Joined: 05 Dec 2005
Posts: 1040
Location: under our tree in Africa
Gay Marriage in South Africa
Gay Marriage in South Africa - Part 1
In 1994, following a process of conciliation and consultation, South Africa adopted a new Constitution, which contained a “Bill of Rights”, the cornerstone of democracy in this country. The Bill of Rights enshrines the rights of all people in South Africa, and affirms the democratic values of human dignity, equality and freedom. The State must respect, protect, promote and fulfil these Rights. To ensure that the State does not fail in this, an independent Constitutional Court was created, the highest Court in the country, which is presided over by 9 Judges, who are widely respected and selected because of their understanding of the law and their commitment to these Rights.
The very first Right in the Bill of Rights that must be so protected is the Right to Equality. Allow me to quote:
quote:
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation
, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
Towards the end of 2005, a lesbian couple from Pretoria, appealed to the Constitutional Court, on the grounds that the current law excludes them from publicly celebrating their love and commitment to each other in marriage. They contended that the exclusion comes from the common law definition which states that marriage in South Africa is a union of one man with one woman, to the exclusion, while it lasts, of all others. This common law interpretation is also found in the Marriage Act, which only refers to ‘husband and wife’.
Upon hearing their case, the decision of the 9 Judges of the Constitutional Court was unanimous: the current common law definition of marriage, as well as the fact that the Marriage Act refer to husband and wife instead of using the word ‘spouse’ is unconstitutional and invalid. In writing the judgement, Judge J Sachs stated the following:
* it is ‘ inappropriate to entrench any particular form of family formation as the only socially and legally acceptable one;
* there was an imperative constitutional need to acknowledge the long history in our country and abroad of marginalisation and persecution of gays and lesbians although a number of breakthroughs have been made in particular areas;
* there is no comprehensive legal regulation of the family law rights of gays and lesbians; and
* our Constitution represents a radical rupture with the past based on intolerance and exclusion, and the movement forward to the acceptance of the need to develop a society based on equality and respect by all for all.
He pointed out that at issue was the need to affirm the character of our society as one based on tolerance and mutual respect. The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomforting. The exclusion of same-sex couples from the benefits and responsibilities of marriage was not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represented a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples. The intangible damage to same-sex couples is as severe as the material deprivation. They are not entitled to celebrate their commitment to each other in a joyous public event recognised by the law. They are obliged to live in a state of legal blankness in which their unions remain unmarked by the showering of presents and the commemoration of anniversaries so celebrated in our culture.
If heterosexual couples have the option of deciding whether to marry or not, the judgment continued, so should same-sex couples have the choice as to whether to seek to achieve a status and a set of entitlements and responsibilities on a par with those enjoyed by heterosexual couples. By both drawing on and reinforcing discriminatory social practices, the law has failed to secure for same-sex coupes the dignity, status, benefits and responsibilities that it accords to heterosexual couples. Although considerable progress has been made in specific cases through constitutional interpretation and by means of legislative intervention, the default position of gays and lesbians is still one of exclusion and marginalisation. Sachs stated that Judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues which have caused deep schisms within religious bodies. In the open and democratic society contemplated by the Constitution there must be mutually respectful co-existence between the secular and the sacred. The function of the Court is to recognise the sphere which each inhabits, not to force the one into the sphere of the other. The objective of the Constitution is to allow different concepts about the nature of human existence to inhabit the same public realm, and to do so in a manner that is not mutually destructive and that at the same time enables government to function in a way that shows equal concern and respect for all.
Acknowledgement by the state of the right of same-sex couples to enjoy the same status, entitlements and responsibilities as marriage law accords to heterosexual couples, is in no way inconsistent with the rights of religious organisations to continue to refuse to celebrate same-sex marriages. The two sets of interests involved do not collide, they co-exist in a constitutional realm based on accommodation of diversity. Granting access to same-sex couples would in no way attenuate the capacity of heterosexual couples to marry in the form they wished and according to the tenets of their religion.
The silent obliteration of same-sex couples from the reach of the law, together with the utilisation of gender-specific language in the marriage vow, presupposes that only heterosexual couples were contemplated. The common law and section 30(1) of the Marriage Act are accordingly inconsistent with sections 9(1) and 9(3) [equality] and 10 [dignity] of the Constitution to the extent that they make no provision for same-sex couples to enjoy the status, entitlements and responsibilities they accord to heterosexual couples.
With regard to the remedy (i.e. how to rectify this situation), eight of the nine Judges concurred that the State should be given 12 months form the date of the judgement (2 December 2005) to rectify this, failing which the word ‘spouse’ will automatically be included in the Marriage Act. Judge Kate O’Regan dissented with this, stating that the word ‘spouse’ should become part of the Act with immediate effect to permit gays and lesbians to be married by civil marriage officers (and such religious marriage officers as consider such marriages not to fall outside the tenets of their religion).
