south africa's top legal authorities spar over constitutionality of gay unions bill

By 365Gay.com Newscenter Staff

November 1, 2006: The office of the state law advisor is warning that provisions in South Africa's Civil Union Bill are unconstitutional. Enver Daniels has told a parliamentary committee holding public hearings on the legislation that the separate but equal law will not gain approval of the Constitutional Court.

The court ruled last December that barring same-sex couples from marriage was unconstitutional and gave the government one year to amend its laws.

But, rather than amending the marriage act to make it gender neutral the government angered LGBT rights groups by introducing a separate bill that allows for marriage and also would recognize non married gay and non-gay couples.

The proposed bill also would allow people who conduct civil marriages to refuse to perform same-sex ceremonies based on "moral grounds".

Daniels warned the government that if it passed the bill as written it could face a challenge in the Constitutional Court that it would most certainly lose.

A second legal advisor to the government, Mukesh Vassen, concurred with Daniels' assessment.

But the Justice Department disagrees. Lirette Louw, an attorney from the department said the bill meets all of the qualifications laid out by the court.  It provides for all of the rights and privileges of marriage, and allows a union to be legally called marriage or a partnership.

Time is running out before the December deadline and it is unlikely the government will alter the bill.

Nonhlanhla Mkhize, director of the Durban Gay and Lesbian Community and Health Center, said Daniels' prediction of a new legal challenge is likely accurate.

Mkhize said the public hearings, had "engaged the whole country in a meaningless exercise [because] the bill was flawed to start with".

In its ruling the Constitutional Court said that if Parliament fails to act by the December deadline the the law automatically be changed to include same-sex unions. But, it gave no specific direction on how the law should be changed.

The case that led to the court ruling was brought by Marie Fourie and Cecilia Bonthuys, who have been partners since 1994 but were unable to marry. Seven other same-sex couples later joined the case.

In 2004 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 arguing that the appeal court violated the rule of the separation of powers by usurping Parliament's authority by making law.

The ruling was one of a series of legal wins for gays and lesbians dating back to 1998 when sodomy was decriminalized.

The following year immigrant partners of South African lesbians and gays were allowed to apply for permanent residence.

Same-sex adoption was legalized in 2002 and in 2003 the government bowed to pressure and permitted domestic partner benefits.

�365Gay.com 2006