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South Africa Offers Legal Marriage
by Demian
© May 15, 2007, Demian


On December 1, 2005, South Africa became the fifth nation in the world to offer legal marriage to same-sex couples. However, it took until November 28, 2006 for the Civil Union Act to pass, which enables same-sex couples to enter either into a civil partnership or a civil marriage. Either route gives them all the rights and legal protections enjoyed by married opposite-sex South African couples.

South Africa’s highest court said it was unconstitutional to deny gay people the right to marry. The Constitutional Court told parliament to amend marriage laws to include same-sex partners within the year. The court said if parliament did not act, the legal definition of marriage would be automatically changed to include same-sex unions.

While the court was unanimous on allowing same-sex marriages, Judge Kate O’Regan presented a dissenting remedy, suggesting the 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, however, it could not be used to avoid the court’s obligation to provide appropriate relief.

Justice Albie Sachs stated at the ruling announcement:

“The exclusion of same-sex couples from marriage represented a harsh statement by the law that same-sex couples were outsiders, and that their relationships less important than that of heterosexual couples ... (that) they are not entitled to celebrate their commitment to each other in a joyous public event. “The exclusion of same-sex couples from the benefits and responsibilities of marriage … signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples.”
Post-apartheid South Africa has one of the most progressive constitutions in the world, and is the only one to specifically mention equal rights for gay men and lesbians.

Process
History
The Ruling
Recent South African Constitutional Court Wins


Process

The official South African government’s Web site marriage information article, with links to various documents:

“Application for a marriage certificate”
home-affairs.gov.za/service_detail.asp?id=51
Data article on marriage requirements:
“Solemnisation and registration of civil marriages”
home-affairs.gov.za/civil_marriage.asp
So far as we can tell, there is no prohibition against non-citizens getting married. It is likely that most governments will not recognize a same-sex marriage from South Africa, or any other government that allows obtaining one.

However, the “Solemnisation” article does state that same-sex partners are forbidden marriage. This is, of course, contrary to court findings, and appears to be grossly out-of-date information.



History

This marriage case combined two marriage cases:

Minister of Home Affairs v. Fourie and others (Case CCT 60/04),
Lesbian & Gay Equality Project and eighteen others v. Minister of Home Affairs (Case CCT 10/05)
In 2004, a case was won by Marié Adriaana Fourie and her partner Cecelia Johanna Bonthuys, partners since 1994. The Supreme Court of Appeal ruled that the definition of marriage as being between a man and a woman discriminated unfairly against same-sex couples, and that common law should be developed to take this into account.

The government appealed the ruling to the Constitutional Court. The Department of Home Affairs argued that the appeal court violated the rule of the separation of powers by usurping Parliament’s authority by making law.

In arguing the case, the Department of Home Affairs’ advocate Marumo Moerane, sparked laughter in the packed gallery when he erroneously stated: “Same-sex partnerships are a relatively new phenomena.” He further showed his ignorance by then stating that “We don’t know whether single-sex relationships involve the idea of mutual support.”

Lawyers for the same-sex couples argued that denying civil marriage to gay and lesbian couples violates the constitution. The South African post-apartheid constitution states that gay, lesbian, bisexual, and transgender individuals have the same rights as any other individual. Section 9 of the South African Constitution outlaws discrimination based on sexual orientation.

Justice Sachs dismissed religious objections to same-sex marriage, saying the country’s constitution gave no reason why gay men, lesbians, and religious groups could not coexist.

Justice Sachs:

“In the open and democratic society contemplated by the Constitution there must be mutually respectful co-existence between the secular and the sacred.”
The couple’s suit was later joined by seven other same-sex couples, and was backed by Africa’s leading gay rights group, the Lesbian and Gay Equality Project.

The ruling was the latest in a series of legal wins for gay men and lesbians dating back to 1998 when sodomy was decriminalized. In 1999, immigrant partners of South African lesbians and gay men were allowed to apply for permanent residence. Gay men and lesbians were granted the ability to adopt children in 2002, and, in 2003, the government offered domestic partner benefits.

Resistance to the legalization of same-sex marriage was hotly contested. Certain members of the ruling African National Congress (ANC) party threatened to break ranks over the issue. An informal alliance emerged between African traditionalists and conservative Christians, with calls for the country’s much vaunted liberal democratic constitution to be amended, to strike down the clause which prohibits discrimination on the basis of sexual orientation.

Later this demand was changed to an emphasis on protection for marriage as a “heterosexual institution” in the constitution. ANC’s top leadership intervened, clarifying the connections between the organization’s own human rights tradition, and the human rights of lesbians and gay men. When the bill was adopted the Minister of Defence, Mosiuoa Lekota, told parliament:

“The question before us is not whether same-sex marriages or civil unions are right or not. The question is whether we suppress those in our society who prefer same-sex partners. … We have no right to preserve for ourselves, purely because of the majority of our numbers, the exclusive right to marriage while we deny others that same right.

