Recognise Same Sex Marriages

The full realization of all human rights and fundamental freedoms of all Lesbian and Gay people is essential for their full recognition. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of the government to promote and protect all human rights and fundamental freedoms.

A good foundation has been laid by the Constitution – which is the supreme law of the country – and other progressive pieces of legislation have been passed by Parliament. The legislature has fulfilled its tasks/duties. The issue now moves to the courts and civil society.

LESBIANS AND GAYS HAVE RIGHTS TOO

Section 9 of the Constitution (the Equality Clause) describes the right not to be discriminated against because of sexual orientation. Discrimination against Lesbian and Gay people violates the principles of equality and respect for human dignity, and is an obstacle to their participation, on equal terms, with other people in all aspects of life.

Therefore, Lesbian and Gay people have the right to equal protection and benefit of the law. The state has a duty to protect them against any form of discrimination, whether this discrimination is manifested directly or indirectly.

The Employment Equity Act 55 of 1998 deals mainly with the elimination of unfair discrimination in the workplace. Discrimination of Gay and Lesbian people in the workplace is rife – and it is time for this to come to an end.

A vision of a just and equal society is essential if people are to maintain the courage and perseverance necessary for what is a long process of social change and mental emancipation.

HIGH COURT DECISIONS ON GAY AND LESBIAN MARRIAGES

The recent High Court decision dismissing legalization of same sex marriages is a great challenge to all South Africans. This decision follows the Constitutional Court decision which allowed same sex couples to adopt children.

This decision of the Constitutional Court laid a firm foundation for the legal recognition of gay and lesbian relationships. The definition of marriage is completely outdated much as that of rape. Society has changed and continues to change. We must recognize these changes.

The recent Pretoria High Court decision dismissing the legalization of marriage between a same sex couples based on the definition of marriage is disappointing. Unlike before 1994, courts can now modify laws and it is hoped that the Constitutional Court will decide in favor of gay and lesbian people when this matter is brought before it.

The fact that same sex couples can adopt children is a victory and it gives hope. It makes logic that the adopted children can leave better life if adopted by married couples as that provides them with better social welfare. James Banks, in his book titled ‘Educational Leadership’, quoted Martin Luther King as saying ‘Injustice anywhere is a threat to justice everywhere’. I believe what he meant was that if we do not commit ourselves unequivocally to democracy, to basic South African values of justice and equality, we should not talk about the supremacy of the Constitution.

Views and opinions that violate the human rights of others, such as gay and lesbian people, cannot be sanctioned or tolerated in a democracy. James Banks feels strongly that for any democracy to succeed people must take a strong or firm stand and defend equality and justice for all groups, no matter how stigmatized they may be within society.

Making gay and lesbian people visible is important for creating an inclusive, responsible, caring and just society. The inclusion of protections in the Constitution relating to, amongst others, equality and dignity, reflects the new order’s commitment to avoid repeating the mistakes of the previous political order. The sweeping discrimination against the gay and lesbian community is a direct challenge to our democracy and a manifestation of contempt for our constitution.

The State must exercise the powers bestowed upon it by the Constitution to take full responsibility to realize, protect, promote and fulfill the rights enshrined in the Constitution as a guarantor of those rights. Like other countries in the rest of the world, South Africa should come up with a piece of legislation against violence towards gay and lesbian people.

For example, Ireland introduced a ‘Prohibition to Incitement to Hatred’ Act in 1989, which makes it a criminal offence to incite hatred on the basis of sexual orientation. In Spain, violence against homosexual people can be punished with 4 months to 4 years of imprisonment.

We should also acknowledge that passing of legislation will not bring a final solution to the problem – or give assurance to non-discrimination of gay and lesbian people. The major challenge is to change people’s mindsets. Promotion of human rights culture through human rights education is essential. This will in essence make people respect other ’s rights.

Conclusion

It is submitted that there cannot be one solution to the problem of discrimination and stigmatization suffered by the same sex couples. The legal recognition of same sex marriages would go a long way in changing society’s perceptions. Extensive human rights campaigning is another tool. The challenge is for gay and lesbian people to be more active in highlighting their plight. It is our responsibility to educate society against stereotypes.

Legal recognition is only but a part of the broader solution.

Author: Mkhuseli Vimba
Originally published: 4 February 2003
Revised: 16 July 2003