For Same-sex Marriage
by Evert Knoesen, the director of the Lesbian and Gay Equality Project.
This article was published in the South African daily newspaper, ThisDay, on the 28th July 2004.
A decade into our hard won democracy lesbian and gay people in South Africa are often thought of as one of the groups within society that have achieved the most in asserting their rights.
We have, however, not yet achieved the equality we seek. Individuals who wish to marry a person of the same sex, close blood relatives and the mentally disabled remain as the only adult groups that the law will not allow to marry a person of their choice.
The majority of lesbian and gay people are now demanding the right to choose whom they marry. On July 9 this year the Lesbian and Gay Equality Project along with Triangle Project, the Durban Lesbian and Gay Health Centre, Johannesburg’s Forum for the Empowerment of Women, Pretoria’s OUT and seven same-sex couples filed an application with the Johannesburg High Court to declare the common law definition of marriage and the prescribed marriage formula in section 30(1) of the Marriage Act 25 of 1961 unconstitutional. The effect of these two provisions is to expressly prohibit same-sex couples from entering into the institution of civil marriage.
In our view, there are two main arguments why we as a society should now reject this continued oppression.
The first is historical. The argument for the equal right to marry can only be understood in the context of an inclusive and rights-based definition of family, rooted in an understanding of the oppression of our apartheid past.
The National Party government showed scant regard for family life. Along with African, Muslim and Hindu families, same-sex families were regarded as offensive to the morals and the laws of South Africa. White Christian families with a man, his wife and their children were regarded as the only acceptable
representation of marriage and family.
In the perverted attempt to maintain the “racial purity” of “God’s chosen people”, the Group Areas Act and the Prohibition of Mixed Marriages Act divided families and communities throughout the country.
Many racially integrated communities, such as District 6, had vibrant gay cultures for decades. The oppressive regime of the past created its own laws to end diversity in communities and undermine customs and traditions. Along with African, Muslim, Coloured, Indian and other groups, lesbian and gay people were explicit targets for oppression.
Indigenous culture in South Africa has always possessed a greater degree of diversity, community and togetherness than the oppressive culture imposed under apartheid.
This indigenous respect for diversity included respect for and accommodation of individuals with an alternative sexual orientation. For example, women are allowed to marry among people of Lobedu descent. Both women are regarded as the parents of the children in such a union and one of the women would be accorded the same rights as fathers.
The concept of family, marriage, custom, but most of all, of community and togetherness extended far beyond the imagination of apartheid lawyers, lawmakers and the oppressive classes. Marriage has always represented so much more than a union between two people. It represents, in fact, a union between families, communities and even peoples.
Now that South Africa has rejected the legal prohibition on customary and religious marriages it is surely time for us to also reject, with the same contempt, the prohibition on marriages between people of the same sex.
The second very important reason why same sex couples should be able to marry relates to the nexus between poverty and broken families. For the vast majority of poor people, marriage allows families and communities to recognise the relationships of their family members and provides a framework for mutual assistance.
In the absence of a welfare state, support from the extended family and the community is crucial to the survival of poor families. This principal applies equally to same-sex families. It is a popular misconception that lesbian and gay people are as a rule wealthier than others. The majority of lesbian and gay people are poor, black and rural.
Moreover, whereas some remedies may exist in the common law that allow wealthy lesbian and gay people to institute claims against each other when a relationship comes to an end, this type of legal action is inaccessible to the poor. Poor people are thus left without any protection when a relationship breaks down.
Same-sex partners are, for most purposes in the law, not even recognised as family of each other. This means that partners are often denied the right to attend on each other when one is seriously ill and almost always denied the right to make medical decisions for each other.
Many other provisions that apply to protect the joint estate and mutual welfare of married couples are not available to same-sex couples. By example, when a person in a same-sex relationship dies intestate, the surviving partner will inherit nothing.
Good social policy would not allow this. It is in the interest of both the state and the people to prevent the creation of further demands on the state by poor and homeless people whose situation is frequently exacerbated through not being able to marry.
Of course, despite the objective logic of these arguments for same-sex marriage there are those religious and reactionary elements in society who would conjure up reasons why logic should not prevail. They will argue that our aim is to impose certain moral beliefs on people. They will also argue that same-sex marriage is un-African.
These arguments should be rejected with the contempt they deserve. Lesbian and gay people seek only formal legal recognition of their relationships without insisting, in this instance, on any religious institution to approve or perform such marriages.
Furthermore, homosexuality is not un-African. It is, interestingly, only the oppression of homosexual people that is foreign to pre-colonial Africa. Prior to the arrival of colonial powers in Africa there are no known examples of African cultures oppressing homosexual people. In fact, many lesbian and gay people occupied important positions in society, including as traditional healers.
The comparative gains achieved for lesbian and gay equality in South Africa since liberation are achievements not only for lesbian and gay people but for an African society, an African constitution and a proud African people, which we should proudly claim and celebrate as Africans leading the world.
