoting LGBTQ as indidivially and giving them the right of liberty as well as women’s right regarding employment as well as family and gender relation reforms. The main difference in these two countries would be for the LGBTQ members to engage in conduct such as sodomy (Smith 2005, 227).
For Canada, choosing rational choice, it was easier as Canada had already decriminalized being a member of the queer family as criminal law came under the federal government. This was hard for America to do so, being a religiously, more conservative and less post materialistic, they looked at them as committing crime against nature. Barry Adam once stated that, “legislative to bring gay and lesbians full american citizen is at glacial pace,” (Smith 2005, 225) the same goes to regarding legalizing same sex marriage being at the same speed of reformation. It is harder for United States more so also because of failure to decriminalize for that time the act of being gay, bi or lesbian. Though they have gotten individualistic recognition based of their sexual orientation, acquiring more was much more difficult.
Although 11 states had prohibited from employment decriminalization, it was harder at the city or local levels as it lacked enforcement. This problem was not faced in Canada, as it is a parliamentary system, where the executive body gives the legislative the power to make decisions, whereas in United States, it was not under the federal powers. In United States, division of powers had made it much more easier for the opponent to critique and be well organized enough to make an entrance and forbid the laws to be changed. To change the policies and bring about rights for same sex marriage, the first amendment rights have to be both changed and shaped directly and indirectly.
This is highly impossible to commit to as it is not legalized to do so. Legal doctrines to make everything for the lgbtq members much more equal is thus proven to be very rigid if the policy is looked upon from a historical institutionalist point of view. In Canada, due to section (7) right to liberty and section (15) right to equality helps break the norms of following a particular belief and rationalizing the situation for everyone’s maximum utility. Same Sex marriage thus comes under the family law act in Ontario and discrimination against this will lead to legal actions being taken place, whereas for the Americans the queer culture brings about more complicated and challenging affects to marriage. In conclusion, It has been shown that Rational choice helps provide much more civic equality to same sex marriage from being between opposite sexes to marriage as a contract between two individuals regardless of their gender. It makes identity politics much more rational and apparent in the legislation.
Prosecutions are not common but quiet severe when pursued. Canada thus has been taken rationality over any other thing to prove that regulations can and should be changed over time to bring about liberty to citizens when not harming one and the other. Historical institutionalism has been so dependent on the past for regulations that it ultimately makes it get stuck at a certain place causing violations towards certain people. This is not accepted in Canada for varied reasons given in the charter of canadian constitution but mainly because of the firm belief of Canada not violating human rights has been given utmost importance rather than looking at moral values.
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