the right to same-sex marriage confirmed in South Africa: the ins and out of the judgement

By Wendy Landau (Behind the Mask)

December 2, 2005: In a groundbreaking unanimous judgement written by Justice Albie Sachs, the Constitutional Court of South Africa yesterday ruled that both the country's common law definition of marriage and the formula of the marriage vow in its Marriage Act were inconsistent with the Constitution and therefore invalid to the extend that they do not permit same-sex couples to enjoy the status and benefits as well as the responsibilities that they give heterosexual couples.

The Court said that the common law definition of marriage and the disputed section 30(1) of the Marriage Act 25 of 1961 were inconsistent with sections 9(1) and 9(3) of the Constitution and section 10. Section 9(1) reads "Everyone is equal before the law and has the right to equal protection and benefit of the law" and section 9(3) reads "The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth." Section 10 reads "Everyone has inherent dignity and the right to have their dignity respected and protected."

The exclusion of same-sex couples from the benefits and responsibilities of marriage was not a small and tangential inconvenience resulting from a few surviving relics of society prejudice destined to evaporate like the morning dew. It represented a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples. The intangible damage to same-sex couples is as severe as the material deprivation. They are not entitled to celebrate their commitment to each other in a joyous public event recognised by the law. They are obliged to live in a state of legal blankness in which their unions remain unmarked by the showering of presents and the commemoration of anniversaries so celebrated in our culture.

In recognising the right to marriage of same-sex couples, a legal remedy to the existing legislation is needed. The judgement argues:

The matter touched on deep public and private sensibilities. Parliament was well-suited to finding the best ways of ensuring that same-sex couples are brought in from the legal cold. The law may not automatically and of itself eliminate stereotyping and prejudice. Yet it serves as a great teacher, establishes public norms that become assimilated into daily life and protects vulnerable people from unjust marginalisation and abuse. It needs to be remembered that not only the courts are responsible for vindicating the rights enshrined in the Bill of Rights. The legislature is in the frontline in this respect. One of its principal functions is to ensure that the values of the Constitution as set out in the Preamble and section 1 permeate every area of the law. Provided that the basic principles of equality as enshrined in the Constitution are not trimmed in the process, the greater the degree of public acceptance for same-sex unions, the more will the achievement of equality be promoted.

The judgement explains that there are "two firm proposals for legislative action that would appear to be ripe for consideration by Parliament":

The first [is] to follow the simple proposal of the Equality Project to read in the words 'or spouse' after the words 'or husband' in the Marriage Act.

The second possibility [is] a more complex and comprehensive proposal put forward in a memorandum by the South African Law Reform Commission. Arrived at after extensive public consultation over several years, this would embody a single comprehensive legislative scheme and not set out a range of options for the Legislature. It calls for a new generic marriage act (to be called the Reformed Marriage Act) that would be enacted to give legal recognition to all marriages, including those of same and opposite-sex couples and irrespective of the religion, race or culture of a couple. However, the current Marriage Act would not be repealed, but renamed only (to be called the Conventional Marriage Act). For the purposes of this Act, the status quo would be retained in all respects and legal recognition in terms of this Act would only be available to opposite-sex couples. It would entail no separation of the religious and civil aspects of marriage, and ministers of religion (or religious institutions) would have the choice to decide in terms of which Act they wish to be designated as marriage officers. The state would designate its marriage officers in terms of the Reformed Marriage Act.

According to the SALRC the family law dispensation in South Africa would therefore make provision for a marriage act of general application together with a number of additional, specific marriage acts for special interest groups such as couples in customary marriages, Islamic marriages, Hindu marriages and now also opposite-sex specific marriages.

Sachs J held that given the great public significance of the matter, the deep sensitivities involved and the importance of establishing a firmly-anchored foundation for the achievement of equality in this area, it was appropriate that the legislature be given an opportunity to map out what it considers to be the best way forward.

The judgement argues that because Parliament has already taken some steps towards ending discrimination on the basis of sexual orientation and because of the detailed work already done by the SA Law Reform Commission, that Parliament could make the legislative changes required in a relatively short time:

Parliament has already undertaken a number of legislative initiatives which demonstrate its concern to end discrimination on ground of sexual orientation. Aided by the extensive research and specific proposals made by the SALRC, there was no reason to believe that Parliament would not be able to fulfil its responsibilities in the light of the judgment within a relatively short time. What was in issue was not a fundamental new start in legislation but the culmination of a process that had been underway for many years. In the circumstances it would be appropriate to give Parliament one year from the date of the delivery of this judgment to cure the defect.

The judgement also gives attention to the "situation that would arise if Parliament fails timeously to cure the under-inclusiveness of the common law and the Marriage Act":

If, however, Parliament fails to cure the defect within twelve months, the words "or spouse" will automatically be read into section 30(1) of the Marriage Act. In this event the Marriage Act will, without more, become the legal vehicle to enable same-sex couples to achieve the status and benefits coupled with responsibilities which it presently makes available to heterosexual couples. If Parliament wished to refine or replace the remedy with another legal arrangement that met constitutional standards, it could still have the last word. Religious institutions would remain undisturbed in their ability to perform marriage ceremonies according to their own tenets, and thus if they wished, to celebrate heterosexual marriages only. The principle of reasonable accommodation could be applied by the state to ensure that civil marriage officers who had sincere religious objections to officiating at same-sex marriages would not themselves be obliged to do so if this resulted in a violation of their conscience.

While the judgement on the constitutionality of the common law definition of marriage and on section 30(1) of the Marriage Act were unanimous, Justice Kate O'Regan wrote a dissenting judgement on the remedy.

She states that this Court should develop the common-law rule as suggested by the majority in the Supreme Court of Appeal, and at the same time read in words to section 30 of the Act that would with immediate effect permit gays and lesbians to be married by civil marriage officers (and such religious marriage officers as consider such marriages not to fall outside the tenets of their religion). Such an order would mean simply that there would be gay and lesbian married couples at common law, which marriages would have to be regulated by any new marital regime the legislature chooses to adopt. The fact that Parliament faces choices does not, in this case, seem to be sufficient for this Court to refuse to develop the common law and remedy a statutory provision which is also unconstitutional.

She further states that the doctrine of the separation of powers is an important one in our Constitution but it cannot be used to avoid the obligation of a court to provide appropriate relief that is just and equitable to litigants who successfully raise a constitutional complaint. The importance of the principle that a successful litigant should obtain the relief sought has been acknowledged by this Court through the grant of interim relief where an order of suspension is made to ensure that constitutional rights are infringed as little as possible in the period of suspension.

She concludes that the power and duty to protect constitutional rights is conferred upon the courts and courts should not shrink from that duty. The legitimacy of the Court's order does not flow from the status of the institution itself, but from the fact that it gives effect to the provisions of our Constitution. Permitting those who have been excluded from marrying to marry, can only foster a society based on respect for human dignity and human difference.

Read the Constitutional Court's media summary on the judgement
Read the full Constitutional Court Judgement here in pdf format