Who are, according to you, the three most relevant theorists to study the

legalization of same-sex marriage and the debates surrounding it? Compare

these perspectives.

The nucleus of the conversation surrounding the legalization of same-sex marriage is

not so much about freedom within intimate relationships as it is about the state, the

state’s role in legitimizing sexual arrangements, and what it means to “desire the

state’s desire”.1 The recent ascension of the pursuit of marriage within mainstream

lesbian and gay rights movements has attracted both support and disapproval,

however this paper will challenge the idealization of heterosexual marriage and argue

from a progressive perspective against same-sex marriage as the best or only way to

legitimise non-heterosexual relationships. Exploring the role of the state is essential in

unraveling this complex issue, and several theorists lend themselves efficaciously to

this process. Michel Foucault’s study of the production of subjectivity through

shifting modes of power is extremely relevant in application to the state when

addressing the flaws in associating same-sex marriage with increased freedom.

Foucault’s often schematic and abstract style is complimented by Judith Butler’s

discussion of the societal “heterosexual contract”2 to which same-sex couples

subscribe when pursuing the ideal of state legitimation through marriage. Butler’s

distinction between kinship and marriage is important in deconstructing the

assumption that same-sex marriage is universally successful in legitimizing same-sex

arrangements and families. Finally, Pierre Bourdieu’s statement that “every

established order tends to produce the naturalization of its own arbitrariness”3

1
Judith Butler, ‘Is Kinship Always Already Heterosexual?’ differences (2002)
13(1): 14-44, 22.
2
Judith Butler, ‘Performative Acts and Gender Constitution: An Essay in
Phenomenology and Feminist Theory.’ Theatre Journal (1988) 40(4), 519-531,
524.
3
Pierre Bourdieu, Outline of a Theory of Practice, (Cambridge: Cambridge
University Press, 1977), 164.
describes well the naturalization of heterosexual norms - including the achievement of

marriage. The internalization of desire to ascribe to these norms (as evident in the

argument in favour of same-sex marriage) is mechanized through Bourdieu’s

“symbolic violence”,4 which this paper will discuss with reference to Foucault as one

mode of power through which the subject is produced. Thus this study of same-sex

marriage and a deconstruction of its association with freedom will occur through

amalgamating the key ideas of Foucault and Bourdieu and applying them to Butler’s

phenomenological account of homosexuality, marriage and kinship. These extremely

relevant theorists’ ideas are most useful when corroborated by each other, rather than

employed in isolation.

Foucault declares that power’s main role is “to ensure, sustain, and multiply life, to

put this life in order”.5 Foucault suggests that power achieves this through, and is

most effective when, creating subtle, affirmative norms, acting productively (“be this

kind of subject”), rather than negatively (“don’t be this”). Into this metric one might

transplant the Western nation-state into the role of “power”, with the sexual human

being its subject. Agents of heterosexual sex, which “has no history”6 according to

queer theorist David Halperin, because it’s “grounded in the functioning of the

body”,7 have only been recently defined within the identity category of

“heterosexual”. The manifestation of this definition has its roots, however, in

4
Oxfordreference.com. (2018). Symbolic violence - Oxford Reference. [online]
Available at:
http://www.oxfordreference.com/view/10.1093/acref/9780199532919.001.00
01/acref-9780199532919-e-689.
5
Michel Foucault, The History of Sexuality Volume 1: An Introduction (London:
Allen Lane, 1976), 138.
6
David M. Halperin, ‘Is There a History of Sexuality?’ History and Theory (1989)
28(3), 257-274, 257.
7
Ibid.
millennia of affirmation of heterosexual norms such as marriage, the “solidity of the

family institution”,8 and the underpinning force of binary-dominated gender

performances. Austro-German psychiatrist Richard von Krafft-Ebing referred in 1889

to “sexual instinct” as the “normal” heterosexual desire of humans, as opposed to

“contrary sexual instinct” or “perversions”, such as homosexuality.9 These

developments in the discourse around sex and sexuality started in the seventeenth

century, alongside the “explosion of numerous and diverse techniques for achieving

the subjugation of bodies and the control of populations”10 which Foucault describes

as the “beginning of an era of ‘bio-power’”.11 “Bio-power” within Foucault’s work is

a political technology enabling the “calculated management of life”12 in line with “the

fundamental fact that human beings are a species”.13 Bio-power is relevant in

explaining the subjugation of sexual human bodies to state-enforced norms -

monogamous, heterosexual, legitimized by marriage - and fulfilling Foucault’s self-

defined purpose of The History of Sexuality: showing “how deployments of power are

directly connected to the body”.14 When the state informs what the body can do -

heterosexual sex, heterosexual marriage, and heterosexual reproduction - it implicitly

prohibits the body from performing anything other than.

