SUBMISSION TO PARLIAMENT ON THE CONSTITUTIONALITY OF THE CIVIL UNION BILL

Prof Pierre de Vos, University of Western Cape

Dr Jaco Barnard, University of Cape Town

‘The right to marry whoever one wishes is an elementary human right compared to which "the right to attend an integrated school, the right to sit where one pleases on a bus, the right to go into any hotel or recreation area or place of amusement, regardless of one’s skin or colour or race" are minor indeed. Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to "life, liberty and the pursuit of happiness" … ; and to this category the right to home and marriage unquestionably belongs.’

1. INTRODUCTION

‘South Africa,’ declares the preamble to South Africa’s 1996 Constitution, ‘belong to all who live in it, united in our diversity’. To ensure respect for this noble sentiment, the Bill of Rights guarantees for everyone the right to equality, human dignity and freedom. In a long line of judgements the Constitutional Court has emphasised that these rights should be interpreted as giving effect to the promise of equality while respecting and accommodating the diversity that strengthens our society. Noting that the Constitution is a document with a historical self-consciousness, the Constitutional Court has often emphasised that one can only grasp the far-reaching, progressive, effect of the constitutional protections if one remains aware of the dark apartheid past and understands that the Constitution was drafted in great part to prevent a recurrence of the dehumanising oppression and marginalization that so characterised the apartheid state. The apartheid legislation that contributed to this oppression included the

Immorality Act, which criminalized sexual intercourse between white and black people and the Prohibition of Mixed Marriages Act which prohibited marriage between white and black people in South Africa. There has therefore been a long history in South Africa of interference with the all-important life enhancing choices people make about their intimate actions and relationships, interference that was based on a disregard for the humanity of some.

The Constitutional Court has also noted that during the apartheid era gay men and lesbians have suffered a particularly harsh fate, having been branded as criminals and rejected by society as outcasts and perverts. This exclusion and marginalisation, and the concomitant hatred and violence that it invariably produced, was experienced more intensely by those South Africans already suffering under the yoke of apartheid because of their race and/or sex and/or economic status. It was therefore no wonder that the constitutional proposals adopted by the National Conference of the African National Congress on 31 May 2002 contained an equality clause that stated that the ‘right to be protected from unfair discrimination must specifically include those discriminated against on the grounds of ethnicity, language, race, birth, sexual orientation and disability’. In the early ninety ninety’s Simon Nkoli helped to forge a strategic alliance between the gay rights movement and the mass democratic movement which finally led to the ANC incorporating the sexual orientation clause into South Africa’s transitional Constitution. It is against this background that the Constitutional Court handed down the judgment in Minister of Home Affairs v Fourie, confirming that the right to marry is an inalienable right that belongs to all who live in South Africa – black or white, gay or straight – and that gay men and lesbians can only be affirmed as full and equal members of our society if this right is also fully extended to them.

In response to the aforementioned decision the cabinet approved the Civil Union Bill, which was tabled in Parliament last month. For the reasons set out below, we contend that the Civil Union Bill, as it pertains to same-sex partnerships, fails to comply fully with the Fourie judgement as it fails to fully correct the defects in the existing law as identified in the judgment by Sachs J. It does not amend the common law and Marriage Act which was declared invalid by the Court, nor does it provide gay men and lesbians with access to marriage of equal legal and social status, as required by the Court.

Even if the Bill (as it currently stands) is passed by Parliament before the 1 December 2006 deadline set by the Constitutional Court, it will not give legal effect to the judgment by the Court and the original order of the Constitutional Court amending the common law and the Marriage Act will thus take effect.



2. THE SOUTH AFRICAN CONSTITUTION, THE RIGHT TO EQUALITY AND THE JUDGMENT OF MINISTER OF HOME AFFAIRS V FOURIE

Section 9(3) of the South African Constitution prohibits ‘unfair’ discrimination – whether of a direct or indirect kind – on any ground including on the ground of ‘sexual orientation’. The Constitutional Court has confirmed on several occasions that "unfair discrimination" must be determined by asking, first, whether the difference in treatment is based on one of the grounds specified in section 9(3) (or on another ground sufficiently similar to those grounds listed). If the answer is in the affirmative, second, to ask whether (given the specific South African context and history and the history of marginalisation and oppression of the affected group) the impact of the different treatment is such that it impugns the human dignity of those affected. It will impugn the human dignity of those affected if it sends a signal that the group is somehow less worthy of concern and respect than others in society. Probably the most compelling factor favouring a conclusion that differential treatment imposed by legislation constitutes unfair discrimination will be a showing that the affected group suffers from pre-existing disadvantage, vulnerability, stereotyping or prejudice. These factors are relevant because, to the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances, persons like him or her have often not been given equal concern, respect, and consideration. It is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will have a more severe impact on them, since they are already vulnerable.

