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![The criminalization of homosexual acts
The majority of nations either promote homophobia through criminalization, or are indifferent to
it, but it should be kept in mind that only very recently – within the last half century - did many
of the nations with full marriage equality today decriminalize homosexuality. It was “after a peri-
od of criminalisation before the French Revolution in 1789, [that] the trend towards decriminali-
sation gathered pace,”13
into its current status as a sign of human development.
Like the marriage equality debate and much of the LGBT rights movement, homophobia and dis-
crimination was not only culturally ingrained, but a highly institutionalized process. Until 1973,
the American Psychiatric Association classified homosexuality as a mental disorder, as did the
World Health Organization until 1990 (one year after Denmark granted homosexuals a form of
civil union). Until 1967 homosexual acts were criminalized in the United Kingdom, until 2003 in
the United States, and 2009 in India. Each of these nations has made tremendous strides in
LGBT rights.
And still, “a significant number of States reject that SOGII [Sexual Orientation, Gender Identity
and Intersex] is a status protected by international human rights law at all.”14
Delegates of Arab
and African nations even felt so strongly against LGBT rights that they walked out of a UN
LGBT rights conference.15
Currently there are still 78 countries in which homosexuality is crimi-
nalized and punishable by imprisonment and 5 whose law permits punishment by death: Iran,
Mauritania, Saudi Arabia, Sudan and Yemen.16
Not only do some governments reproduce the in-
stitutional discrimination, but they actively promote and legitimize homophobia. In 1995 the
President of Zimbabwe, Robert Mugabe, stated that homosexuals, “are lower than dogs and
pigs,” and incited the population, “to take law into its own hands, to arrest homosexuals, to re-
port, and deport them.”17
The same happened in 2011 when LGBT activist David Kato in Ugan-
da was murdered, after newspapers, alongside Nigerian President Mugabe, urged for the arrest
and/or killing of homosexuals.18
Although homophobia is present in many populations, it is not
institutionalized or promoted by the government to the degree that it is in many African and Arab
nations. Most Asian nations, while not actively or positively enabling homosexuality and LGBT
equality, do not have any specific legislation criminalizing it, the exceptions being Papua New
Guinea, Singapore, Myanmar, Malaysia, and Bangladesh.
13 BBC (2014). “Where is it illegal to be gay?” BBC News: World. http://www.bbc.co.uk/news/world-25927595 accessed 1 June,
2015
14 Itaborahy and Zhu (2014). p 13
15 Levesque, B. (2012). “Arab, African delegates walk out on U.N. LGBT rights conference”. LGBTQ Nation. http://www.lgbtqna-
tion.com/2012/03/arab-african-delegates-walk-out-on-u-n-lgbt-rights-conference/ accessed 1 June, 2015
16 Itaborahyand Zhu (2014).
17 Quoted in Luirink, Bart (1998). “Moffies. Gay life in southern Africa”. Cape Town: Ink. p 51.
18 Karaim (2011). p 119.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-5-2048.jpg)
![Relative deprivation theory:
Relative deprivation theory21
describes political mobilization as the result of raised and then un-
met expectations for rights and/or benefits entitled to citizens. Thus as more countries gain
LGBT rights and SSM equality, more citizens expect their governments to treat them with simi-
lar respect and allow them the same human rights and privileges.
Referring to LGBT rights in the United States, although this can apply to the other nations and
regions in which SSM is now a given or is underway, Brooklyn Professor of Law Nan D. Hunter
remarks that, “This extraordinary progress has been made possible because previous movements
forced society to recognize the centrality of equality rights.” For example, in 1965 LGBT ac-
tivists, shortly after the United States passage of the 1964 Civil Rights Act, “[demanded] the
same kind of job protections that Congress had enacted,”22
for the benefit of African-Americans.
Europe is arguably the biggest hub of the human rights regime, and thus its constituents arguably
have the highest expectation of their particular identities being granted protections within their
nation. This is summed up by the Austrian LGBT rights campaign slogan concerning SSM:
“What the Danes have, we want too.”23
This is part of a convergence of the expectations of Euro-
pean citizens. This is similar to women demanding the right to vote and African-Americans de-
manding equal civil rights and public facilities within the context of the United States fighting a
war on behalf of bringing democracy and freedom to the world – yet not fully offering either at
home.
However, as regards the fact that such social changes are simultaneously occurring within judi-
cial institutions dictated by law and political institutions dictated by democratic processes,
Hunter notes that the minority group, “must be perceived as both widely disfavored and as suffi-
ciently powerful to persuade others that the disfavor is unjust.”24
As more and more countries
adopt SSM legislation, the ‘disfavor’ is increasingly being seen as unjust.
Global social movements:
Global social movements (GSMs), “are networks of organizations and individuals collaborating
across borders and outside of national identities to advance thematically similar agendas through-
out the world.”25
The newest wave of globalization beginning in the 1990s saw the dramatic in-
21 Flynn, Simone I. "Relative Deprivation Theory." Sociology Reference Guide: 100-110.
22 Hunter (2000). p 568.
23 Paternotte, David and Kollman, Kelly (2013). “Regulating intimate relationships in the European policy: same-sex unions and
policy convergence”. Social Politics. 20, no. 4: p 522 translated from German by authors.
24 Hunter (2000). p 567.
25 Bennett, Elizabeth Anne (2012). “Global social movements in global governance”. Globalizations. 9, no. 6: p 799.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-7-2048.jpg)
![crease in influence of international non-governmental organizations (INGOs) and their transna-
tional networks made up of local, national and transnational organizations: “they advocate,
protest, and mobilize public support; they do legal, scientific, technical, and policy analysis; they
provide services; they shape, implement, monitor, and enforce national and international com-
mitments; and they change institutions and norms [...]”26
These new institutions and norms, of appropriate rights and government action, are in part creat-
ed and diffused by progressive civil society organizations (CSOs) as well as the UN and the EU.
Paternotte and Coleman note that, “SSU [same-sex union] policy adoption in Europe has been
influenced and accelerated by processes of international learning via transnational networks
[…]”27
It is thus an interplay between CSOs and governments advancing these ‘standards’ and
making other governments aware of them.
However, as concerns European adoption of the universal precursors to homosexual marriage,
“the SSU case makes clear neither domestic policy elites, nor international bureaucrats or
transnational activists alone can explain how twenty-two European states,” each with differing
levels of homosexual acceptance and historical discrimination, “over the span of just twenty
years became convinced that legally recognizing same-sex couples was the right thing to do.”28
It
is instead much more complex “transnational advocacy networks” that introduce new informa-
tion and start trends in the international community towards new “international norms” that
change the views and consequent actions of prominent policy makers, “as a result of internation-
al pressure, or out of fear of being excluded from the international community.”29
These norms
and agendas are adopted, if not partially initiated by ‘epistemic communities’30
who spread and
further standardize and engrain these norms into the objectives and language of international
governance. This brings us appropriately to the next theory.
World culture and world society:
World culture theory, also known as ‘world society or ‘world polity’ theory understands congru-
ent advances by states and their increasing institutional similarity as the result of a trans- or
supra-national culture. In “World society and the nation-state” John W. Meyer, the author behind
the theory, and his colleagues start out with the following historical context:
26 Bennett (2012). p 800.
27 Paternotte and Kollman (2013). p 512.
28 Ibid. (2013). p 513
29 Ibid.(2013). p 517
30 A term coined by Peter Haas to describe, “a network of professionals with recognized expertise and competence in a particular
domain, and an authoritative claim to policy-relevant knowledge within that domain.” Haas, Peter (1992). “Introduction: Epistemic
communities and international policy coordination”. International Organization. 46, no. 1: p 3.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-8-2048.jpg)
![“Since the sealing of the Magna Carta in 1215, and arguably since the twelfth century
in continental debates on canon law, European civilization began to forge a distinctive
path. Western moral theology, secular philosophy, and law - if not practice - gradual-
ly came to stress rights more than duties, the individual more than the community, and
the rule of law more than brute force.”31
After WWI the League of Nations adopted a transnational ‘rights’ ethic, granting rights to ethnic
minorities in its Charter and several treaties. The movements for national independence after
WWII were embedded with the ideology of self-determination and equality, institutionalized
through the law, notably in their new constitutions. Rights were still a primarily domestic issue
across the world, and “confined to a small intellectual elite concentrated in Europe and the
Americas.”32
Yet within only a few decades, human rights ‘consciousness’ became a global
mindset. “Almost everywhere the language of rights is spoken by diplomatic, governing, policy
and academic elites, activist NGOs, the press, [etc.]”33
The approach to understanding global social change as a parcel and externality of a diffusing and
enlarging ‘world culture’ is known as the “macrophenomenological approach [which] sees the
nation-state as culturally constructed and embedded.”34
Phenomena occurring within a na-
tion-state are not totally dependent on their own history and dynamics, but “the many individuals
both inside and outside the state who engage in state formation and policy formulation are enac-
tors of scripts rather more than they are self-directed actors.”35
In the case of the early and unex-
pected SSM law in Spain, it was observed that, “during parliamentary debates, numerous MPs
presented the reform as a way for Spain finally to catch up with European standards (Paternotte
2011b, 37).”36
It is these 'European standards' – based only on the Netherlands' and Belgium's
SSM law - that represent the 'world culture' as perceived and reified by Spain and other coun-
tries.
This is not just a European phenomenon, as “this worldwide process affects both core and pe-
ripheral countries, though with variable impact depending on local resources and organizational
capacities.”37
The differential effects are due not only to the amount of resources and organiza-
tional capacities of the national government but of the CSOs (as will be covered in the next sec-
tion). They are fighting locally and nationally, and often more adamantly than governments, for
adoption of that ‘world culture’ by filling in institutional ‘gaps’ and decrying governmental fail-
31 Cassel, Douglas (2004). “The Globalization of Human Rights: Consciousness, Law and Reality”. Nw. J. Int'l Hum. Rts. 2, no. 1:
p 3. http://scholarlycommons.law.northwestern.edu/njihr/vol2/iss1/6
32 Ibid. (2004). p 7.
33 Ibid. (2004). p 4.
34 Meyer, John W. et al. (1997). “World society and the nation-state”. AJS. 103, no. 1: p 147.
35 Ibid. (1997). p 150.
36
Paternotte and Kollman (2013). p 525.
37 Meyer et al. (1997). p 157.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-9-2048.jpg)
![and national organizations, shaping dialogues and discourses, and lobbying national governments
and transnational governmental organizations. In their study on the trajectory and impact of the
international non-governmental organization, a study in which nearly 3,000 INGOs were ana-
lyzed and codified, John Boli and George M. Thomas found that, “The correlations between
INGO founding and measures of world development are […] extremely high - most are at .90 or
above. The development of the INGO population is part and parcel of this general development
of the world polity.”42
Lastly, these CSOs, in their interactions with governments and the public, are in competition
with either rival organizations and/or cultures. They must gather and use an array of both materi-
al and social resources to gain leverage, navigate the political and legal channels to success, and
to keep themselves and their agenda afloat and above their rivals. Useful to explain this phenom-
enon is the ‘resource mobilization theory’ of social movements.
Resource mobilization theory:
Resource mobilization theory explains the initial and increasing success through an iterative
process of growth and support: they use an array of actors, the less-than-democratic institution of
law, and an increasing pool of victories which translates into greater public media and funding
attention, and thus more actors, support and victories. Starting with the actors, the “mixed com-
position and the multiple roles played by the members of this [LGBT advocacy] network - elect-
ed politicians, civil servants, and activists - made it easier for these claims [of LGBT equality] to
find their way to people in power.”43
Not only does the movement have numerous activists with-
in its movement, but almost more importantly it has a diverse array of actors able to access pow-
erful individuals and institutions through various channels. This simultaneously gives their
movement more expertise, legitimacy and political receptivity, and allows them to pursue differ-
ent channels if need be due to their array of access points (politicians, the public, courts) and ar-
eas of knowledge (law, politics, social organization and mobilization). The expansion of the
LGBT rights movement in Europe can be, “understood by tracing the synergies that are created
through the collaboration of activists, legal advocates, and policy elites at the European and na-
tional levels.”44
While it is an intangible resource, LGBT movements have relied also upon an increasing ‘world
culture’, as outline above, of LGBT rights reified in SSM. As more and more countries grant the
LGBT community entrance into the institution of marriage, there are more legal cases and offi-
cial reports, as well as statistics on the effects (or lack thereof) of SSM, for activists, politicians
and lawyers to use in their arguments. Also, as more countries pass SSM legislation the media at-
42 Ibid. (1997). p 478.
43 Paternotte and Kollman (2013). p 526.
44 Paternotte and Kollman (2013). p 530.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-11-2048.jpg)
![The correlations were generally low – nearly all below 0.5 - as countries such as South Africa,
Argentina and Uruguay tilted the scales on HDI, globalization indices and gender equality; and
highly developed and globalized countries such as Japan and South Korea have yet to move on
same-sex partnerships. Amongst the countries with SSM and those that have begun the process
of equalizing, there are no predominantly Muslim or Buddhist countries, thus religion may cer-
tainly play a part. Yet there are plenty of Protestant and Catholic countries that have yet to grant
any same-sex partnership rights as well. And Russia, which scored very low on the Religiosity
Index, and yet has a highly influential Orthodox church, is rampantly homophobic in its culture
and laws.
The highest correlation by far was membership to the OECD: for marriage equality a and mar-
riage equality b there were correlation coefficients of 0.637 and 0.624, with strengths of 0.406
and 0.389 respectively. The second highest correlation coefficient was for Inequality Adjusted
HDI, but only because a score did not exist for South Africa, which faces enormous income, gen-
der and racial inequality. All of the countries with some level of same-sex partnership rights had
an HDI score of above 0.800 except for South Africa (0.658) and the Latin American countries.
The literature on policy convergence predicts that it is, “more likely for countries that are charac-
terized by high institutional similarity.”53
This explains the high adoption rate by OECD mem-
bers, as well as the likelihood that all EU members in the near future will allow SSM. But overall
the broad range of predictors analyzed here are fairly weak, thus making an in-depth look at the
specific actors and processes involved all the more necessary.
Actors: who is advancing marriage equality and how?
Like much social change since the start of the 20th century, the human rights revolution is spread
and maintained by CSOs, working with different levels of actors (political elites and corporate
funders vs. workers and minorities), and through channels of various institutionalization (e.g.
courts and voting versus civil disobedience and disruption). Kollman remarks that “without con-
stant advocacy and agitation by NGO's, human rights treaties would not be drafted or ratified,
enforcement mechanisms not created or used, and violators not continually exposed.”54
Along
the same lines Knill comments that, “both transfer and diffusion processes […] require that [gov-
ernment] actors are informed about the policy choices of others[…],”55
and it is CSOs that are re-
sponsible for bringing such information to the spotlight and thus directing the social policy agen-
da. Besides merely diffusing and drawing attention to information, CSOs use a diverse array of
53 Knill (2005). p 769.
54 Cassell (2004). p 20.
55 Knill (2005). p 767.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-14-2048.jpg)
![Lawyers:
Due to the framing of marriage equality as a human rights issue, it has been necessary for the
LGBT movement to have lawyers, many of whom also serve as politicians. German Green
Party’s Volcker Beck is a human rights lawyer who helped in passing the ‘Residential Partner-
ship’ bill mentioned above. Spanish Prime Minister Zapatero’s key advisor on the issue of SSM,
at the time leading up to the passage of the SSM law, was human rights lawyer Pedro Zerolo,
who had served in the socialist party as well as with numerous Spanish LGBT organizations.57
Similarly, Belgian Minister of Justice Michel Pasteel was a homosexual lawyer and “long-term
gay activist”58
Moreover, one of the key actors in getting South Africa's 'gay equality clause'
passed in their constitution were African National Congress members and human rights lawyers
Albie Sachs and Kader Asmal.59
Organizations: governmental, non-governmental and transnational
Before any transnational LGBT organization was formed, as will be outlined below, there were
only local and national organizations. To give a few examples: In 1948, the Netherlands organi-
zation COC became the first LGBT organization in the world. In 1950 the pro-gay rights Matta-
chine Society was formed in the United States. And in 1969 the Grupo Nuestro Mundo (Our
World Group) was formed in Buenos Aires, Argentina.60
These are just a few examples of LGBT
organizations popping up around the world in the mid- to late-20th
century. The movement began
picking up pace when the issue became transnational in both civil society and government (i.e.
