Same-Sex Marriages — A South African Perspective

By: SARAH VAHED

Amid recent challenges to same-sex marriage rights in courts around the United States, it is no-doubt of significant value to take into account the views of the international community. South Africa is in this particular regard a valuable resource in assessing a modern day approach to the human rights of the LGBT community.

In December of 2005, South Africa became the fifth country in the world and the first country on the African continent to recognise the rights of same-sex couples. This was achieved by legalising homosexual marriages. Minister of Home Affairs v Fourie {1} is the landmark decision which reached this decision delivered by the Constitutional Court, the highest court in the land.

The legal question in the case was two-fold. Firstly, the court had to decide whether the fact that no provision was made for same-sex marriages in any statute amounted to the denial of equal protection of the law and unfair discrimination by the state against homosexuals on the basis of their sexual orientation. Secondly, if such unfair discrimination were to be found, the court had to decide on an appropriate remedy.

In a unanimous decision the Constitutional Court declared that the common law definition of marriage and section 30(1) of the Marriage Act {2} which excluded same-sex marriage were inconsistent with sections 9(1) and 9(3) and section 10 of the South African Constitution. {3} These sections read as follows:

9 Equality

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(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.

10 Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.

In explaining their decision the Court made important observations. The Court highlighted that South Africa, like many other countries in the world, has a multitude of family formations that evolve and diverge. As such it was held to be inappropriate to enforce any one particular form as the only socially and legally acceptable one. The Court emphasised a constitutional need to acknowledge the long history in South Africa and abroad of the marginalisation and persecution of gays and lesbians. Further, the Court acknowledged the lack of a comprehensive legal regulation of the family law rights of gays and lesbians. Finally, the Court stressed the importance of a Constitution which, in South Africa, represents a radical rupture with a past of apartheid based on intolerance and exclusion and the movement forward to the development of a society based on equality and respect by all for all.

Reading the judgement one sees a deliberate attempt by a judiciary to understand the position of the marginalised group. The Court finds that excluding same-sex marriage is an indication that homosexuals are to be considered “outsiders” in which their need for the protection of intimate relations as human beings is somewhat less than that of heterosexual couples. Abarring of the rights of homosexuals signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard. In the words of Sachs J, writing on behalf of the majority, “To penalise people for being who and what they are is profoundly disrespectful of the human personality and violatory of equality. Equality means equal concern and respect across difference.” In effect the Court acknowledged a “right to be different”.

Among the various arguments opposed to the issue at hand were inevitable contentions raised by religious institutions which the Court respectfully heard. However, it was held 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 divisions within religious bodies. In the open and democratic society contemplated by the South African Constitution there must be a mutually respectful co-existence between the secular and the sacred. The function of the Court, it is held, is to recognise the sphere which each inhabits, not to force the one into the sphere of the other. Furthermore, it was held that the recognition of same sex marriages would in no way force religious institutions to accept or perform such marriages within their chosen belief nor would the recognition deprive any religion or heterosexual couple from marrying within the tenets of their beliefs.

The final finding of the Court was that the common law definition of marriage was inconsistent with the Constitution and invalid to the extent that it did not permit same-sex couples to enjoy the status and the benefits coupled with responsibilities it accords to heterosexual couples. Furthermore, section 30(1) of the Marriage Act {4} was declared to be invalid to the extent that it gave effect to the exclusion of same-sex marriages. In order to remedy the situation parliament (the legislative sphere of government) was given 12 months to cure the defect through the implementation of legislation.

This final relief came in the form of the Civil Union Act 17 of 2006. The Civil Union Act {5} makes provision for same-sex marriages and operates alongside the Marriage Act such that any individual in South Africa may now conclude a marriage either in its traditional form (under the Marriage Act) or in the form of a civil union (under the Civil Union Act). As a further step in the promotion of LGBT rights, in December 2008 the president of South Africa appointed a much-admired, highly acclaimed, openly gay and HIV positive judge, Justice Edwin Cameron, to serve as one of the permanent nine judges of the Constitutional Court.

While South African society still has a long way to go in becoming as fully accepting of same-sex marriages as contemplated by the Court, this is perhaps a necessary case study by other jurisdictions in understanding how they should address major legal issues. One of the most important lessons to be learnt from this South African case is this statement made by the Court:

“At issue is a need to affirm the very 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 discomfiting.”

To read the full judgement of the case follow this link:

{1} Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC).

{2} Marriage Act 25 of 1961.

{3} Constitution of the Republic of South Africa, 1996.

{4} Marriage Act 25 of 1961.

{5} The Civil Union Act 17 of 2007.