Political Institutions and Lesbian and Gay Rights in the United States and Canada (review)

Miriam Smith’s Political Institutions and Lesbian and Gay Rights in the United States and Canada offers a compelling examination of comparative legal and political developments related to lesbian, gay, bisexual, and queer (LGBQ) rights in both the United States and Canada. Using an analysis grounded in historical institutionalism, Smith showcases a collection of key moments in policy development that contrast the relative ease and rapidity of policy change in Canada with the slow pace of policy change in the United States. In comparing these two cases, Smith chronicles detailed developments in the criminal regulation of homosexual sodomy, the development of anti-discrimination protections, and the emergence of same-sex marriage.

Smith builds upon scholarship that argues the shift to the Right in the US is not simply the product of a more conservative and religious electorate or political culture. Rather, movements such as the Christian Right have made strategic use of the features of US political institutions that encourage the radicalization of the Republican Party. With this in mind, Smith uses a historical institutionalist approach to challenge the assumption that US political culture, public opinion, and American religiosity represent independent or primary forces in limiting the success of lesbian and gay rights claims. She argues that although these factors have hindered advances in lesbian and gay rights, they do so as a result of their relationship with political institutions. Further, she demonstrates that policy decisions create influential policy legacies (a particularly compelling part of her analysis, especially considering the gaps in lesbian, gay, bisexual, transgender, and queer (LGBTQ) policy studies), which in turn impact the nature of those relationships and the trajectory of policy decisions and debates.

Smith emphasizes four key political institutional differences for explaining the policy variation between Canada and the United States: Westminster parliamentarism versus the US presidential system, the structuring of federalism and jurisdiction, differences in the role that the courts play, and different policy legacies. She focuses on specific cases that then highlight the impact of these differences. For example, although Canada decriminalized sodomy in 1969, the United States did not follow suit until the Lawrence decision in 2003. This meant that during the same thirty-five-year period, Canadian advocates for LGBQ rights were advancing anti-discrimination laws, equal access to Charter rights, and relationship recognition, while their US counterparts were stuck trying to repeal anti-sodomy laws. Although many countries have experienced the journey from the decriminalization of sodomy to the legalization of same-sex marriage (as was the case in Canada), some queer scholars question the notion that LBGQ human rights are teleological in nature and argue for long-term historical analysis of these trends. Smith clearly demonstrates that the late repeal of anti-sodomy laws in the United States relegated the queer community to the margins. In this way, many US states (such as Colorado) were able to justify withholding civil rights claims from gay and lesbian citizens. Examples like these highlight the benefits of a historical institutionalist perspective and nuance debates that are often characterized as crude culture wars or straightforward progressions from economic to political to cultural rights.

As a corrective tool, Political Institutions and Lesbian and Gay Rights in the United States and Canada offers social movement organizations the opportunity to examine their relationships with political institutions in order to effect change and have maximum impact. Smith makes a compelling argument for the role of institutional rather than social factors in developing and opposing policy outcomes for lesbian and gay human rights. This insight calls for an investigation into the direction of social mobilization for the advancement of LGBTQ rights and also opens up the question of what kinds of solidarities can be formed between different rights-seeking groups. Smith’s analysis might open up interesting dialogues with Jasbir Puar’s recent work on homonationalism and queer of colour critiques that examine the connections between LGBTQ movements and rights, and marginalized communities (such...