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Same-sex marriage

Recognition of same-sex partnerships
and marriages in South Africa

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Sponsored link.

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Background:

According to the web site of the gay-positive South African group Lesbian and Gay Equality Project: "It is fair to say that South Africa has experienced the most rapid transformation on the issue of lgbt [lesbian, gay, bisexual, transsexual] equality anywhere in the world."

bulletPrior to 1994, gay, lesbian, bisexual and transsexuals had no legal protection. Sexual acts between two consenting adult men in private were criminalized.
bulletDuring the decade from 1994 to 2004, "...some 35 items of legislation changed, including most importantly, the Constitution, which guarantees the right to be free of discrimination by the State or Legal and Natural persons, on the grounds of sexual orientation." The constitution now places sexual orientation on a par with gender and race as protected categories.
bulletVarious laws from 1995 to the present were passed or changed to:
bulletProtect gays and lesbians in the workplace;
bulletProhibit the registration of a political party which advocates hatred and violence on the basis of sexual orientation;
bulletRecognize families led by a same-sex couple;
bulletProtect children of families led by a same-sec couple;
bulletAllow same-sex spouses to register for medical benefits
bulletProhibit discrimination in accommodation;
bulletEliminate death duties for same-sex spouses;
bulletetc. 6

A major factor causing this rapid change was the decades-long struggle against apartheid which was enforced by the National Party's white-supremacist government. Apartheid was given a theological justification by a number of Christian denominations, of which the largest was the Nederduitse Gereformeerde Kerk (a.k.a. NGK or Dutch Reformed Church). It "...came to be known as the 'official religion' of the National Party during the apartheid era." 7 This led to an intense aversion against racism by the Black majority which expanded to include dislike of discrimination of all types. Having been oppressed so viciously for so many decades by a Christian-based White government, they had no desire to turn around and oppress others, whether on the basis of religion, race, skin color or sexual orientation.

Many white South Africans, particularly Afrikaners, remain very conservative in social matters, and strongly opposed to equal rights for gays and lesbians. Also, many indigenous Africans believe that homosexuality as associated with ukuthakatha (evil sorcery) and also oppose equal rights for persons of all sexual orientations.

Homosexual behavior is illegal in most sub-Saharan countries in Africa. Some countries are debating whether to change their constitution to forbid same-sex marriages. Even in South Africa, gay bashing is quite common.

In recent years, political leaders in Africa have condemned homosexuals:

bulletSam Nujoma, president of Nambia, criticized the growing emphasis in the West of equal rights for persons of all sexual orientations. On 2002-AUG he said:

"When you talk about human rights, you include also homosexualism [sic] and lesbianism. It's not [part of] our culture, we Africans. And if you try to impose your culture on us Africans, we condemn it, we reject it."

bulletPresident Mugabe of Zimbabwe has also been outspoken on gay issues, referring to homosexuals as "worse than pigs and dogs". 10

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Equality Bill:

Section 9 of the Constitution of the Republic of South Africa, adopted in 1996, prohibits discrimination and disadvantage on the basis of: race, gender, sex, religion, and many other criteria including sexual orientation. The Constitution requires that national legislation be enacted to support these concepts.

A "Promotion of Equality and Prevention of Unfair Discrimination" bill was introduced by the South African government in 1999-NOV. It is often referred to as the "Equality Bill." It covers unfair discrimination, hate speech, harassment and the publication of unfair discriminatory information. 1 Parliamentary hearings were held on 1999-NOV-22 to 26. The bill was passed by Parliament on 2000-JAN-28 and signed into law by the President on 2000-FEB-02. The bill contains a number of references of interest to gays and lesbians: 

bulletChapter 1, Definition 1.(1)(xiii) defines "harassment" as: "unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to (a) sex, gender or sexual orientation, or (b)...."
bulletChapter 1, Definition 1.(xxii) defines "prohibited grounds" of discrimination to include "race, gender, sex, pregnancy, marital status...sexual orientation...
bulletChapter 1, Definition 1.(xv) defines "marital status" as including "the status or condition of being single, married, divorced, widowed or in a relationship, whether with a person of the same or the opposite sex, involving a commitment to reciprocal support in a relationship" 

This bill thus:

bulletProtects all persons (whether heterosexual, homosexual or bisexual), from harassment on the basis of their sexual orientation. 
bulletPprotects all persons on many additional grounds including:
bulletother genetically determined factors (gender, sex, race, color)
bulletorigin (ethnic or social origin, culture, language, birth)
bulletbehavior and beliefs (religion, conscience, belief)
bulletProtects all person from discrimination on the basis of their "marital status." That term includes various forms of committed and supportive partnerships: married couples, heterosexual couples living together without being married, and homosexual couples living together.

