1318 Timothy Hildebrandt In addition,the argument for instrumental implementation has yet to be supported in the few analyses of same-sex marriage laws.In a study of same-sex marriage policies in western Europe,Kollman finds no evidence that states implement these laws as a result of instrumentalism.20 However,these cases were all in established democracies where social actors can play a key independent role in putting pressure on the state to meet their interests.State instrumentalism might not be as easily found in such contexts.In non-democratic states,on the other hand,instrumental policymaking is quite common and not just limited to human rights issues.For example,Massell shows how the Soviet Union quickly expanded women's rights throughout its central Asian territories in order to neutralise threats from traditional Muslim leaders.2 Several scholars have made similar points with respect to environmentalism:Biehl suggests that the Nazi party embraced 'ecofascism'in using ecological concerns to justify ultra-right policies to 'cleanse the homeland of outside 'intruders',22 Forsyth argues that ecological principles- and those who fight for them-can be used to embolden political hegemons in Southeast Asia,23 and Weinthal shows how newly independent states in Central Asia brokered environmental agreements to increase legitimacy for their de facto authoritarian regimes.24 This general phenomenon is not necessarily limited to authoritarian regimes,either:Habermas cynically suggests that in the democratic, Western world,'concern for human rights only concerns the attempt at opening new free markets'.25 Similarly rational arguments have been made to support same-sex marriage policies,with many focusing on economic justifications.Oswin contends that political costs and moral panics are increasingly outweighed by the economic benefits of being gay-friendly.26 In an economic analysis of same-sex marriage, Muller argues that the costs of legalising same-sex marriage to the state,such as lost tax revenue from gay couples filing together rather than as individuals,are outweighed by the benefits:married couples are more economically productive than right to home and marriage unquestionably belongs'.Hannah Arendt.'Reflections on Little Rock: A reply to critics'.Dissent (Spring.1959).pp.179-81.Thus,the broad category of human rights is strengthened,not weakened,by the inclusion of same-sex marriage.Claims about rights for gays and lesbians as a human right are explored in legal and gay identity scholarship.Kristen L.Walker, "Capitalism,Gay Identity,and International Human Rights Law',Australian Gay and Lesbian Law Journal.9(2000),pp.58-73:James Wilets,Conceptualizing Private Violence Against Sexual Minorities as Gendered Violence:An International and Comparative Law Perspective',Albany Law Review.60(1997),pp.989-1050.In two landmark court cases in the US.the victorious sides used human rights rationales to successfully strike down the constitutionality of anti-sodomy laws nationwide (Lawrence v.Texas 2003)and legalise same-sex marriage in Massachusetts (Goodridge v. Dept.of Public Health 2003). 20 Kollman,'Same-sex'.p.332. 21 Gregory J.Massell,Law as an Instrument of Revolutionary Change in a Traditional Milieu:the Case of Soviet Central Asia'.Law Society Review,2:2 (1967),pp.179-228. 22 Janet Biehl,Ecology"and the Modernization of Fascism in the Germany Ultra-Right'in Janet Biehl and Peter Staudenmair (eds),Ecofascism:Lessons from the German Experience (San Francisco: AK Press,(1995). 2Tim Forsyth.Social Movements and Environmental Democratization in Thailand'in Shelia Jasanoff and Marybeth Long Martello (eds).Earthly Politics:Local and Global in International Politics (Cambridge:The MIT Press,2004).pp.195-216. 24 Erika Weinthal,State Making and Environmental Cooperation (Cambridge:The MIT Press.(2002). 25 Jurgen Habermas.The Structural Transformation of the Public Sphere (Cambridge:MIT Press, (1989)p.33. 26 Natalie Oswin,'The End of Queer (As We Knew It):Globalization and the Making of a Gay-Friendly South Africa',Gender.Place and Culture,14:1 (2007),pp.93-110
In addition, the argument for instrumental implementation has yet to be supported in the few analyses of same-sex marriage laws. In a study of same-sex marriage policies in western Europe, Kollman finds no evidence that states implement these laws as a result of instrumentalism.20 However, these cases were all in established democracies where social actors can play a key independent role in putting pressure on the state to meet their interests. State instrumentalism might not be as easily found in such contexts. In non-democratic states, on the other hand, instrumental policymaking is quite common and not just limited to human rights issues. For example, Massell shows how the Soviet Union quickly expanded women’s rights throughout its central Asian territories in order to neutralise threats from traditional Muslim leaders.21 Several scholars have made similar points with respect to environmentalism: Biehl suggests that the Nazi party embraced ‘ecofascism’ in using ecological concerns to justify ultra-right policies to ‘cleanse’ the homeland of outside ‘intruders’,22 Forsyth argues