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Govt to respect gay marriage ruling

by : Jenni Evans
Wednesday December 7, 2005 - 22:50

by Jenni Evans | Johannesburg, South Africa

The government has noted a ruling by the Constitutional Court on Thursday that same-sex marriages be allowed and will respect the judgement, spokesperson Joel Netshitenze said.

"The Department of Home Affairs will assess what practical steps will be needed to give effect to the change in the law and make appropriate recommendations to the minister," he said.

He also noted that the court gave Parliament 12 months to effect the necessary change in the Marriage Act.

Happiness at the Constitutional Court’s support for gay marriages was dampened at its ruling that couples would have to wait a year before their unions are recognised by the law.

The court was quiet as Judge Albie Sachs read the judgement, applause fizzling out as people turned to each to hug and celebrate their victory at finally being given the legal right to marry.

This was in stark contrast to the ebullient mood that marked Marie Fourie and Cecilia Bonthuys and 18 other couples’ Constitutional Court hearings earlier this year.

The court ruled that section 30 (1) of the Marriage Act was unconstitutional because the wording allowed only for marriages between men and women.

It gave Parliament 12 months from Thursday’s judgement to include the words "or spouse" after the words wife or husband.

If not done in time, the relevant section of the Act would automatically be read to include those words, which take away the legal requirement that a marriage be between a man and a woman.

Marriage officers could refuse to marry a same sex couple if it went against their conscience, the court added.

’Why wait 12 months?’ Although considered a victory, the ruling means couples will have to keep the celebratory champagne on ice for a year.

The couples at the centre of the ruling were not present but Thuli Madi from the lesbian and gay rights group Behind the Mask asked: "Why wait 12 months? If Parliament does not do anything in 12 months, we can marry anyway, so why not make it effective now?"

Fikile Vilakazi of the Forum for the Empowerment of Women said: "We are not happy... because for a year we don’t have equality. In a year nothing can be done."

Although they trusted Parliament, they were concerned as a sexual and political minority about what kind of influence they could have on the law redevelopment process.

Soulmate? Onlooker Anita Brown, of Sandton, welcomed the ruling but said: "I won’t be jumping into it [marriage] just because it has been approved.

"You have to be sure that you will be happy, that you have found a friend, someone who will support you, your soulmate. I really want to get settled but with the right person — I must be sure of everything."

Reading the judgement, Sachs said the court had made five previous decisions highlighting South Africa’s multitude of family formations.

The exclusion of same sex couples from marriage represented a harsh statement by the law that same-sex couples were outsiders, and their relationships less important than those of heterosexual couples.

"The common law and Section 30 [1] of the Marriage Act are accordingly inconsistent with sections 9[1] [equality] and 9[3] [dignity] of the Constitution to the extent that they make no provision for same-sex couple to enjoy the status, entitlements and responsibilities they accord to heterosexual couples," Sachs said.

The two women’s right to celebrate their union represented more than a right to enter a legal arrangement with significant consequences.

"It represented a major symbolical milestone in their long walk to equality and dignity."

While the court was unanimous on allowing gay marriages, Judge Kate O’Regan presented a dissenting remedy suggesting gay couples be allowed to marry immediately.

She argued that the doctrine of the separation of powers — where Parliament makes laws and courts give effect to them — was important, but could not be used to avoid the court’s obligation to provide appropriate relief.

Doctors for Life’s John Smyth, who as a friend of the court had opposed gay couples’ right to marry said: "I think it is the best we can hope for. Now the fight has to be taken to Parliament and we will have to make submissions to the various committees. We have got to get our running shoes on."

In a later statement he said that same sex marriages lacked the same values as heterosexual marriages because they were physically and emotionally unnatural and had no innate ability to procreate.

"Will all sexual practices be acceptable as long as it is between consenting persons? One example is whether consensual necrophilia [sex with a corpse] will be acceptable? What about incest, bestiality, masochism and even hypoxyphilia? [sexual arousal produced while reducing the oxygen supply to the brain] The right to sexual orientation is not absolute and under certain conditions the government has the right to overrule the rights of individuals."

The African Christian Democratic Party called for a Constitutional amendment to "preserve and protect the traditional concept of marriage".

"Every long-standing society has viewed marriage as a union of male and female. Studies of previous civilisations reveal that when a society strays from the sexual ethic of marriage, it deteriorates and eventually disintegrates," said spokesperson Steve Swart.

The Democratic Alliance said it operated under the rule of law and that individual members of the party could vote according to their conscience on the matter.

The African National Congress said citizens should not be discriminated against on the basis of sexual orientation.

"Today’s ruling, like others before it, is an important step forward in aligning the laws of the country with the rights and freedoms contained in the South African Constitution," the party said.

’Proud day for South Africa’ The Centre for Applied Legal Studies (CALS) said the judgement affirmed the right of gay and lesbian couples to be treated equally as married partners.

"This is a proud day for South Africa and for the human rights of all its citizens," Cathi Albertyn, a director at CALS said.

"South Africa joins the ranks of a growing number of enlightened jurisdictions world-wide that have extended marriage to gays and lesbians."

The Organised Gay and Lesbian Sector said that the challenge was now for Parliament to enact changes to marriage legislation as speedily as possible to ensure full equality in status, benefits and protection for same sex relationships.

Rhema Church Pastor Ray McCauley believed the majority of South Africans did not agree with the decision.

"It is a sad day for South Africa when the very bedrock foundation of society, the family, is redefined by a court," McCauley said.

"This ruling totally undermines marriage, as we know it and the cherished formation of healthy, loving families.

"We do not agree with ’gay-bashing’, but cannot agree with the lifestyle as it is contrary to our Christian beliefs."

Anglican Archbishop Njongonkulu Ndungane called the ruling a carefully considered judgement weighing up competing rights in the light of the South African Constitution.

"This ruling does not compel any religious denomination or minister of religion to approve or perform same-sex marriages, therefore it should not cause alarm," Ndungane added.

"We recognise that we live in a country which is home to many beliefs, cultures and practices.

"It would be arrogant and presumptuous of us to attempt to force our values and viewpoints on people who think differently from us. We would wish to value diversity in the way demonstrated today by the Constitutional Court.

"Having said that however, the Anglican Church’s position is clear. We have repeatedly affirmed that we do not regard partnership between two persons of the same sex as a marriage in the eyes of God." - Sapa

http://www.mg.co.za/articledirect.a...



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