rejoicing over ruling on same-sex marriages

By Phomello Molwedi (The Star)

Constitutional Court orders the government to amend Marriage Act within a year

December 2, 2005: A handful of gays and lesbians hugged each other and punched the air in celebration after a landmark court ruling that will give legal effect to same-sex marriages.

The Constitutional Court judgment delivered by Justice Albie Sachs yesterday put South Africa out of step with many African countries that regard homosexual relationships as taboo.

However, same-sex couples wishing to tie the knot will have to put the bubbly on ice for now, as the court gave parliament 12 months to enact the appropriate legislation.

"I feel ecstatic. It was a very long fight - a long road. I did it for the gay community and I am really very happy," said Marie Fourie, who, together with her partner, Cecelia Bonthuys, first applied to the Pretoria High Court for the right to have their marriage recognised in law.

They contended that the common-law definition which states that marriage in South Africa is a union between a man and a woman excluded homosexual marriages.

However, the High Court held that the two women were barred from obtaining an order allowing them to marry because they had not challenged the constitutionality of the Marriage Act.

After failing again to get an order - this time in the Supreme Court of Appeal - the women took their case to the Constitutional Court.
Meanwhile the Gay and Lesbian Equality Project also launched an application challenging section 30(1) of the Marriage Act, which provides that marriage officers must put to each of the parties the following question: Do you AB call all here present to witness that you take CD as your lawful wife (or husband)?

They said the reference to wife or husband unconstitutionally excluded same-sex-marriage couples.

Delivering judgment in a courtroom filled with tense anticipation, Justice Sachs said the section was unconstitutional because the wording allowed only for marriages between men and women.

"The common law and section 30(1) of the Marriage Act are accordingly inconsistent with sections 9(1) and 9(3) of the constitution to the extent that they make no provision for same-sex couples to enjoy the same status, entitlements and responsibilities they accord to heterosexual couples," he said.

The court gave parliament 12 months from yesterday to include the words "or spouse" after the words "wife" or "husband".

If not done in time, said Justice Sachs, 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.

"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."
Justice Sachs pointed out that an acknowledgement by the state of the right of same-sex couples to enjoy the same status, entitlements and responsibilities as heterosexual couples was in no way inconsistent with the rights of religious organisations to continue to refuse to celebrate same-sex marriages.

Marriage officers, he said, could refuse to marry a same- sex couple if it went against their conscience.

He added that the claim by Fourie and Bonthuys of the right to get married should be seen as part of a comprehensive wish to be able to live openly and freely as lesbian women, emancipated from all legal taboos that historically had kept them from enjoying life in mainstream society.

"(The court's ruling) represents a major symbolical milestone in the (same-sex couple's) long walk to equality and dignity."

However, Justice Sachs acknowledged that the matter touched on deep public and private sensibilities.

He said the law might not automatically and of itself eliminate stereotyping and prejudices.

Wendy Landau of Behind the Mask was jubilant: "It is great news. There is no turning around and the debate is over."

But John Smyth of Doctors for Life International said: "Nothing should be done to encourage gay relationships, given the health risks involved."

Smyth, whose organisation joined the case as so-called friends of the court, said that given the nature of South African society, the court's ruling was the best that could have been hoped for.

The African Christian Democratic Party called for a constitutional amendment to "preserve and protect the tradi- tional concept of marriage".

"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.

Anglican Archbishop Njongonkulu Ndungane said the ruling was a carefully considered judgment weighing up competing rights in the light of the constitution.

"We appreciate the sensitivity in which the court has approached this matter.

"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," he said.