This study examines why legal protection on the basis of sexual orientation is recognized in some areas of law and not others, how some but not all unequal treatment of sexual orientation minority citizens becomes legally defined as discrimination, and how those on both sides of the issue justify their stances. For example, France permits civil unions and prohibits workplace discrimination but strictly prohibits procreative assistance to homosexual couples. In contrast, the U.S. prohibits federal recognition of same-sex couples, but most states permit adoption and artificial insemination. Comparing France and the U.S.. which differ in their political and legal structure, the role played by social movement organizations in public policy, and the degree of controversy generated by moral issues in general ? provides analytical leverage on how these factors may matter. Specifically, the investigator asks: 1) how do political actors frame different legal concerns (e.g. marriage and filiation, hate crimes, workplace discrimination); 2) what legal, institutional and cultural factors across national cases account for the differences and similarities in how they frame these issues; and 3) how do they justify the uneven recognition of rights within their own countries? To answer these questions, he analyzes observational, interview, and archival data, including legal code, judicial and legislative debates, media coverage, and arguments made by sexual orientation law experts, including activists, public figures, intellectuals, and scientists. The investigator conceptualizes these debates as decision making processes that require political actors to judge the moral status and origin of sexual orientation and weigh it against their conceptions of the common good.
This study provides a lens through which to analyze issues facing contemporary democracies, such as the limits of immutability arguments for rights claims, the expanding influence of bioethical justifications for inclusion, and relationships between science and politics.
This research investigates the way two major democracies – France and the United States – respond through law to the important contemporary issue of sexual orientation. Preliminary results suggest that in France, resistance to recognition of legal protections on the basis of sexual orientation is concentrated around concerns over the parenting abilities of same-sex couples. In the United States, the immutability of homosexuality, religious freedom, and freedom of expression cause the most social and political tension. Legal structural differences like centralization and national public healthcare in France and federalism and privatized healthcare in the United States shape the issues that gain more or less traction in each country. As a result, legal protections and rights on the basis of sexual orientation only encounter significant resistance in France when the issue of family formation and childcare is involved. Inversely, in the U.S., these questions tend to receive less political and legal resistance – though situations vary widely by state. However, in the U.S., questions like workplace discrimination, hate crimes protections, and marriage are likely to meet with resistance when they are framed in terms of a competition between religious freedom and individual rights. Additionally, the perceived causes of sexual orientation – innate versus socially caused – are politically fraught in the U.S. but not in France. Finally, "experts" and "expertise" are nationally specific and divergent across these two contexts. Although legal expertise is the most common form of knowledge used by the media and policymakers in both contexts, in France – but not the U.S. –, psychoanalysis and anthropology are equally important. However, economy, history, and psychology are well represented in American debates but are absent in France. These results provide useful methodological insights for sociology, political science, and legal studies. The comparison across national contexts and legal domains is a methodological innovation that brings to light hitherto overlooked explanatory factors that determine why legal responses to sexual orientation and definitions of discrimination vary. The findings also have implications for organizations, activists, lawmakers, policymakers, stakeholders, journalists and the broader public. Individuals invested in the policy outcomes of the legal responses to sexual orientation, whatever their political, philosophical, or personal stances, will be able to drawn on the empirical findings and theoretical insights of this research in order to better grasp the context in which they organize their efforts. They may even be able to take lessons from this work to craft more effective arguments and strategies to influence policy in the future. The analyses of this research will also create a more transparent political and legal environment by bringing to light the structural factors that help determine how governments define social problems and organize legal responses.
