Pursuant to a decision from its Constitutional Court, South Africa recently became the fourteenth country to extend legal recognition to same-sex couples, and the fifth to adopt full marriage equality nationwide. In one sense, this development is perfectly unsurprising, given that South Africa's 1996 constitution was the first in the world to explicitly condemn sexual orientation-based discrimination; in light of this provision, the marriage decision seemed a virtual fait accompli.
In another sense, however, South Africa seems an unlikely member for the fledgling international marriage club, situated as it is on a continent where homosexuality is widely condemned and criminalized. (Indeed, Nigeria is poised to go further and criminalize reading about, talking positively about, or associating with queer people.) And it is not that South Africa is a uniquely tolerant nation in a sea of intolerance. Despite protective laws and open gay urban enclaves, South Africa, too, is home to widespread prejudice, discrimination, and hate crimes. A 2002 Pew survey showed that only one-third of South Africans think homosexuality should be socially acceptable -- far higher than most African countries, but far lower than those surveyed in Europe or the Americas.
A recent public radio story highlighting this contrast between law and social attitudes got me to wondering 1) how this disconnect came about, and 2) what its implications are for the future of South African society. These are, of cours, variations on perennial questions pondered by legal scholars about the role of law and the courts in social change. Is it legitimate for courts to enforce civil rights policies disapproved by public opinion? Did Roe v. Wade actually hinder abortion rights in the long term by squelching democratic debate? Have "countermajoritarian" decisions like Brown v. Board actually helped to shape enduring changes in social norms? Et cetera, et cetera.
I am no student of South African history, but I can hypothesize how sexual orientation came to be protected in the 1996 constitution: in somewhat the same way sex came to be protected by the 1964 Civil Rights Act, that is, as an afterthought and without significant debate at a crucial moment of social change. Among bigger disputes over federalism, land reform, the death penalty, and freedom of speech, it is hardly surprising that sexual orientation never became a major issue.
(Speaking of the CRA, I had always heard that Rep. Howard W. Smith's "sex" amendment was a facetious ploy intended to sabotage the bill. It's clear that Smith was a segregationist. Nevertheless, the pleasing irony of this conventional tale has been challenged by authors who assert that, racist as he was, Smith was serious in taking up the challenge then issued by feminists to ban sex discrimination. I'm not sure which tale is true, but it's certainly an interesting twist on one of my favorite political anecdotes.)
Once the sexual orientation clause was included in the constitution, it was a short jump to prohibiting private-sector discrimination and requiring marriage equality. It remains to be seen what will result from the apparently huge disconnect between public policy and public attitudes regarding homosexuality, which appears more striking in South Africa than anywhere else in the world. We will never know what would have happened had Roe or Brown or Griswold come out differently -- but we can see what becomes of this "countermajoritarian difficulty" in South Africa. Will the Consitutional Court, or the constitution itself, suffer in prestige? Will there be increased resentment and hate crimes towards the LGBT community? Will the law's enshrinement of equality actually dampen societal homophobia, and undercut the conviction that homosexuality is "un-African," over the coming years?
It seems to me, then, that South African society is now a prime laboratory for the sorts of difficult empirical questions that constitutional scholars love to ask (and answer, with or without convincing evidence). Hopefully, social scientists will turn their attention to this potential social turning point and help answer those same questions. Hopefully, those con law scholars can encourage and assist them in doing so.