I am pleased to be leading a very vibrant seminar this semester, during which we contemplate the judicial process as evident in constitutional/human rights decisions from jurisdictions as far-flung as Germany, Jamaica and India. Covering a range of substantive topics, from torture to religious freedom to socio-economic rights, our discussions and analysis can be distilled down to two underlying questions: what do judges say they are doing, and what are judges actually doing? A plethora of historical/social/contextual factors feed into the judicial process, and determine the scope and nature of the project of constitutional adjudication.
The upcoming SCOTUS decisions on the 1996 Defense of Marriage Act (denying federal benefits to same-sex couples that are legally married in their states) and California’s Proposition 8 (a voter-approved ban on same-sex marriage), in addition to their potentially profound personal significance to persons on all sides of the marriage debate, will no doubt provide rich fodder for human rights jurists.
So it is timely, I believe, to bring attention to the story of South Africa’s constitutional adjudication of this sensitive issue, and to consider the role the South African Constitutional Court sees itself playing when it deals with the complexities of constitutional rights.
What follows is an illuminating excerpt from Albie Sachs’ recent book, “The Strange Alchemy of Life and Law”, which provides a rare glimpse into a constitutional adjudicator’s mind. Reflecting on his initial reaction to being asked by the Chief Justice to write the Court’s judgment for the landmark South African same-sex marriage decision (Minister of Home Affairs v Fourie,  ZACC 19), Justice Sachs writes:
“At a deep level of my consciousness I was eager to find a way of accommodating the intense significance of the case for both communities: the gay and lesbian community seeking to be free, to be emancipated, to have shackles removed, to be able to enjoy their full humanity; and the large community of sincere believers for whom recognition of same-sex marriages was anathema – something distressing, disturbing, threatening. The judgment should attempt to speak with equal voice to both groups. It should not implicitly regard the one was a manipulative lobby group, or the other as a bunch of benighted bigots (counsel for the different parties had at times strayed towards implying these descriptions). Once you start dividing the community for whom the Constitution works into ‘goodies’ and ‘baddies’, then I think you wander away from the heart of the constitutional enterprise. To discover the humanity, the integrity, the honesty in everybody, and to present your response in a way that everybody can say ‘I understand what is being said; I have grave doubts about the result; but the judgment acknowledges what I’m thinking, knows where I am, and takes account of my convictions and respects my conscience and dignity; I’m not being defined out of the answer by what purports to be a completely neutral way of framing issues and arriving at conclusions; my convictions, values and perspectives are being taken seriously and treated thoughtfully and with respect.’” (Albie Sachs, The Strange Alchemy of Life & Law 239 (2009)).
The South African Constitution explicitly identifies sexual orientation as a forbidden ground of unfair discrimination; as such, the outcome of the case was not at all surprising. The Court unanimously ruled that same-sex couples have a constitutional right to marry, both on the basis of their right to equal protection and benefit of the law (South Africa Constitution, art. 9(1)) and the explicit prohibition on discrimination (art. 9(3)). The emphasis Justice Sachs, as author of the judgment, placed on drafting this (probably foregone) legal conclusion in a way which, as far as possible, united rather than divided, or at least took account of and respected the ‘conscience and dignity’ of persons on all sides of the debate, relates in no small part to the transformative role the South African Constitutional Court sees itself playing in the post-apartheid context. I look forward with interest to see how the division and convictions of the debate in the American context are addressed by the US Supreme Court.