As stated above, in a long line of cases the Constitutional Court highlighted the significance for our equality jurisprudence on same-sex relationships of the concepts of human dignity, equality and freedom and set out in detail the assumptions that must guide any such enquiry, in the process rejecting many of the stereotypical assumptions made about gay men and lesbians and their intimate relationships. These assumptions have been summarised as follows.

Gays and lesbians have a constitutionally entrenched right to dignity and equality;

Sexual orientation is a ground expressly listed in section 9(3) of the Constitution and under section 9(5) discrimination on it is unfair unless the contrary is established;

Prior criminal proscription of private and consensual sexual expression between gays, arising from their sexual orientation and which had been directed at gay men, has been struck down as unconstitutional;

Gays and lesbians in same-sex life partnerships are as capable as heterosexual spouses of expressing and sharing love in its manifold forms including affection, friendship, eros and charity;

They are likewise as capable of forming intimate, permanent, committed, monogamous, loyal and enduring relationships; of furnishing emotional and spiritual support; and of providing physical care, financial support and assistance in running the common household;

They are individually able to adopt children and in the case of lesbians to bear them;

In short, they have the same ability to establish a consortium omnis vitae;

Finally …. they are capable of constituting a family, whether nuclear or extended, and of establishing, enjoying and benefiting from family life which is not distinguishable in any significant respect from that of heterosexual spouses.

The Constitutional Court thus concluded that the family and family life of gay men and lesbians were in all significant respects indistinguishable from those of heterosexual spouses and in human terms as important. Where the law fails to recognise the relationship of same-sex couples ‘the message is that gays and lesbians lack the inherent humanity to have their families and family lives in such same-sex relationships respected or protected. It serves in addition to perpetuate and reinforce existing prejudice and stereotypes. The impact constitutes a crass, blunt, cruel and serious invasion of their dignity’.

In Minister of Home Affairs and Another v Fourie and Another, the Constitutional Court based its judgment on the precedent set out above. It is also important to note that the judgment contains important dicta that circumscribe the power of Parliament in important ways. It is therefore not possible to evaluate the Civil Union Bill without a clear understanding of the reasoning employed by the Court in this judgment. The following is of particular importance:

Marriage is an important and unique institution and constitutes ‘much more than a piece of paper’. On the one hand, marriage until recently was the only source of socio-economic benefits such as the right to inheritance, medical insurance coverage, adoption, access to wrongful death claims and the like. On the other hand, marriage also bestows a myriad of intangible benefits on those who choose to enter into it. As such, marriage entitles a couple to celebrate their commitment to each other at a public event so celebrated in our culture. They are showered with presents and throughout their lives they will be able to commemorate this event at anniversaries while pictures of the day can be displayed in their house and in the houses of their families. Given the centrality attributed to marriage and its consequences in our culture, to deny same-sex couples a choice in this regard ‘is to negate their right to self-definition in a most profound way’. As the Constitutional Court stated:

The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents 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 reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society, and, as such, do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples.



The exclusion of same-sex couples from marriage therefore has both a practical and symbolic impact, which means that that the problem cannot be rectified through the recognition of same-sex unions outside the law of marriage. In responding to the unconstitutionality of the existing marriage regime, both the practical and the symbolic aspects have to be responded to. ‘Thus, it would not be sufficient merely to deal with all the practical consequences of exclusion from marriage. It would also have to accord to same-sex couples a public and private status equal to that which heterosexual couples achieve from being married’.

Some groups argue that even if one recognises that same-sex couples are being discriminated against, the remedy does not lie in radically altering the law of marriage, which by its very nature and as it has evolved historically is concerned with heterosexual relationships. The answer, they say, is to provide appropriate alternative forms of recognition to same-sex family relationships. The Constitutional Court rejected this argument in the following terms:

The argument that the constitutive and definitional characteristic of marriage is its procreative potential and can therefore never include same-sex couples is deeply demeaning to couples (married or not) who, for whatever reason, either choose not to procreate or are incapable of procreating when they start a relationship or become so at any time thereafter. It’s also demeaning for couples who start a relationship at a stage when they no longer have the capacity to conceive or for adoptive parents. Although this view might have some traction in the context of a particular religious world view, from a legal and constitutional point of view it cannot hold.

The Constitutional Court also rejected the argument that marriage by its very nature is a religious institution and that to change its definition fundamentally would violate the religious freedom in a most substantial manner. Although the Court recognised that religious bodies play a large and important part in public life and are part of the fabric of our society, in an open and democratic society contemplated by the Constitution there must be mutual respect and co-existence between the secular and the sacred. In such an open and democratic society there should be a capacity to accommodate and manage difference and not to enforce the view of the majority on marginalised minorities in ways that would reinforce unfair discrimination against a minority. A contrary view smacks unpleasantly of the authoritarian/totalitarian tactics so characteristic of the National Party government during the apartheid era. As the Court stated: ‘[T]he 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 constitutional claims of same-sex couples can accordingly not be negated by invoking the rights of believers to have their religious freedom respected. The two sets of interests involved do not collide, they co-exist in a constitutional realm based on accommodation of diversity.’

