Law as It Is, Law as It Lives: Judicial Reasoning in Penumbral Interpretation of Same-Sex Marriage Rights

Abstract

The evolution of societal values and human rights in modern democracies challenges the limits of codified law, acknowledging the judiciary‘s role in tackling questions left for the competence of legislature. Tensions such as become prominent in the judicial interpretations of legal penumbra, or grey area in law, where courts navigate the uncodified and unregulated space between law and emerging social realities. This research investigates how courts in different legal traditions respond to social change, focusing on the interpretation of penumbral rights in same-sex marriage cases in the United States – a common law country - and Brazil - a civil law country. Utilising a comparative analysis of case law and legal theories, the paper examines how internal judicial reasoning and external social developments intersect in determining penumbral interpretation. The observations demonstrate that although judicial reasoning reflects each legal system’s doctrine and judges’ interpretative approach, social movements and enlarging conception of equality encourage courts to broaden interpretation of constitutional principles. Judges have exercised interpretative flexibility to expand the scope of constitutional protections, showing that judiciary can act as agents of social adaptation even in the absence of legislative reform. Alongside with the judiciary’s interpretative authority, social consensus and human rights discourse appear to inform the gradual expansion of constitutional meanings within reasoning penumbra. This paper concludes that penumbral reasoning functions as a means to reconcile constitutional tradition with modern conception of dignity, privacy and equality.