One pertinent argument in favour of same-sex marriage is for what the homosexual

body should be able to do in the eyes of the power that subjects it. Foucault argues

8
Foucault, The History of Sexuality Volume 1, 147.
9
Richard von Krafft-Ebing translated by Northrop Frye, Psychopathia sexualis:
with especial reference to antipathic sexual instinct (1889), translation (New
York: Bantham, 1965).
10
Foucault, The History of Sexuality Volume 1, 140.
11
Ibid.
12
Ibid, 138-9.
13
Michel Foucault translated by Graham Burchell, Security, Territory, Population:
Lectures at the Collège de France, 1977-1978 (France: St. Martin’s Press, 2008), 1.
14
Foucault, The History of Sexuality Volume 1, 151.
that “a power whose task is to take charge of life needs continuous regulatory and

corrective mechanisms”.15 Historically, the Western state’s control over human life

has extended into the realm of intimate relationships, utilizing the law and institutions

surrounding marriage and reproductive rights as “regulatory and corrective

mechanisms” to subjugate its population into heterosexual norms with the law

operating as “an essentially normalizing power”.16 It is easy to see where the desire

for state recognition of same-sex couples comes from. The rights, legitimacy and

normalization awarded to the historically heterosexual are extended to the gay or

lesbian couple, as evident in the increasing legalization of same-sex marriage in

Western nations since its pioneering in the Netherlands in 2001.17 The value of same-

sex marriage has however often been “symbolic”18 rather than legally substantial, as

Judith Butler writes in 2002 during an era in which “civil solidarity pacts” in France

and “registered life partnerships” in Germany entitled same-sex couples to some

rights associated with marriage, but excluded access to parenting rights such as

bilateral adoption and reproductive technologies. France and Germany have since

legalized same-sex marriage in 2013 and 2017 respectively, however limitations on

parenting still exist in both states, such as no legal access to assisted reproduction as a

couple, and only one parent recognized on a child’s birth certificate while the other

must successively adopt.19 The power of the state over bodies has changed over time

15
Ibid, 144.
16
Ibid.
17
‘Same-sex marriage: family law’, Government of the Netherlands, available at:
https://www.government.nl/topics/family-law/same-sex-marriage (accessed
02/11/2018).
18
Butler, ‘Is Kinship Always Already Heterosexual?’, 16.
19
Camille Marquis, ‘The struggle for LGBT rights in France’, Human Rights
Watch, 17 May 2017 (accessed on 02/11/2018)
https://www.hrw.org/news/2017/05/17/struggle-lgbt-rights-france; Damien
McGuinness, ‘Gay Germans’ joy mixed with adoption angst’, BBC, 22 July 2017
(access on 02/11/2018) https://www.bbc.com/news/world-europe-40684820.
with the “deployment of sexuality”,20 resulting in the increasing regulation of

sexuality by the state informing increasing control over the production of subjects

regulated by that state-sanctioned sexuality. The shift from no acknowledgement of

the existence of homosexuality, to its legal prohibition through language expanded to

include it, to the unfolding legitimization of homosexual behaviours and relationships

in whose era this paper has been produced would be regarded by Foucault not as a

reflection of an increasingly benevolent exercise of power over bodies, but as

evidence of the changing exercise of power. Achieving same-sex marriage in Western

nations has the immediate positive effect of increasing the visibility and tolerance of

lesbian and gay couples which so dominates the debate in favour of marriage equality,

and this paper acknowledges the social, mental and political benefits that this

movement achieves in both personal and public spheres. The increasing reach of the

state into intimate relationships, however, is not necessarily a desirable ideal. The

glorification of the historically paternal, heterosexual, monogamous institution of

“marriage” is hardly progressive, and as Butler articulates: “for a progressive sexual

movement, even one that may want to produce marriage as an option for

nonheterosexuals, the proposition that marriage should become the only way to

sanction or legitimate sexuality is unacceptably conservative”.21

Butler’s discussion of kinship, marriage, and the state’s role in amalgamating the two

in order to “guarantee the reproduction of a given culture”22 provides

phenomenological evidence of Foucault’s theory of subjectivity and extends

chronologically on his ideas. Butler postulates that “the cultivation of bodies into

20
Foucault, The History of Sexuality Volume 1, 152.
21
Butler, ‘Is Kinship Always Already Heterosexual?’, 21.
22
Butler, ‘Performative Acts and Gender Constitution: An Essay in
Phenomenology and Feminist Theory.’ 524.
discrete sexes with ‘natural’ appearances and ‘natural’ heterosexual dispositions” has

served to reproduce and conceal a system of “compulsory heterosexuality” with

reproductive interests.23 Butler exemplifies this: “in France, concerns over

reproduction work in tandem with concerns over the reproduction of an identifiably