United Nations and the European Union). Transnational CSOs acted as umbrella organizations,
and some were granted ‘Consultative Status’ at the United Nations and many are now able to en-
gage in the UN’s Universal Periodic Review61
of states. Thus they gave national organizations an
international audience as well as access to a larger pool of resources.
After Denmark's passing of the world's first SSU law in 1989, nations began granting same-sex
couples certain rights and benefits similar to those of different-sex couples, and the transnational
government community began to take notice and feel the pressure from CSOs to take a stance.
The European Parliament in 1994, “approve[d] the Roth Report, which urges the Member States,
57 Paternotte and Kollman (2013). p 525.
58 Ibid. (2013). p 526.
59 Donham, Donald L. (1998). “Freeing South Africa: the “modernization” of male-male sexuality in Soweto. Cultural Anthropology.
13, no. 1: p 12.
60 Hotel, C. P., Brown, S. (1997). “Con discriminación y represión no hay democracia”: The Lesbian and Gay Movement in Ar-
gentina. p 120.
61 Through the United Nation’s UPR mechanism, an organization “submits information that provides particular insight and data
about the human rights situation” in “States under Review” and gives specific and broad changes to make. More often than not how-
ever the grander recommendations for decriminalization and non-discrimination are dismissed, whereas some of the more “targeted”
recommendations are adopted. Carroll, Aengus (2014). “State-sponsored homophobia - the European Region” in “State-sponsored
homophobia: A world survey of laws: Criminalisation, protection and recognition of same-sex love”. International Lesbian Gay Bisex-
ual Trans and Intersex Association (ILGA). 9th Edition: p 11.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-16-2048.jpg)
![mote LGBT rights within the European human rights regime (Interview ILGA-Europe 28 Octo-
ber 2005).68
Currently ILGA is a “worldwide federation of 1,100 member organizations from 110 countries
campaigning for lesbian, gay, bisexual, trans and intersex rights.”69
It is made up of a global or-
ganization as well as several regional organizations: Europe, North America, Asia, Pan Africa,
LAC (Latin American and Caribbean countries) and Oceania. They hold a world conference ev-
ery two years, regional conferences annually, publish and disseminate numerous reports on the
state of LGBT rights and treatment, provide active assistance to LGBT rights organizations and
individuals, hold 'Consultative Status' at the UN, and work on the UN Human Rights Council’s
Universal Periodic Review in which member states and select NGOs analyze the human rights
status of other nations and make recommendations. And on January 1st
, 1998 the, “ILGA finally
gain[ed] consultative status at the Council of Europe”70
Equally important, but more concerned with LGBT issues in the transnational government com-
munity, is the International Lesbian and Gay Human Rights Commission (ILGHRC), founded in
1990. They also hold consultative status at the UN, “as a recognized Non-Governmental Organi-
zation representing the concerns and human rights of lesbian, gay, bisexual and transgender peo-
ple worldwide.”71
Funders:
While national and transnational organizations mobilize and lobby the public and the politicians,
they do so only with the support of resources, and very often these resources are financial and
come from just a handful of large philanthropic funders. While these actors are often ignored, in
the perspective of ‘resource mobilization theory’ it is a necessity to look at arguably some of the
most important players in any social movement, especially one with such a minority base within
every national population, incapable of raising sufficient funds for operations.
Of the $1.2 billion in philanthropic funding in 2010, 6% of the total money and 10% of the total
grants went to LGBT-specific organizations and causes, more than ‘People with Disabilities’ and
‘Indigenous People’ combined.72
In the United States funding for LGBT issues has steadily in-
creased from $48 million in 2004, to $129 million in 2013, half of which is for ‘Human Rights’
68 Ibid.
69 ILGA website (2015a). “Home”. International Gay Lesbian Bisexual Trans and Intersex Association. http://ilga.org/ accessed 1
June, 2015.
70 Ibid.
71 IGLHRC (2015). “About our work: Our mission”. International Lesbian and Gay Human Rights Commission.
http://iglhrc.org/content/our-mission accessed 1 June, 2015.
72 Lawrence, Steven and Dobson, Christen (2013). “Advancing human rights: The state of global foundation grant making”. Foun-
dation Center and International Human Rights Funders. p xiv.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-18-2048.jpg)
![issues. This trend does not show any signs of stopping.73
The Ford Foundation spent in 2013
$539,850,930 on grants for social progress. More than one-third of that went to supporting
‘Democracy, Rights and Justice’. Of that, $123,404,509 went to Human Rights, of which ‘Ad-
vancing LGBT Rights’ is at the top of the list of initiatives.74
Similarly, The Atlantic Philanthropies granted $572,998,591 through nearly 600 grants between
2004-March 2015 on ‘Human Rights and Reconciliation’ programs in the United States, Ireland,
South Africa, Australia, Bermuda, Vietnam, Europe and Cuba. On LGBT issues alone they
granted, from 2002-March 2015, $27,402,829.75
Other organizations such as the Arcus Founda-
tion,granted the most amount of money towards LGBT issues in 2010, with $14.6 million, while
the Astraea Lesbian Foundation for Justice gave the most number of grants.76
It is not only non-
profit foundations providing grants to LGBT organizations, as the top ten corporate donors grant-
ed $8.7 million to the cause in 2012: the largest being Wells Fargo Foundation and Levi Strauss
Co. Foundation granting $3.5 million and $1.7 million respectively.77
Philanthropic foundations not only fund organizations, but set up and fund conferences for dis-
cussing issues and diffusing, or normalizing, agendas. In 2012 the Ford Foundation, “brought to-
gether LGBT leaders and allies, artists, journalists, technologists, policymakers and funders to
explore next opportunities for progress for the LGBT movement[…]”78
and other philanthropic
organizations are doing the same.
This funding and support provides organizations with the necessary resources to pay full-time
staff, hire expertise, pay for office space, travel to and from events and cities, lobby ’inside’ and
‘outside’, create professional and widespread social media campaigns, and fund meetings and
conferences. Because CSOs are often fighting for issues about which only a marginal part of the
population is fiercely adamant, without money they have only online campaigns, votes, civil dis-
obedience and/or disruption. While those are not minuscule or ineffective resources in any sense,
and the latter two can in fact be quite fruitful if carried out properly as argued by Piven and
73 LGBT Funders (2015). “2013 tracking report”. Funders for LGBTQ Issues. https://www.lgbtfunders.org/resources/LGBTFunder-
sTracking2013.cfm accessed June 3, 2015.
74 Ford Foundation (2015). “Grant-making snapshot 2013”. http://www.fordfoundation.org/pdfs/about/Grant-
making_Snapshot_2013.pdf accessed June 3, 205.
75 Calculated from Atlantic Philanthropies website (2015). “Grants: Grant database”.
http://www.atlanticphilanthropies.org/search/grants accessed June 3, 2015.
76
Lawrence and Dobson (2013). p 109.
77 LGBT Funders (2015a). “News: The top ten corporate funders of LGBTQ issues.” Funders for LGBTQ Issues. https://www.lgbt-
funders.org/news/news.cfm?newsID=198 accessed June 3, 2015.
78 Ford Foundation website (2015a). “Events: Out for change: The future of LGBT rights”. http://www.fordfoundation.org/news-
room/events/690 accessed June 3, 2015](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-19-2048.jpg)
![Cloward79
, they are much weaker without large numbers and/or proper funding. Thus it is impor-
tant to take note of where this funding comes from.
The Atlantic Philanthropies, mentioned above, is an American foundation started by billionaire
Chuck Feeney, that pledged (and granted nearly all) $6.5 billion on human rights, health, and ag-
ing issues from 2001-2017. They are mentioned specifically here not only because of their im-
mense flow of funding, but because they played a key role in funding the South African and Irish
LGBT movements that resulted in SSM equality.80
The former will be discussed in the case study
while the latter will be briefly reviewed now.
The Irish case:
The effects of funding, while certainly impactful and necessary according to resource mobiliza-
tion theory, are often difficult to directly attach to any one victory. However, in the case of the
recent referendum held in Ireland (May 2015), in which the population voted to allow same-sex
marriage, the funding played a keystone role. Just two decades earlier in 1994 homosexual acts
were a criminal offense, but with the help of the The Atlantic Philanthropies, who provided
“multiyear core support to the group [GLEN] largely credited,” for winning the referendum,
marriage equality became a reality. “According to GLEN staff, Atlantic’s five-year grant served
as ‘positive pressure’ for GLEN to accomplish a lasting change for gay and lesbian couples in a
relatively short period.”81
Overall, Atlantic Philanthropies gave $11.5 million to Ireland from
2004-2013 to “improve human rights, visibility, and access to services for [LGBT] people.”82
More in-depth case studies of the Netherlands and South Africa are presented below. They were
picked respectively: The Netherlands was the first country to grant same-sex couples marriage
rights, although not the first to begin to give them partnership rights. And South Africa, while
not the first nation to grant SSM, is the first nation to put a clause in their constitution explicitly
prohibiting discrimination by sexuality. Moreover, they don't match any of the domestic factors
of the other nations that so far have allowed SSM. The case studies will include a short review of
the history and process of the SSM movement and an outline of the actors, resources and cultures
involved. The South African case will be analyzed explicitly with respect to the social theories of
change.
79 They argued that the organization and bureaucratization of social movements often hindered their effectiveness and wasted
time and funds that could have been spent affecting real change through civil disruption. Their thesis revolves around the civil rights,
welfare, and trade union movements of the 1960s-80s in the United States, which when assimilated into the political institutions,
they argued, won only symbolic victories without changing the relationships of power or privilege. Piven, F. F., Cloward, R. A.
(1979). “Poor people's movements: Why they succeed, how they fail”. Vintage.
80 The Atlantic Philanthropies website (2015a). “2013 Grantmaking”. http://www.atlanticphilanthropies.org/2013-grantmaking ac-
cessed June 3, 2015.
81 Lawrence and Dobson (2013). p 15.
82 The Atlantic Philanthropies (2013). “Catalysing LGBT equality and visibility in Ireland: A review of LGBT cluster grants, 2004-
2013. http://www.atlanticphilanthropies.org/sites/default/files/uploads/Atlantic-LGBTCluster-ROI.pdf accessed June 3, 2015.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-20-2048.jpg)
![Case Study: Netherlands
The Netherlands underwent one of the most liberating histories of sexuality, and although it may
seem obvious that they took first place in granting SSM from a quick glance at such history, it is
nonetheless important to understand the particular phenomena and actors that brought about this
change. Most of the overview here comes from Kees Waaldijk's legal narrative, “How the road
to same-sex marriage got paved in the Netherlands.”83
But we will start from the beginning of
Netherlands' liberation of sexuality to get a broader scope of the this particular nation's historical
current, so as to better place its more recent actions.
Homosexual acts were decriminalized in 1811, as a part of the Dutch integration into the French
empire. Yet it took a long time for homosexuality as a political identity to come to play, and over
one hundred and fifty years to establish equal rights for these new citizen-identities. This began
with the 'sexual revolution' of the 1960s which brought the Netherlands from a Christian conser-
vative nation to, “the gay and sex capital of the world […]” allowing and embracing non-hetero
forms of sexuality as well as non-conventional sexual-based activities (e.g. pornography, prosti-
tution).84
Brought about not by a political or social majority, this revolution was, “stimulated by
the NVSH (Dutch Society for Sexual Reform) and the COC (Center for Recreation and Culture,
a code name for what would be baptized in 1971 the ‘Dutch Society for Integration of Homosex-
uality’),”85
bringing the rest of the population along with them through a series of incremental so-
cial and legal changes. These included the constitutional prohibition of discrimination on the ba-
sis of sexuality in 1983. By that time over 90% of the population agreed that homosexuals should
have equal rights.86
Then came the full integration of homosexuality in to the civil institution of
marriage in 2001.
This was achieved by the active work of CSOs and politicians riding on the interacting waves of
the liberation and the human rights movements, intersecting at SSM. Many CSOs that were
grounded in liberation supported and contributed to getting SSM, while many of the organiza-
tions grounded in LGBT rights, and specifically their legal attainment, were supportive of the
liberation movement.
Moreover, certain domestic factors enabled them to achieve SSM so quickly. These include 1) a
highly secular population without deep religious ties to the marriage institution, and 2) a less di-
rect, and therefore less populist, democratic system (no referendums, no district-based elections)
83 Waaldijk, Kees (2001). “Small change: How the road to same-sex marriage got paved in the Netherlands” in Legal recognition
of same-sex partnership. A study of national, European and international law. Ch 23.
84 Hekma, Gert and Duyvendak, Jan W. (2011). “Queer Netherlands: A puzzling example”. Sexualities. 14, no. 6: p 625.
85 Ibid. p 625.
86 Waaldijk (2001). p 439.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-21-2048.jpg)
![is an area in which they can reach agreement fairly easily (as opposed to areas like the economy
or the environment).”91
While non-state activists within CSOs and the media played key roles in bringing and keeping
LGBT rights on the political agenda, the success of SSM relied also on homosexuals within the
Parliament. It was the efforts of these politicians, sympathetic to and actively part of the LGBT
rights cause, that, “led to the adoption by the Lower House of the Dutch Parliament, in April
1996, of (non-binding) resolutions demanding the opening up of marriage and adoption to same-
sex couples.”92
In response to this ‘insider’ and ‘outsider’ political pressure, the government es-
tablished a same-sex marriage Commission of legal experts that, by a majority of 5-3, recom-
mended the government immediately grant homosexuals equal marriage rights and benefits.
After removing many of the nuanced differences between different- and same-sex marriage in-
volving pensions and parenthood, and recognizing the symbolic differences between registered
partnerships and marriage amongst the populace, there was little standing in the way of the gov-
ernment finally granting homosexuals fully equal rights. Finally, in 2001, by a majority of 109-
33, the Act on the Opening up of Marriage was passed along with the Adjustment Act which
would gender-neutralize other marriage-related legislation.
The continuing fervor on which LGBT rights legislation was passed was due not only to politi-
cal, social and legal-structural phenomena, but to the emphatic and tactical efforts of COC. Not
only is the Netherlands the first country to grant marriage equality, but their LGBT organization
COC, formed in 1946, is the oldest LGBT organization in the world.93
The COC actively en-
gaged in moving this process of small legal changes along through their use of “high-profile pol-
itics […] marked by high visibility public campaigns, strong domestic coalitions, closer coopera-
tion with government in policy development and implementation, and transnational engage-
ment.”94
The COC were active in the public and media scene, which was necessary for gaining public
support and attention, partially because the LGBT movement in the Netherlands was financially
self-maintained, in that they did not have large philanthropic donations, and thus relied on civil
and business funding. Even with their limited budget, the COC was able to fund the LGBT mag-
azine Expreszo, started in 1988, and their own magazine XL.95
They also were key in organizing
91 Waaldijk (2011). p 447.
92 Ibid. p 447.
93 “LGBT and gender equality policy plan of the Netherlands: 2011-2015”. Ministry of Education, Culture and Science.
https://www.movisie.com/sites/www.movisie.com/files/files/keyissues/lgbt-equality-policy-plan-2011-2015.pdf accessed June 3,
2015.
94 Holzhacker, Ronald (2012). “National and transnational strategies of LGBT CSOs in different political environments: Modes of
interaction in Western and Eastern Europe for equality”. Comparative European Politics. 10, no. 1: p 28.
95 Takács, Judit (2003). “Position, state of development and role of sexual minority media: Hungary the Netherlands and Slovenia”.
Paper prepared for the Peace Institute Fellowship Program 2002. p 29. http://core.ac.uk/download/pdf/11872025.pdf accessed June](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-23-2048.jpg)
![the Canal Pride parades that helped normalize LGBTs for the public while bringing the issue into
the spotlight. Furthermore, focusing efforts on the citizenry helped give the government, whom
they were simultaneously lobbying, a safe issue to attack.
