Juristocracy in the Americas? Courts and Relationship Equality Policy Innovation from Canada to Argentina

Abstract

This paper examines the role of courts in the development of policies recognizing same-sex relationships in North and South America. Ran Hirschl (2004) has noted that the rise of judicial policy making in nations is often the result of political actors empowering, directly or indirectly through new constitutions, judiciaries out of a specific, often self-serving, political goal. Evidence of this dynamic exists in some American jurisdictions, such as Canada, Brazil and Colombia. However, despite increasingly active judiciaries is the Americas, change, or resistance to change, is still largely a product of non-judicial factors. Policy advances in most nations, such as Mexico, Argentina, and Uruguay, have been led by legislatures, parties, interest groups, and executives. In most countries in the Americas, courts are weak or nonexistent actors. The issue of relationship equality largely remains one of “real�? politics, where political parties, interest groups, presidents, legislators matter more than judges. While there may be a chipping away at judicial deference and restraint in civil law regimes, this norm is still a powerful dynamic in the Americas outside of the common law jurisdictions of the North.