This means that when Parliament addresses the unconstitutional exclusion of same-sex couples from enjoying the status and entitlements coupled with responsibilities that are accorded to heterosexual couples by the common law and by the Marriage Act, they cannot be subjected to new forms of marginalisation or exclusion by the law, either directly or indirectly. When Parliament rectifies this injustice, they should keep in mind ‘certain guiding principles’. The most important principle is that Parliament must be ‘sensitive to the need to avoid a remedy that on the face of it would provide equal protection, but would do so in a manner that in its context and application would be calculated to reproduce new forms of marginalisation.’ It would therefore be completely unacceptable for Parliament to adopt a ‘separate but equal’ approach because this would serve ‘as a threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to segregation.’ The Court referred to the famous case of S v Pitje where the appellant, an African candidate attorney employed by the firm Mandela and Tambo, occupied a place at a table in court that was reserved for ‘European practitioners’ and refused to take his place at a table reserved for ‘non-European practitioners’. Steyn CJ upheld the appellant’s conviction for contempt of court as it was ‘. . . clear [from the record] that a practitioner would in every way be as well seated at the one table as at the other, and that he could not possibly have been hampered in the slightest in the conduct of his case by having to use a particular table.’ According to Justice Sachs ‘[t]he above approach is unthinkable in our constitutional democracy today not simply because the law has changed dramatically, but because our society is completely different’. In all of this it must be remembered that an apparently neutral distinction could have an important impact on the dignity and sense of self-worth of the persons affected. Although different treatment itself does not necessarily violate the dignity of those affected, as soon as ‘separation implies repudiation, connotes distaste or inferiority and perpetuates a caste-like status it becomes constitutionally invidious…. this means that whatever legislative remedy is chosen must be as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of the intangibles as well as the tangibles involved. In a context of patterns of deep past discrimination and continuing homophobia, appropriate sensitivity must be shown to providing a remedy that is truly and manifestly respectful of the dignity of same-sex couples.’

It is lastly important to note what conclusion the Constitutional Court came to regarding the constitutionality of the common law and the Marriage Act because this points to the remedial action required from Parliament to rectify the unconstitutionality at hand. The Court ordered that:

The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it does not permit same-sex couples to enjoy the status and the benefits coupled with responsibilities it accords to heterosexual couples.

The omission from section 30(1) of the Marriage Act 25 of 1961 after the words "or husband" of the words "or spouse" is declared to be inconsistent with the Constitution, and the Marriage Act is declared to be invalid to the extent of this inconsistency.

In summary: the exclusion of same-sex couples from enjoying the status and entitlements coupled with responsibilities that are accorded to heterosexual couples by the common law and by the Marriage Act, constitutes unfair discrimination on the basis of sexual orientation because it deprives same-sex couples of the practical legal benefits associated with marriage and denies them access to the social and cultural benefits and status accorded to marriage in our society. Parliament does not have a free hand to rectify this matter because it must provide same-sex couples with the same legal rights as well as with the same public and private status accorded to heterosexual couples. This means an attempt to provide a ‘separate but equal’ institution for same-sex couples will not pass constitutional muster because separate invariably implies a distaste and repudiation of gay men and lesbians, which would be affront to their human dignity and would constitute an infringement of section 9(3) of the Constitution.



3. FOURIE AND THE CIVIL UNION BILL: CONSTITUTIONALITY OF THE CIVIL PARTNERSHIP PROVISIONS OF THE CIVIL UNION BILL

The Memorandum on the Objects of the Civil Union Bill provides that one of the objects of the Civil Union Bill is to provide ‘for the conclusion of a civil union or marriage between persons of the same sex’. This provision of the memorandum clearly separates ‘civil union’ from ‘marriage’ and, we submit, provides that one of the objects of the legislation was, at least at the time that the Memorandum was drafted, to afford same-sex partners a choice between a civil union and a marriage.

This, however, is not what The Civil Union Bill provides for. The Bill creates two categories of ‘civil unions’, namely a civil partnership and a domestic partnership. The provisions of the Bill that are primarily of relevance for current purposes and in question here are those that pertain to a ‘civil partnership’ (defined in section 1 as ‘the voluntary union of two adult persons of the same sex…’).

Although the Memorandum claims that the Civil Union Bill has been drafted in response to the judgement in Fourie, the civil partnership provisions of the Bill does not give effect to that judgement in that it does not give same sex couples the choice to conclude a marriage.

The above is immediately apparent from the very first provision in the Bill. The long title states, inter alia, that the Bill’s purpose is to ‘provide for the solemnisation of civil partnerships [and] the legal consequences of civil partnerships…’ Another way of stating the long title of the Bill would simply be ‘to preserve the traditional, historic nature and meaning of the institution of civil marriage.’ There is no provision in the Bill providing same-sex couples with the opportunity to marry should they so wish and thus no effect is given to the stated purpose in the Memorandum to provide ‘for the conclusion of a civil union or marriage between persons of the same sex.

