Migrating Marriages and Comparative Constitutionalism
THE MIGRATION OF CONSTITUTIONAL LAW, Sujit Choudhry ed., p. 209, Cambridge University Press, 2006
23 Pages Posted: 14 Aug 2008
There are at least three dimensions to migration: actual same sex marriages, cultural representations of these marriages, and constitutional ideas about same sex marriage. And some of these are migrating more than others. In this chapter, I argue that Canadian constitutional ideas about same sex marriage have not been migrating to the United States at least not in terms of explicit judicial borrowings. Rather, because of the association of comparative constitutional law with judicial activism, I suggest that any such migration is likely to be minimal. In fact, Canadian same sex marriage jurisprudence is more likely to occur as a negative or anti-model that is, as an example of a path better not taken. However, the chapter argues that the emerging analysis of the migration of constitutional ideas needs to develop alternative and perhaps more subtle modes of inquiry to capture the ways in which constitutional ideas may be migrating in the absence of explicit judicial borrowings. The migration of same sex marriages and its cultural representations are changing the cultural landscape within which constitutional challenges will occur and constitutional doctrine will develop. I argue that the emerging field of the migration of constitutional ideas, as well as comparative constitutionalism more generally, needs to supplement its doctrinal analysis with the lens of cultural studies that can appreciate the multiple migrations of same sex marriages.
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