The bill originally contained a clause that protected individuals from discrimination based on their HIV/AIDS infection status. However, the clause was removed. "Instead, a committee will be set up to make recommendations on this issue within a year." 5

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Sponsored link:

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Recommendations changes by gay-positive advocacy group:

The National Coalition for Gay and Lesbian Equality made a submission during the hearings on the Equality Bill. They reported that "A number of recent statutory provisions, documents issued by government departments and judicial decisions demonstrate that within the legislative, executive and judicial arms of government, there is an acknowledgement of [sic] concepts of "partner", "spouse" and "family" need to become more inclusive." 3 For example:

bulletSection 35 (2)(f) of the Constitution provides that: "Every person who is detained, including every sentenced prisoner, shall have the right...to communicate with, and to be visited by, his or her spouse or partner, next-of-kin…"
bulletThe Department of Welfare's White Paper defines "family" as follows: "Individuals who either by contract or agreement choose to live together intimately and function as a unit in a social and economic system. The family is the primary social unit which ideally provides care, nurturing and socialisation for its members. It seeks to provide them with physical, economic, emotional, social, cultural and spiritual security." (Government Gazette No. 16943 2 February 1996).
bulletIn a recent decision of the Constitutional Court, Justice Mahomed stated that "family law" could no longer be based on "simplistic" distinctions between married and unmarried people because "in modern society, stable relationships between unmarried parents are no longer exceptional." (Fraser v Children's Court of Pretoria North and Others 1997 (2) SA 261 at 272E-G)
bulletThe Basic Conditions of Employment Act (75 of 1997) provides or family responsibility leave in the event of the death of a "spouse or life partner". 

At the hearings, the NCGLE recommended that "family status should be included [within the legislation] as a specifically prohibited ground for discrimination." They suggest that:

bulletThe term "family responsibility" be defined as: "the responsibility of a person in relation to their spouse or partner, their dependant children, or in relation to other members of their immediate family who need their care or support.
bulletThe term "partner" be defined as: "a person irrespective of sexual orientation, or marital status who shares an intimate and committed relationship with another person based on a mutual obligation of support for basic living expenses during the period of the relationship."

Some of their suggestions appear to have been incorporated in the bill, although not in the precise form that the NCGLE suggested.

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Conservative Christian comments on the Equality Bill

The Evangelical Press News Service (EP) reported on the Equality Bill. 3 They state that the bill "would redefine marriage to include homosexuals...If passed, marriage in South Africa would include anyone 'in a relationship, whether with a person of the same or the opposite sex'." This appears to be an error. As noted above, it is the term "marital status," not "marriage" that is defined in this way. The bill did not grant gays and lesbians the right to marry. It merely recognizes that homosexual partnerships are one of many forms of marital arrangements. However, the bill made it possible for gays and lesbians to launch a future lawsuit against the government. Marriage in South Africa grants couples certain rights and privileges. A lawsuit could argue that the government's denial of marriage to homosexuals deprives them of these benefits and is thus a violation of the Equality Bill.

Reverend Kenneth Meshoe of the African Christian Democratic Party (ACDP) stated in parliament:

"The ACDP regards this bill as one of the worst and [most] far-reaching interventions by this government in the regulation of private life as it aims to entrench values and belief systems that are detrimental to the family." 

Christine Herselman, ACDP spokesperson, stated in an interview on 2000-FEB-4 that this law is of great concern to many Christians in the country. She expressed concern that clergy that refuse to recognize the legitimacy of a homosexual partnership, or who teach that homosexuality is an abomination, or who take a stand against abortion access could be prosecuted. Even a Christian who asserts that acceptance of Jesus Christ as Lord and Savior is the only way to salvation might be in violation of the law.

Matthew Pute, a spokesman for "African Christian Action" said that the law will be a "test case for South African churches." His group was involved in a pro-life demonstration outside parliament. He said: "To do so now that the Equality Law has been passed could be illegal. They will say we're discriminating against women who want to have abortions."