In addition, the very categorisation ‘civil partnership’ and its concomitant definition is at odds with the Fourie decision in that the definition of marriage was held there to be ‘the union between two persons to the exclusion of all others for life’.’ The new definition of ‘marriage’ thus already covers what the Bill calls a ‘civil partnership’ and there is thus no need whatsoever for this categoreme.

The Bill goes on to state in section 13 that the legal consequences of a marriage apply to a ‘civil partnership’ and that ‘all references to marriage in any other law, including the common law’ includes a civil partnership – but for one exception, namely that a reference to ‘marriage’ in the Marriage Act does not include a reference to civil partnership. The practical effect of these provisions is simply that same-sex partners, are still prohibited from getting married – even if they wished to do so. Clearly, the Bill repeatedly reserves the category of ‘marriage’ for relationships other than same-sex partnerships (ie heterosexual relationships) and so denies the re-definition of ‘marriage’ endorsed in Fourie.

Section 8(2) of the Bill reinforces this interpretation in that it provides that married persons cannot conclude a civil partnership. In addition, section 16(2) provides that ‘a person who is married or a partner in a civil partnership’ may not register a domestic partnership. The distinction is repeated in section 38(4). Throughout the Bill, the distinction is maintained and relied upon, rather than obliterated. (See the discussion of section 11 below).

In Fourie the court held that the Marriage Act and not ‘"the law" as an abstraction’ ‘excludes from its reach persons entitled to be protected by [it]’. The Court continued that a remedial mechanism that deals only with the practical consequences of exclusion from marriage would not pass constitutional scrutiny. As already stated, the remedial mechanism, the court continued, ‘would also have to accord same-sex couples a public and private status equal to [marriage]’ We submit, in light of section 13 referred to above, that the Civil Union Bill purports to remedy only the practical consequences of exclusion from ‘marriage’ and is in this respect not in accordance with the Fourie decision.

In Fourie the Marriage Act was held to rely on the common law definition of marriage and since the common law definition of marriage included only a consortium omnis vitae between a man and a woman, the Marriage Act was found to be unconstitutional to the extent that it does not allow ‘for gay and lesbian people to celebrate their unions in the same way that they enable heterosexual couples to do.’ Sachs, J held specifically that ‘the failure of the common law and the Marriage Act to provide the means whereby same-sex couples can enjoy the same status, entitlements and responsibilities accorded to heterosexual couples through marriage, constitutes an unjustifiable violation of their right to equal protection of the law’ under the equality clause of the Constitution; and also that ‘[t]he problem is not what is included in the common law definition and the Act, but what is left out.’

Section 13 of the Bill, however, provides that ‘with the exception of the Marriage Act’ references to ‘marriage’ in the common law and all other law include civil partnerships. The implication is fatal: for purposes of the Marriage Act and to the extent that the Marriage Act relies on the common law definition, same-sex unions (‘civil partnerships’) are, in fact, not included in references to marriage. This means, very simply, that for purposes of and as far as the Marriage Act is concerned, the common law definition of ‘marriage’ remains unchanged, which is entirely at odds with the re-definition of marriage in Fourie.

We submit that section 11 of the Bill which requires a marriage officer to refer to the civil partnership as a marriage upon the request of the parties during the solemnization of the civil partnership, does not, in any way, remedy the Bill’s unconstitutionality. While this section seems to be an attempt to address the Fourie judgment’s concern with the negative symbolic impact of exclusion, the section does not have the effect of providing ‘same-sex couples a public and private status equal to that which heterosexual couples achieve from being married.’ As opposed to a mere contingent reference upon solemnisation contemplated in section 11, being married is a continuing state of existence under a legal category with representational and practical consequences. Section 11 and the Bill as a whole do not afford this opportunity to same-sex partners.

This means that the Bill creates a second class form of legal recognition for same-sex relationships. The concept of marriage has a profound symbolic, emotional and political power in our culture that gives it a special status. By refusing same-sex couples the right to enter into an institution called ‘marriage’, the Bill deprives them of the right to access the status associated with the term ‘marriage’. This conclusion is furthermore supported by the fact that the Bill creates a civil partnership exclusively for same-sex couples who are prohibited from accessing the institution of marriage reserved for heterosexuals. This is extremely insulting and humiliating towards those of us who might want to marry a member of our own sex. The Constitutional Court warned that creating a special institution for same-sex couples will invariably send the signal that bringing same-sex couples under the umbrella of marriage law would taint those already within its protection. It endorses the view that homosexuals are somehow depraved, impure and tainted and that ‘pure’ heterosexual marriage must be protected from this abomination. As the Constitutional Court pointed out in the Fourie judgment, such a view – no matter how seriously and sincerely held – can only be based on prejudice against or hatred of homosexuals. And prejudice, the Court has said on many occasions, can never justify unfair discrimination.

