Same-sex marriage in South Africa

Same-sex marriage became legal in South Africa on 30 November 2006 when the Civil Unions Bill was enacted after having been passed by the South African Parliament earlier that month. A ruling by the Constitutional Court on 1 December 2005 had imposed a deadline of 1 December 2006 to make same-sex marriage legal. South Africa became the fifth country, and the first in Africa, to legalize same-sex marriage.

Timeline

Civil unions

South Africa granted unregistered cohabitation in 1999. Five decisions of the Constitutional Court set the status of civil unions. The decisions recognized same-sex partnerships in immigration (1999), granted same-sex couples the same financial status to married heterosexual partners (2002), allowed adoption by same-sex couples (2002), entitled same-sex couples to the same financial benefits as unmarried cohabiting heterosexual couples (2003), and recognized that the children born to same-sex couples by way of artificial insemination are legitimate (2003). In July 2002, the High Court in Bloemfontein ruled that denying same-sex couples the right to marry equally is discriminatory and thus is unconstitutional.

2004 Supreme Court of Appeal decision

On 30 November 2004, yet another court ruled in favour of same-sex marriage when the Supreme Court of Appeal of South Africa declared that under the Constitution, the common law concept of marriage must be changed to include partners of the same gender.

The case had been brought by Marie Fourie and Cecelia Bonthuys, a lesbian couple seeking the right to marry. In the ruling, Judge Edwin Cameron stated that the definition of marriage should be altered to read: "Marriage is the union of two persons to the exclusion of all others for life."

2005 Constitutional Court decision

The Constitutional Court issued a ruling on 1 December 2005, that the exclusion of same-sex marriages in South African law "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."

2006 events leading up to legal same-sex marriage

August

On 24 August, South Africa's cabinet approved for submission to the Parliament two alternative draft bills, one of which would create civil unions only for same sex couples, the other of which would create civil unions for both same-sex and opposite-sex couples. In either case, the drafts provided would not legalize same-sex marriage, but would confer on civil unions all of the rights associated with marriage, "with such changes as are required by the context." The bills do not explain what such changes might be. A government spokesperson issued a statement on 24 August, stating that the proposed bill would "basically" create same-sex marriage. The Constitutional Court's 1 December 2005 decision did not dictate how the Parliament might approach the issue, but did express reservations about any "separate but equal" solution, and indicated that any proposal that created an inferior or marginal status for same-sex unions would not meet constitutional requirements. A South African gay rights group promptly criticized the government's proposal as creating "sexual apartheid." This action by the cabinet came a week after the Parliamentary Committee on Home Affairs had rejected a same-sex marriage constitutional amendment. The opposition African Christian Democratic Party (ACDP) continues to support an amendment that would ban same-sex marriages.

The proposal went before the State Law Advisors (SLA), which screens laws for form and constitutionality, and the SLA immediately suggested that the law does not comply with constitutional requirements. The office advised that a direct amendment of the Marriage Act would be preferable, but the minister of home affairs insisted that the government would go ahead with the bill anyway, as proposed by President Thabo Mbeki.

September

On 16 September, thousands of South Africans took to the streets in several cities to protest against same-sex marriage. "Traditional marriages, in which one man and one woman create a lasting community, pass on time-honoured family values to secure the future and, therefore, are worthy of protection", said ACDP justice critic Steve Swart, telling the crowd his party would introduce a bill to amend the constitution to ban gay marriage.

On 20 September, the government held public hearings on its Civil Unions Bill. Groups opposed to the bill asked the cabinet to request that the Court hold its ruling, so that a Constitutional Amendment that would ban same-sex marriage could be enacted. However, the Government had already rejected such a move. Gay rights groups said that the Civil Unions Bill would create a separate class of citizens, and it would go against the Constitutional Court's decision, which ruled marriage must be legal for same-sex couples one year after its initial ruling. They said they wanted the government to amend the Marriage Act instead. Government spokesperson Themba Maseko said that the cabinet had "noted the discourse on the Civil Unions Bill". "While every individual or group has the right to express their views, the cabinet emphasised the need for everyone to be reminded that the definition of marriage in the Marriage Act was unconstitutional", he said.