that ecological principles – and those who fight for them – can be used to embolden political hegemons in Southeast Asia,23 and Weinthal shows how newly independent states in Central Asia brokered environmental agreements to increase legitimacy for their de facto authoritarian regimes.24 This general phenomenon is not necessarily limited to authoritarian regimes, either: Habermas cynically suggests that in the democratic, Western world, ‘concern for human rights only concerns the attempt at opening new free markets’.25 Similarly rational arguments have been made to support same-sex marriage policies, with many focusing on economic justifications. Oswin contends that political costs and moral panics are increasingly outweighed by the economic benefits of being gay-friendly.26 In an economic analysis of same-sex marriage, Muller argues that the costs of legalising same-sex marriage to the state, such as lost tax revenue from gay couples filing together rather than as individuals, are outweighed by the benefits: married couples are more economically productive than right to home and marriage unquestionably belongs’. Hannah Arendt, ‘Reflections on Little Rock: A reply to critics’, Dissent (Spring, 1959), pp. 179–81. Thus, the broad category of human rights is strengthened, not weakened, by the inclusion of same-sex marriage. Claims about rights for gays and lesbians as a human right are explored in legal and gay identity scholarship. Kristen L. Walker, ‘Capitalism, Gay Identity, and International Human Rights Law’, Australian Gay and Lesbian Law Journal, 9 (2000), pp. 58–73; James Wilets, ‘Conceptualizing Private Violence Against Sexual Minorities as Gendered Violence: An International and Comparative Law Perspective’, Albany Law Review, 60 (1997), pp. 989–1050. In two landmark court cases in the US, the victorious sides used human rights rationales to successfully strike down the constitutionality of anti-sodomy laws nationwide (Lawrence v. Texas 2003) and legalise same-sex marriage in Massachusetts (Goodridge v. Dept. of Public Health 2003). 20 Kollman, ‘Same-sex’, p. 332. 21 Gregory J. Massell, ‘Law as an Instrument of Revolutionary Change in a Traditional Milieu: the Case of Soviet Central Asia’, Law & Society Review, 2:2 (1967), pp. 179–228. 22 Janet Biehl, ‘“Ecology” and the Modernization of Fascism in the Germany Ultra-Right’ in Janet Biehl and Peter Staudenmair (eds), Ecofascism: Lessons from the German Experience (San Francisco: AK Press, (1995). 23 Tim Forsyth, ‘Social Movements and Environmental Democratization in Thailand’, in Shelia Jasanoff and Marybeth Long Martello (eds), Earthly Politics: Local and Global in International Politics (Cambridge: The MIT Press, 2004), pp. 195–216. 24 Erika Weinthal, State Making and Environmental Cooperation (Cambridge: The MIT Press, (2002). 25 Jurgen Habermas, The Structural Transformation of the Public Sphere (Cambridge: MIT Press, (1989), p. 33. 26 Natalie Oswin, ‘The End of Queer (As We Knew It): Globalization and the Making of a Gay-Friendly South Africa’, Gender, Place and Culture, 14:1 (2007), pp. 93–110. 1318 Timothy Hildebrandt
Same-sex marriage in China? 1319 single people and with more married couples caring for each other in old age and illness,the state would spend less on social services.27 An economic windfall might also result from more wedding ceremonies:legalised same-sex marriage in California,for instance,was estimated to inject over $370 million into the state's faltering economy.28 Upon the passage of proposition eight in California,which rescinded the right for same-sex couples to marry,analysts observed that American states with legal same-sex marriage would enjoy the economic spoils from couples that might have otherwise married in California.29 Economic arguments are tied to similar claims that same-sex marriage would improve public health.Marriage can afford stability,and improve physical and mental health of those who enter into them.30 Monogamous 'pairing off can diminish promiscuity,curtail the spread of venereal diseases,thereby cutting government health care costs.31 The political benefits of same-sex marriage outlined above are a necessary but not sufficient condition for policy promulgation.Before concluding that the benefits of same-sex marriage could compel the state to legalise it,potential costs must also be explored.Next,I explore three key counter-arguments to same-sex marriage in China:first,because of China's traditional culture the government is unlikely to sanction non-traditional familial arrangements;second,because China is an authoritarian state,it is unlikely to support a progressive policy like same-sex marriage;and third,the government does not want to engage in human rights discussions for fear that it might elicit even more criticism. 