On an individual level, Henk Krol practically initiated and sustained the marriage equality move-
ment through his access to politicians and policy makers, and own LGBT news and editorial
publication De Gay Krant (Gay News) created in 1979. While COC did not embrace marriage
equality until the 1990s, Henk Krol, the “foremost ambassador of that movement,” made it a key
object of the LGBT rights agenda through his publication that circulated rapidly throughout the
LGBT community. Even more importantly, Krol was a former lobbyist working in the Hague,
and, “by the time he started Gay Krant he knew all the political movers and shakers, so he could
easily get access,” to them for ‘inside lobbying’.96
The key factors enabling the Netherlands’ first-mover process of SSM are such: a new culture of
liberation and equality, LGBT activism through media presence and SSM agenda diffusion, the
expertise and political resources of key activist Henk Krol, shifts in the government coalition, the
use of ‘small changes’ to achieve a legal goal, and the fact that they were unburdened, unlike
other nations, by the array of tax, church, social security, and immigration issues tied to the civil
institution of marriage.97
Although domestic factors played a key role, the support and acceptance of marriage equality for
homosexuals was also a European-wide movement - it should be noted that the Netherlands was
not the first nation to pass same-sex union legislation. As Jacklyn Cock remarks, “against the
background of these trends, it becomes apparent that the Dutch opening up of marriage is not out
of step with the rest of Europe […]”98
Case Study: South Africa
South Africa is not the first nation that comes to mind when thinking about LGBT rights, but
their history with legal discrimination served as a turning point in the institutional treatment of
citizens of all identities. There is still much homophobia within the culture, but the narrative of
achieving SSM is most purely a legal one that starts with the passing of the world's first constitu-
tional clause explicitly prohibiting discrimination on the grounds of sexuality, and the narrative
of that here comes primarily from Jacklyn Cock's detailed history, “Engendering gay and lesbian
rights: The equality clause in the South African constitution.”99
All of the processes and partner-
3, 2015
96
“Henk Krol, political activist”. The International Correspondent. October 3rd, 2013.
http://www.theinternationalcorrespondent.org/activist-henk-krol/ accessed June 3, 2015.
97
Waaldijk (2011). p 453.
98
Ibid. p 453.
99 Cock, Jacklyn (2003). “Engendering gay and lesbian rights: The equality clause in the South African constitution”. Women’s
Studies International Forum. 26, no. 1.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-24-2048.jpg)
![human rights discourse, as well as the organizational and political tactics for achieving those
rights. Two key events gave LGBT rights a spot on the ANCs and the United Democratic Front’s
(UDF) agenda. It should be noted that the ANC initially rejected LGBT rights as a distraction
and non-issue. This was until an inflammatory statement by one of ANC’s directors, Ruth Mom-
pati, dismissing homosexuals as un-normal, was publicized across Britain, after which the ANC
publicly announced the inclusion of LGBT rights on their agenda. It is useful to note that had
there was backlash from the European community due to the normalization of LGBT rights with-
in their notions of morality and development. Along those lines, members within ANC had been
exposed to and adopted that LGBT rights agenda while in Europe, notably key ANC lawyers Al-
bie Sachs and Kader Asmal.102
Simultaneously in 1987, within South Africa, the incarceration of one of the Gay Association of
South Africa’s (GASA) few black members, Simon Nkoli, for treason after engaging in mass
protests, invoked an active response by anti-apartheid civil and political organizations. After
three years in prison he formed the Gay and Lesbian Organization of the Witwatersrand
(GLOW) who, “saw themselves as part of the broad movement against apartheid,”103
and teamed
up with the anti-apartheid United Democratic Front (UDF). Jacklyn Cock goes so far as to say
that, “Simon Nkoli was the catalyst to forging a strategic alliance between the gay rights move-
ment and the anti-apartheid struggle within South Africa […]”104
With the ascension of GASA and GLOW, and the help of transnational ILGA, a national organi-
zation soon formed. In 1994 the NCGLE was created, “specifically to coordinate the lobbying ef-
forts to retain the sexual orientation clause in the draft South African constitution,” and soon be-
came a “powerful structure representing sixty-five member organizations.”105
From then on they
became the key non-state actor in the LGBT rights and SSM battles.
Intimate to the inclusion of the ‘equality clause’ was the fact that the process of rewriting the
constitution was open to the public. It involved a Draft and Interim Constitution, the latter a re-
sult of “complex negotiations that marked South Africa’s transition to democracy […]”106
After
South Africa’s first democratic elections, the Constitutional Assembly began accepting input
from all members of society on the official drafting of the constitution: “This provided crucial
political space, which the [NCGLE] used to mobilize.”107
102 Donham (1998). p 12.
103 Cock (2003). p 36.
104 Ibid.. p 36.
105 Ibid. p 37.
106 Ibid. p 37.
107 Ibid. p 37.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-26-2048.jpg)
![The actions of NCGLE were focused on passing the easiest bills first, and build on those as they
gained momentum and legitimacy. This is why they started with pushing for sodomy laws to be
declared unconstitutional, as the men in South Africa’s homosexual activist population were
much more powerful than the women. Then they began including both gays and lesbians as they
lobbied to get equal treatment for homosexuals with regards to immigration, pension, and cus-
tody - “‘cases all leading up to marriage’ (Kevin Botha, interview, 2001).”108
These rulings were
supported by the ANC government who held a majority in the National Assembly and were, in
the post-apartheid government, the political elite. Consequently, they were able to “maintain un-
popular positions on a handful of issues - including GLB rights - with relative impunity.”109
Considering how strongly large groups of South Africans, nearly half of the population, felt
against homosexuality, if the ANC had not had such a secure position, and if the issue was sub-
ject more to democracy than law, such rulings would not have been upheld, or would have at
least been challenged repeatedly, holding back the LGBT movement’s success. Considering the
political situation, and the clever legal angle taken by LGBT organizations and activists, such
rulings were able eventually lead to SSM rights.
Slowly but surely, as national organizations continued to fight for equal treatment, backed by
ILGA and ILGA-Pan Africa, the Atlantic Philanthropies, and the equal rights clause in the con-
stitution, bills and rulings began passing giving homosexuals equal rights: 1996, Special Pension
Fund Act recognized same-sex relationships; 1999, the Constitutional Court ruled that any law
relating to sodomy was unconstitutional; 2000, the Pension Fund Adjudicator ruled that the ex-
clusion of same-sex partners from pension fund benefits was unconstitutional; 2001, the Pretoria
High Court ruled the Child Care Act and the Guardianship Act were unconstitutional because
they prevented lesbian couples from jointly adopting.110
Eventually came the case Fourie v Min-
ister of Home Affairs in 2004, in which a lesbian couple challenged the common law definition
of marriage. Judge Cameron ruled that the law needs to change its wording to include same-sex
life partnerships. “In principle, this means that same-sex marriage could now be recognized, and
that the various statutory hurdles that regulate marriage could now be addressed […]”111
Acting concurrently, in 2004 the Equality Project, formerly NCGLE, “filed an application in the
Johannesburg High Court challenging the common law definition of marriage and the marriage
formula, in terms of the Marriage Act of 1961, on the grounds that they violate the rights of les-
bians and gay men to equality […]” granted by the constitution.112
in 2005 the Constitutional
Court ruled in favor of SSM, and changed the definition of marriage from a ‘union between a
108 Cock (2003). p 39.
109 Ibid. p 39.
110 Vasu, Reddy (2006). “Decriminalisation of homosexuality in post-apartheid South Africa: A brief legal case history review from
sodomy to marriage” Agenda: Empowering women for gender equity. 20, no. 67: p 147.
111 Ibid. p 150.
112 Ibid. p 152.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-27-2048.jpg)
![man and a woman’ to a ‘union between two persons’.113
In the end, a simple changes of seman-
tics, but a complex process of organizational championing through incremental and strategic
moves.
In order to achieve the series of successes the movement relied on skillfully using the resources
and channels made available to them. As they could not rely on mass support or protest politics
working within their still-homophobic nation, they relied mostly on legal battles. “Under the aus-
pices of the Equality Clause, the judicial system provided an avenue for GLB activists […]”114
This strategy was necessary for them, as they were, although partnered with ANC, still “out-
siders, using litigation as a primary tactic and parliamentary allies for secondary support.”115
Fur-
thermore, Ryan Thoreson notes that they were, “especially effective at mobilizing ideological
and organizational resources in the judicial and parliamentary arenas - in part because they were
‘quite well-organised, well-resourced, and able to tap into the expertise of gay and lesbian people
across the society’ […]”116
They still relied heavily on the ANC for support, and it was in their
benefit, not only that they had some inside political allies, but that ANC was highly ideological
and often disregarded constituent views for their own objectives. The ANC was in turn helped by
LGBT organizations by repeatedly making it clear that LGBT rights were an integral part of the
country’s overall liberation.117
While they had many and key resources for success, their success only came with the failure of
their rivals. During the Constitutional Assembly, “‘there was a total of 7032 submissions from
gay, lesbians and sympathy persons, and about 13,000 signatures on petitions. In comparison,
there were only 564 submissions against the inclusion of sexual orientation’ (Kevin Botha inter-
viewed in Equality, Botha, 1996, p. 2).”118
However, homophobia was still enormously rampant
within South Africa, with nearly half of the population estimated as “anti-gay” and almost as
many against allowing homosexual equal rights within the constitution.119
The reason that they
did not face such massive opposition was because, although many South Africans feel strongly
against homosexuality, they are largely unwilling or unmotivated (by a coherent and active social
movement) to act upon those beliefs and mobilize for success.120
Ties to the theories:
113 Ibid. p 152.
114 Thoreson, Ryan R. (2008). “Somewhere over the rainbow nation: Gay, lesbian and bisexual activism in South Africa”. Journal
of Southern African Studies. 34, no. 3: p 685.
115 Ibid. p 685.
116 Ibid. p 686.
117 Ibid. p 686.
118 Cock (2003). p. 38
119Ibid. p. 38
120 Thoreson (2008). p. 686.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-28-2048.jpg)
![LGBT rights were argued and marketed on two grounds. They are based on the same anti-dis-
crimination motives addressed towards race and gender to which post-apartheid South Africans
are vehemently averted. They also stem from the Western-adopted fact that sexuality is fixed,
just like race and gender, and thus not a choice by those citizens. Thus by tying the issue inti-
mately and logically with those of racial and gender discrimination, the LGBT activists embed-
ded their cause into the larger social movement that was actively carrying out the reification of a
'world culture', furthered by the placement of the 'gay equality clause' in the Constitution.
Not only was the issue tied to the national cause of liberation, but originally stemmed from and
was continually helped by the transnational culture of rights. The exile of the ANC ultimately
caused a backlash for the apartheid government. Residing for several years in Britain, the, “liber-
al European notions of gender rights and the political legitimacy of gay rights,”121
seeped into the
ANC organization. And as globalization of communications and media proceeded without the
help or hindrance of apartheid, more South African LGBTs became aware of and assimilated
into the global LGBT movement: “When asked to date the beginning of the gay movement in
Soweto, some young black men answered that it commenced when a gay character appeared on
Dynasty on local South African television (McLean and Ngcobo 1994:180).”122
While this may
seem highly anecdotal, even perhaps ridiculous, the awareness of one's struggles as not a local-
ized or even personalized phenomena, but a transnational one has significant effects on percep-
tions and expectations of political success, and motivations for mobilization. This is in line with
the relative deprivation theory: As South Africans began to see that non-heterosexuality, at least
homosexuality, was tolerated (if not celebrated), they began expecting the same treatement and
social movement success in their own nation.
Drawing global attention to post-apartheid South Africa, ILGA helped to further bring the ‘world
culture’ to South Africa, and the South African situation to the attention of the world and the
transnational community. They held their 19th World Conference in Johannesburg, hosting
“More than 200 delegates from 40 countries.” This was the first ever African ILGA World Con-
ference.123
They set up an information centre to distribute information on LGBT matters to draw
attention to the nation's LGBT organisations and promote a wider knowledge of LGBT oppres-
sion. The conference also helped to identify areas where international political pressure could be
helpful to the national cause. Earlier, in 1990, ILGA helped organize a gay pride parade in Jo-
hannesburg, featuring prominent international LGBT symbols for equality and justice, modeled
on those organized in New York and San Francisco,. “This annual ritual began to do much […]
to create a sense of transnational connections for gay South Africans.”124
121
Gevisser quoted in Donham, Donald L. (1998). p 12.
122 Dohnam (1998). p 15.
123 ILGA website (2015).
124 Donham (1998). p 12.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-29-2048.jpg)
![In interviews with local ‘queer’ individuals anthropologist Donald L. Donham found that, “it was
precisely in the context of transnational antiapartheid connections that some skesanas like Linda
[…] became aware for the first time of a global gay community […]”125
To clarify, Linda is a
male, and a skesana is a transgender, or a cross-dresser who engages in homosexual activity. The
transnational LGBT rights movement - its actors and information - helped bring equality to non-
heterosexual South Africans, and in so doing increased their transnational network, legitimacy,
and ultimately its resources.
Because the LGBT community on the national level was relatively small, as well as mostly poor,
it is worthy to find out where much of the financial resources necessary for the long success of
the movement came from. The Atlantic Philanthropies list “Same-sex marriage legalised” as one
of their “Key Grantee Achievements”.126
They helped South Africa achieve SSM through their
financial support of national LGBT and human rights organizations, as well as the advancement
of educational material in that area. Overall, $107 million was given to South Africa in grants for
“Reconciliation Human Rights”, and over $10 million was given for “Equality, Rights and
Justice”.127
This included money towards outreach, services for the LGBT community, educa-
tional and media campaigns, and organization funding. In 2002 they gave NCGLE $180,900 to
restructure into the Lesbian and Gay Equality Project.128
And again in 2004 they granted them
$1,027,480 for ‘core funding’. The Equality Project also received funding by The Ford Founda-
tion, The Global Fund for Women, Global Christian Ministries, the Astraea Foundation, Hivos
and the National Lotteries - all of which are transnational organizations.129
The LGBT and human rights victory was ultimately the result of multi-leveled actors and histori-
cal circumstances combined with a popularizing transnational ‘world culture’ of human rights
adamant on bringing South Africa up to their standards. It was a combination of local, national
and transnational CSOs who were able to influence and partner up with political elites in the
ANC and UDF to use the legal system and newly malleable political institutions to achieve their
objectives of LGBT equality. Donald L. Donham goes so far as to remark that, “There can be no
doubt that the ANC could not have accomplished the political transition that it did without inter-
national support,” based ideologically in the, “international left-liberal consensus on human
rights.”130
It was thus necessary to have help from 1) the LGBT global social movement and 2)
the ‘world culture’ embedded within its agenda, for it 3) raised the expectations of LGBT South
125 Donham (1998). p 13.
126
Parker, Susan (2013). “Telling the story of The Atlantic Philanthropies in South Africa”. The Atlantic Philanthropies.
http://www.atlanticphilanthropies.org/sites/default/files/uploads/AP-in-South-Africa-Summative-Report.pdf accessed June 2, 2015.
127 Ibid. p 3.
128 The Atlantic Philanthropies website (2015).
129 Pan Africa ILGA (2009). “South Africa: campaign for same-sex marriage”. ILGA. http://ilga.org/south-africa-cam-
paign-for-same-sex-marriage/ accessed June 2, 2015.