Mighty Madasa, spokesperson of the (ACDP) opposes equal marriage rights for gays and lesbians. He complained:

"The state law adviser's proposal...flies in the face of the moral norms of the vast majority of South Africans...The terms 'marital status' and 'pregnancy' do not need to be defined. Anyone with common sense knows what 'marital status' and 'pregnancy' is. Defining the term 'marital status' to include homosexual and lesbian relationships is merely an attempt to give special privileges to people practicing a homosexual lifestyle and to attempt to give homosexuality some form of respectability."

Madasa reported that the bill also prohibits discrimination on the basis of sexual orientation in private clubs, church memberships, employment and housing. Madasa said:

"These laws are an attempt to force people to override their own freedom of conscience. Surely if a church, employer or a homeowner chooses not to accept someone into membership or employment, he has that right. This bill would take away the right of individuals and private institutions to choose whom they wish to employ or take into membership." 

Masada raises some interesting points. Individuals, private clubs and churches have traditionally been allowed to discriminate on the basis of gender, sexual orientation, and any other criteria that they see fit:

bulletThe Mormons once discriminated in ordination on the basis of race and sex. They dropped the race requirement in 1978.
bulletThe Roman Catholic Church and many Protestant churches discriminate in employment on the basis of gender.
bulletMany religious groups discriminate against gays and lesbians in ordination, employment and sometimes in membership.

Most civil rights bills in North American and elsewhere often exclude individuals, churches, and private clubs from the provisions of the act. This South African bill does not appear to do this. A woman, gay or lesbian who was refused employment by a church might well be able to sue under the act.

It appears that the government and some religious groups were headed on a collision course. Mohseen Moosa, was the chairperson of the committee which drafted the law. During 2000-JAN, he said that religious groups would have to follow the  "value system" set out in the law. He told a press conference that: "This bill does not exempt anybody. We believe that those religions that uphold the values of human dignity and of equality will be satisfied with this bill. And those religious interpretations that do not uphold those values will be tested in court." 5

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Adoption matters:

A conflict existed in South African laws. The constitution prohibits discrimination on the grounds of sexual orientation. However, the Child Care Act banned same-sex couples from adopting children.

Suzanne du Toit and her partner of 13 years, Ann-Marie de Vos, launched a lawsuit in the Pretoria High Court to obtain permission for Ms. de Vos to adopt Ms. du Toit's two children. The court declared sections of the Child Care Act unconstitutional.

On 2002-SEP-10, South Africa's Constitutional Court -- the most senior court in the country -- confirmed the decision of the lower court. They stated that people in "permanent, same-sex partnerships" could provide children with a stable home and the support and affection necessary. They ruled that the couple's "...rights to equality and dignity were infringed by specific sections of the unamended Child Care Act" They determined that sections of the Child Care Act to be unconstitutional. This decision means that South Africa became the first African country to allow same-sex couples to adopt children. This is a particularly important precedent because of the large number of children orphaned by AIDS.

The couple and their 13 year old daughter were ecstatic with the court's decision. 10

"The main political parties however made sure that the 'moral debate' was kept within the party, not taking an official stand to the ruling. Only smaller parties not represented in parliament and religious groups protested the court ruling." 14

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Lawsuit to legalize same-sex marriage:

Marie Fourie and Cecelia Bonthuys are a committed lesbian couple. They were married in 2002-OCT, but the Department of Home Affairs refused to recognize their new status. The couple applied to the Pretoria High Court, asking the court to force the government to recognize their marriage under the Marriage Act and the Identification Act. The couple lost, and appealed to the Supreme Court of Appeal, which ruled 4 to 1 in their favor on 2004-NOV-29. "But the ruling does not make gay marriage possible yet because it only changes the legal definition of marriage and does not address limitations in statutory regulations." 11

Marriage under common laws had been defined as the union of one man and one woman. Judge of Appeal Edwin Cameron of the Supreme Court said in his ruling that the definition of marriage now reads:  "Marriage is the union of two persons to the exclusion of all others for life." The court also declared that the couple can marry under the Marriage Act of 1961, and have their marriage registered by the government. 8 However, the court suspended its own ruing to give the government time to modify the legislation and eliminate the "unjustifiable breach of the appellants' rights to equality and human dignity."

