This article originally appeared in the Spring-Summer 2016 issue of Carolina Law.
When a court finds a government has violated a constitutional right, how soon should a remedy be implemented? Right away, conventional thinking holds — instead of giving the government an extended period to address the problem.
But research by Carolina Law professor Holning Lau suggests the best time frame may depend on the particular case. His paper “Remedial Grace Periods as Judicial Strategy” focuses on a 2005 ruling by South Africa’s highest court that depriving same-sex couples of marriage violated constitutional rights. Instead of implementing same-sex marriage immediately, the court delayed it a year. Parliament passed legislation to comply with the ruling in 2006, and South Africa became the world’s fifth country to legalize same-sex marriage.
“The grace period ultimately enhanced the perceived legitimacy of the court and same-sex marriage, thereby mitigating backlash against the court’s decision,” says Lau, who presented his paper at the Association of American Law Schools’ annual meeting in January.
The paper was showcased at the plenary panel of the American Society of Comparative Law’s annual meeting in October 2015. His article was selected by an advisory group of the society’s Younger Comparativists Committee.
In South Africa, Lau talked with human rights activists initially opposed to the grace period as an unnecessary delay of justice. They eventually changed their minds.
“Activists had an opportunity to bring their case to the people and humanize the issue of same-sex marriage by sharing their stories. Prior to the grace period, many activists found it difficult to gain access to the media, so they pursued their causes quietly in courts. The grace period gave activists access to new public forums,” Lau says.
Still, he believes in most cases, delaying remedies for constitutional problems is unwarranted.
“More research and scholarly conversations are necessary to understand how to identify the rare cases in which remedial grace periods are likely to produce favorable results like those in South Africa,” Lau says.
-May 6, 2016