The effects of the Bill are, of course, more severe because so many gay men and lesbians still experience tremendous oppression, marginalisation and vilification in our society. Some men and women are still raped, assaulted or even killed because they are lesbians or gay. In this context, the creation of an apartheid style separate civil partnerships for same-sex couples merely confirms that the law does not consider their relationships equal in status and worthy of equal concern and respect.

We thus submit that the Civil Union Bill is, to the extent that it refuses to recognize the unconstitutionality of the Marriage Act, inconsistent with the Constitutional Court’s judgment in Fourie: ‘[A] law that creates institutions which enable heterosexual couples to declare their public commitment to each other and achieve the status, entitlements and responsibilities that flow from marriage, but does not provide any mechanism for same-sex couples to achieve the same, discriminates unfairly against same-sex couples.’

We urge Parliament to strike out the civil partnership provisions of the Bill and adopt the approach upon which we elaborate below.



4. THE CHOICE NOT TO MARRY AND THE NEED FOR THE DOMESTIC PARTNERSHIP PROVISIONS OF THE BILL

Political philosopher Drucilla Cornell links the decision to marry or not, to the fundamental constitutional value of freedom: ‘When we think of orienting ourselves as sexuate beings, we think not only of with whom we will have sex and what kinds of relationships we will have with lovers, questions that are basic and personality defining, but about whether to marry or not, a question whose answer is fundamental to a person’s life.’

We note that section 13 of the Civil Union Bill in its current form does bring ‘civil partnerships’ under the umbrella of the Matrimonial Property Act 88 of 1984 (as amended) which regulates the ‘economic’ or ‘commercial’ consequences of a marriage. The economic consequences of a civil partnership will thus be regulated by this Act as if a marriage was concluded. Furthermore, the Divorce Act 70 of 1979 (as amended) will apply to the termination of the civil partnership.

What is the position in a situation where the partners to a same-sex union decide not to enter into a civil partnership? Section 18(1) of the Bill provides that ‘any two persons may register their relationship as a domestic partnership’. It appears thus that same-sex couples who do not wish to enter into a civil partnership will have the opportunity to register a domestic partnership and have the economic consequences of that partnership regulated by the domestic partnership provisions of the Bill. A same-sex couple can also choose not to register the partnership at all, in which case the provisions of the Bill as it relates to unregistered domestic partners will regulate the economic consequences of the relationship and its termination.

The choice that the Bill provides for same-sex couples is thus a choice between a civil partnership and a domestic partnership (registered or unregistered). The choice for heterosexual couples is the choice between marriage and domestic partnerships.

In 0, and 0 above we have emphasised the importance of the choice to conclude a marriage. However, the Constitutional Court in Fourie also addressed the importance of the choice not to enter into a marriage. The court addressed specifically the arguments of many same-sex couples who ‘would abjure mimicking or subordinating themselves to heterosexual norms.’ ‘Others’, the court continued, ‘might wish to avoid what they consider the routinisation and commercialisation of their most intimate and personal relationships, and accordingly not seek marriage…’

Yet, the court held, that what ‘is in issue is not the decision to be taken, but the choice that is available. If heterosexual couples have the option of deciding to marry or not, so should same-sex couples ... It follows that, given the centrality attributed to marriage and its consequences in our culture, to deny same-sex couples a choice in this respect is to negate their right to self-definition in a most profound way.’

The other side of the coin is thus that the Civil Union Bill does not allow same-sex couples the choice not to marry and in this way also violates the judgment of the court.

It is, in addition, submitted that the exercise of the choice not to marry (whether exercised by heterosexual or homosexual couples) should not translate into a total absence of legal recognition of the relationship. Were this to be allowed, a court will time and again be faced with the same dilemma exemplified in the decision in Volks NO v Robinson where the court held that Mrs Robinson could not receive maintenance from the deceased estate of her common law husband, because she could not be regarded as a ‘spouse’ as contemplated by the Maintenance of Surviving Spouses Act. This, the court held, was the case because she had not entered into a marriage where she had the choice to do so. It is situations such as these (whether they exist between heterosexual or homosexual couples) that are provided for in the domestic partnership provisions of the Bill.

We submit that same-sex couples who wish to exercise the choice not to marry would have their relationship recognised by the domestic partnership provisions of the Bill, whether the partnership is registered or not. This will be a particularly attractive option for same-sex couples who are not of a particular faith or who have objections of conscience against the assimilationist nature of concluding a marriage. The importance of domestic partnerships has been explicitly recognised by gays and lesbian persons who believe that exercising the choice to marry ‘will constrain us, make us more invisible, [and] force our assimilation into the mainstream …’ The choice not to marry but to rather enter into a domestic partnership as a true alternative to marriage, is thus an important form of dissent so necessary in a society that aspires to democracy in all spheres. The legalisation of domestic partnerships will further enhance the recognition of diversity in our society under the discipline of the equality regime. It should also be recognised that a domestic partnership should be understood and portrayed as an equal alternative to marriage and not as something inferior or ‘a stepping-stone’ to marriage.



