The Same-Sex Couple and the State

This post was contributed by Naomi Smith, Birkbeck graduate and current intern in External Relations. Naomi recently attended a Birkbeck public lecture hosted by Birkbeck Institute for the Humanities, featuring Professor Robert Aldrich of the University of Sydney

Image copyright torbakhopper (Flickr)

Image copyright torbakhopper (Flickr)

Using French history as a case study, Professor Robert Aldrich’s lecture explored the relatively recent global shift from sodomy laws to the embrace of same-sex marriage.

As the title of the lecture suggests, Professor Aldrich chose to look at sodomy laws from a historical and transnational perspective. Having trained as a historian of France, he is now a Professor of European History at the University of Sydney, although his work spans a much more global remit than this suggests.

Aldrich began by observing that ‘the movement for marriage equality has gone global’.

Next, he suggested that whilst the State often acts as an agent of oppression, it is also, at least in potential, an agent of emancipation. He noted that this is particularly obvious when the State manages to free itself of ‘certain notions of nature and sexuality that have much to do with traditional religious beliefs’; this generally involves a challenge to the state by sexual, legal and constitutional activists.

The cause of reform in attitudes

Aldrich proposed that two major changes or contexts could be identified as the cause of reform in attitudes, both social and legal, to marriage equality. Firstly, the belief in the State as the guarantor of rights, rather than the agent that denies rights. And secondly, the concept of governance that distances the State from the dictates of traditional or orthodox religious beliefs, whatever they may be.

We are only now beginning to combat what Monique Wittig called the ‘homosexual contract’, paraphrasing Rousseau’s notion of the ‘social contract’. She meant the profoundly embedded supposition that normality is relationships between a man and a woman with the intention of procreation.

Movement towards marriage equality has historically made us think about what marriage is, a notion that varies greatly from place to place, from culture to culture, from religion to religion. This includes notions of consent, ages of consent and the legality of divorce – Aldrich talked about campaigns throughout history to combat these notions and instigate legal change.


He feels that what is in opposition to the legalisation of same-sex marriage is not ‘marriage defence’ but homophobia. One of the ways that homophobia is most deeply entrenched in society is through law, although one of the key ways to fight homophobia is also through the law.

Because the State has always been so deeply intertwined with religion, one of the long term ways to break the ‘heterosexual contract’ has been bringing into question the received ideas about the relationship between the State, sex and religion. Aldrich went on to discuss this through a case study of the history of same-sex marriage and accompanying legislation in France with occasional comparison with Britain.

Interesting points included:

  • In France, a marriage is only legal if it is performed by a civil official; it is not recognised by the State if it is only performed by a priest, imam, etc.
  • The French National Assembly, in 1791, passed legislation which decriminalised homosexual acts (176 years before England). Previously, homosexuals could have been arrested, convicted, even burned at the stake, for committing sodomy. The change in the law, however, did not reflect a social change; homophobia was still considered to be a vice or evil.
  • Sodomy was decriminalised only because it was deemed to be taking place in the private sphere without causing damage to others and because the State had decided that the church should not be involved in law-making; separation between church and State.
  • Gay men continued to be a target for legal discrimination and harassment; e.g. via age of consent laws, etc. There were no laws to protect homosexuals.
  • Paris, of course, had the reputation for sexual licence. Even in the face of legal interdiction, there was ‘naughtiness’, as Aldrich put it, everywhere. Interdiction did not stymy gay and lesbian life but instead gave it a different slant.

Before taking questions, Aldrich concluded by asking ‘how widely applicable, how universalistic are the principles that govern such relationships’? Laws given to Britain and France’s colonies concerning sodomy laws were different but considered equally universal by both those they were given to and those who did the giving.

To Aldrich, the question of sodomy and the State is really about the constitution of society, about the boundaries of public and private, about relations between the individual and the polity.

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