Evert Knoesen, a spokesperson for the Gay and Lesbian Equality Project, said "It's not possible for people of the same sex to be currently married due to the limitations in the current marriage formula and other regulations in the Marriage Act. We have to go ahead with legal action to fix up those somewhat more minor legal problems, and we foresee that within the next 12 months or so, same-sex couples will indeed be married. The principle has been won." His group has already joined with other parties and had filed an application with the Johannesburg High Court challenging these statutory regulations.

Evan Wolfson, executive director of the American group Freedom to Marry said: "The decision could, in theory, be appealed to the Constitutional Court, which would have the final say, but they are likely to rule in our favor as well."

Planet Out Network commented that: "Anti-gay groups in South Africa promised to fight the ruling. Philip Rosenthal, director of ChristianView Network, called the ruling 'judicial tyranny,' and said [that] South Africans should resist the court's decision." 8,9 According to the AFROL News agency:

"Only the African Christian Democratic Party (ACDP), which is not represented in parliament, yesterday condemned the court ruling on same sex marriages in a strong-worded statement, expressing its 'extreme disappointment.' ACDP spokesman Steve Swart said 'history, nature, social science, anthropology, religion and theology' agreed marriage was 'a life-long union of male and female for the purpose of creating stable families'." 16

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Same-sex marriage appeal to the Constitutional Court:

The South African government's Home Affairs Department appealed the Supreme Court of Appeal's decision, arguing that the lower court did not have the right to allow same-sex marriage; they had encroached on Parliament's authority to make laws. They noted "the sensitive nature of this issue," stressed that homosexuals were entitled to respect, equality and dignity in accordance to the constitution, but suggested that the country was not yet ready for same-sex marriages. The Ministry said that a Law Reform Commission was studying "the various types of relationships of a permanent nature, including same sex marriages," and suggested that it was now:

"...critical to afford the Law Commission space and time to complete its report and for Parliament to consider and pass appropriate legislation....For this reason, the Department of Home Affairs feels that it is necessary to ask the Constitutional Court to pronounce on the matter, so that there is finality, and consequently clear guidelines set for both the Law Commission and parliament in completing its work."

In early 2005-MAY,:

"The South African Christian Leadership Assembly (SACLA), a network of conservative minority church groups....called for 'a national referendum on the issue' of same sex marriages. The group referred to a recent survey showing that 78 percent of adult South Africans believe that homosexual relations are 'always wrong', thus anticipating the results of a possible referendum."

The country's highest court, the Constitutional Court, heard the case starting on 2005-MAY-17. About 200 supporters of same-sex marriage packed the courtroom, wearing T-shirts with the message: "Marriage. Anything less is not equality." 12

Before the hearing, the leader of the African Christian Democratic Party, Kenneth Meshoe, expected that the lesbian couple would lose the case. He said: "We trust that the Constitutional Court will rule in favor of the wishes of the majority of South Africans." Home Affair Minister Nosiviwe Mapisa-Nqakula said that the matter of allowing same-sex couples to marry should be decided by parliament, not the courts.

On 2005-DEC-01, the appeals court ruling was unanimously confirmed by their Constitutional Court. However, the court suspended its own ruling for 12 months in order to give the South African government time to modify its marriage legislation. If, by 2006-DEC-01, the government has not acted to legalize same-sex marriage, then the national Marriage Act would be automatically changed to make its provisions gender neutral. 13 One of the court's twelve judges argued that the ruling should take effect immediately, rather than be stayed for a year. According to the AFROL News agency:

"The only restriction recognized by the Court was that marriage officers were allowed to refuse to marry homosexual couples if it was against their conscience, thus indirectly letting church societies decide on their own whether they wanted to bless same-sex couples."

Six of South Africa's main gay-positive groups, including OUT and Behind the Mask urged the government to modify the Marriage Act as soon as possible. A spokesperson deplored that same-sex couples:

"...cannot marry with immediate effect. [Parliament was challenged] to enact changes to marriage legislation, as speedily as possible, to ensure full equality in status, benefit and protection for same sex relationships. Anything less than this will remain unequal."

"A spokesperson of South Africa's Department of Home Affairs today said government would accept the ruling and take necessary legal steps." 15

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Cabinet approves same-sex marriage bill:

On 2006-AUG-23, the South African  cabinet gave the green light to a Civil Union bill that would legalize same-sex marriage in the country. If the bill becomes law, it would make South Africa the first country in Africa to give same-sex couples the same rights as opposite-sex couples. South Africa would be the fifth country in the world to attain marriage equality, after Holland, Belgium, Spain and Canada.