5. ETHICAL AND POLITICAL JUSTIFICATION FOR SAME-SEX MARRIAGE

‘Most gay people in South Africa dream of getting married.’ Why is the word ‘marriage’ and the conclusion of a marriage under the Marriage Act so important for same-sex couples? One can argue that the Civil Union Bill, after all, introduces law and a legal framework where there was none. The answer is simply that the provision of a legal framework where there was none does not equate to, and is in effect a far cry from, equal treatment under the law. As Langley puts it: ‘Creating a separate and somewhat less favourable estate of civil partnerships does not end discrimination against same-sex relationships. It merely "transforms it into a slightly less unfavourable form."’

As we have shown, the Constitutional court held that a separate but equal regime in this context would not, given specifically South Africa’s apartheid past, do. In fact, it would be completely unacceptable. South Africa’s history, by all accounts, demonstrates that ‘separate is seldom, if ever, equal.’ The ‘civil partnership’ provisions of the Civil Union Bill provides precisely for separate but equal treatment that has the effect of being deeply demeaning of the inherent dignity of the partners to a same-sex relationship. As such it does not qualify as equal treatment under the law at all.

The reason for the above contention is primarily, as we have indicated, because the Bill does not allow same-sex couples the choice of the institution of marriage and so denies them an opportunity to participate and celebrate the cultural importance attributed to the institution named ‘marriage’. ‘Marriage’ held the Constitutional Court, ‘signals a pinnacle of social acceptance and equality before the law.’ It has a status specially recognised in society with unique social and other advantages. ‘Marriage’ is a performative without replacement. It is a unique appellation. It calls into being a unique and irreplaceable ethical and political state of affairs. As the Supreme Judicial Court of Massachusetts held:

Marriage … bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. "It is an association that promotes a way of life, not causes; …" Because it fulfils yearnings for security, safe haven and connection to express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.

But the magnificent force of this word also conceals within it a dark and magnanimous history of arbitrary claims of superiority, exclusivity and an utter denial of dignity that has caused deep scars on the face, not only of our nation, but also on the face of humanity as a whole. It is only from within ‘marriage’ that these scars can be nurtured and this dark side of its history transformed.

We submit that the inclusion of same-sex couples in the realms of ‘marriage’ also plays an important role in the rehabilitation of a society that is emerging out of apartheid. It is specifically important from an integrative point of view that same-sex and heterosexual couples be brought together under one common institution. This integration will allow the vastly marginalised homosexual person a new means of accessing the mainstream. It will mean that there will, for the first time, be a common language in which to describe both homosexual and heterosexual ways of living. We submit that this form of integration is indispensable as part of the normalisation of post-apartheid South African society as a whole and in conformity with the constitutional ideal of openness.

In addition,‘[w]hether and whom to marry’, held the Massachusetts Supreme Judicial Court, ‘how to express sexual intimacy, and whether and how to establish a family – these are among the most basic of every individual’s liberty and due process rights. And central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations.’ This assurance is what was given in the enactment of our Constitution and it is an assurance that militates against any attempt to separate same-sex couples from their heterosexual equals.

The Bill’s numerous separations of the phrase ‘civil partnership’ from ‘marriage’ are not merely semantic. As the Supreme Judicial Court of Massachusetts held in striking down that state’s Civil Union Bill: ‘The dissimilitude between the terms … is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.’ Because the Civil Union Bill forbids same-sex couples entry into marriage, it continues to relegate same-sex couples to an unequal, second-class status.

The invention of the category ‘civil partnership’ may alleviate real human needs, but, the very euphemism, the very separateness, sets up and maintains the inequality for no rational reason whatsoever. No amount of tinkering with language will eradicate the stain that the Marriage Act is unconstitutional and that the choice for same-sex couples is not the choice for heterosexual couples. This differentiation constitutes unfair discrimination.

Equal treatment under the law requires that the legislature recognizes the above, which can only flow from a recognition of the inherent dignity of every human being who chooses to live under the South African Constitution. Recognising the right of a person to marry one of her own sex does not, in any way, diminish the dignity of heterosexual marriage. To argue, as opponents of same-sex marriage often does, that same-sex marriage would have adverse effects on the dignity of heterosexual marriage and would destroy that institution, is not much different from arguing that the recognition of interracial marriage would have an adverse effect on the dignity of partners to a same-race marriages. This latter notion was of course embraced by the apartheid government when they passed the Mixed Marriages Act in 1950. We have thankfully moved far beyond such offensive and racist logic. To accept this logic would also mean that the Recognition of Customary Marriages Act passed by this Parliament in 1998, would have adverse effects on the dignity of individuals in monogamous marriages and would destroy monogamous marriage as endorsed by most Christian churches. To make such an argument would be deeply insulting and demeaning to those who take part in customary polygamous marriages. The gay and lesbian community did not object to the passing of that law because it generally believes in the respect for and accommodation of diversity demanded by the Constitution. It is sad that some who embrace this traditional form of marriage do not show the same respect and tolerance for difference and diversity.