French culture”.24 This overlap of reproductions highlights the interests of a state -

defined by nationhood - in producing subjects that “ensure”25 and “sustain”26 the

premises of its culture through regenerating a particular system of kinship. Butler

outlines the problematic confoundment of kinship and marriage in regards to debates

surrounding gay marriage and the anti-same-sex marriage claim that kinship “does not

work, or does not qualify as kinship, unless it assumes a recognisable family form”27

whose spine is the heterosexual bond. Butler defines kinship as the blurry sphere of

practices which “may include birth, child-rearing, relations of emotional dependency

and support, generational ties, illness, dying, and death”,28 and continues to outline a

variety of non-marital examples of kinship relations in African-American societies

and the Na of China.29 The dominant Western enactments of kinship traditionally

associated with marriage, such as conventional reproduction, the nuclear family, and

patriarchal heterosexual relationships, are not necessarily the best or only ways to

practice kinship, however this is not acknowledged in the same-sex marriage debate.

Instead, proponents of same-sex marriage primarily advocate for the access of lesbian

and gay couples to these practices, in doing so affirming the “normalising powers of

the state”30 and the superiority of “the heterosexual contract”. In this, Butler finds

23
Ibid.
24
Butler, ‘Is Kinship Always Already Heterosexual?’, 23.
25
Foucault, The History of Sexuality Volume 1, 5.
26
Ibid.
27
Butler, ‘Is Kinship Always Already Heterosexual?’, 14.
28
Ibid, 15.
29
Ibid.
30
Ibid, 16.
fault with the idealisation of same-sex marriage, as for the state, the “symbolic

allocation of marriage … is preferable to altering the requirements for kinship”.31 This

description materialises in the continuing limitations of same-sex parenting as

mentioned in the French and German examples above. This return to an idea of same-

sex marriage as allocated symbolically, rather than a human rights achievement,

might reveal the origins of a progressive argument against same-sex marriage and the

historical weight of marriage as a whole as the only mode of legitimation for intimate

relationships. One might argue that marriage as a legal contract secures certain rights

otherwise unattainable for its participants, such as those involving immigration or

healthcare, and therefore should be aspired to on the basis of legality, however Butler

rebuts this by suggesting that the conversation then is not about relationships, but

about the allocation of state resources. She asks, “why shouldn’t there be ways of

organizing health care entitlements such that everyone, regardless of marital status,

has access to them?”,32 further pressing: “what does this do to the community of the

nonmarried, the single, the divorced, the uninterested, the nonmonogamous, and how

does the sexual field become reduced, in its very legibility, once we extend marriage

as a norm?”.33 This notion of a reduced sexual field is another limitation of the

association of same-sex marriage with legitimacy and freedom for LGBTIQ+ people.

The “community” of people who exist beyond the realm of individuals and couples

who “desire the state’s desire”, whether homo- or hetero-sexual, are silenced in the

intense focus on achieving the state’s desire. “That the state’s offer might result in the

intensification of normalisation is not widely recognised as a problem within the

31
Ibid.
32
Ibid, 21.
33
Ibid.
mainstream lesbian and gay movement”34 is a concern for Butler, whose work has

repeatedly protested against such normalisations.

Pierre Bourdieu’s articulation of symbolic violence is a fruitful reference point in

understanding the normalisation (Butler) of particular effects on subjectivity

(Foucault). Interpretations of identity and reality derived from specific cultural and

temporal locations are perceived to be inherent in what the interpreter perceives, due

to their “habitus”, however Bourdieu examines that one’s “habitus” - or

internalisation of cultural capital - is so engrained that they become numb to the fact

that interpretations are in fact culturally developed, “naturalised”.35 This process of

naturalising particular perceptions of social, political and physical worlds describes

the origins of social inequalities. The way one interprets the self and attributes

meaning to the institutions and events around them is contingent upon the narrative

they have naturalised, as described by Bourdieu: “when perceived through these

social categories of perception, these principles of vision and divison…the opinions

which are expressed become symbolic differences and constitute a real language”.36