“In the very long and arduous struggle for democracy very many men and women of homosexual orientation joined the ranks of the liberation and democratic forces. How, then, can we live with the reality that we should enjoy rights that together we fought for side-by-side, and deny them that?

“We do them no favour but reward their efforts in the same way that our own efforts are being rewarded.

“This country cannot afford to continue being a prisoner of backward, timeworn prejudices that have no basis. The time has come that we as this society, we as this parliament, on behalf of our nation, must lead.”

On November 28, 2006 the Civil Union Act was finally passed, which enables same-sex couples to enter either into a civil partnership or a legal marriage.


The Ruling
The South Africa court’s 112-page ruling in PDF format:
Minister of Home Affairs and Another v. Fourie and Another


Quote from the Ruling - the issues section - paragraph 60
A democratic, universalistic, caring and aspirationally egalitarian society embraces everyone and accepts people for who they are. To penalise people for being who and what they are is profoundly disrespectful of the human personality and violatory of equality. Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour or extolling one form as supreme, and another as inferior, but an acknowledgement and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation and stigma. At best, it celebrates the vitality that difference brings to any society. The issue goes well beyond assumptions of heterosexual exclusivity, a source of contention in the present case. The acknowledgement and acceptance of difference is particularly important in our country where for centuries group membership based on supposed biological characteristics such as skin colour has been the express basis of advantage and disadvantage. South Africans come in all shapes and sizes. The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people with all their differences, as they are. The Constitution thus acknowledges the variability of human beings (genetic and socio-cultural), affirms the right to be different, and celebrates the diversity of the nation. Accordingly, what is at stake is not simply a question of removing an injustice experienced by a particular section of the community. At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect. The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomfiting.

Quote from the Marriage Ruling - remedy section - paragraph 149
At the heart of these principles lies the notion that in exercising its legislative discretion Parliament will have to bear in mind that the objective of the new measure must be to promote human dignity, the achievement of equality and the advancement of human rights and freedoms. This means in the first place taking account of the fact that in overcoming the under-inclusiveness of the common law and the Marriage Act, it would be inappropriate to employ a remedy that created equal disadvantage for all. Thus the achievement of equality would not be accomplished by ensuring that if same-sex couples cannot enjoy the status and entitlements coupled with the responsibilities of marriage, the same should apply to heterosexual couples. Levelling down so as to deny access to civil marriage to all would not promote the achievement of the enjoyment of equality. Such parity of exclusion rather than of inclusion would distribute resentment evenly, instead of dissipating it equally for all. The law concerned with family formation and marriage requires equal celebration, not equal marginalisation; it calls for equality of the vineyard and not equality of the graveyard.

Quoted in the Ruling - the issues section - paragraph 53
(i) Gays and lesbians have a constitutionally entrenched right to dignity and equality;

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

(iii) 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;

(iv) 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;

(v) 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;

(vi) they are individually able to adopt children and in the case of lesbians to bear them;

(vii) in short, they have the same ability to establish a consortium omnis vitae;

(viii) 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.

from the finding in National Coalition for Gay and Lesbian Equality and Others v. Minister of Home Affairs and Others (2000)