From the recognition of inherent dignity should flow the realization that there is an entitlement to be treated the same, although differences abound as they should. In this context equal treatment under the law means positing the subject of the law – the same-sex couple – as the site of evaluation and moral choice – it means truly providing for the choice that the Memorandum to the Civil Union Bill contemplates.

Laroque writes that equalisation of the marriage rights of same-sex and heterosexual people are only one step along the path to eradication of homophobia. ‘Until we can change the bent of the human heart which seems to instinctively fear what it cannot – or will not – identify in itself, the eradication of homophobia will remain a Utopian goal’.

It is possible for the legislature to take this one step to eradication of homophobia and to so make immediately real what has seemed only utopian for the many South Africans who come to love, to the exclusion of others, someone of their own sex.

Given the arguments set out above, it is now necessary to deal with some of the arguments put forward by opponents of same-sex marriage. In this regard it is important to note the context within which the existing debate about the exclusion of same-sex couples from the legal and social benefits of marriage occurs. Several misconceptions and widely accepted myths cloud the current debate about the expansion of marriage to same-sex couples.

It is not true, as some opponents to same-sex marriage argue, that the institution of marriage in South Africa has since time immemorial been defined by all as that of ‘a union of one man with one woman, to the exclusion, while it lasts, of all others’. This contention is often put forward as part of an argument that the definition of marriage cannot be changed because marriage in our society and culture has only one ‘true’ definition that has been accepted by all – including the legislature – since time immemorial and that any change of this definition would thus be ‘unnatural’ or even ‘impossible’. The very definition of marriage now said to be sacred and unchanging is, in fact, a product of South Africa’s colonial past. As the Supreme Court of Appeal pointed out the definition of marriage as between one man and one woman is a colonial imposition, imported via the Roman Dutch law into our legal system. This definition and the legislation accompanying it addressed the needs of white colonisers only and ignored the various other forms of permanent life partner relationships to be found in indigenous cultures and in religious practices in South Africa. Thus for a very long time the law in South Africa failed to adequately recognise customary marriages or marriages concluded according to Muslim personal law or other religious marriages.

At the same time, even the traditional assumptions about marriage and the family have been substantially eroded over the past decade or more. As the Constitutional Court remarked:

It is important to emphasise that over the past decades an accelerating process of transformation has taken place in family relationships as well as in societal and legal concepts regarding the family and what it comprises. Sinclair and Heaton, after alluding to the profound transformations of the legal relationships between family members that have taken place in the past, comment as follows on the present: "But the current period of rapid change seems to ‘strike at the most basic assumptions’ underlying marriage and the family.. . . Itself a country where considerable political and socio-economic movement has been and is taking place, South Africa occupies a distinctive position in the context of developments in the legal relationship between family members and between the state and the family. Its heterogeneous society is ‘fissured by differences of language, religion, race, cultural habit, historical experience and self-definition’ and, consequently, reflects widely varying expectations about marriage, family life and the position of women in society."



In terms of same-sex relationships, there has been notable and significant trend by the legislature for express and implied recognition of same-sex relationships. The Constitution itself acknowledges recognition of non-marital relationships when it guarantees for every detained person the right to be visited by that person’s ‘spouse or partner’. A range of statutory provisions have included such unions within their ambit. The Constitutional Court has also extended rights for same-sex couples to jointly adopt children, to enjoy the same immigration rights as married heterosexual couples, and for partners of judges in same-sex relationships to enjoy the same medical aid and retirement benefits. Most importantly, by adopting the Recognition of Customary Marriages Act 120 of 1998 Parliament rejected the notion that marriage is inevitably a union of one man and one woman to the exclusion of all others. In doing so, Parliament recognised the diversity of family arrangements in need of legal protection in our society and also recognised that the recognition of polygamous marriages did not imply a lack of respect for the religiously inspired view that a marriage is by its very definition a monogamous union between two people. This firmly establishes the principle that the respect for diversity demanded by the Constitution requires Parliament to recognise different forms of relationships and that such recognition does not negate or attack other forms of relationships recognised by the state.

