Immodest Claims and Modest Contributions: Sexual Orientation in Comparative Constitutional Law
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Description
In a foundational 1999 essay, Professor Mark Tushnet outlined three frameworks through which to consider the contributions of comparative constitutional law: functionalism, expressivism, and bricolage. According to Tushnet, ‘Functionalism claims that particular constitutional provisions create arrangements that serve particular functions in a system of governance.’ Expressivism, in contrast, looks more to the symbolic, rather than to the instrumental, aspects of constitutions: ‘According to the= expressivist view, constitutions help constitute the nation, to varying degrees in different nations, offering to each nation’s people a way of understanding themselves as political beings.’ Finally, bricolage, a term borrowed from Claude Lévi-Strauss, takes up constitutional analogs from other nations without much concern about justifying their selection or deployment. Tushnet does not claim that these perspectives are exhaustive. His taxonomy nonetheless provides a useful starting point to consider how comparative constitutionalism might illuminate rights relating to sexual orientation. Tushnet does not indulge in hyperbole about the contributions of comparative constitutional law. As he acknowledges, his ‘claim is, in the end, rather modest: U.S. courts can sometimes gain insights into the appropriate interpretation of the U.S. Constitution by a cautious and careful analysis of constitutional experience elsewhere.’ We share this assessment. Nevertheless, we contend that the modest contributions of comparative law acquire enhanced force when the claims made by constitutional interpreters are themselves immodest. In the context of sexual orientation, constitutional arguments often assume a categorical, ‘always/everywhere’ tenor that exposes them to contestation on comparative grounds. We develop this claim by focusing on three issues: bans on lesbian, gay, and bisexual (LGB) individuals from military service, the criminalization of same-sex sexual conduct, and relationship recognition for same-sex couples. We follow Tushnet in using US constitutional law as our primary point of departure, solely because we are most familiar with it. We diverge from Tushnet’s taxonomy in some respects. Tushnet describes functionalism as a means to examine how different constitutional provisions and arrangements serve similar functions in different legal systems. Through this inquiry, he suggests, it may be ‘possible to consider whether the U.S. constitutional system could use a mechanism developed elsewhere to perform a specific function, to improve the way in which that function is performed here.’ Expanding the perspective slightly, we examine here how particular rules within legal and constitutional institutions (such as bans on open service by LGB people in the military or bans on same-sex marriage) have been justified in constitutional law by reference to the functions that those norms purportedly serve (such as national security or procreation). Put differently, we examine not only constitutional institutions, but also constitutional justifications. We also depart from Tushnet’s taxonomy in taking bricolage out of the conversation. Bricolage accurately describes how comparative constitutional law often works. However, we are not persuaded, as yet, that this framework has an independent normative justification. As Tushnet acknowledges, it has a random, ad hoc quality. We therefore focus on the functionalist and expressivist modalities of comparative constitutional interpretation. We believe that bans on gays from military service provide a particularly sharp instance of the functionalist modality, while bans on sodomy provide an equally sharp instance of the expressivist modality. In contrast, we believe that the relationship recognition cases demonstrate a confluence of functionalism and expressivism.
Source Publication
The Oxford Handbook of Comparative Constitutional Law
Source Editors/Authors
Michel Rosenfeld, András Sajó
Publication Date
2012
Recommended Citation
Yoshino, Kenji and Kavey, Michael, "Immodest Claims and Modest Contributions: Sexual Orientation in Comparative Constitutional Law" (2012). Faculty Chapters. 1458.
https://gretchen.law.nyu.edu/fac-chapt/1458