130 Donham (1998). p 12.](https://image.slidesharecdn.com/8901efd4-3eaf-4a4d-b871-e5361c9f5b00-160419132848/75/SSM-Final-Paper-30-2048.jpg)
![Primer [religion]](https://cdn.slidesharecdn.com/ss_thumbnails/primerreligion-130712014816-phpapp02-thumbnail.jpg?width=640&height=640&fit=bounds)
SSM Final Paper
- 1. Transnational convergence ofcivil marriage law: equal rights to same-sex partners Evan Lewitus June 7, 2015 Introduction “The Minister of Justice in Vietnam referred to same-sex marriage as ‘inevitable’ if one consid- ered the question from the viewpoint of human rights, a statement that startled most observers.”1 After reading this paper, the reader should understand why he said that it was ‘inevitable’ and whether or not that is the case. This paper seeks to answer two questions: 1) Why is same-sex marriage (SSM) legislation being passed by so many countries in such a short period of time? And 2) how is it happening? In attempting to find answers, this paper delves into the actors, re- sources and motivations behind this transnational process of policy diffusion and convergence of legislation granting homosexual partners the access to marriage as a civil institution with its own particular benefits. This paper operates on two beliefs: 1) that, as sexuality is not a choice, every country has roughly the same population percentage of LGBT (lesbian, gay, bisexual, transgen- der) individuals, and that the level of the movement's presence is independent of the amount of LGBT individuals in a nation.2 And 2) this phenomenon is the result of an LGBT social move- ment in which SSM is a primary objective. It is not a random series of events, nor is it a matter confined within elite state institutions and to elite state actors. It is the actions of a group of “con- scious actors making rational decisions,” to promote explicit change by known objectives.3 The international process can be described as one of beta-convergence, that “occurs when lag- gard countries catch up with leader countries over time.”4 What is argued here, however, con- trary to the common assumptions of causes for convergence5 , is not necessarily that countries are attempting to catch up to ‘leader countries’ but that countries are moving towards an ideal 'mod- ern’ state as defined by a 'world culture' of human rights, legal equality and sexuality as part of one's legal identity. This can also be explained by sigma-convergence, whereas nations’ differ- ences decrease as they move towards something wholly new. But as SSM is within the general 1 Sanders, Douglas (2014). “Asia these days” in “State-sponsored homophobia: A world survey of laws: Criminalisation, protection and recognition of same-sex love”. International Lesbian Gay Bisexual Trans and Intersex Association (ILGA). 9th Edi- tion: p 89. 2 Some nations certainly do have a larger LGBT community, but this is due to the level of cultural and institutional acceptance and oppression within that nation and society. This makes it difficult to measure the amount of LGBTs within a nation, which is only com- pounded by the presence of several notions of sexuality-identity, or lack thereof, besides the Western LGBT, intersex definitions. These anomalies or ambiguities are often categorized under the identity 'queer' which embraces a more holistically non-convention- al and political stance. 3 Della Porta, D., & Diani, M. (2009). Social movements: An introduction. John Wiley & Sons. p 15. 4 Knill, Christoph (2005). “Introduction: Cross-national policy convergence: concepts, approaches and explanatory factors”. Journal of European Public Policy. 12, no. 5: p 769. 5 Christoph Knill lists five central factors: similar responses to phenomena (e.g. aging population); imposition of policies by other states; harmonization through international or supranational law; regulatory competition from increasing economic integration; and/or transnational communication and information exchange, resulting in best-practices. None of these address pressures from CSOs, or internal political desires to modernize and transnationally accepted notions of modernization. Knill, Christoph (2005).
- 2. development of humanrights as regards the legal equality of identities, replicating that of the civil rights and women’s suffrage movements, the path is quite linear. And as it is rooted in the legal rights channel of social change, it is also fairly two-dimensional, as either same-sex couples do or do not have fully equal rights and benefits.6 In this sense marriage equality differs from other social policies, in that an ‘in-between’ or a ‘wholly new’ can not be reached by nations. Why is same-sex marriage worth discussing? Other than its recent popularity and political success, why study marriage equality in particular? There are two particularly interesting facets that distinguish the social movement for the civil in- stitutionalization of SSM from other social movements. First, it is framed as a human rights and discrimination issue, and thus addressed and reformed through the law and with the significant help of lawyers, courts and political elites. It is and always was primarily addressed as a human rights issue and thus attaches itself to numerous other movements and organizations, as well as the grand ideology of the post-WWI human rights regime reified in the United Nations Charter. Possibly the first turn to civil rights discourse and discrimination occurred in the United States as early as 1960, “when Franklin Kameny sought review from the Supreme Court of the case in which his own firing from a federal agency was upheld. He argued that homosexuality as grounds for dismissal was ‘no less illegal than discrimination based on religious or racial ground’.”7 While this reasoning was unfortunately decreed as unworthy by the Courts, it in- grained the LGBT movement in the tradition of the human rights discourse only partially or rhetorically used by civil rights and women’s suffrage movements. Second, SSM falls under family law, and there is a legal (and historical) distinction between dis- crimination law and family law. This is due to the perception that families and the social happen- ings within them are out of the purview and jurisprudence of the government. “Many of the is- sues at the center of current modernization discourse in family law are presented by the constitu- tion of LGBT families: the definition of marriage, forms other than marriage for the pluralization and expansion of legal recognition of families, second-parent adoption, and parenting by use of alternative reproductive technologies.”8 As soon as one of those barriers was broken, it enabled the possible amendment and reform of the rest. This paper will proceed by displaying which countries granted homosexuals the equal right to marriage, as well as those that have similar and inferior laws. There will be a brief reflection on the recent decriminalization of homosexuality, and which states still punish homosexuality and 6 Of course there are many nations which have same-sex unions or registered partnerships, but these either provide inferior bene- fits, or fall under the category, coined during civil rights era, of 'separate but equal', as they deny same-sex couples the symbolic pleasure of being formally married. In their inequality, these arrangements are analogous either to the three-fifths clause in the Unit- ed states, or to separate schools for African-Americans and Whites. These examples are not meant to be hyperbolic or sensational- ist, but to draw legal analogies in highlighting the binary and unambiguous nature of legal equality. 7 Hunter, N. D. (2000). “Sexuality and Civil Rights: Re-Imagining Anti-Discrimination Laws”. NYL Sch. J. Hum. Rts. 17: p 568. 8 ibid. p. 586.
- 3. promote homophobia. Thenthere will be a quantitative analysis of various domestic factors to possibly explain trends and reveal correlations in SSM success. After that, four theories of social change will be presented to help with viewing and explaining these phenomena. Lastly, two case studies will be undertaken to find out the details of how and why governments granted marriage equality: The Netherlands, because it was the first country to grant SSMs; and South Africa, be- cause it is the first nation to have a sexuality-specific non-discrimination clause in their constitu- tion, and because it has vastly different domestic factors than other SSM adopter countries. Current situation of same-sex marriage internationally Table 1. Countries allowing some form of rights to homosexual relationships9 Country Marriage Equality (year) Similar Benefits or Regional Equality Inferior Benefits Andorra X Argentina 2010 Australia X Austria X Belgium 2002 Brazil 2013 Canada 2005 Croatia X Czech Republic X Denmark 2012 Finland 2014 France 2013 Germany X Greenland X Hungary X Iceland 2010 Ireland 2015 Liechtenstein X Luxembourg 2014 Malta X Mexico X Netherlands 2001 New Zealand 2013 Norway 2009 Portugal 2010 Slovenia X 9 Freedom to Marry (2015). http://www.freedomtomarry.org/landscape/entry/c/international accessed 1 June, 2015; Itaborahy, Lu- cas Paoli and Zhu, Jingshu (2014). “State-sponsored homophobia: A world survey of laws: Criminalisation, protection and recogni- tion of same-sex love”. International Lesbian Gay Bisexual Trans and Intersex Association (ILGA). 9th Edition.
- 4. South Africa 2006 Spain2004 Sweden 2009 Switzerland X United Kingdom 2013 United States X Uruguay 2013 There are currently 19 nations that federally allow SSM, with 2 offering similar benefits, 2 in which SSM is granted regionally but not federally (United States and Mexico), and 10 that offer inferior benefits. Thus there is a total of 34 nations, out of a global 196 nations, covering roughly one-tenth of the world population if US states with SSM are included. It is clear that this move- ment is still in its infancy, but it is indeed starting to walk as revealed by changes in public opin- ion and the presence and acceptance of LGBT individuals and rights in political and cultural in- stitutions. Furthermore, if US states are included, the years 2012-May 2015 (currently) witnessed 14 governments passing SSM legislation – marking exponential growth since the first SSM law in 2001. (refer to Figure 1) Using the United States as a microcosm of the world, considering its diverse cultural views and levels of religiosity and conservatism, we see an increase in public opinion and openly gay politi- cians. A Gallup Poll found that support for SSM within the United States rose from 27% in 1996 to 54% in 2013, while those against it decreased over the same time period from 68% to 43%.10 Currently in the U.S. there are 15 within openly homosexual members of Congress11 . And there is at least one, if not several openly LGBT politicians in regional and federal positions of power in nearly every nation excluding most Arab and African nations. Similarly there are numerous openly LGBT heads of agencies, judges, and political advisors. Homosexuality has also penetrated the media, which acts as a spotlight, loudspeaker and repro- ducer of norms. In nations with freedom of expression the media industry seeks to capitalize on any potential niche, including homosexual acceptance. Thus we get television shows like Will and Grace featuring a main homosexual character, the American film Brokeback Mountain cen- tered around a male homosexual relationship, and more recently the Indian film Dunno y - Na Jaane Kyun12 featuring the first ever homosexual kiss in Bollywood history. Independent of sup- porters or criticizers, these phenomena are non-reversible and mark a stark increase of homosex- ual acceptance and positive identity-awareness in modern society. 10 CFR.org Staff (2013). “Same-sex marriage: Global comparisons”. Council on Foreign Relations. http://www.cfr.org/soci- ety-and-culture/same-sex-marriage-global-comparisons/p31177 accessed 3 June, 2015 11 “15 openly gay politicians”. http://www.ranker.com/list/openly-gay-us-politicians/ranker-news?page=2 accessed June 3, 2015. 12 Karaim, Reed (2011). “Gay Rights”. CQ Global Researcher. 5, no. 5: 109. https://iglhrc.org/sites/default/files/512-1.pdf accessed June 3, 2015
- 5. The criminalization ofhomosexual acts The majority of nations either promote homophobia through criminalization, or are indifferent to it, but it should be kept in mind that only very recently – within the last half century - did many of the nations with full marriage equality today decriminalize homosexuality. It was “after a peri- od of criminalisation before the French Revolution in 1789, [that] the trend towards decriminali- sation gathered pace,”13 into its current status as a sign of human development. Like the marriage equality debate and much of the LGBT rights movement, homophobia and dis- crimination was not only culturally ingrained, but a highly institutionalized process. Until 1973, the American Psychiatric Association classified homosexuality as a mental disorder, as did the World Health Organization until 1990 (one year after Denmark granted homosexuals a form of civil union). Until 1967 homosexual acts were criminalized in the United Kingdom, until 2003 in the United States, and 2009 in India. Each of these nations has made tremendous strides in LGBT rights. And still, “a significant number of States reject that SOGII [Sexual Orientation, Gender Identity and Intersex] is a status protected by international human rights law at all.”14 Delegates of Arab and African nations even felt so strongly against LGBT rights that they walked out of a UN LGBT rights conference.15 Currently there are still 78 countries in which homosexuality is crimi- nalized and punishable by imprisonment and 5 whose law permits punishment by death: Iran, Mauritania, Saudi Arabia, Sudan and Yemen.16 Not only do some governments reproduce the in- stitutional discrimination, but they actively promote and legitimize homophobia. In 1995 the President of Zimbabwe, Robert Mugabe, stated that homosexuals, “are lower than dogs and pigs,” and incited the population, “to take law into its own hands, to arrest homosexuals, to re- port, and deport them.”17 The same happened in 2011 when LGBT activist David Kato in Ugan- da was murdered, after newspapers, alongside Nigerian President Mugabe, urged for the arrest and/or killing of homosexuals.18 Although homophobia is present in many populations, it is not institutionalized or promoted by the government to the degree that it is in many African and Arab nations. Most Asian nations, while not actively or positively enabling homosexuality and LGBT equality, do not have any specific legislation criminalizing it, the exceptions being Papua New Guinea, Singapore, Myanmar, Malaysia, and Bangladesh. 13 BBC (2014). “Where is it illegal to be gay?” BBC News: World. http://www.bbc.co.uk/news/world-25927595 accessed 1 June, 2015 14 Itaborahy and Zhu (2014). p 13 15 Levesque, B. (2012). “Arab, African delegates walk out on U.N. LGBT rights conference”. LGBTQ Nation. http://www.lgbtqna- tion.com/2012/03/arab-african-delegates-walk-out-on-u-n-lgbt-rights-conference/ accessed 1 June, 2015 16 Itaborahyand Zhu (2014). 17 Quoted in Luirink, Bart (1998). “Moffies. Gay life in southern Africa”. Cape Town: Ink. p 51. 18 Karaim (2011). p 119.
- 6. Policy convergence inthese Arab and African nations towards LGBT equality may take longer than other regions due to the wholly different ideological stances on sexuality, rights and mar- riage. Underlying ideas are much more difficult to change than social systems in which tweaks to the organization or distribution do not alter the underlying arrangements or ideologies.19 Howev- er, many of the countries with SSM today had nearly the same institutionally repressive stances only half a century ago. But change occurs quickly, and once it is institutionalized into the laws and accepted as a norm of society it is rare to see a reversal, at least without political upheaval. This is especially so if such changes are commonly, in this case transnationally, understood as 'progress', or moral and social development. Nature of social change The speed at which same sex marriage is being adopted is remarkable, as it reflects a transforma- tion of two cultural institutions - marriage and sexuality-identity - that are historically very sensi- tive. Within only fourteen years, eighteen nations granted homosexuals the right to marry and fourteen are in the process of doing so. Even taking into consideration the process of building off of previously won LGBT partnership equality legislation that slowly and inevitably lead to SSM, the LGBT partnership rights movement - from its very beginning in the 1960s, and with its first solid legal victory in Denmark in 1989 - has taken hold very quickly. This is especially true if taking into account the U.S. states with SSM (Figure 1)20 . The S-shaped curve of social change, from slow adoption to rapid convergence to saturation, is applicable to numerous social move- ments and may be to this one as well, but it is too early to tell. It may be growing exponentially or linearly, but the former seems more likely given current successes. Understanding the nature of the movement so far will be enabled through the use of four prominent theories of social change. 19 Knill (2005). p 771. 20 Freedom to Marry (2015).
- 7. Relative deprivation theory: Relativedeprivation theory21 describes political mobilization as the result of raised and then un- met expectations for rights and/or benefits entitled to citizens. Thus as more countries gain LGBT rights and SSM equality, more citizens expect their governments to treat them with simi- lar respect and allow them the same human rights and privileges. Referring to LGBT rights in the United States, although this can apply to the other nations and regions in which SSM is now a given or is underway, Brooklyn Professor of Law Nan D. Hunter remarks that, “This extraordinary progress has been made possible because previous movements forced society to recognize the centrality of equality rights.” For example, in 1965 LGBT ac- tivists, shortly after the United States passage of the 1964 Civil Rights Act, “[demanded] the same kind of job protections that Congress had enacted,”22 for the benefit of African-Americans. Europe is arguably the biggest hub of the human rights regime, and thus its constituents arguably have the highest expectation of their particular identities being granted protections within their nation. This is summed up by the Austrian LGBT rights campaign slogan concerning SSM: “What the Danes have, we want too.”23 This is part of a convergence of the expectations of Euro- pean citizens. This is similar to women demanding the right to vote and African-Americans de- manding equal civil rights and public facilities within the context of the United States fighting a war on behalf of bringing democracy and freedom to the world – yet not fully offering either at home. However, as regards the fact that such social changes are simultaneously occurring within judi- cial institutions dictated by law and political institutions dictated by democratic processes, Hunter notes that the minority group, “must be perceived as both widely disfavored and as suffi- ciently powerful to persuade others that the disfavor is unjust.”24 As more and more countries adopt SSM legislation, the ‘disfavor’ is increasingly being seen as unjust. Global social movements: Global social movements (GSMs), “are networks of organizations and individuals collaborating across borders and outside of national identities to advance thematically similar agendas through- out the world.”25 The newest wave of globalization beginning in the 1990s saw the dramatic in- 21 Flynn, Simone I. "Relative Deprivation Theory." Sociology Reference Guide: 100-110. 22 Hunter (2000). p 568. 23 Paternotte, David and Kollman, Kelly (2013). “Regulating intimate relationships in the European policy: same-sex unions and policy convergence”. Social Politics. 20, no. 4: p 522 translated from German by authors. 24 Hunter (2000). p 567. 25 Bennett, Elizabeth Anne (2012). “Global social movements in global governance”. Globalizations. 9, no. 6: p 799.
