The evolving public opinion about same-sex marriage: a society question for the courts

The evolution of the social acceptance of same-sex couples has inevitably had an impact on the approaches of constitutional and supreme courts about same-sex marriage. In different models of constitutionalism, courts had either embraced those evolutions of society and used it to authorise same-sex marriage in the name of anti-discrimination (US, Brazil) or deferred to the legislator as the only authority capable of interpret the changes in society and transform it into law (France, Italy).

Question of society, beyond models of constitutionalism?

The aim is to focuse on the traditional distinction between models of constitutionalism in order to explore their boundaries when they face “society questions”.The idea of society questions seems at first sight familiar to “political model” of constitutionalism. Indeed, the proponents of political model emphasized the “political” dimension of question of rights. What is relevant here is how the reference to “society” in its deep diversity of visions nourish a skepticism toward constitutional interpretation coming from jurisdiction. At the opposite, society questions appear quite elusive to scholars coming from a legal culture of constitutionalism. In France, “society question” hardly emerge in legal discourse.Hence, the first direction is to understand how “society questions” appear within these several model of constitutionalism.