'China's cultural traditions get in the way' Culture has been cited as a key explanatory variable in understanding same-sex marriage policy promulgation around the world.The strength or weakness of institutionalised religion,in particular,is a key predictor of same-sex marriage. Kollman finds that in secular societies of Western Europe,same-sex marriage is not seen as a cultural threat;where 'religiousity'is low,same-sex marriage can be more easily framed as a human rights issue and successfully implemented.32 By extending these insights to China,which currently lacks the influential religious institutions that exist in other countries,same-sex marriage should hold promise;cultural costs, defined in this way,should not prove too high.However,China could still be properly characterised as traditional irrespective of its lack of religion.33 Rather than dismiss this counter-argument so quickly,China's Confucian tradition can be examined as a proxy for religion. 27 Christina Muller,'An Economic Analysis of Same-Sex Marriage',unpublished thesis(Universidad Compultense Madrid,2001),p.34. 28 Alana Semuels,'Gay Marriage a Gift to California's Economy'.Los Angeles Times(2 June 2008). 29 Reuters (26 November 2008). 30 Michael King and Annie Bartlett,What Same Sex Civil Partnerships May Mean for Health', Journal of Epidemiology Community Health,60:3 (2006).pp.188-91. 3 Muller,'Economic',p.36. 32 Kollman,'Same-sex'p.351.Kollman uses a country's average annual church attendance as a measure of 'religiousity'. aIn recent years.China has seen an increase in the number of self-identified Buddhists in the country: we could,therefore,just as easily explore other Buddhist countries to examine the cultural impediments to same-sex marriage or homosexuality.However,the results would likely be the same for Thailand,one of the most Buddhist countries in south-east Asia.has one of the most dynamic gay communities on the continent
single people and with more married couples caring for each other in old age and illness, the state would spend less on social services.27 An economic windfall might also result from more wedding ceremonies: legalised same-sex marriage in California, for instance, was estimated to inject over $370 million into the state’s faltering economy.28 Upon the passage of proposition eight in California, which rescinded the right for same-sex couples to marry, analysts observed that American states with legal same-sex marriage would enjoy the economic spoils from couples that might have otherwise married in California.29 Economic arguments are tied to similar claims that same-sex marriage would improve public health. Marriage can afford stability, and improve physical and mental health of those who enter into them.30 Monogamous ‘pairing off’ can diminish promiscuity, curtail the spread of venereal diseases, thereby cutting government health care costs.31 The political benefits of same-sex marriage outlined above are a necessary but not sufficient condition for policy promulgation. Before concluding that the benefits of same-sex marriage could compel the state to legalise it, potential costs must also be explored. Next, I explore three key counter-arguments to same-sex marriage in China: first, because of China’s traditional culture the government is unlikely to sanction non-traditional familial arrangements; second, because China is an authoritarian state, it is unlikely to support a progressive policy like same-sex marriage; and third, the government does not want to engage in human rights discussions for fear that it might elicit even more criticism. ‘China’s cultural traditions get in the way’ Culture has been cited as a key explanatory variable in understanding same-sex marriage policy promulgation around the world. The strength or weakness of institutionalised religion, in particular, is a key predictor of same-sex marriage. Kollman finds that in secular societies of Western Europe, same-sex marriage is not seen as a cultural threat; where ‘religiousity’ is low, same-sex marriage can be more easily framed as a human rights issue and successfully implemented.32 By extending these insights to China, which currently lacks the influential religious institutions that exist in other countries, same-sex marriage should hold promise; cultural costs, defined in this way, should not prove too high. However, China could still be properly characterised as traditional irrespective of its lack of religion.33 Rather than dismiss this counter-argument so quickly, China’s Confucian tradition can be examined as a proxy for religion. 27 Christina Muller, ‘An Economic Analysis of Same-Sex Marriage’, unpublished thesis (Universidad Compultense Madrid, 2001), p. 34. 28 Alana Semuels, ‘Gay Marriage a Gift to California‘s Economy’, Los Angeles Times (2 June 2008). 29 Reuters (26 November 2008). 30 Michael King and Annie Bartlett, ‘What Same Sex Civil Partnerships May Mean for Health’, Journal of Epidemiology & Community Health, 60:3 (2006), pp. 188–91. 31 Muller, ‘Economic’, p. 36. 32 Kollman, ‘Same-sex’, p. 351. Kollman uses a country‘s average annual church attendance as a measure of ‘religiousity’. 33 In recent years, China has seen an increase in the number of self-identified Buddhists in the country; we could, therefore, just as easily explore other Buddhist countries to examine the cultural impediments to same-sex marriage or homosexuality. However, the results would likely be the same for Thailand, one of the most Buddhist countries in south-east Asia, has one of the most dynamic gay communities on the continent. Same-sex marriage in China? 1319