It is furthermore not correct to view the present debate as a debate about the suitability of same-sex parents to adopt or raise children. Arguments about whether same-sex couples are good parents or whether they should be allowed jointly to adopt children might be relevant as a motivation in favour of the recognition of same-sex marriage, but such arguments are completely irrelevant when deployed by the opponents of the recognition of same-sex marriage. South African law has never explicitly prohibited a gay man or a lesbian from adopting a child as a single parent. In 2002 the Constitutional Court found that the existing legislation which prohibited same-sex (and different-sex) couples from adopting children constituted unfair discrimination and thus declared section 17 of the Child Care Act 74 of 1983 invalid. The Court emphasised that the best interest of the child will always be paramount and concluded that it defeated the very reason for adoption to bar parents that would be otherwise suited to adopt children from adopting them merely because of their sexual orientation. We thus find ourselves in the anomalous position that same-sex couples can legally adopt children (form a family) but cannot legally marry each other. Children of same-sex couples are therefore faced with a situation where their parents are by law not allowed to get married and where they are forbidden by law to share in the legal and social benefits that accrue to a child because of the marriage entered into by his or her parents. It can therefore be argued that the failure to fully recognise same-sex marriage infringes the rights of children as set out in section 28 of the Constitution and is not in the best interest of the child. It can also be argued that such a failure undermines the traditional institution of the family and marriage because it prevents some families from gaining the legal protection needed to thrive.

Some opponents also misconstrue the nature of homosexuality and fail to understand the demands of diversity placed on us by the Constitution. In this regard it is important to address the argument that same-sex marriage is ‘un-African’ or against African culture. It is well documented that same-sex sexual activity has occurred all over Africa through all periods of time. Where such activity occurred before the twentieth century, those who engaged in it were not referred to as ‘homosexuals’. This is because the concept of homosexuality (as well as heterosexuality) is a Western concept invented in the late nineteenth century to label those who engaged in same-sex sexual activity. In different and complex ways and often through the work done by European missionaries, the notion of homo- and heterosexuality was introduced into Africa as part of the colonial project. While many traditional African societies frowned upon same-sex sexual activity, other societies accommodated such behaviour in different ways. What is clear that no such concept as homophobia existed in Africa before its introduction by Western missionaries. It can therefore be said that while homosexuality is indeed ‘un-African’, so is homophobia. Some academics have also pointed out that arguments about the ‘unAfrican’ nature of homosexual identity serves as a colonial inspired misrepresentation of Africa as a monocultural entity. This would ignore the ‘richness of differing cultural constructions of desire’ which would simply be to ‘replicate much of the colonial discourse on African sexuality’. But even if some view same-sex marriage as in conflict with African culture (or with the teachings of the Bible), the Constitution requires that we all respect the diversity in our society and that the views of some should not be used to justify discrimination against others. To accommodate the needs of all South Africans and to respect their inherent human dignity does not, as argued above, in any way question the beliefs and views of others in society.



6. RECOMMENDATIONS



It is important to note that the Law Reform Commission has already recommended that the institution of ‘civil partnerships’ does not, in its opinion, satisfy the Constitutional Court’s judgment in Fourie. This the Commission recommended after a serious engagement with the Fourie judgment and the options envisaged there for reform in this context that would pass constitutional muster. The Commission referred to the fact that Sachs J ‘clearly stated that the solution lay in the correction of the Marriage Act and the common-law definition of marriage, hence the order for the amendment of the Marriage Act if Parliament fails to correct the defects in the legislation by 1 December 2006.’ In the Commission’s opinion, civil partnerships could be successfully challenged constitutionally. It concluded that: ‘Since the tenet of equal treatment was an important part of the motivation for permitting same-sex marriage, the creation of a separate but equal status would be discriminatory.’

For all the reasons stated above, we respectfully recommend that Parliament adopt one of the following strategies that would conform to the Constitutional Court’s judgment:



Option 1

a deletion, in its entirety, of Chapter 2 (sections 2 to 13 (inclusive)) of the Civil Union Bill, 2006; and

a deletion of any and all references to Chapter 2 (sections 2 to 13 (inclusive)) in the remainder of the Bill, as well as a deletion of all references to ‘civil partner’ and ‘civil partnership’ in the remainder of the Bill including a deletion of the definitions of ‘civil partner’ and ‘civil partnership’ in section 1 of the Bill;

a deletion of the definition of ‘civil union’ in section 1 of the Bill;

a renaming of the Bill from ‘Civil Union Bill’ to ‘Domestic Partnership Bill’;

an amendment to the Marriage Act inserting the following definition of ‘marriage’ into the Act:

‘marriage’ means the union, while it lasts, between two adult persons to the exclusion of all others for life;

an amendment to section 30(1) of the Marriage Act inserting the words ‘or spouse’ after the words ‘or husband’.

an amendment to the Marriage Act inserting the following definition of ‘spouse’ in the Marriage Act:

‘spouse’ means a partner in a marriage as defined by this Act.





Option 2

the actions listed in 6.3.1 to 6.3.4 (inclusive) without the suggested amendments to the Marriage Act before 30 November 2006, after which date the order of the Constitutional Court in Minister of Home Affairs v Fourie will have the effects the suggested amendments seek to achieve.