These “symbolic differences”, such as those surrounding perspectives on what

constitutes an appropriate experience of sexuality, are hierarchized to the effect of

sculpting groups into dominant or oppressed statuses based on the influence of their

interpretation of the world upon the societal norm. Symbolic violence is the

naturalisation of a set of thought categories, or “decontested political meanings”,37

with the compliance of the subjugated. It is through symbolic violence that one

34
Ibid, 16.
35
Pierre Bourdieu, ‘Physical Space, Social Space and Habitus’, (Olso: University of
Olso, 1996), 2-22, 15.
36
Ibid, 17.
37
M. Freeden, Ideology: A very short introduction (Oxford: Oxford University
Press, 2003), 6.
rationalises one’s own oppression, due to their interpretation of the reality in which

they are oppressed as the natural state of affairs to which they must conform. This is a

useful lens through which to examine same-sex marriage. This paper argues that

lesbian and gay proponents of same-sex marriage are understandably demanding

recognition within an arbitrary definition of “married couple” due to their subjection

to a particular symbolic violence which has naturalised, as Butler says, a desire for the

state’s desire. Same-sex couples want state recognition due to the fact that marriage

has been perceived historically as a source of validation for participating couples, to

the extent of constituting a “real language” and real evidence of its apparent

superiority in various social and economic rights awarded to married couples.

Bourdieu’s assertion that “every established order tends to produce the naturalisation

of its own arbitrariness”38 describes the established order of marital legitimacy

producing the “naturalisation of its own arbitrariness” through the symbolic violence

as experienced by those who cannot access that marriage. The success of same-sex

marriage campaigns, as executed recently in nations such as the USA, Germany and

Australia, is evidence of “newcomers”39 - new generations of LGBTIQ+ peoples and

their allies - succeeding to “implement strategies aimed at subverting the symbolic

order” instead of recognising the legitimacy “of a symbolic order that is unfavourable

to them”.40 The extremely contemporary emergence of this trend, despite centuries of

gay rights activism,41

38
Pierre Bourdieu, Outline of a Theory of Practice, (Cambridge: Cambridge
University Press, 1977), 164.
39
Mathieu Hilgers and Eric Mangez, Bourdieu’s Theory of Social Fields: Concepts
and Applications (Routledge, 2014), 11.
40
Ibid.
41
Byrne R. S. Fone, Homophobia: a history (New York: Metropolitan Books,
2000).
is evidence of the historical accumulation of symbolic capital by the institution of

heterosexual marriage and its subsequent success in “the stabilisation of a hegemonic

version of legitimacy”42 which avoided penetration by legitimate homosexual

arrangements until 2001. It is evident that symbolic violence is an extremely powerful

mechanism through which subjects are produced; the power of naturalisation extends

into every realm of social, cultural and economic life - factors which intersect in many

places, including on the topic of marriage. Can an argument in favour of same-sex

marriage really correlate with the pursuit of intimate freedoms, if same-sex marriage

normalises a social order that subjugates those who do not or cannot conform to it due

to their habitus? And when the opportunity to conform is created, as it has now been

for lesbian and gay couples in 28 states, is it really one that should be celebrated

without recognition of the problematic “intensification of normalisation”? Bourdieu’s

descriptions of symbolic violence, naturalisation and capitals are evidently extremely

relevant in considering same-sex marriage from a progressive position of disapproval.

Foucault, Butler and Bourdieu lend themselves efficaciously to this deconstruction of

the detrimental normative narratives around the ideal of same-sex marriage. The

influence of institutional power on sexual, corporeal subjects, as explored by

Foucault, is the heart of all debates surrounding same-sex marriage, and this power

frequently pursues the reproduction of hegemonic orders reaching into intimate

relationships and kinships. When the state symbolically allocates marriage to same-

sex couples to increase the regulation of sexuality and reproduce normative practices

of kinship as Butler suggests, then perhaps marriage is not best way to acquire the

rights and freedoms demanded by the lesbian and gay advocacy movement.

Bourdieu’s symbolic violence has implanted within subjects of this movement the
42
Hilgers and Mangez, Bourdieu’s Theory of Social Fields, 11.
arbitrary “desire of the state’s desire”43 against which Butler warns. It is evident that

an approach critical of hegemony and naturalisation is essential in reconsidering the

benevolent same-sex marriage movement from a sympathetic, progressive

perspective.

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Halperin, David M. (1989) ‘Is There A Theory of Sexuality?’. History and Theory
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Krafft-Ebing, Richard von. Psychopathia sexualis: with especial reference to

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Freeden, M. Ideology: A very short introduction. Oxford: Oxford University Press,

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Fone, Byrne R. S. Homophobia: a history. New York: Metropolitan Books, 2000.

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Marquis, Camille.‘The struggle for LGBT rights in France’. Human Rights Watch, 17

43
Butler, ‘Is Kinship Always Already Heterosexual?’, 22.
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lgbt-rights-france.

McGuinnes, Damien. ‘Gay Germans’ joy mixed with adoption angst’. BBC, 22 July
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Oxfordreference.com. (2018). Symbolic violence - Oxford Reference. [online]

Available at:
http://www.oxfordreference.com/view/10.1093/acref/9780199532919.001.00
01/acref-9780199532919-e-689.