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Legislature approves same-sex marriage bill:

On 2006-NOV-14, legislators in South Africa overwhelmingly passed a bill legalizing same-sex marriage. The vote was of 230 to 41 with three abstentions. Home Affairs Minister Nosiviwe Mapisa-Nqakula said:

"When we attained our democracy, we sought to distinguish ourselves from an unjust, painful past by declaring that never again shall it be that any South African will be discriminated against on the basis of color, creed, culture and sex."

He presumably meant to include sexual orientation in this list.

Gay-positive organizations were not completely happy with the law, because it allows both clergy and civil officers to refuse to marry same-sex couples on religious or moral grounds. Conservative religious leaders were also saddened because it legalizes same-sex marriage:

bulletKenneth Meshoe, a Christian legislator, said that NOV-14 was for him "the saddest day in our 12 years of democracy." He warned that South Africa "was provoking God's anger" by approving marriage equality.
bulletApostle Abraham Umoh of the Mount of Victory Mission in Nigeria denounced the vote as "Satanic."
bulletThe Roman Catholic Church and many conservative leaders said that the law denigrated the sanctity of marriages between men and women. 17

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Marriage bill is signed into law:

Phumzile Mlambo-Ngcuka, South Africa's Vice President, signed the marriage bill into law. This made South Africa the sixth jurisdiction in the world to expand marriage to include same-sex couples, after the Netherlands, Belgium, Massachusetts, Spain and Canada. Many other European countries and American states allow same-sex couples to enjoy the rights of marriage without the name.

South Africa's law came into effect on 2006-NOV-30.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Text of the "Promotion of equality and prevention of unfair discrimination bill B57b-99" as voted on is at: http://www.pmg.org.za/ This is an Acrobat PDF file. You can obtain a free software to read these files from Adobe Acrobat reader.
  2. A web page describing deliberations, meetings, submissions, public hearings, etc on the bill is maintainted by the Parliamentary Monitoring Group. See: http://www.pmg.org.za/ 
  3. "Promotion of equality and prevention of unfair discrimination bill: Parliamentary hearings 1999-NOV-22 to 26; National Coalition for Gay and Lesbian Equality," at: http://www.pmg.org.za/ 
  4. "South Africa considers redefining marriage and pregnancy," Maranatha Christian Journal, 2000-JAN-28, at: http://www.mcjonline.com/
  5. "South African law causes church/state dilemmas," Maranatha Christian Journal, 2000-FEB-10, at: http://www.mcjonline.com/
  6. "Lesbian and Gay Equality in South Africa: What has been achieved?," The Lesbian and Gay Equality Project, 2004-AUG-22 at:  http://www.equality.org.za/
  7. "Religion and Apartheid," Country Studies at:  http://countrystudies.us/
  8. "Lesbian marriage gets the nod," News24.com, 2004-NOV-30, at: http://www.news24.com/
  9. Eric Johnston, "South Africa court rules for gay unions," PlanetOut Network. 2004-NOV-30, at: http://www.planetout.com/
  10. "South Africa's gays target marriage," BBC News, 2002-SEP-11, at: http://news.bbc.co.uk/
  11. "South African ruling paves way for gay marriage," ABC News Online, 2004-NOV-30, at: http://www.abc.net.au/
  12. "Legal challenge to SA gay wedding," BBC News, 2005-MAY-17, at: http://news.bbc.co.uk/
  13. Michael Wines, "South African court backs gay marriage," New York Times, 2005-DEC-01.
  14. "South Africa govt to appeal gay marriage ruling," AFROL News, 2004-DEC-22. at: http://www.afrol.com/
  15. "Same-sex marriage approved in South Africa," AFROL News, 2005-DEC-01. at: http://www.afrol.com/
  16. "South African court legalises gay marriage," AFROL News, 2004-DEC-01. at: http://www.afrol.com/
  17. Clare Nullis, "Amid criticism, South Africa passes same-sex marriage bill," Associated Press, Posted on The Toronto Star, 2006-NOV-15, Page A4.

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Copyright © 2000 to 2006 by Ontario Consultants on Religious Tolerance
Originally written: 2000-JAN-28
Latest update: 2006-DEC-13
Author: B.A. Robinson

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