Challenging the Heteronormativity of Marriage: The Role of Judicial Interpretation and Authority

Abstract

This article considers three recent court judgments that resulted from challenges by homosexual men and women to laws that prohibited them from contracting civil marriage. In examining these judgments, my focus is on the different ways in which courts interpret the social, cultural and legal heteronormativity of marriage. Whilst the issue of judicial interpretations of heteronormativity has not been a significant cause for concern in either lay or academic discourse, I argue that judicial ‘ways of thinking’ about heteronormativity are vitally important in both the reproduction and disruption of heteronormative law. To demonstrate this, I show how the standpoint of sitting judges in respect of heteronormativity was a key factor determining the outcome of the cases considered here. In contrast to popular accounts of these standpoints, which focus on the ‘activism’ of individual judges, I argue that judicial standpoints that are critical of heteronormativity reflect social, rather than personal, ‘points of view’. In conclusion, I argue that current debates about judicial diversity must acknowledge the importance of these interpretative standpoints within the law and the social processes through which they are both produced and maintained.