GLAA writes South African ambassador urging marriage equality
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GLAA writes South African ambassador urging marriage equality

Fighting for Equal Rights Since 1971
P. O. Box 75265
Washington, D.C. 20013
(202) 667-5139

16 October 2006

Her Excellency Barbara Joyce Masekela
Ambassador of the Republic of South Africa
3051 Massachusetts Avenue NW
Washington DC 20008


On behalf of the Gay and Lesbian Activists Alliance of Washington, DC [GLAA], the oldest continuously active gay and lesbian civil rights organization in the United States, I write in response to the Civil Unions Bill that has been released for public comment. The Bill was proposed in response to the Constitutional Court’s judgment in the case of Minister of Home Affairs v. Fourie in December 2005 that found the common law definition of marriage, together with the existing Marriage Act, to be inconsistent with the South African Constitution, as they deny same sex couples the same status, rights, and responsibilities as heterosexuals have in marriage. The judgment clearly specified that in order for the remedy that Parliament adopted to be Constitutional, it had to consider not only the tangible benefits of Marriage, but also the intangible benefits of Marriage, which include the status of the relationships in the eyes of society.

The Civil Union Bill fails to accord gay and lesbian people the same status, rights, and responsibilities as marriage. It sets up a separate institution known as a civil partnership which only gay and lesbian people may enter. Lesbian and gay people seem also to be excluded from marrying under the Marriage Act and have to be registered on a separate register to heterosexual people. Marriage officers may object on wider grounds of conscience to the solemnizing of civil partnerships as opposed to a more limited right of objection to heterosexual marriages.

Marriage has a particular status in society, and both a lengthy history and a range of rituals are linked to it. Marriage also has a special spiritual and religious meaning, and though some faith communities may within their rites limit marriage to opposite sex couples, other faith communities do not. “Civil partnerships” lack all these elements and thus fundamentally entrench the inequality of gay and lesbian people within the law. Moreover, the Civil Unions Bill entrenches a form of institutional segregation into South African law that fails to respect the dignity of gay and lesbian citizens and treats them as second-class citizens. This was part of the essence of apartheid, and it is most disheartening to see a democratic South African government consider resurrecting that sad institution in any form.

It is clear that the Civil Unions Bill stands in stark contradiction to the parameters of the Constitution and those laid down by the Constitutional Court judgment. Section 9(3) of the Constitution is clear in stating that: “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” [emphasis added]. The Constitutional Court was also clear in stating that: (1) the Court had in five consecutive decisions highlighted that South Africa has a multitude of family formations that are evolving rapidly as our society develops, so that it is inappropriate to entrench any particular form as the only socially and legally acceptable one; (2) there is an imperative constitutional need to acknowledge the long history in our country and abroad of marginalisation and persecution of gays and lesbians; (3) although a number of breakthroughs have been made in particular areas, there is no comprehensive legal regulation of the family law rights of gays and lesbians; and (4) the Constitution represents a radical rupture with a past based on intolerance and exclusion, and the movement forward to the acceptance of the need to develop a society based on equality and respect by all for all. By adopting the constitution in 1996, South Africans were clear that never again shall in this country any person including the state be allowed to discriminate against anyone on the basis of any of the grounds that are listed in the equality clause of the constitution as listed above.

South Africa’s Parliament has a constitutional responsibility to correct this inequality. GLAA urges Parliament to reject the Civil Unions Bill and rectify the inconsistency in the current Marriage Act by adopting a universal gender neutral Marriage Act.


Barrett L. Brick

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