Constitution Day in Comparative Perspective

by Michael Dorf

This coming Thursday, September 17 is Constitution Day--on which, per federal law, educational institutions receiving federal funds, such as the one that employs me, must provide educational programming regarding the Constitution. For a useful summary of the mostly appropriate mockery of this day, I would direct readers to Dahlia Lithwick's essay in Slate last year on what might be described as Constitution Eve. My own observations from Constitution Days Past can be found here and here. I was and remain skeptical of Constitution Day, even as I acknowledge that it can be a useful prod to broader reflection.

For this year's reflection, I want to take a comparative look at the hot constitutional topic du jour-- same-sex marriage--in comparative perspective. My point of comparison is South Africa, where, in 2005, in Minister of Home Affairs v. Fourie, the Constitutional Court found a constitutional right to same-sex marriage.

Two years ago retired S.A. Justice Albie Sachs gave a series of lectures at Cornell as an A.D. White Professor at Large. At the time, I blogged about his view on religious accommodations for public officials and private business owners who do not wish to participate in same-sex marriages. I suggested that these situations may be more "zero-sum" than Justice Sachs acknowledges.

Last week, Justice Sachs returned to give several more lectures and participate in other activities, including a guest lecture in my constitutional law class. Because of where we are in the semester, his remarks to my students focused mostly on constitution making. (In addition to being a former Justice, Sachs was also a framer of the S.A. Constitution.) However, the Fourie case did come up both in my class and in two of the other lectures Justice Sachs gave.

With respect to the religious accommodations question, Justice Sachs drew a cultural distinction. Post-apartheid South Africa, he argued, has a more communitarian, and conversely less libertarian, ethos, than that of the U.S. His (former) Court, he argued, proceeds in a spirit of ubuntu. On more than one occasion, and in reference to various topics, he said "you Americans love a fight."

I have no doubt that Justice Sachs is right about the cultural point. One need not look past the text of the South African Constitution--which includes protection for social and economic rights as well as civil and political rights--to see the greater commitment to communitarianism.

Nonetheless, I continue to think that some conflicts are zero-sum. Consider the issue on which Justice O'Regan dissented in the Fourie case. The Court, in an opinion by Justice Sachs, unanimously found that the denial of the right to same-sex marriage violated Section 9(3) of the Constitution, which expressly forbids sexual orientation discrimination by the government. But Justice Sachs went on to withhold an immediate remedy, instead giving Parliament a year to provide for one. Partly this was justified on technical grounds; there were details that the the legislature had to address. But Justice Sachs also sounded a theme of public acceptability. He stated:
This is a matter involving status that requires a remedy that is secure. To achieve security it needs to be firmly located within the broad context of an extended search for emancipation of a section of society that has known protracted and bitter oppression. The circumstances of the present matter call out for enduring and stable legislative appreciation. A temporary remedial measure would be far less likely to achieve the enjoyment of equality as promised by the Constitution than would lasting legislative action compliant with the Constitution.
During his talks at Cornell, Justice Sachs reiterated this theme. Given the opposition to SSM in South Africa in 2005, he thought that an act of Parliament endorsing it would lead to broad social acceptance more quickly and securely than a judicial decree. The ANC came to support the measure and it passed by a wide margin.

To American ears, the theme sounded in this portion of the Fourie opinion and thereafter is a harbinger of the dissent of CJ Roberts in Obergefell v. Hodges.  He wrote there:
There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.
There is, of course, a crucial distinction between the approach of Justice Sachs and the approach of Chief Justice Roberts. Justice Sachs gave parliament a year to legislate in accordance with the constitutional right to SSM. If parliament failed to do so at the end of the year, the Constitutional Court would have given relief directly. By contrast, CJ Roberts would have held that there is no constitutional right to SSM, leaving the matter entirely to legislative discretion.

But putting aside that difference, I think that even the much more SSM-friendly approach of Justice Sachs in the Fourie case shows that we Americans have a point--that it's not just that we love a fight (although we do) but that sometimes conflict is real. Even if Justice Sachs is right that in the long run his approach of a one-year parliamentary remand put SSM on a more secure footing than an immediate order of relief would have, Justice O'Regan was also undeniably correct that the effect of that delay was to delay the ability of same-sex couples in South Africa to marry for a year. Justice delayed may not always be justice denied but it is a harm nonetheless.

Perhaps that harm is justified. I tend to agree with Justice Sachs that a well-made constitution should be less libertarian and more communitarian than the U.S. Constitution. However, we should not kid ourselves. The promotion of community sometimes involves the deprivation of liberty. To say that, all things considered, that deprivation is justified is not to say that it does not exist.