Thursday, November 09, 2006

Marriage in South Africa - true equality at last?

The gay marriage thing has been going through a rocky ride in South Africa in the past few months. The Constitutional Court gave the government a year in which to amend the current marriage laws so as to afford gays and lesbians the same rights as heterosexuals when it came to legalising their unions. If the government fails to do so, the current marriage law will, by default, refer to both gay and straight couples.

Although the objections came quite late in the year, they came from the expected quarters, ie the religious and traditionalist bigots. In the past few months, South Africa's top legal minds have been grappling with how to comply with the Constitutional Court ruling yet not upset those against it too much.

A report on the whole issue was repressed until quite recently. Now that it has surfaced, one of its rather novel ideas, one that could keep most people happy, has emerged:

The solution ultimately proposed by commissioners is novel and creative, and for that alone, it is a mercy that publication of the report has been permitted.

Take the existing Marriage Act, they say, and fix it by adding a simple phrase so it will apply to heterosexual as well as homosexual couples. Then introduce a new law, that could be called, for example, the Orthodox Marriage Act, and make this law for the exclusive use of partners wanting to marry under religious rites and who have problems using the generic marriage law. This new law would be identical to the updated and now all-embracing "old" law, except for the addition of a limited definition of "orthodox marriage" -- and for being limited to opposite-sex couples.

Couples could then choose to marry under the law that most suited their religious, moral and other views.


It doesn't seem as if that route will be adopted as the Civil Unions Bill is still on the cards, a route described by some Constitutional Court judges as inadequate in guaranteeing true equality as it makes for a 'separate but equal' status. The way things stand at the moment, religious groups opposed to the term "marriage" in the Civil Unions Bill are set to lose their battle after the National Assembly's home affairs committee adopted the African National Congress's (ANC) amended version of the Bill on Wednesday (8/11/2006).

"Civil-union partner means a spouse in a marriage or a partner in a civil partnership," reads the amended Bill, in defiance of religious groups' demands.

It will be interesting to see if the law gets passed as is to be followed by later legal challenges as to its fairness in the eyes of last year's Constitutional Court ruling.

But, whether it gets challenged or not, and whether any such challenge is successful or not, South Africa is on the brink of legalising the rights of gay and lesbian unions.

A truly remarkable achievement!

8 Comments:

Anonymous Anonymous said...

What an interesting compromise - you shall have to keep us updated!

It certainly sounds as if it should be workable.

The whole issue, no matter where we're talking about (the States or South Africa), is just silly.

Two people should be able to "marry" anyone they want - it's love that matters - if they can find someone to witness their commitment. I know, this belief means overcoming tradition (to hell with tradition) and even the tenets of faith in certain circles, but if such a thing is against your religion, against your faith, that is fine - don't participate. But, to actively work to try to "define" what marriage is or should be for EVERYONE based on YOUR own INDIVIDUAL views is simply wrong. Love is love, and is there ANY faith that denies the power of love?

4:11 am  
Blogger CTG said...

It is a remarkable achievement, I agree. It will be most interesting to see what happens next month. I like the idea of a new law - the orthodox act. But at least, I could get the chance to marry and who knows, I may even get married to my partner as soon as next year.And I agree - love is love. We should all be afforded the same rights. (Ps - thanks for the welcome back buddy - its good to be home).

6:20 am  
Anonymous kyknoord said...

If it walks like a duck and quacks like a duck, It's probably a duck.
I know people are used to the idea of Regular, Lite and Extra Crispy, but having two laws for essentially the same thing to bypass a semantic issue seems - well, silly.

7:19 am  
Anonymous Sir Check said...

Although the Orthodox Marriage Act is a ‘novel and creative’ solution indeed, it strikes me as unconstitutional. Does it not contravene the Constitutional Court’s ruling on the Marriage Act? Surely, if the Court ordered changes to the existing Act in order to ensure equality, it is not likely that it will tolerate a brand new law which creates inequality again…

7:55 am  
Blogger Caroline said...

Bring back the pagan year and a day unions!

;-)

8:17 am  
Anonymous patita said...

I'm automatically suspect of any "separate but equal" laws, but wholly in favor of whatever it takes to give all citizens the same rights under law.

The tide seems to be turning a bit in the States--Arizona just rejected a gay marriage ban (and it's by far not the most progressive state).

3:28 pm  
Blogger houstonmacbro said...

how is it that the rest of the CIVILIZED world can approve gay marriage, but the united states of america keeps going in the opposite direction?

11:15 am  
Blogger Reluctant Nomad said...

J. David Zacko-Smith: Yes, it should just be a simple matter of allowing two people to form a loving (and legal) union rather than be subject to antiquated religious prejudices. And, anyway, why would straight people, who often don’t like us, want to deny gays all the self-inflicted hardships that come with marriage? :-)

CTG: You’re thinking of marrying your ‘fella’? Good on you!

kyknoord: It all smacks of something Monty Python would make a good skit of.

Sir Check: You’re right, of course. To be truly equal, there should be no alternative law that exists to accommodate unreconstructed homophobes by excluding homosexuals. But, the Constitution is also there to guarantee religious freedoms so, like any situation where the rights of people who have opposing views are guaranteed, difficulties are bound to arise when trying to legislate those rights.

Oh, why isn’t life more simple?

Caroline: If we did that, you’d be burnt at the stake. You know that, don’t you? :-)

patita: The tide has turned in the US about a lot of things of late. All for the good, in my opinion.

houstonmacbro: It really is odd how the country credited with inventing ‘gay rights’, has been so ‘unprogressive’ in recent years. But, as patita says, the tide seems to be turning…

12:54 pm  

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