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.