After 15 hours of debate in the Senate on July 15, Argentina became the first nation in Latin America to legalize gay marriage. One of the more contentious developments in the second half of the twentieth century has been the struggle between religion and the State over the power to regulate family life and gender issues. Latin America has been an outlier on these issues (particularly with regard to abortion) because of the influence of the Roman Catholic Church. Although the power of the Church in the region has been weakened as it faces increased competition from various strands of Protestantism, the Roman Catholic Church remains a potent force. The Church in Argentina, however, has been weakened because of its complicity with the brutal military repression of the 70s and 80s. In any case, polls show a considerable level of support for gay marriage in Argentina.
The issue I want to explore is how this development might deepen our understanding of constitutionalism. The meaning of a Constitution is fleshed out over time by different political actors. Americans fetishize the founding but what comes afterwards is equally, if not more, important. A constitution is an attempt to create a political community that can withstand the test of time. Scholars have for too long emphasized the role of courts in the job of constitutional maintenance. The work of the Warren Court (i.e., Brown v. Board of Education) played a crucial role in popularizing amongst intellectuals the idea that courts are the key actors in effectuating constitutional guaranties, particularly those of equality. The United States Congress obviously played a key role in ending segregation as well, however. The point is that courts (thankfully) have no monopoly over constitutional interpretation. The Argentine Congress showed how important democratic institutions can be to the protection of the rights of political minorities.