- 8. crease in influenceof international non-governmental organizations (INGOs) and their transna- tional networks made up of local, national and transnational organizations: “they advocate, protest, and mobilize public support; they do legal, scientific, technical, and policy analysis; they provide services; they shape, implement, monitor, and enforce national and international com- mitments; and they change institutions and norms [...]”26 These new institutions and norms, of appropriate rights and government action, are in part creat- ed and diffused by progressive civil society organizations (CSOs) as well as the UN and the EU. Paternotte and Coleman note that, “SSU [same-sex union] policy adoption in Europe has been influenced and accelerated by processes of international learning via transnational networks […]”27 It is thus an interplay between CSOs and governments advancing these ‘standards’ and making other governments aware of them. However, as concerns European adoption of the universal precursors to homosexual marriage, “the SSU case makes clear neither domestic policy elites, nor international bureaucrats or transnational activists alone can explain how twenty-two European states,” each with differing levels of homosexual acceptance and historical discrimination, “over the span of just twenty years became convinced that legally recognizing same-sex couples was the right thing to do.”28 It is instead much more complex “transnational advocacy networks” that introduce new informa- tion and start trends in the international community towards new “international norms” that change the views and consequent actions of prominent policy makers, “as a result of internation- al pressure, or out of fear of being excluded from the international community.”29 These norms and agendas are adopted, if not partially initiated by ‘epistemic communities’30 who spread and further standardize and engrain these norms into the objectives and language of international governance. This brings us appropriately to the next theory. World culture and world society: World culture theory, also known as ‘world society or ‘world polity’ theory understands congru- ent advances by states and their increasing institutional similarity as the result of a trans- or supra-national culture. In “World society and the nation-state” John W. Meyer, the author behind the theory, and his colleagues start out with the following historical context: 26 Bennett (2012). p 800. 27 Paternotte and Kollman (2013). p 512. 28 Ibid. (2013). p 513 29 Ibid.(2013). p 517 30 A term coined by Peter Haas to describe, “a network of professionals with recognized expertise and competence in a particular domain, and an authoritative claim to policy-relevant knowledge within that domain.” Haas, Peter (1992). “Introduction: Epistemic communities and international policy coordination”. International Organization. 46, no. 1: p 3.
- 9. “Since the sealingof the Magna Carta in 1215, and arguably since the twelfth century in continental debates on canon law, European civilization began to forge a distinctive path. Western moral theology, secular philosophy, and law - if not practice - gradual- ly came to stress rights more than duties, the individual more than the community, and the rule of law more than brute force.”31 After WWI the League of Nations adopted a transnational ‘rights’ ethic, granting rights to ethnic minorities in its Charter and several treaties. The movements for national independence after WWII were embedded with the ideology of self-determination and equality, institutionalized through the law, notably in their new constitutions. Rights were still a primarily domestic issue across the world, and “confined to a small intellectual elite concentrated in Europe and the Americas.”32 Yet within only a few decades, human rights ‘consciousness’ became a global mindset. “Almost everywhere the language of rights is spoken by diplomatic, governing, policy and academic elites, activist NGOs, the press, [etc.]”33 The approach to understanding global social change as a parcel and externality of a diffusing and enlarging ‘world culture’ is known as the “macrophenomenological approach [which] sees the nation-state as culturally constructed and embedded.”34 Phenomena occurring within a na- tion-state are not totally dependent on their own history and dynamics, but “the many individuals both inside and outside the state who engage in state formation and policy formulation are enac- tors of scripts rather more than they are self-directed actors.”35 In the case of the early and unex- pected SSM law in Spain, it was observed that, “during parliamentary debates, numerous MPs presented the reform as a way for Spain finally to catch up with European standards (Paternotte 2011b, 37).”36 It is these 'European standards' – based only on the Netherlands' and Belgium's SSM law - that represent the 'world culture' as perceived and reified by Spain and other coun- tries. This is not just a European phenomenon, as “this worldwide process affects both core and pe- ripheral countries, though with variable impact depending on local resources and organizational capacities.”37 The differential effects are due not only to the amount of resources and organiza- tional capacities of the national government but of the CSOs (as will be covered in the next sec- tion). They are fighting locally and nationally, and often more adamantly than governments, for adoption of that ‘world culture’ by filling in institutional ‘gaps’ and decrying governmental fail- 31 Cassel, Douglas (2004). “The Globalization of Human Rights: Consciousness, Law and Reality”. Nw. J. Int'l Hum. Rts. 2, no. 1: p 3. http://scholarlycommons.law.northwestern.edu/njihr/vol2/iss1/6 32 Ibid. (2004). p 7. 33 Ibid. (2004). p 4. 34 Meyer, John W. et al. (1997). “World society and the nation-state”. AJS. 103, no. 1: p 147. 35 Ibid. (1997). p 150. 36 Paternotte and Kollman (2013). p 525. 37 Meyer et al. (1997). p 157.
- 10. ures. Connections betweenthese local actors and the world culture, “help account for similarities in mobilization agendas and strategies in highly disparate countries (McAdam and Rucht 1993).”38 Meyer and his colleagues pose a thought experiment that is helpful in understanding the theory, and that is to pretend an isolated society is discovered. As they are introduced to the rest of the world several institutions and frameworks of ethics and morality - equality and non-discrimina- tion in our case - would be created. A government would form with ministries and agencies, they would be recognized by other states and possibly incorporated into the United Nations. “Its peo- ple would be formally reorganized as citizens with many familiar rights” and different benefits depending on their new categorization (e.g. elderly, poor, youth, etc.) “Modern educational, medical, scientific, and family law institutions would be developed.” And, “all of this would happen more rapidly, and with greater penetration to the level of daily life, in the present day than at any earlier time because world models applicable to the island society are more highly codified and publicized than ever before. More- over, world-society organizations devoted to educating and advising the islanders about the models’ importance and utility are more numerous and active than ever.”39 Globalization is thus causing, according to this theory, and as will be tested throughout the paper, a speeding up of incremental and non-reversible social changes as the 'world culture' is more ac- cessible, diffused, popularized and institutionalized than ever before. And its continual growth and institutionalization only serves to speed up the process. And within this globalization, states are the key actors in managing the adoption and reproduc- tion of this 'world culture. Yet states are not cookie-cutter models of each other, but are instead made of many of the same ingredients - non-discrimination laws, social security, democracy, freedom of organization. In other words, “all these ‘internally’ generated changes are infused with world-cultural conceptions of the properly behaving nation-state.”40 States are rarely ever first-movers though, and it is often up to the CSOs to bring this 'world cul- ture' to the forefront of national and transnational politics, and in doing so many become transna- tional themselves. Over the last century there was an enormous increase in the number and pres- ence of these international non-governmental organizations: “By 1947, over 90 organizations a year were being founded.”41 Furthermore, their presence is increasing, in their support of local 38 Meyer et al. (1997). p 161. 39 Ibid. (1997). p 145-6. 40 Ibid. (1997). p 160. 41 Boli, John and Thomas, George M. (1997). “World culture in the world polity: A century of international non-governmental orga- nization”. American Sociological Review. 62, no. 2: p 478.
- 11. and national organizations,shaping dialogues and discourses, and lobbying national governments and transnational governmental organizations. In their study on the trajectory and impact of the international non-governmental organization, a study in which nearly 3,000 INGOs were ana- lyzed and codified, John Boli and George M. Thomas found that, “The correlations between INGO founding and measures of world development are […] extremely high - most are at .90 or above. The development of the INGO population is part and parcel of this general development of the world polity.”42 Lastly, these CSOs, in their interactions with governments and the public, are in competition with either rival organizations and/or cultures. They must gather and use an array of both materi- al and social resources to gain leverage, navigate the political and legal channels to success, and to keep themselves and their agenda afloat and above their rivals. Useful to explain this phenom- enon is the ‘resource mobilization theory’ of social movements. Resource mobilization theory: Resource mobilization theory explains the initial and increasing success through an iterative process of growth and support: they use an array of actors, the less-than-democratic institution of law, and an increasing pool of victories which translates into greater public media and funding attention, and thus more actors, support and victories. Starting with the actors, the “mixed com- position and the multiple roles played by the members of this [LGBT advocacy] network - elect- ed politicians, civil servants, and activists - made it easier for these claims [of LGBT equality] to find their way to people in power.”43 Not only does the movement have numerous activists with- in its movement, but almost more importantly it has a diverse array of actors able to access pow- erful individuals and institutions through various channels. This simultaneously gives their movement more expertise, legitimacy and political receptivity, and allows them to pursue differ- ent channels if need be due to their array of access points (politicians, the public, courts) and ar- eas of knowledge (law, politics, social organization and mobilization). The expansion of the LGBT rights movement in Europe can be, “understood by tracing the synergies that are created through the collaboration of activists, legal advocates, and policy elites at the European and na- tional levels.”44 While it is an intangible resource, LGBT movements have relied also upon an increasing ‘world culture’, as outline above, of LGBT rights reified in SSM. As more and more countries grant the LGBT community entrance into the institution of marriage, there are more legal cases and offi- cial reports, as well as statistics on the effects (or lack thereof) of SSM, for activists, politicians and lawyers to use in their arguments. Also, as more countries pass SSM legislation the media at- 42 Ibid. (1997). p 478. 43 Paternotte and Kollman (2013). p 526. 44 Paternotte and Kollman (2013). p 530.
- 12. tention increases, notonly around those pro-SSM countries but those countries still opposed or slow to catch-up, thus furthering the pressure on governments. And as media attention and popu- larity grows, so too do the sources and flows of funding towards those issues. Over the last two decades there was a drastic increase in philanthropic funding and grant making for human rights in general. As of 2010, the major philanthropic foundations gave $1.2 billion to human rights organizations and campaigns, 36% of which went to ‘Individual integrity, liberty, and security’ with the next highest category, ‘Human rights - general’, assuming 16% of all funds. Of this money, 81% of it was given by only 16% of the foundations, nearly all of which are from the United States and Western Europe. And while the majority of that funding stays within the country of origin, 31% is focused on other countries. Thus nearly one-third of all phi- lanthropy can be categorized as global. These flows of finances decide not only who will have more resources, and arguably more success, but what overall agendas and ideologies will be re- produced. And as the majority is coming from Western nations, those agendas will most likely be embedded within the human rights ideology. Domestic factors and explanations45 We turn now to analyze if there are any specific domestic factors that make nations more likely to adopt SSM legislation, or LGBT organizations more likely to succeed in those nations. These factors deal generally with nations’ levels of globalization and interaction with other countries, and their current and past records of human rights and discrimination. One hundred and ninety-four countries were sorted ordinally in two different ways: under mar- riage equality a, they were given a score of 1 or 2 dependent on if they had (1) any same-sex partnership rights, or (2) none at all; and under marriage equality b, they were ranked from 1 to 4, dependent on whether they had (1) no same-sex partnership rights, (2) inferior rights, (3) simi- lar rights to marriage or regional SSM, or (4) fully equal rights. Discrimination is often an issue embedded in 'human development' and 'freedom' issues, thus we took UN measures of development and freedom as defined by Amartya Sen – opportunities and capabilities46 : UN Human Development Index (HDI) 2013 score, UN Inequality Adjusted HDI 2013 score, and average annual HDI growth 1980-2013 (%). The latter was taken to see if the nation was on a particular path of 'human development' and ‘modernization’. The UN Gender In- equality Index 2013 score and female share of parliament were taken to see the nations’ discrimi- nation against women and achievement at institutionally overcoming such discrimination. Popu- 45 See Appendix 1 for all of the raw data, correlation coefficients and coefficient strengths. 46 Education and ability to participate in the economic sphere, as well as earn financial resources and thus power within the household are important factors within Sen's understanding of freedom. Sen, A. (1999). Development as freedom. Oxford University Press.
- 13. lation aged 25and above with some secondary education (sorted by male, female and total) and female labor force participation47 were taken to see the active role that women play outside of politics and their possible economic resources. Due to the religious aspect of stances towards homosexuality, as well as the identity of marriage as a religious institution, taking religiosity into account was necessary. However, these variables do not measure the institutionalization of religion, but only the public's personal religiosity and thus the possible public perception towards LGBT rights and marriage equality: Global Religios- ity Index 2012 score (% respondents claiming they are a religious person), Global Religiosity In- dex 2012 score (% respondents claiming they are a convinced atheist).48 With the understanding that discrimination is a highly political and institutionalized matter we took the following variables: The World Bank Political Stability 2013 score49 was taken to see if political instability, and the resources and attention it takes away from human development is- sues, has any effect. Social Institutions and Gender Index (SIGI) 2014 Restricted Civil Liberties score (female access to public space, political representation), SIGI 2014 Restricted Resources and Entitlements score (female access to land, credit and property other than land)50 were taken to again see if the institutional and practical discrimination against women translated into institu- tional discrimination against the LGBT community. The KOF Economic Globalization score 2014, KOF Social Globalization score 2014, KOF Political Globalization score 2014, and Inter- net users per 100 people51 were taken to see the amount of exposure the nation and its populace have had to other nations’ cultures and institutions, as well to transnational culture. And urban population (% of total) was taken because urban areas are often more cosmopolitan and thus of- fer greater exposure to ‘world culture’ and minorities. To further measure levels of institutional discrimination on the national level, it was recorded whether or not: their constitution has an explicit anti-discrimination clause, their laws mandate non-discrimination based on gender in hiring, and they are party to the International Labor Orga- nization’s Discrimination (Employment and Occupation) Convention52 . Lastly, to test institution- al convergence it was recorded whether or not the nation is a member of the EU, and if they are a member to the OECD. 47 United Nations (2013). Human Development data 2013. United Nations Development Programme. 48 WIN-Gallup Poll (2012). “Global index of religiosity and atheism”. http://www.wingia.com/web/files/news/14/file/14.pdf accessed June 3, 2015. 49 World Bank (2013). Political Stability Index data 2013. World Governance Institute. 50 OECD Development Centre (2014). Social Institutions and Gender Inequality data 2014. OECD. 51 Dreher, Axel, Noel Gaston and Pim Martens (2008). “Measuring globalisation – gauging its consequences. (New York: Springer). 52 “Women, business and the law 2014: removing restrictions to enhance gender equality”. The World Bank and IFC. (2014). http://wbl.worldbank.org/~/media/FPDKM/WBL/Documents/Reports/2014/Women-Business-and-the-Law-2014-FullReport.pdf ac- cessed June 3, 2015.
- 14. The correlations weregenerally low – nearly all below 0.5 - as countries such as South Africa, Argentina and Uruguay tilted the scales on HDI, globalization indices and gender equality; and highly developed and globalized countries such as Japan and South Korea have yet to move on same-sex partnerships. Amongst the countries with SSM and those that have begun the process of equalizing, there are no predominantly Muslim or Buddhist countries, thus religion may cer- tainly play a part. Yet there are plenty of Protestant and Catholic countries that have yet to grant any same-sex partnership rights as well. And Russia, which scored very low on the Religiosity Index, and yet has a highly influential Orthodox church, is rampantly homophobic in its culture and laws. The highest correlation by far was membership to the OECD: for marriage equality a and mar- riage equality b there were correlation coefficients of 0.637 and 0.624, with strengths of 0.406 and 0.389 respectively. The second highest correlation coefficient was for Inequality Adjusted HDI, but only because a score did not exist for South Africa, which faces enormous income, gen- der and racial inequality. All of the countries with some level of same-sex partnership rights had an HDI score of above 0.800 except for South Africa (0.658) and the Latin American countries. The literature on policy convergence predicts that it is, “more likely for countries that are charac- terized by high institutional similarity.”53 This explains the high adoption rate by OECD mem- bers, as well as the likelihood that all EU members in the near future will allow SSM. But overall the broad range of predictors analyzed here are fairly weak, thus making an in-depth look at the specific actors and processes involved all the more necessary. Actors: who is advancing marriage equality and how? Like much social change since the start of the 20th century, the human rights revolution is spread and maintained by CSOs, working with different levels of actors (political elites and corporate funders vs. workers and minorities), and through channels of various institutionalization (e.g. courts and voting versus civil disobedience and disruption). Kollman remarks that “without con- stant advocacy and agitation by NGO's, human rights treaties would not be drafted or ratified, enforcement mechanisms not created or used, and violators not continually exposed.”54 Along the same lines Knill comments that, “both transfer and diffusion processes […] require that [gov- ernment] actors are informed about the policy choices of others[…],”55 and it is CSOs that are re- sponsible for bringing such information to the spotlight and thus directing the social policy agen- da. Besides merely diffusing and drawing attention to information, CSOs use a diverse array of 53 Knill (2005). p 769. 54 Cassell (2004). p 20. 55 Knill (2005). p 767.
