Thick Instrumentalism and Comparative Constitutionalism: The Case of Gay Rights

Abstract

The paper intervenes in the burgeoning field of comparative constitutionalism. Adopting comparative constitutional research on gay rights as a case study, it addresses the scholarship that comparative constitutionalists are producing, including the methodology and underlying assumptions about constitutions. It criticizes the mainstream comparative work on gay rights for its methodological thinness. Such research views constitutions as rule-based, privileging the judgments of constitutional courts over the practice of constitutionalism in other sites of governance. Foreign examples are pressed into service to bring about change in a designated place. From the vantage of an activist or advocate, the comparative constitutional work on gay rights that is prevalent now may prove misleading. Undue emphasis on courts as the site of constitutional change directs efforts to litigation away from other forms of activism. The literature also exaggerates the transferability of constitutional precedents by abstracting them from their discursive and cultural context. Moreover, the consistent selection of a handful of "success" stories from pioneering jurisdictions distracts from the potential lessons waiting in the "failures," where reform efforts have foundered. From a scholar's perspective, the work is also unsatisfactory. Comparative constitutionalists, by accepting the current framing of debates, are failing to imagine transformations beyond same-sex marriage litigation and, consequently, falling short of their distinctive power as scholars. The paper argues for thick instrumentalism as a mode of comparative constitutional scholarship. Thick instrumentalism combines commitment to a justice project for gay rights with a richer, more discursive and culturally sensitive understanding of the multiple sites in which constitutional rights are respected - and infringed.

Keywords: comparative constitutionalism, gay rights, equality, comparative methodology, instrumental scholarship, gay marriage, same-sex marriage, legal scholarship

JEL Classification: K00, K30, K39