(abstacts from thr judgement taken from concourt.gov.za/site/gaylesb.htm) _________________ .
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light is to darkness as love is to fear...
Thu Sep 07, 2006 7:56 pm
cupcakes
Joined: 18 Sep 2005
Posts: 324
Location: NY
I thought this dec 2nd thing was a done deal, but the other day some people asked me to sign a petition for it.
So then I got confused and had to wikipedia it. (if they say it on wikipedia it must be true)
So do you think the civil unions bill is really creating "sexual apartheid"?
Do you think it's not enough unless the Marriage act is ammended?
I don't know what I personally think about this issue, probably because i don't plan on marriage any time soon.
In an ideal world, same sex marriage would be legal and everyone would be happy, but I think i can kind of understand the sentimental feelings for tradition. Especially in the SA context.
Everything is changing so drastically and so quickly. Although I'm not south african, I imagine people might be feeling like they're losing their various heritages.
On the other hand, we're hearing all this stuff about being progressive, and modernizing, etc etc. which most people agree are good things. But might that not be just a disguise of the western hegemone pushing its agenda?
ok, i've gone off topic. confusion. (Frustrated cuz i don't know what i'm trying to say)
ok...um... so I understand words like "marriage" and "spouse" are powerful and can have important affects on how society treats the couple, but in the end...it's just an arbitrary word and the power behind that word can be changed if society's interpretation of it changes. I don't think gay marriage and hetero marriage will ever be seen as the same, so why struggle to try?
Why not acknowledge the difference and celebrate it, without favoring one over the other?
It appears that the Judges handled the situation very well.
Hugs,
Eiregirl _________________ All poems and stories posted by Eiregirl are
Copyright 2005 - 2008 Aoibhegréine
These literary works are my property under copyright. If you wish to use my work for any purpose please ASK FIRST.
Tue Oct 03, 2006 5:22 pm
BabykaTbo
Joined: 29 Nov 2006
Posts: 62
Location: South Africa (Bloemfontein)
this is to add on what real has said and to give you ladies an understanding on how the department of home affairs has handled this.
Acting President, Ms Phumzile Mlambo-Ncquka has signed into law the Civil Union Bill with effect from 30 November 2006.
The Civil Union Act, 2006 (Act No. 17 of 2006) which accords same-sex couples the same rights and status as heterosexual married couples breaks new ground. The Act ensures and respects the equality and the dignity of same-sex people in South African society.
Welcoming the new law, Home Affairs Minister Nosiviwe Mapisa-Nqakula said the passing of the Civil Union Act has demonstrated that South Africa is maturing as a democracy in which a culture of tolerance and respect for human rights has become entrenched amongst its citizens.
The signing into law of the Civil Union Act makes the democratic South Africa the fourteenth country in the world and the first in the continent to afford same-sex couples equal protection through legal instruments such as the Civil Union Act.
The Acting Director-General of Home Affairs, Mr Joel Chavalala has assured all South Africans that the Department of Home Affairs is ready to start implementing the Civil Union Act with immediate effect.
“Our IT systems have been tested, forms printed and marriage officers and other frontline officers are now trained to deal with issues relating to the new Act”.
In terms of the provisions of the Civil Union Act, anyone 18 years or older may enter into a civil union. Any religious denomination or organisation wishing to solemnise civil unions has to apply in writing to the Minister to be designated as a religious institution that may solemnise marriages in terms of the Civil Union Act.
Furthermore, any Minister of religion or any person holding a responsible position in any designated religious institution must in writing apply to be designated as a marriage officer for purposes of solemnising marriages in accordance with this Act. State officials who have already been designated as marriage officers in terms of the Marriage Act of 1961 may solemnise civil unions with immediate effect.
The parties to the civil union may choose to have their civil union registered as either a marriage or a civil partnership, upon which a certificate will be issued and the particulars will be entered into the population register. It should be noted that the Civil Union Act does not repeal the Marriage Act of 1961 or the Recognition of the Customary Marriages Act of 1998.
“We are particularly excited to be at the forefront of this historic development in our country,” Chavalala said.
quote:
So do you think the civil unions bill is really creating "sexual apartheid"?
you know cup it does feel like that because why should there be double standards on the matter.
thanks real for bringing this up you know it's better now that we have got this civil union bill but we deserve the best and it just not enough yet.
cupcakes i personally don't want to celebrate the difference but i do akcnowledge it thi thing is that it makes everything about our life seem abnormal from all the straight people well that is how they view it anyway and if you are black they just somer tell you that it is not in the black culture to marry or have a same sex relationship so me hulle kan maar kak as hulle will wat dit is onse lewe niemand's nie.
this topic is too much to my heart so i will stop it hear i don't want to get too deep about it. thank you real
babykat _________________ Don't find love, let love find you. That's why it's called falling in love, because you don't force yourself to fall, you just fall.
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