Recent South Africa Constitutional Court Wins
  • National Coalition for Gay & Lesbian Equality and others v. Minister of Home Affairs and others
    (December 2, 1999 - re Same-Sex Immigration)
    Foreign partners of homosexual citizens must be afforded the same immigration rights as married couples. They also took the unprecedented step of rewriting the Aliens Control Act to that effect. The court also ordered three government officials named in the lawsuit to pay the legal costs of the six homosexual couples in the 20-month court struggle, recognizing the Department of Home Affairs’ shabby treatment of both the couples and the courts in the process.
  • Satchwell v. President of Republic of South Africa and another
    (July 25, 2002 - re Same-Sex Couple Financial Status)
    Same-sex couples have same financial status as married, opposite-sex couples. The court ruled that high court judge Kathy Satchwell’s same-sex partner (name not made public) should receive the same financial benefits as legally recognized, opposite-sex married couples. The Pretoria high court had ruled that the couple should qualify for state benefits, but had to ask the Constitutional Court to ratify the decision when the state appealed the case. Handing down the judgment, Constitutional Court judge Tole Madala said Satchwell and her partner had been involved in an intimate, committed, exclusive, and permanent relationship since 1986. “Although they live in every respect as a married couple and are acknowledged as such by their families and friends, they are not legally ‘spouses’ and don’t enjoy the benefits accorded to heterosexual married judges,” he said. The Constitutional Court ratified that ruling. The court qualified, however, that a marriage entitles partners to reciprocal support, and that financial benefits can only be given same-sex partners where this support is clearly shown.
  • Du Toit and another v. Minister of Welfare and Population Development and others
    (September 10, 2002 - re Same-Sex Couple Adoption)
    Same-sex couples have the right to adopt children. Laws that prevent them from doing so violate their constitutional rights.
  • Satchwell v. President of the Republic of South Africa and another
    (March 17, 2003 - re Domestic Partner Benefits)
    Same-sex partners are entitled to the same financial benefits as heterosexual couples. This Constitutional Court decision upheld a High Court ruling in July 2002 that found Kathy Satchwell, herself a high court judge, eligible to receive the same benefits for her lesbian partner that married spouses of opposite-sex judges receive.
  • J and B v. Director General, Department of Home Affairs and others
    (March 28, 2003 - re Children/Alternative Insemination)
    Children born to same-sex couples by alternative insemination are legitimate. The court ruled that twins born to a lesbian couple by insemination held the same status as children born in wedlock. The court ruling followed an application by the couple (identified only as J and B) that Section 5 of the Children’s Status Act was unconstitutional because it did not recognize permanent same-sex partners as legitimate parents.
  • Minister of Home Affairs and Another v. Fourie and Another/Lesbian and Gay Equality Project and Eighteen Others v. Minister of Home Affairs and Others
    (December 1, 2005 - re Same-Sex Marriage)
    It is unconstitutional to deny same-sex couples the right to marry. The court ordered Parliament to amend marriage laws within 12 months, otherwise, the ruling automatically changes the law to include same-sex couples. This case originated with Marié Fourie and Cecilia Bonthuys, partners since 1994. Seven other same-sex couples later joined the case.



While many countries offer some kind of domestic partnership status — and many mistakenly refer to it as marriage — none have the full equality in legal, economic and social stature as is available in legal marriage.



Governments that offer Full Legal Marriage
Nations

    Netherlands (2001)
    Belgium (2003)
    Canada (2005)
    Spain (2005)
    South Africa (2005)
    Norway (2009)
    Sweden (2009)
    Iceland (2010)
    Argentina (2010)
    Portugal (2010)
    Denmark (2012)
    France (2013)
    New Zealand (2013)
    Brazil (2013)
    Uruguay (2013)
    New Zealand (2013)
    United Kingdom
      (England, Wales, Scotland) (2013)
    Luxembourg (2014)
    Finland (2014)
    Ireland (2015)
    Colombia (2016)
US States & Territories

    Massachusetts (2004)
    California (2008)
    Connecticut (2008)
    Iowa (2009)
    Vermont (2009)
    New Hampshire (2009)
    District of Columbia (2009)
    New York (2011)
    Maine (2012)
    Washington (2012)
    Maryland (2013)
    Rhode Island (2013)
    Delaware (2013)
    Minnesota (2013)
    Illinois (2013)
    Utah (2013)
    New Jersey (2013)
    Hawaii (2013)
    New Mexico (2013)
    Michigan (2014) - stayed pending legal challenge
    Oregon (2014)
    Wisconsin (2014)
    

    Arkansas (2014) - stayed pending legal challenge
    Pennsylvania (2014)
    Indiana (2014)
    Nevada (2014)
    Virginia (2014)
    Oklahoma (2014)
    Idaho (2014)
    West Virginia (2014)
    Alaska (2014)
    Arizona (2014)
    Wyoming (2014)
    Kansas (2014) - stayed pending legal challenge
    Florida (2014)
    Colorado (2014)
    North Carolina (2014)
    South Carolina (2014)
    Montana (2014)
    Alabama (2015)
    U.S. Supreme Court (June 26, 2015):
      Ruling: All U.S. States must now
      allow same-sex couples the
      freedom of legal marriage.
Native American Tribes

    Coquille Tribe, Oregon (2009)
    Mashantucket Pequot, Connecticut (2011)
    Suquamish Tribe, Washington (2011)
    Confederated Tribes of the Colville Reservation, Washington (2013)
    Leech Lake Band of Ojibwe, Minnesota (2013)
    Little Traverse Bay Bands of Odawa Indians, Michigan (2013)
    Pokagon Band of Potawatomi Indians, Michigan (2013)
    Santa Ysabel Tribe, California (2013)
    Confederated Tribes of the Colville Nation, Washington (2013)
    Cheyenne, Oklahoma (2013)
    Arapaho, Oklahoma (2013)
    Leech Lake Tribal Court, Minnesota (2013)
    Puyallup Tribe, Washington (2914)
    Wind River Indian Reservation, Wyoming (2014)
    Keweenaw Bay Indian Community, Michigan, (2014)
    Colville Confederated Tribes, Washington (2014)
    Central Council of Tlingit, Alaska (2015)
    Haida Indian Tribes, Alaska (2015)

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