October

On 7 October, the Marriage Alliance held a protest in Pretoria against same-sex marriage. "The Marriage Alliance is expecting thousands of people to march through the streets of Pretoria, in support of a constitutional amendment that will preserve the traditional definition of marriage", the organisation said in a statement. The alliance was calling on parliament to amend the South African Constitution to ban gay marriage. After the protest, the marchers made their way to the Union Buildings where they handed out a memorandum to government representatives.

On 9 October, the African National Congress voted to support the government's same-sex marriage bill. Although the governing party had been split on the issue, the vote means that all ANC MPs will likely support the measure when it comes before Parliament for a vote in October. The full party support came after members of the national executive committee reminded party members that the ANC had fought for human rights, which included gay rights. With the party's full support, there is virtually no chance the bill can be defeated.

Despite the controversy, media reports had not indicated a delay on a vote on the Bill, which was expected on 20 October 2006 in order to allow the National Council of Provinces to process the law ahead of the deadline. However, the vote did not occur.

November

On 3 November, a vote on the bill was delayed to allow for further discussion, and the bill was supposed to be voted on 7 November.

Media reports indicated on 7 November that a key parliamentary committee had postponed a decision on the proposed legislation. According to reports, Patrick Chauke, Chairman of the Home Affairs Portfolio Committee, the vote was now expected on 10 November. "Chauke said discussions with parties would continue Wednesday before the bill was completed on Friday. If approved by the committee, the bill will go to the full parliament."

The bill is being hailed by gay and liberal activists as another step forward out of the country's apartheid past, while at the same time religious clergy and traditional lawmakers are stating that the passage of the bill is "the saddest day in our 12 years of democracy." Islamic leader Sheikh Sharif Ahmed has said the bill is a "foreign action imposed on Africa".

To many, it appeared that if the bill was passed as initially written, South Africa would not have legalized same-sex marriage, but would rather have provided for civil unions. Gay activists said that the passage of the Civil Unions Bill as originally written was unconstitutional because it did not allow them the right to marry, as guaranteed by the Constitutional Court ruling.

Accordingly, the government made a last-minute amendment to the Civil Unions Bill, changing it so as to permit the "voluntary union of two persons, which is solemnized and registered by either a marriage or a civil union." MPs from the African National Congress were required to support the bill, which was passed by the National Assembly 230 to 41 on 14 November and by the National Council of Provinces on 28 November 2006. Deputy President Phumzile Mlambo-Ngcuka signed it into law on 30 November 2006, just a day before same-sex marriage would have been legalised by court order. Home Affairs Minister Nosiviwe Mapisa-Nqakula said the law was only a temporary measure, noting that a fuller marriage law would be formulated to harmonise the several pieces of marriage legislation now in force. [1]

The first couple to wed, Vernon Gibbs and Tony Halls, did so in George, Western Cape, the following day, 1 December 2006. They encountered no problems, and a second couple married later that day in the same location.

Marriage laws in South Africa

Three laws currently provide for the status of marriage in South Africa. These are the Marriage Act (Act 25 of 1961), the Customary Marriages Act (Act 120 of 1998), which provides for the civil registration of marriages solemnised according to the traditions of indigeneous tribes, and the Civil Union Act (Act 17 of 2006). South Africans may choose in terms of which of these laws they wish to be married, but may be married in terms of only one at a given time.

Same-sex marriages are only allowed in terms of the Civil Union Act. Couples marrying in terms of the Civil Union Act may choose whether their union is called a civil partnership or a marriage partnership. Couples joined in a marriage partnership in terms of that act enjoy the same privileges as couples married in terms of the Marriage Act.

If it can be proven that a couple is married in terms of any of these three acts, that marriage is legally valid and may not be regarded as an invalid marriage or a non-marriage by anyone or any organisation. It is therefore illegal for any organisation to treat any such married persons as if they were unmarried.

Provisions for marriage officers

A person who is a marriage officer in terms of the Marriage Act, and who has an objection of conscience, religion or belief to marrying same-sex couples, may object to the government in writing, after which he or she will be granted exemption from having to perform such marriages. A person who is a marriage officer in terms of the Civil Union Act will not be exempted from performing same-sex marriages. Such an objector may, however, give up their office as marriage officer altogether by resigning from whichever organisation they belong to by virtue of which they are a marriage officer, or if said organisation as a whole requests from the government that their members no longer be recognised as marriage officers by virtue of their membership to that organisation.

See also

• Homosexuality laws of the world