In our large project on the characteristics of written constitutions of independent nation-states, one of the questions we included was whether or not the constitution provided for gay marriage. We were somewhat surprised to learn that the only place with a clear constitutional right to gay marriage was our survey instrument! Indeed, the handful of constitutions that speak to the issue choose to ban gay marriage. Now the Jamaican Prime Minister wants to adopt a constitutional ban on gay marriage as part of a larger amendment of the Charter of Rights.
The American experience, and perhaps global experience, seems to be that courts are leading the way on the issue of gay marriage, with legislators much more cautious or even hostile. Perhaps that is unsurprising, but it speaks to the limits of reliance on legislative leadership on human rights. Professor Tushnet’s observation of a correlation of “Weak Courts, Strong Rights” may apply to only a limited subset of rights claims.