- 15. strategies, mechanisms, and’inside’ and ‘outside’ lobbying56 , that give them leeway for complet- ing objectives and finding ways around barriers to success. And as will be shown, the phenomena is not simply non-state actors presenting information and lobbying the political institutions to adopt a certain agenda, as there are actors within political in- stitutions and the political and judicial elite that are also working within the LGBT rights move- ments. The more engrained a movement’s actors are within government institutions (as politi- cians, judges, ministers), the greater political legitimacy and success the movement will have in that nation. The LGBT rights movement has an advantage in this regard, as their difference is not superficial, and thus they do not face the same political or occupational discriminatory hurdles to moving into elite positions. Not only are the actors from various rungs on the political ladder, so too are they acting from a diverse array of backgrounds and within a breadth of contexts. They reside in the national and on the transnational level, they are individual activists, politicians and lawyers, entire political par- ties or coalitions, judicial institutions, CSOs, media outlets, and grant making philanthropic foun- dations, both non- and for-profit. Here we will give some examples as to the array of these actors . Politicians: Across the national spectrum there are numerous LGBT politicians, here we try to exclude any that were elected after their nation legalized SSM. To begin, here is an example of how a politi- cian's legitimacy and institutional position can help in enabling concrete changes: Claudia Roth was a member of the German Parliament and in 1994, before being elected and during her time as the German Green Party member of the European Parliament, she wrote the keystone report (Roth Report) urging EU member states to give homosexuals the equal right to marry. This pushed Germany’s government to grant homosexuals ‘Residential Partnerships’ with many of the same benefits as marriage. As for the history of openly LGBT politicians being elected, the cases are worldwide: In 1974 Elaine Noble became the first openly gay elected politician in the United States. In Canada, po- litical Svend Robinson publicly announced his homosexuality in 1988, and was hence followed by a string of Canadian Members of Parliament. Katia Tapety, in 1992, was the first transgender politician elected in Brazil. In Mexico in 1997 both Patria Jimenez and David Sanchez Camacho were elected to a national and state position, respectively. And Mike Waters was elected to the South African parliament in 1999. The list goes on, as there are openly LGBT politicians in most countries, excluding those in Africa (except South Africa) and the Middle East. 56 Inside lobbying refers to lobbying efforts on governments and political institutions, while outside lobbying refers to public aware- ness and social marketing campaigns. Kollman, K. and Waites, M. (2009). “The global politics of lesbian, gay, bisexual and trans- gender human rights”. Contemporary Politics. 15, no. 1: 57-85.
- 16. Lawyers: Due to theframing of marriage equality as a human rights issue, it has been necessary for the LGBT movement to have lawyers, many of whom also serve as politicians. German Green Party’s Volcker Beck is a human rights lawyer who helped in passing the ‘Residential Partner- ship’ bill mentioned above. Spanish Prime Minister Zapatero’s key advisor on the issue of SSM, at the time leading up to the passage of the SSM law, was human rights lawyer Pedro Zerolo, who had served in the socialist party as well as with numerous Spanish LGBT organizations.57 Similarly, Belgian Minister of Justice Michel Pasteel was a homosexual lawyer and “long-term gay activist”58 Moreover, one of the key actors in getting South Africa's 'gay equality clause' passed in their constitution were African National Congress members and human rights lawyers Albie Sachs and Kader Asmal.59 Organizations: governmental, non-governmental and transnational Before any transnational LGBT organization was formed, as will be outlined below, there were only local and national organizations. To give a few examples: In 1948, the Netherlands organi- zation COC became the first LGBT organization in the world. In 1950 the pro-gay rights Matta- chine Society was formed in the United States. And in 1969 the Grupo Nuestro Mundo (Our World Group) was formed in Buenos Aires, Argentina.60 These are just a few examples of LGBT organizations popping up around the world in the mid- to late-20th century. The movement began picking up pace when the issue became transnational in both civil society and government (i.e. United Nations and the European Union). Transnational CSOs acted as umbrella organizations, and some were granted ‘Consultative Status’ at the United Nations and many are now able to en- gage in the UN’s Universal Periodic Review61 of states. Thus they gave national organizations an international audience as well as access to a larger pool of resources. After Denmark's passing of the world's first SSU law in 1989, nations began granting same-sex couples certain rights and benefits similar to those of different-sex couples, and the transnational government community began to take notice and feel the pressure from CSOs to take a stance. The European Parliament in 1994, “approve[d] the Roth Report, which urges the Member States, 57 Paternotte and Kollman (2013). p 525. 58 Ibid. (2013). p 526. 59 Donham, Donald L. (1998). “Freeing South Africa: the “modernization” of male-male sexuality in Soweto. Cultural Anthropology. 13, no. 1: p 12. 60 Hotel, C. P., Brown, S. (1997). “Con discriminación y represión no hay democracia”: The Lesbian and Gay Movement in Ar- gentina. p 120. 61 Through the United Nation’s UPR mechanism, an organization “submits information that provides particular insight and data about the human rights situation” in “States under Review” and gives specific and broad changes to make. More often than not how- ever the grander recommendations for decriminalization and non-discrimination are dismissed, whereas some of the more “targeted” recommendations are adopted. Carroll, Aengus (2014). “State-sponsored homophobia - the European Region” in “State-sponsored homophobia: A world survey of laws: Criminalisation, protection and recognition of same-sex love”. International Lesbian Gay Bisex- ual Trans and Intersex Association (ILGA). 9th Edition: p 11.
- 17. among others, toequalise the legal age of consent between hetero and homosexuals, to grant equal rights to same-sex couples, including the opening-up of same-sex marriage, and to allow homosexuals to adopt children.”62 In the same year, in the case of Toonen vs. Australia, the Unit- ed Nations Human Rights Committee confirmed that “laws criminalizing homosexuality violate rights to privacy and non-discrimination in breach of States’ legal obligations under the Interna- tional Covenant on Civil and Political Rights.”63 In 1997 the European Union passed the historic Treaty of Amsterdam, expanding anti-discrimination provisions in previous treaties to cover sex- uality.64 In 2013 the Council of the European Union passed new binding Guidelines to promote and ensure that all human rights are extended to LGBT individuals. “Moreover, it includes the removal of discriminatory laws as a key priority for the foreign policy work of the European Union.”65 And In 2011, “a joint statement on behalf of 85 countries at the United Nations Human Rights Council called on all states to end violence, criminal sanctions, and related human rights violations based on sexual orientation and gender identity (International Service for Human Rights 2011).”66 However, no trans- or supra-national organization has yet to adopt a specific anti-discriminatory clause pertaining to marriage, nor have they shown signs of doing so. This may be because it is too specific of a right, but as marriage is a global cultural institution, it is more likely that the supra-national community has been hesitant due to its culturally-sensitive and -relative nature. None of these actions would have been possible on the transnational level without transnational LGBT organizations constantly organizing, mobilizing, and pressuring national governments and transnational bodies such as the UN and EU. The most important of these is theThe International Lesbian Gay Bisexual Transgender and Intersex Association (ILGA). It was founded in 1978 by several national LGBT organizations, “at a fringe meeting at the annual conference of the Cam- paign for Homosexual Equality, by representatives of organisations from Australia (Gay Libera- tion Sydney/Victorian Homosexual Law Reform Coalition, Britain (CHE), Denmark (LBL F- 48), France (CIDH), Northern Ireland (NIGRA), Republic of Ireland (National Gay Federation), Italy (FOURI!), the Netherlands (COC), Scotland (SHRG) and the United States (NGTF).”67 Their “aims were declared as: to maximise the effectiveness of gay organisations by coordinating political action on an international level in pursuit of gay rights and in particular to apply con- certed political pressure on governments and international institutions,” and specifically, “to pro- 62 ILGA website (2015). “About us: ILGA 1978-2007”. http://ilga.org/about-us/1978-2007-a-chronology/ accessed June 2, 2015 63 United Nations (2014). “Fact Sheet: Criminalization”. United Nations Free and Equal. https://www.unfe.org/system/unfe-43- UN_Fact_Sheets_-_FINAL_-_Criminalization.pdf accessed 1 June, 2015. 64 “Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Cer- tain Related Acts”. 1997 O.J. C 340/1 65 Carroll (2014). p 92. 66 Chamie, Joseph and Mirkin, Barry (2011). “Same-sex marriage: A new social phenomenon”. Population and Development Re- view. 37, no. 3: p 536. 67 ILGA website (2015).
- 18. mote LGBT rightswithin the European human rights regime (Interview ILGA-Europe 28 Octo- ber 2005).68 Currently ILGA is a “worldwide federation of 1,100 member organizations from 110 countries campaigning for lesbian, gay, bisexual, trans and intersex rights.”69 It is made up of a global or- ganization as well as several regional organizations: Europe, North America, Asia, Pan Africa, LAC (Latin American and Caribbean countries) and Oceania. They hold a world conference ev- ery two years, regional conferences annually, publish and disseminate numerous reports on the state of LGBT rights and treatment, provide active assistance to LGBT rights organizations and individuals, hold 'Consultative Status' at the UN, and work on the UN Human Rights Council’s Universal Periodic Review in which member states and select NGOs analyze the human rights status of other nations and make recommendations. And on January 1st , 1998 the, “ILGA finally gain[ed] consultative status at the Council of Europe”70 Equally important, but more concerned with LGBT issues in the transnational government com- munity, is the International Lesbian and Gay Human Rights Commission (ILGHRC), founded in 1990. They also hold consultative status at the UN, “as a recognized Non-Governmental Organi- zation representing the concerns and human rights of lesbian, gay, bisexual and transgender peo- ple worldwide.”71 Funders: While national and transnational organizations mobilize and lobby the public and the politicians, they do so only with the support of resources, and very often these resources are financial and come from just a handful of large philanthropic funders. While these actors are often ignored, in the perspective of ‘resource mobilization theory’ it is a necessity to look at arguably some of the most important players in any social movement, especially one with such a minority base within every national population, incapable of raising sufficient funds for operations. Of the $1.2 billion in philanthropic funding in 2010, 6% of the total money and 10% of the total grants went to LGBT-specific organizations and causes, more than ‘People with Disabilities’ and ‘Indigenous People’ combined.72 In the United States funding for LGBT issues has steadily in- creased from $48 million in 2004, to $129 million in 2013, half of which is for ‘Human Rights’ 68 Ibid. 69 ILGA website (2015a). “Home”. International Gay Lesbian Bisexual Trans and Intersex Association. http://ilga.org/ accessed 1 June, 2015. 70 Ibid. 71 IGLHRC (2015). “About our work: Our mission”. International Lesbian and Gay Human Rights Commission. http://iglhrc.org/content/our-mission accessed 1 June, 2015. 72 Lawrence, Steven and Dobson, Christen (2013). “Advancing human rights: The state of global foundation grant making”. Foun- dation Center and International Human Rights Funders. p xiv.
- 19. issues. This trenddoes not show any signs of stopping.73 The Ford Foundation spent in 2013 $539,850,930 on grants for social progress. More than one-third of that went to supporting ‘Democracy, Rights and Justice’. Of that, $123,404,509 went to Human Rights, of which ‘Ad- vancing LGBT Rights’ is at the top of the list of initiatives.74 Similarly, The Atlantic Philanthropies granted $572,998,591 through nearly 600 grants between 2004-March 2015 on ‘Human Rights and Reconciliation’ programs in the United States, Ireland, South Africa, Australia, Bermuda, Vietnam, Europe and Cuba. On LGBT issues alone they granted, from 2002-March 2015, $27,402,829.75 Other organizations such as the Arcus Founda- tion,granted the most amount of money towards LGBT issues in 2010, with $14.6 million, while the Astraea Lesbian Foundation for Justice gave the most number of grants.76 It is not only non- profit foundations providing grants to LGBT organizations, as the top ten corporate donors grant- ed $8.7 million to the cause in 2012: the largest being Wells Fargo Foundation and Levi Strauss Co. Foundation granting $3.5 million and $1.7 million respectively.77 Philanthropic foundations not only fund organizations, but set up and fund conferences for dis- cussing issues and diffusing, or normalizing, agendas. In 2012 the Ford Foundation, “brought to- gether LGBT leaders and allies, artists, journalists, technologists, policymakers and funders to explore next opportunities for progress for the LGBT movement[…]”78 and other philanthropic organizations are doing the same. This funding and support provides organizations with the necessary resources to pay full-time staff, hire expertise, pay for office space, travel to and from events and cities, lobby ’inside’ and ‘outside’, create professional and widespread social media campaigns, and fund meetings and conferences. Because CSOs are often fighting for issues about which only a marginal part of the population is fiercely adamant, without money they have only online campaigns, votes, civil dis- obedience and/or disruption. While those are not minuscule or ineffective resources in any sense, and the latter two can in fact be quite fruitful if carried out properly as argued by Piven and 73 LGBT Funders (2015). “2013 tracking report”. Funders for LGBTQ Issues. https://www.lgbtfunders.org/resources/LGBTFunder- sTracking2013.cfm accessed June 3, 2015. 74 Ford Foundation (2015). “Grant-making snapshot 2013”. http://www.fordfoundation.org/pdfs/about/Grant- making_Snapshot_2013.pdf accessed June 3, 205. 75 Calculated from Atlantic Philanthropies website (2015). “Grants: Grant database”. http://www.atlanticphilanthropies.org/search/grants accessed June 3, 2015. 76 Lawrence and Dobson (2013). p 109. 77 LGBT Funders (2015a). “News: The top ten corporate funders of LGBTQ issues.” Funders for LGBTQ Issues. https://www.lgbt- funders.org/news/news.cfm?newsID=198 accessed June 3, 2015. 78 Ford Foundation website (2015a). “Events: Out for change: The future of LGBT rights”. http://www.fordfoundation.org/news- room/events/690 accessed June 3, 2015
- 20. Cloward79 , they aremuch weaker without large numbers and/or proper funding. Thus it is impor- tant to take note of where this funding comes from. The Atlantic Philanthropies, mentioned above, is an American foundation started by billionaire Chuck Feeney, that pledged (and granted nearly all) $6.5 billion on human rights, health, and ag- ing issues from 2001-2017. They are mentioned specifically here not only because of their im- mense flow of funding, but because they played a key role in funding the South African and Irish LGBT movements that resulted in SSM equality.80 The former will be discussed in the case study while the latter will be briefly reviewed now. The Irish case: The effects of funding, while certainly impactful and necessary according to resource mobiliza- tion theory, are often difficult to directly attach to any one victory. However, in the case of the recent referendum held in Ireland (May 2015), in which the population voted to allow same-sex marriage, the funding played a keystone role. Just two decades earlier in 1994 homosexual acts were a criminal offense, but with the help of the The Atlantic Philanthropies, who provided “multiyear core support to the group [GLEN] largely credited,” for winning the referendum, marriage equality became a reality. “According to GLEN staff, Atlantic’s five-year grant served as ‘positive pressure’ for GLEN to accomplish a lasting change for gay and lesbian couples in a relatively short period.”81 Overall, Atlantic Philanthropies gave $11.5 million to Ireland from 2004-2013 to “improve human rights, visibility, and access to services for [LGBT] people.”82 More in-depth case studies of the Netherlands and South Africa are presented below. They were picked respectively: The Netherlands was the first country to grant same-sex couples marriage rights, although not the first to begin to give them partnership rights. And South Africa, while not the first nation to grant SSM, is the first nation to put a clause in their constitution explicitly prohibiting discrimination by sexuality. Moreover, they don't match any of the domestic factors of the other nations that so far have allowed SSM. The case studies will include a short review of the history and process of the SSM movement and an outline of the actors, resources and cultures involved. The South African case will be analyzed explicitly with respect to the social theories of change. 79 They argued that the organization and bureaucratization of social movements often hindered their effectiveness and wasted time and funds that could have been spent affecting real change through civil disruption. Their thesis revolves around the civil rights, welfare, and trade union movements of the 1960s-80s in the United States, which when assimilated into the political institutions, they argued, won only symbolic victories without changing the relationships of power or privilege. Piven, F. F., Cloward, R. A. (1979). “Poor people's movements: Why they succeed, how they fail”. Vintage. 80 The Atlantic Philanthropies website (2015a). “2013 Grantmaking”. http://www.atlanticphilanthropies.org/2013-grantmaking ac- cessed June 3, 2015. 81 Lawrence and Dobson (2013). p 15. 82 The Atlantic Philanthropies (2013). “Catalysing LGBT equality and visibility in Ireland: A review of LGBT cluster grants, 2004- 2013. http://www.atlanticphilanthropies.org/sites/default/files/uploads/Atlantic-LGBTCluster-ROI.pdf accessed June 3, 2015.
