Comparative Perspectives on Strategic Remedial Delays

Article by Holning Lau

In controversial constitutional cases, courts sometimes grant the government an extended period of time to correct rights violations—what Lau calls “remedial grace periods”— hoping that the postponed implementation of change will temper backlash. The most wellknown example of such remedial delay followed the U.S. Supreme Court decision in Brown v. Board of Education II. This Article spotlights a more recent remedial grace period. In Minister of Home Affairs v. Fourie, South Africa’s highest court ruled that depriving same-sex couples of marriage was unconstitutional. It could have implemented same-sex marriage immediately by reading it into the law, but it chose not to. Instead, it sought to defusecontroversy by giving Parliament time to remedy the situation legislatively. Fourie’s grace period complicates prevailing wisdom about grace periods that derives from Brown II.

Part I of this Article provides background by comparing remedial grace periods to other judicial delay tactics. Part II looks closely at Fourie. Through a content analysis of newspaper stories and interviews with rights activists, Lau examines the Fourie grace period’s effectiveness at addressing backlash. The grace period appears to have mitigated backlash by enhancing the perceived legitimacy of the Constitutional Court and of same-sex marriage. Whereas previous commentators have focused on Brown II’s grace period and derided its failure to mitigate backlash, the South African grace period is much more commendable. By presenting an in depth account of the Fourie grace period, this Article helps to develop a fuller picture of remedial grace periods. Part III examines how the South African experience can inform judicial behavior in other parts of the world.

About the Author

Reef C. Ivey II Distinguished Professor of Law & Associate Dean for Faculty Development, University of North Carolina School of Law. 


91 Tul. L. Rev. 259 (2016)