JOHN SMYTH QC - ORAL SUBMISSION ON BEHALF OF DOCTORS FOR LIFE AND JOHN SMYTH PERSONALLY

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CIVIL UNION BILL HEARINGS 0900 MONDAY 16 OCTOBER 2006

Introduction

May I begin by thanking the Committee for this opportunity to address you. We have sent in 2 written submissions dated 14 Sep and 5 Oct.

Next, may we respectfully congratulate you on opting for a Civil Union Bill rather than any alteration to the Marriage Act.

We would also like to thank the Committee for undertaking the onerous task of touring the country and holding public hearings in each Province; we recognise that a section 75 Bill does not have to be considered in the Provinces and we thank you for exercising your discretion to undertake an extremely taxing task which was not obligatory.

My task, in the few minutes I have this morning, is to assure you, that in the unlikely event of this Bill being challenged in the Con Ct, I shall be there again as amicus curiae, along with the State advocates, to defend it, and I am confident it can be successfully defended.

I say that for a number of reasons:

1. Internationally, since the last Con Ct hearing, the tide has turned against same-sex marriage and in favour of civil unions. When we were debating the issue in the Con' Ct in May of last year, Massachusetts had come out in favour of gay marriage, and there was a real expectation that the other 50 states in America would follow suit. In the event, every other State which has considered the matter has come out against it, without exception. The latest is California, the largest state of the Union. Their Court of Appeal ruled against gay marriage 2 weeks ago, thereby bringing the total to 41 out of 51 States which either through their legislatures or courts have rejected the concept.

UK and France, like Australia and NZ, have opted for Civil Unions, thus leaving Holland, Belgium and Canada out of step with the rest of the world.

2. Secondly, I am confident this Bill can be defended, because you have taken

the temperature of the people all over the land. You as the elected representatives of the people have been to great lengths to ascertain the views of the people, and the Court will certainly recognise that you are much better qualified and equipped to apply the

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section 36 test of what is - I quote: "reasonable and justifiable in an open and democratic society."

That's why the Court referred this matter to Parliament. They know that they sit unelected in their cloistered chambers of justice - and therefore they are much less well qualified to apply that test than you are. Those s.36 considerations I deal with on page 4, para B of my supplemental written submission dated Oct 5.

Clause 11

So I say again, This bill is defendable and we shall defend it, if it is challenged. But as it stands we will face one substantial difficulty - certainly a very real embarrassment - and that is clause 11.

Justice Sachs who wrote the judgement last year has a gift for incisive questions as I discovered at the hearing last May. I can hear him intervene at any future hearing when I am on my feet in terms such as these:

"But Mr Smyth, what do you say about s.ll of this Act? Doesn't it show that Parliament couldn't make up their minds about the vital issue of marriage or civil union? Doesn't it show double-mindedness?"

And I will stutter and stammer and reply: Well, Justice Sachs, who's to say?

And Justice Sachs will continue mercilessly:

"Isn't section 11 nothing more than a charade? A pretence? Doesn't it blur the issue, and will it not actually deceive a gay couple who know nothing about the intricacies of the law? Having opted to refer to their union as a marriage, won't it come as a shock to them to be given a licence which says in writing that they in fact they have been joined together in a civil union?"

I will stutter and stammer a little more and I will have to concede that Parliament did not have its best day when it passed clause 11.

Sir, we beg of you. Take it out. Have tbe courage of your convictions. To keep it in confuses and may indeed deceive gay citizens, and it offends the vast majority of other citizens who find any tainting of the sacred rite of marriage to be unacceptable. Clause 11, we respectfully submit, is not worthy of any Parliament least of all this august Parliament of SA.

Status

Finally, Sir, I come to the meaning of 'status', which I deal with at Para A of my supplementary written submission dated 5 Oct.

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To fit the parameters laid down by the Con Ct, you have to comply with paragraphs 120 and 122 of the judgement. That means, to quote para 122: "Same-sex couples must be able to enjoy the status, entitlements and responsibilities that heterosexual couples achieve through marriage."

There is no problem about entitlements and responsibilities. Clause 13 of your Bill covers that.

What about STATUS? The answer is that once we correctly understand the meaning of the word status, and how it is conferred, when used in a legal context, then this Bill provides a status for gay couples equivalent to marriage and therefore it fits the Court's requirements.

(a) What does 'status' mean?

The Constitutional Court must be assumed to be using the term in its legal sense as it is used in section 9 of the Bill of Rights.

The South African Concise Oxford Dictionary (lOth Edition 2002) gives this definition: "the official classification given to a person determining their rights or responsibilities. "

Collins English Dictionary (Millennium Edition) says:

"the legal standing or condition of a person"

'Status' is derived from the law. It is a legal word. For example, 'immigration status', 'marital status', 'amateur status', all depend on hard legal facts, not on any nebulous perception in a lay person's mind.

It follows that status does not necessarily depend on a title or name. For example a Monarch and President have different titles, but equal status as Heads of State. The chief executive officer of a school may be called either "Head Teacher" or "Principal". The different names do not detract from equal status.

(b) How is 'marital status' or 'civil union status' conferred?

Both arise as a result of Acts of Parliament, passed by the national Parliament. The status of marriage depends upon the Marriage Act, 1961 passed by the Parliament of South Africa. The status of a civil union will depend upon an Act of Parliament passed by the same national Parliament. It will be signed into law by the State President of the Republic of South Africa. Perhaps that may give it a higher status than the Marriage Act which was signed into law by a Governor General! It will certainly not be less.

If Civil Union legislation were left to Provincial Parliaments, the status would perhaps be less than that of marriage. Since it will come from the national Parliament, it will provide a status equal to that of marriage.

JJ Smyth QC 16 Oct 06

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