Comparative Perspectives on Strategic Remedial Delays
65 Pages Posted: 27 May 2016 Last revised: 14 Jun 2018
Date Written: May 25, 2016
In controversial constitutional cases, courts sometimes grant the government an extended period of time to correct rights violations — what I call “remedial grace periods” — hoping that the postponed implementation of change will temper backlash. The most well-known example of such remedial delay followed the United States Supreme Court decision in Brown v. Board of Education II. This Article spotlights a more recent remedial grace period. In Minister of Home Affairs v. Fourie, South Africa’s highest court ruled that depriving same-sex couples of marriage was unconstitutional. It could have implemented same-sex marriage immediately by reading it into law, but it chose not to. Instead, it sought to defuse controversy by giving Parliament time to remedy the situation legislatively. Fourie’s grace period complicates prevailing wisdom about grace periods that derives from Brown II.
Part I of this Article provides background by comparing remedial grace periods to other judicial delay tactics. Part II looks closely at Fourie. Through a content analysis of newspaper stories and interviews with rights activists, I examined the Fourie grace period’s effectiveness at addressing backlash. The grace period appears to have mitigated backlash by enhancing the perceived legitimacy of the Constitutional Court and of same-sex marriage. Whereas previous commentators have focused on Brown II’s grace period and derided its failure to mitigate backlash, the South African grace period is much more commendable. By presenting an in-depth account of the Fourie grace period, this Article helps to develop a fuller picture of remedial grace periods. Part III examines how the South African experience can inform judicial behavior in other parts of the world.
Note: This Article won the American Society of Comparative Law’s 2015 paper competition for scholars in their first ten years of teaching.
Keywords: comparative law, comparative constitutional law, constitutional law, remedies, remedial discretion, remedial delay, grace periods, judicial behavior, judicial politics, backlash, same-sex marriage, law and society
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