Thick instrumentalism and comparative constitutionalism: The case of gay rights

Speaker: Robert Leckey. Organized by Légale McGill Outlaw and open to all. Note new date. The paper examines the subset of comparative constitutional legal scholarship treating gay rights (chiefly decriminalization of sodomy and recognition of same-sex relationships). It contends that the literature is unsatisfactory in several respects. It manifests a thin methodology which assumes that constitutional law takes place in courts and concerns Supreme Courts' interpretation of written texts, and that it is changed by litigation. The tendency to focus repeatedly on the same "success stories" – Canada, South Africa – leaves unexamined instances where reforms have failed. Yet such failures likely have lessons for those concerned with understanding how to effect change. Furthermore, the literature's assumption that achieving marriage is the objective sideswipes other aspirations for family justice, ones concerned with alternative family arrangements. Straight comparisons of the progress of same-sex marriage litigation in different jurisdictions unduly narrow the scope of vision of scholars, who might instead imagine more transformative change. The paper proposes a thicker methodology for comparative constitutionalism, one more alert to the multiplicity of settings in which constitutional law operates and is contested and remade.