- 21. Case Study: Netherlands TheNetherlands underwent one of the most liberating histories of sexuality, and although it may seem obvious that they took first place in granting SSM from a quick glance at such history, it is nonetheless important to understand the particular phenomena and actors that brought about this change. Most of the overview here comes from Kees Waaldijk's legal narrative, “How the road to same-sex marriage got paved in the Netherlands.”83 But we will start from the beginning of Netherlands' liberation of sexuality to get a broader scope of the this particular nation's historical current, so as to better place its more recent actions. Homosexual acts were decriminalized in 1811, as a part of the Dutch integration into the French empire. Yet it took a long time for homosexuality as a political identity to come to play, and over one hundred and fifty years to establish equal rights for these new citizen-identities. This began with the 'sexual revolution' of the 1960s which brought the Netherlands from a Christian conser- vative nation to, “the gay and sex capital of the world […]” allowing and embracing non-hetero forms of sexuality as well as non-conventional sexual-based activities (e.g. pornography, prosti- tution).84 Brought about not by a political or social majority, this revolution was, “stimulated by the NVSH (Dutch Society for Sexual Reform) and the COC (Center for Recreation and Culture, a code name for what would be baptized in 1971 the ‘Dutch Society for Integration of Homosex- uality’),”85 bringing the rest of the population along with them through a series of incremental so- cial and legal changes. These included the constitutional prohibition of discrimination on the ba- sis of sexuality in 1983. By that time over 90% of the population agreed that homosexuals should have equal rights.86 Then came the full integration of homosexuality in to the civil institution of marriage in 2001. This was achieved by the active work of CSOs and politicians riding on the interacting waves of the liberation and the human rights movements, intersecting at SSM. Many CSOs that were grounded in liberation supported and contributed to getting SSM, while many of the organiza- tions grounded in LGBT rights, and specifically their legal attainment, were supportive of the liberation movement. Moreover, certain domestic factors enabled them to achieve SSM so quickly. These include 1) a highly secular population without deep religious ties to the marriage institution, and 2) a less di- rect, and therefore less populist, democratic system (no referendums, no district-based elections) 83 Waaldijk, Kees (2001). “Small change: How the road to same-sex marriage got paved in the Netherlands” in Legal recognition of same-sex partnership. A study of national, European and international law. Ch 23. 84 Hekma, Gert and Duyvendak, Jan W. (2011). “Queer Netherlands: A puzzling example”. Sexualities. 14, no. 6: p 625. 85 Ibid. p 625. 86 Waaldijk (2001). p 439.
- 22. than many othercountries. The latter gave activists the ability to pass, without the timely and costly steps of widespread public support campaigns, equality legislation through the parliament on the formal, constitutional basis of equality rather than democratic support. The legal process in the Netherlands match the “standard sequences” or “law of small changes” that occurred in other European nations.87 They are as such: decriminalization, anti-discrimina- tion legislation, legislation enabling same sex partnerships and parenting, and finally incorpora- tion into the civil and symbolic institution of marriage.88 Each step is dependent on the one be- fore it, in both the legal sense and with respect to cultural acceptance. Because they are small changes, the pros and cons can be more easily rationalized towards giving homosexuals an equal-rights-foot-in-the-door. This began in 1979 when Dutch cohabiting couples were given similar rights and benefits as married couples, and employers were prohibited from discriminating on the basis of such a civil status. Then homosexuals were given the equal right to foster children. However, in 1990 the Supreme Court ruled on several cases that denying marriage rights to homosexuals was not dis- criminatory under Article 26 of the International Covenant on Civil and Political Rights due to the nuances of homosexual parenthood and the non-biological mother's legal relationship to the child. However, these cases garnered enough media coverage to put the issue high on the legislature’s agenda. “Further political pressure resulted from the decisions of over one hundred Dutch local authorities to start offering semi-official registration of lesbian and gay partnerships.” Although only symbolic, they pushed the issue further up on the legislature’s and public’s agenda of social progress. In light of Denmark’s decision to allow same-sex unions, the “Advisory Commission for Legislation produced a report in 1992, recommending the introduction of registered partner- ship, more or less along the lines of the Danish model.”89 A political shift towards a more liberal government, along with SSM’s social popularity, feasibil- ity, and more or less straightforward, single-issue legal nature all combined to quickly move from one small legal change to the next, resulting in a historic LGBT rights victory - the first of its kind. A political shift in 1995, in which the Christian Democrats were replaced with Liberals and Social-Liberal Democrats, resulted in a same-sex union for homosexuals more closely aligned with marriage rights and benefits: Registered Partnership Adjustment Act of 1998.90 The same coalition that passed this law was re-elected, and “quickly found out that family law reform 87 Ibid. p 439. 88 Ibid. p 440. 89 Ibid. p 443. 90 Ibid. p 444.
- 23. is an areain which they can reach agreement fairly easily (as opposed to areas like the economy or the environment).”91 While non-state activists within CSOs and the media played key roles in bringing and keeping LGBT rights on the political agenda, the success of SSM relied also on homosexuals within the Parliament. It was the efforts of these politicians, sympathetic to and actively part of the LGBT rights cause, that, “led to the adoption by the Lower House of the Dutch Parliament, in April 1996, of (non-binding) resolutions demanding the opening up of marriage and adoption to same- sex couples.”92 In response to this ‘insider’ and ‘outsider’ political pressure, the government es- tablished a same-sex marriage Commission of legal experts that, by a majority of 5-3, recom- mended the government immediately grant homosexuals equal marriage rights and benefits. After removing many of the nuanced differences between different- and same-sex marriage in- volving pensions and parenthood, and recognizing the symbolic differences between registered partnerships and marriage amongst the populace, there was little standing in the way of the gov- ernment finally granting homosexuals fully equal rights. Finally, in 2001, by a majority of 109- 33, the Act on the Opening up of Marriage was passed along with the Adjustment Act which would gender-neutralize other marriage-related legislation. The continuing fervor on which LGBT rights legislation was passed was due not only to politi- cal, social and legal-structural phenomena, but to the emphatic and tactical efforts of COC. Not only is the Netherlands the first country to grant marriage equality, but their LGBT organization COC, formed in 1946, is the oldest LGBT organization in the world.93 The COC actively en- gaged in moving this process of small legal changes along through their use of “high-profile pol- itics […] marked by high visibility public campaigns, strong domestic coalitions, closer coopera- tion with government in policy development and implementation, and transnational engage- ment.”94 The COC were active in the public and media scene, which was necessary for gaining public support and attention, partially because the LGBT movement in the Netherlands was financially self-maintained, in that they did not have large philanthropic donations, and thus relied on civil and business funding. Even with their limited budget, the COC was able to fund the LGBT mag- azine Expreszo, started in 1988, and their own magazine XL.95 They also were key in organizing 91 Waaldijk (2011). p 447. 92 Ibid. p 447. 93 “LGBT and gender equality policy plan of the Netherlands: 2011-2015”. Ministry of Education, Culture and Science. https://www.movisie.com/sites/www.movisie.com/files/files/keyissues/lgbt-equality-policy-plan-2011-2015.pdf accessed June 3, 2015. 94 Holzhacker, Ronald (2012). “National and transnational strategies of LGBT CSOs in different political environments: Modes of interaction in Western and Eastern Europe for equality”. Comparative European Politics. 10, no. 1: p 28. 95 Takács, Judit (2003). “Position, state of development and role of sexual minority media: Hungary the Netherlands and Slovenia”. Paper prepared for the Peace Institute Fellowship Program 2002. p 29. http://core.ac.uk/download/pdf/11872025.pdf accessed June
- 24. the Canal Prideparades that helped normalize LGBTs for the public while bringing the issue into the spotlight. Furthermore, focusing efforts on the citizenry helped give the government, whom they were simultaneously lobbying, a safe issue to attack. On an individual level, Henk Krol practically initiated and sustained the marriage equality move- ment through his access to politicians and policy makers, and own LGBT news and editorial publication De Gay Krant (Gay News) created in 1979. While COC did not embrace marriage equality until the 1990s, Henk Krol, the “foremost ambassador of that movement,” made it a key object of the LGBT rights agenda through his publication that circulated rapidly throughout the LGBT community. Even more importantly, Krol was a former lobbyist working in the Hague, and, “by the time he started Gay Krant he knew all the political movers and shakers, so he could easily get access,” to them for ‘inside lobbying’.96 The key factors enabling the Netherlands’ first-mover process of SSM are such: a new culture of liberation and equality, LGBT activism through media presence and SSM agenda diffusion, the expertise and political resources of key activist Henk Krol, shifts in the government coalition, the use of ‘small changes’ to achieve a legal goal, and the fact that they were unburdened, unlike other nations, by the array of tax, church, social security, and immigration issues tied to the civil institution of marriage.97 Although domestic factors played a key role, the support and acceptance of marriage equality for homosexuals was also a European-wide movement - it should be noted that the Netherlands was not the first nation to pass same-sex union legislation. As Jacklyn Cock remarks, “against the background of these trends, it becomes apparent that the Dutch opening up of marriage is not out of step with the rest of Europe […]”98 Case Study: South Africa South Africa is not the first nation that comes to mind when thinking about LGBT rights, but their history with legal discrimination served as a turning point in the institutional treatment of citizens of all identities. There is still much homophobia within the culture, but the narrative of achieving SSM is most purely a legal one that starts with the passing of the world's first constitu- tional clause explicitly prohibiting discrimination on the grounds of sexuality, and the narrative of that here comes primarily from Jacklyn Cock's detailed history, “Engendering gay and lesbian rights: The equality clause in the South African constitution.”99 All of the processes and partner- 3, 2015 96 “Henk Krol, political activist”. The International Correspondent. October 3rd, 2013. http://www.theinternationalcorrespondent.org/activist-henk-krol/ accessed June 3, 2015. 97 Waaldijk (2011). p 453. 98 Ibid. p 453. 99 Cock, Jacklyn (2003). “Engendering gay and lesbian rights: The equality clause in the South African constitution”. Women’s Studies International Forum. 26, no. 1.
- 25. ships entailed inpassing of that clause, and its keystone role for SSM, will be the focal point of this section. We will again start with historical context, as South Africa has never been a sexually liberated nor non-heterosexual tolerant society. In 1969 the South African military understood homosexuality as a disease and treated it medical- ly with electric shock therapy.100 And under the apartheid regime homosexuality was criminal- ized and sodomy laws were enacted. In 1996, only 27 years later, South Africa enacted the first ever explicit, constitutional 'gay rights clause'. This was accomplished under the new post- apartheid government lead by human rights activist Nelson Mandela. It prohibited any form of discrimination based on sexual orientation. By 2006, homosexuals were granted the equal right to marry. The transformation from subjects to be cured, to citizens with full and equal rights, occurred in just two generations. The vast ma- jority of that success happened in the years after the ‘gay rights clause’ was passed, as it is the pillar upon which SSM in South Africa rests. And because the granting of marriage equality could not have been achieved without it, this section will begin with the struggle for and passage of the ‘gay rights clause’. Then, because of the seemingly anomalous and transnational nature of South Africa's case, there will be an analysis of the steps leading to SSM through the use of the aforementioned social theories. The successful inclusion of the equality clause is the result of an apartheid-driven social hatred for legally instilled discrimination, an adoption of human rights discourse from Europe, active national and transnational organizations, immense funding by an American philanthropic organi- zation dedicated to spreading human rights, a post-apartheid governmental drive towards ‘modernity’ in equality, and a constitution democratically responsive to an active citizenry. The particular success of the inclusion of the ‘gay rights clause’ lay in the ability of each organiza- tions’ access to and utilization of resources, the ability of the LGBT rights movement to attach their objectives to a larger human rights ‘world culture’ and 'global social movement', and an in- stitutional malleability. The organizations acted within an environment that Jacklyn Cock terms “A marked cultural effervescence,” in South Africa during the 1990s that, “involved a reconfigu- ration of the discourse on equality.” And she notes that this atmosphere, “converged with the dis- course on sexual rights promoted by a powerful women’s movement, and western ideals of hu- man rights.”101 Their success came particularly through two important stages: coalition building with the ANC and the United Democratic Front (UDF, still inside South Africa at the time); and effective lobbying by the National Coalition for Gay and Lesbian Equality (NCGLE). The African National Congress (ANC) was exiled from South Africa during the apartheid gov- ernment and was operating in London where it encountered and was ingrained with the European 100 Ibid. p 40. 101 Ibid. p 35-6.
- 26. human rights discourse,as well as the organizational and political tactics for achieving those rights. Two key events gave LGBT rights a spot on the ANCs and the United Democratic Front’s (UDF) agenda. It should be noted that the ANC initially rejected LGBT rights as a distraction and non-issue. This was until an inflammatory statement by one of ANC’s directors, Ruth Mom- pati, dismissing homosexuals as un-normal, was publicized across Britain, after which the ANC publicly announced the inclusion of LGBT rights on their agenda. It is useful to note that had there was backlash from the European community due to the normalization of LGBT rights with- in their notions of morality and development. Along those lines, members within ANC had been exposed to and adopted that LGBT rights agenda while in Europe, notably key ANC lawyers Al- bie Sachs and Kader Asmal.102 Simultaneously in 1987, within South Africa, the incarceration of one of the Gay Association of South Africa’s (GASA) few black members, Simon Nkoli, for treason after engaging in mass protests, invoked an active response by anti-apartheid civil and political organizations. After three years in prison he formed the Gay and Lesbian Organization of the Witwatersrand (GLOW) who, “saw themselves as part of the broad movement against apartheid,”103 and teamed up with the anti-apartheid United Democratic Front (UDF). Jacklyn Cock goes so far as to say that, “Simon Nkoli was the catalyst to forging a strategic alliance between the gay rights move- ment and the anti-apartheid struggle within South Africa […]”104 With the ascension of GASA and GLOW, and the help of transnational ILGA, a national organi- zation soon formed. In 1994 the NCGLE was created, “specifically to coordinate the lobbying ef- forts to retain the sexual orientation clause in the draft South African constitution,” and soon be- came a “powerful structure representing sixty-five member organizations.”105 From then on they became the key non-state actor in the LGBT rights and SSM battles. Intimate to the inclusion of the ‘equality clause’ was the fact that the process of rewriting the constitution was open to the public. It involved a Draft and Interim Constitution, the latter a re- sult of “complex negotiations that marked South Africa’s transition to democracy […]”106 After South Africa’s first democratic elections, the Constitutional Assembly began accepting input from all members of society on the official drafting of the constitution: “This provided crucial political space, which the [NCGLE] used to mobilize.”107 102 Donham (1998). p 12. 103 Cock (2003). p 36. 104 Ibid.. p 36. 105 Ibid. p 37. 106 Ibid. p 37. 107 Ibid. p 37.
