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Do Constitutions Matter?

January 8th, 2010 No comments

A reader of the Daily Dish corrected Andrew Sullivan’s statement that African nations don’t offer constitutional protection to gays and lesbians, citing the Constitution of South Africa. That aspirational document, as the reader noted, specifically lists sexual orientation as an impermissible ground for discrimination, and the nation’s constitutional court has implemented the guarantee comprehensively (most notably, as the reader points out, by requiring the state to permit same-sex marriages.)

It’s easy to see why Sullivan, who rarely makes such errors, would overlook this quite significant exception. No one observing conditions in South Africa would have occasion to think that sexual minorities are protected there. The formal equality that a constitution confers is a vital marker of a nation’s commitment to first-class citizenship for all, but it’s not self-executing. Even favorable judicial interpretations can achieve just so much. The right to equality, read to include marriage equality, is effectively meaningless if a culture of violence drives people underground. Lesbians who fear being raped as a “corrective” measure to turn them straight aren’t likely to come out, much less to publicly affirm their unions. Unless the state moves decisively against the violence — not often the case in South Africa, unfortunately — it effectively encourages a kind of reverse vigilantism that discourages clearly lawful behavior. In short, real-world conditions can be so far from the constitutional command that it’s rendered little more than an exhortation.

The reverse is also true: Constitutions that don’t offer explicit protections based on a given status may be interpreted to do so where the social and political conditions are favorable. In Canada, the Supreme Court has extended the protections of its Charter of Rights and Freedoms to gays and lesbians under the judicial doctrine of “analogous grounds” — analogous, that is, to enumerated classes of protected citizens (on the list were race, sex, age, and religion). Once a group is put under that protective umbrella, the state faces a difficult burden time in defending laws that discriminate against its members. And there has therefore been an unbroken march of pro-equality decisions relating to recognition of gay families coming out of that Court.

In the U.S., too, the Supreme Court has read the guarantee of equal protection to include not only race (the explicit subject of the Civil War amendments, of which the right to equal protection is a part), but also gender (albeit at a slightly lower level of judicial scrutiny). States have now begun to extend the protection to gays and lesbians: Starting with the California Supreme Court’s decision in In Re Marriage Cases, by now a total of three states (Iowa and Connecticut having joined California) now see the denial of equal protection to gays and lesbians as deserving of a high degree of scrunity.

Constitutions do matter, but not as much as we’re supposed to think.

“Corrective Rape” in South Africa and the Limits of the Rule of Law

December 14th, 2009 No comments

According to this seemingly reliable story, coming out as a lesbian in parts of South Africa carries substantial risks. They have been subjected to “corrective rape” and, at least in one case documented in the story, disregard (and worse) by officials when they report what’s happened.

South African women and a man in South Africa

A group of women are shouted at as they walk through Soweto.

The misconduct by officials, at least, is in clear defiance of South Africa’s post-apartheid constitution, which broke ground by including sexual orientation as a category protected against “unfair discrimination.” I  (Bill of Rights, Section 9 (Equality), ¶ 3.) And the national legal system, at least, takes this anti-discrimination promise seriously: In 2006, acting after the Constitutional Court had required marriage equality, the Parliament enacted a conforming law. But matters on the ground, as we like to say these days, are obviously quite different.

Why? The long-term oppression of apartheid is surely one reason. Don’t expect sudden respect for the rule of law when the legal system itself, through an elaborate and ruthlessly enforced set of rules, ensured oppression. Then there’s religion: One man in the story at the top of this post attempts to justify these horrific acts by saying that “There is no mention of lesbians in the Bible.”

But there’s more to it than that. The story is based on events in a black township outside of Cape Town, and — at the risk of unwarranted generality — this isn’t the only instance of “traditional” views impeding progress and public  health. Another chilling example is the rape of young girls — even babies — by HIV-infected men, on the “theory” that sex with a virgin will rid them of the disease. This post gathers these cases and others into an informative story, which links to discussion of a study by South African’s own Medical Research Council.

According to the professor who carried out the research:

We have a very, very high prevalence of rape in South Africa. I think it is down to ideas about masculinity based on gender hierarchy and the sexual entitlement of men. It’s rooted in an African ideal of manhood.

If this is the (or even a) notion of “masculinity” still at work in South Africa, we should at least put aside any impulse toward cultural relativism long enough to denounce it, loudly.

Does this make national law and policy irrelevant? In the short term, maybe; but constitutional rulings aren’t for the short term. The court gets it; and both the national legislature and public health officials understand the need for change, too. But marriage equality in (at least parts of ) such a nation is legal formalism, nothing more. What same-sex couple will marry when violence can be expected to follow? Only those much more courageous than I’d ever be.