Marriage, Courts, and Substantive Equality: A Transformative Interpretation

Courts in various jurisdictions have relied on either the right to privacy or the right to equality to offer protections to the LGBTQ+ community. The use of different rights to achieve similar ends may seem like an empty distinction. But the differences in the nature and function of each right evince the differences in the construction of rights across jurisdictions. In the traditional liberal method of conceptualizing rights, privacy is typically a negative right, restricting the state from interfering in intimate relationships between individuals. Courts operating within a transformative framework of rights interpretation, however, rely on the positive right to equality to impose duties upon the state to guarantee equal moral membership to all individuals in society. This is not a mere theoretical distinction: The remedies granted by these courts vary based on their conceptualization of constitutional rights guarantees. This Note examines various legal regimes’ divergent applications of the two frameworks through the right to privacy and the right to equality, specifically within the context of the legalization of same-sex marriage. It shows that courts using the transformative prism have interpreted equality to abandon default verticality, that is, the legal tradition of situating private relationships and community conventions outside of the constitutional mold. Using the transformative prism, courts have instead subjected societal mores to constitutional morality. In doing so, these courts have been able to offer better remedies to LGBTQ+ people, allowing them to exercise their rights and freedoms in a substantive—and not merely formal— manner.