- 27. The actions ofNCGLE were focused on passing the easiest bills first, and build on those as they gained momentum and legitimacy. This is why they started with pushing for sodomy laws to be declared unconstitutional, as the men in South Africa’s homosexual activist population were much more powerful than the women. Then they began including both gays and lesbians as they lobbied to get equal treatment for homosexuals with regards to immigration, pension, and cus- tody - “‘cases all leading up to marriage’ (Kevin Botha, interview, 2001).”108 These rulings were supported by the ANC government who held a majority in the National Assembly and were, in the post-apartheid government, the political elite. Consequently, they were able to “maintain un- popular positions on a handful of issues - including GLB rights - with relative impunity.”109 Considering how strongly large groups of South Africans, nearly half of the population, felt against homosexuality, if the ANC had not had such a secure position, and if the issue was sub- ject more to democracy than law, such rulings would not have been upheld, or would have at least been challenged repeatedly, holding back the LGBT movement’s success. Considering the political situation, and the clever legal angle taken by LGBT organizations and activists, such rulings were able eventually lead to SSM rights. Slowly but surely, as national organizations continued to fight for equal treatment, backed by ILGA and ILGA-Pan Africa, the Atlantic Philanthropies, and the equal rights clause in the con- stitution, bills and rulings began passing giving homosexuals equal rights: 1996, Special Pension Fund Act recognized same-sex relationships; 1999, the Constitutional Court ruled that any law relating to sodomy was unconstitutional; 2000, the Pension Fund Adjudicator ruled that the ex- clusion of same-sex partners from pension fund benefits was unconstitutional; 2001, the Pretoria High Court ruled the Child Care Act and the Guardianship Act were unconstitutional because they prevented lesbian couples from jointly adopting.110 Eventually came the case Fourie v Min- ister of Home Affairs in 2004, in which a lesbian couple challenged the common law definition of marriage. Judge Cameron ruled that the law needs to change its wording to include same-sex life partnerships. “In principle, this means that same-sex marriage could now be recognized, and that the various statutory hurdles that regulate marriage could now be addressed […]”111 Acting concurrently, in 2004 the Equality Project, formerly NCGLE, “filed an application in the Johannesburg High Court challenging the common law definition of marriage and the marriage formula, in terms of the Marriage Act of 1961, on the grounds that they violate the rights of les- bians and gay men to equality […]” granted by the constitution.112 in 2005 the Constitutional Court ruled in favor of SSM, and changed the definition of marriage from a ‘union between a 108 Cock (2003). p 39. 109 Ibid. p 39. 110 Vasu, Reddy (2006). “Decriminalisation of homosexuality in post-apartheid South Africa: A brief legal case history review from sodomy to marriage” Agenda: Empowering women for gender equity. 20, no. 67: p 147. 111 Ibid. p 150. 112 Ibid. p 152.
- 28. man and awoman’ to a ‘union between two persons’.113 In the end, a simple changes of seman- tics, but a complex process of organizational championing through incremental and strategic moves. In order to achieve the series of successes the movement relied on skillfully using the resources and channels made available to them. As they could not rely on mass support or protest politics working within their still-homophobic nation, they relied mostly on legal battles. “Under the aus- pices of the Equality Clause, the judicial system provided an avenue for GLB activists […]”114 This strategy was necessary for them, as they were, although partnered with ANC, still “out- siders, using litigation as a primary tactic and parliamentary allies for secondary support.”115 Fur- thermore, Ryan Thoreson notes that they were, “especially effective at mobilizing ideological and organizational resources in the judicial and parliamentary arenas - in part because they were ‘quite well-organised, well-resourced, and able to tap into the expertise of gay and lesbian people across the society’ […]”116 They still relied heavily on the ANC for support, and it was in their benefit, not only that they had some inside political allies, but that ANC was highly ideological and often disregarded constituent views for their own objectives. The ANC was in turn helped by LGBT organizations by repeatedly making it clear that LGBT rights were an integral part of the country’s overall liberation.117 While they had many and key resources for success, their success only came with the failure of their rivals. During the Constitutional Assembly, “‘there was a total of 7032 submissions from gay, lesbians and sympathy persons, and about 13,000 signatures on petitions. In comparison, there were only 564 submissions against the inclusion of sexual orientation’ (Kevin Botha inter- viewed in Equality, Botha, 1996, p. 2).”118 However, homophobia was still enormously rampant within South Africa, with nearly half of the population estimated as “anti-gay” and almost as many against allowing homosexual equal rights within the constitution.119 The reason that they did not face such massive opposition was because, although many South Africans feel strongly against homosexuality, they are largely unwilling or unmotivated (by a coherent and active social movement) to act upon those beliefs and mobilize for success.120 Ties to the theories: 113 Ibid. p 152. 114 Thoreson, Ryan R. (2008). “Somewhere over the rainbow nation: Gay, lesbian and bisexual activism in South Africa”. Journal of Southern African Studies. 34, no. 3: p 685. 115 Ibid. p 685. 116 Ibid. p 686. 117 Ibid. p 686. 118 Cock (2003). p. 38 119Ibid. p. 38 120 Thoreson (2008). p. 686.
- 29. LGBT rights wereargued and marketed on two grounds. They are based on the same anti-dis- crimination motives addressed towards race and gender to which post-apartheid South Africans are vehemently averted. They also stem from the Western-adopted fact that sexuality is fixed, just like race and gender, and thus not a choice by those citizens. Thus by tying the issue inti- mately and logically with those of racial and gender discrimination, the LGBT activists embed- ded their cause into the larger social movement that was actively carrying out the reification of a 'world culture', furthered by the placement of the 'gay equality clause' in the Constitution. Not only was the issue tied to the national cause of liberation, but originally stemmed from and was continually helped by the transnational culture of rights. The exile of the ANC ultimately caused a backlash for the apartheid government. Residing for several years in Britain, the, “liber- al European notions of gender rights and the political legitimacy of gay rights,”121 seeped into the ANC organization. And as globalization of communications and media proceeded without the help or hindrance of apartheid, more South African LGBTs became aware of and assimilated into the global LGBT movement: “When asked to date the beginning of the gay movement in Soweto, some young black men answered that it commenced when a gay character appeared on Dynasty on local South African television (McLean and Ngcobo 1994:180).”122 While this may seem highly anecdotal, even perhaps ridiculous, the awareness of one's struggles as not a local- ized or even personalized phenomena, but a transnational one has significant effects on percep- tions and expectations of political success, and motivations for mobilization. This is in line with the relative deprivation theory: As South Africans began to see that non-heterosexuality, at least homosexuality, was tolerated (if not celebrated), they began expecting the same treatement and social movement success in their own nation. Drawing global attention to post-apartheid South Africa, ILGA helped to further bring the ‘world culture’ to South Africa, and the South African situation to the attention of the world and the transnational community. They held their 19th World Conference in Johannesburg, hosting “More than 200 delegates from 40 countries.” This was the first ever African ILGA World Con- ference.123 They set up an information centre to distribute information on LGBT matters to draw attention to the nation's LGBT organisations and promote a wider knowledge of LGBT oppres- sion. The conference also helped to identify areas where international political pressure could be helpful to the national cause. Earlier, in 1990, ILGA helped organize a gay pride parade in Jo- hannesburg, featuring prominent international LGBT symbols for equality and justice, modeled on those organized in New York and San Francisco,. “This annual ritual began to do much […] to create a sense of transnational connections for gay South Africans.”124 121 Gevisser quoted in Donham, Donald L. (1998). p 12. 122 Dohnam (1998). p 15. 123 ILGA website (2015). 124 Donham (1998). p 12.
- 30. In interviews withlocal ‘queer’ individuals anthropologist Donald L. Donham found that, “it was precisely in the context of transnational antiapartheid connections that some skesanas like Linda […] became aware for the first time of a global gay community […]”125 To clarify, Linda is a male, and a skesana is a transgender, or a cross-dresser who engages in homosexual activity. The transnational LGBT rights movement - its actors and information - helped bring equality to non- heterosexual South Africans, and in so doing increased their transnational network, legitimacy, and ultimately its resources. Because the LGBT community on the national level was relatively small, as well as mostly poor, it is worthy to find out where much of the financial resources necessary for the long success of the movement came from. The Atlantic Philanthropies list “Same-sex marriage legalised” as one of their “Key Grantee Achievements”.126 They helped South Africa achieve SSM through their financial support of national LGBT and human rights organizations, as well as the advancement of educational material in that area. Overall, $107 million was given to South Africa in grants for “Reconciliation Human Rights”, and over $10 million was given for “Equality, Rights and Justice”.127 This included money towards outreach, services for the LGBT community, educa- tional and media campaigns, and organization funding. In 2002 they gave NCGLE $180,900 to restructure into the Lesbian and Gay Equality Project.128 And again in 2004 they granted them $1,027,480 for ‘core funding’. The Equality Project also received funding by The Ford Founda- tion, The Global Fund for Women, Global Christian Ministries, the Astraea Foundation, Hivos and the National Lotteries - all of which are transnational organizations.129 The LGBT and human rights victory was ultimately the result of multi-leveled actors and histori- cal circumstances combined with a popularizing transnational ‘world culture’ of human rights adamant on bringing South Africa up to their standards. It was a combination of local, national and transnational CSOs who were able to influence and partner up with political elites in the ANC and UDF to use the legal system and newly malleable political institutions to achieve their objectives of LGBT equality. Donald L. Donham goes so far as to remark that, “There can be no doubt that the ANC could not have accomplished the political transition that it did without inter- national support,” based ideologically in the, “international left-liberal consensus on human rights.”130 It was thus necessary to have help from 1) the LGBT global social movement and 2) the ‘world culture’ embedded within its agenda, for it 3) raised the expectations of LGBT South 125 Donham (1998). p 13. 126 Parker, Susan (2013). “Telling the story of The Atlantic Philanthropies in South Africa”. The Atlantic Philanthropies. http://www.atlanticphilanthropies.org/sites/default/files/uploads/AP-in-South-Africa-Summative-Report.pdf accessed June 2, 2015. 127 Ibid. p 3. 128 The Atlantic Philanthropies website (2015). 129 Pan Africa ILGA (2009). “South Africa: campaign for same-sex marriage”. ILGA. http://ilga.org/south-africa-cam- paign-for-same-sex-marriage/ accessed June 2, 2015. 130 Donham (1998). p 12.
- 31. Africans and ultimatelydrew them into mobilization, and 4) provided them with expert, media, organizational and financial support. Improvements for further research This paper covered a broad topic, one that proved reliant on national case studies, and thus failed to include many other countries as well as perhaps other domestic factors and global phenome- non (e.g. feminism and gender studies). There was no study as to the processes and national fac- tors in Latin America, although Argentina and Uruguay are 2 of the only 19 countries with SSM; nor was there any account of SSM in the U.S. despite its success in 14 states and Washington D.C. - the nation's capital. There was also no analysis of countries with high levels of develop- ment and human rights records that still repress the LGBT community, or have yet to put LGBT marriage rights on their national agenda. Moreover, there are numerous other national factors that could have been taken into account when attempting to find correlations that were merely outside of the purview and ingenuity of this paper. Conclusion This paper outlined and analyzed the plethora of actors and events within the SSM movement, as well as the underlying culture on which it is residing and feeding off of. And it did so, hopefully, through the lens of several useful social theories of mobilization and change. Here we will re- view the findings and analyze them in light of globalization and the four theories of change. This paper covered national and transnational communities and their role and effects on the suc- cess of the movement. The transnational government community, notably the UN and EU, while certainly a global leader in institutionalizing and promoting LGBT rights and protections, still followed the lead of first-mover nations, who in turn were pushed by civil society. Thus it was important to study the changes made on the national level by governments and CSOs that came before, and during, the transnationalization of LGBT rights. But those processes are intertwined, as the national-level often uses and relies upon transnational standards and treaties; and the transnational-level is often motivated by national CSOs. Furthermore, while there is a transnational convergence towards equal rights, it is being accom- plished in varying manners dependent on domestic factors: through the constitution as in South Africa, by small legal changes and 'frog in boiling water' marketing as in the Netherlands, and public referendum as in Ireland. Although it is part and parcel of a 'global social movement', in practice it is operating and succeeding on the national level through local representatives who must adapt their strategies (although unanimously focused on rights discourse and judicial bat- tles) to national political and legal landscapes.
- 32. These representatives ofthe 'global social movement', also the creators and reproducers of a 'world culture', are civil society organizations. And it is only those in civil society with enough resources and an ability to strategically utilize them that end up succeeding, and reproducing their own existence and that of the movement.Thus without certain CSOs' (COC, Equality Project, ILGA), and their ability to skillfully accumulate, mobilize and utilize resources such as funding, public opinion, political allies, legal expertise and convincing rhetoric in an organized manner, the legal human rights landscape would not be as progressive and reflective of civil so- ciety's wants and expectations as it is today. With regards to whether or not globalization is having a prominent effect on convergence, the speed of communication, density of networks, digital accessibility of information and the grow- ing documentation of human rights victories have indeed resulted in an, “unprecedented intensity and effectiveness of NGO involvement.”131 It is not globalization as a whole - as highly global- ized nations such as Japan, South Korea, Singapore and the United States (on the federal level) have yet to put same-sex partners on an equal footing - but those certain parts of globalization that have enabled 'world culture' to diffuse through a globalized media, civil society to advance their agendas more quickly, and philanthropic funders to reach these causes more easily. Thus the SSM movement will continue to grow exponentially as a result of globalization, ideally win- ning SSM rights in more and more parts of the world. As concerns the appropriateness of the social theories: 1) there is indeed a diffusion and institu- tionalization of a ‘world culture’ that recognizes the marriage rights of the LGBTs. This is based off of the grander recognition that LGBTs represent an identity that can not be discriminated against within the discourse and law of human rights. And 2) this is being accomplished primari- ly through a 'global social movement' made up of national and transnational organizations. 3) Its relatively fast-paced growth and success is due to the movement's increasing stockpile of cultural and financial resources as per resource mobilization theory, in combination with 4) LGBT citi- zens' growing expectations of equal rights and movement success as per relative deprivation the- ory. Thus using several theories alongside individual case studies proved necessary to more holisti- cally understand the SSM phenomena. It was not just the process of an expanding world culture, nor was it just a combination of national developments, nor was it just the social entrepreneur- ship and determination of organizations and individual actors. It was all of these factors. To give a simplistic but enlightening analogy, social change is like a star: it did not just start out a giant, growing mass that attracts and absorbs individuals, cultures, and organizations. Nor did it begin to become a star due to any of those things in particular. They all dynamically came together and created something wholly new and largely homogenous – an institution. And for many years to come the institution of marriage (in many places) will be inclusive to same-sex partners. 131 Cassell (2004). p 22.
- 33. The future ofmarriage equality Lastly, what is the future of SSM rights in the world? This paper, to clarify, does not make the explicit prediction that SSM will be achieved globally in line with the exponential growth of the movement thus far: There may be a decoupling between movement growth and movement suc- cess. Many African nations see homosexuality as a ‘western import’ and thus a new form of cul- tural imperialism. This will give (and has given) many problems to LGBT rights activists. 132 This is especially true “when Western nation’s condition aid on promotion of LGBT rights,” and thus, “the false rhetoric of homosexuality being a western import is further crystalised.”133 It is only a minority of nations making up a minority of the global population that have achieved SSM rights, and that are even on that path. This paper only predicts that the LGBT rights and SSM movement will continue to grow and gain legitimacy and momentum, but its success may face quite serious setbacks and the speed of growth may falter in the face of cultural backlash or if other, seemingly more urgent issues, take precedent on the national or transnational stage. 132 Oluoch, Anthony (2014). “We are all African” in “State-sponsored homophobia: A world survey of laws: Criminalisation, protec- tion and recognition of same-sex love”. International Lesbian Gay Bisexual Trans and Intersex Association (ILGA). 9th Edition. 133 Ibid. p 82.
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