One of the most important areas of the South African Constitutional Court's jurisprudence is gay rights. The Court has ruled for the plaintiffs in several cases, even invalidating same-sex marriage restrictions. Given the racist legacy of apartheid, it is surprising that these cases are more prominent than the Court's racial discrimination cases. It raises the question of why the South African Court made this area a cause célèbre.

By contrast, perhaps the most prominent U.S. Supreme Court case is Brown v. Board of Education, a defeat for American racial apartheid. The Supreme Court has not even heard gay rights cases until recently. Moreover, the plaintiffs in 1986 suffered a big defeat in the first case, Bowers v. Hardwick. The Court has since overruled Bowers but its gay rights jurisprudence is still muddled.

Indeed, gay marriage rivals abortion as one of the most controversial constitutional issues in the United States even though the U.S. Supreme Court has not decided the question. Only the Supreme Judicial Court of Massachusetts, the California Supreme Court, and the Connecticut Supreme Court have ruled in favor of gay marriage under their state constitutions, though the California decision has been overturned by Proposition 8. New York, Washington, and Maryland disagree. New Jersey, Vermont, and Hawaii have essentially ruled in favor of civil unions but not marriages. Many states have passed laws or constitutional amendments specifying that marriage is between a man and a woman.