2 December 2005
Equal
Marriage Rights for South Africa
South Africa's
Constitutional Court ruled in favour of same sex
marriages on Thursday 1 December 2005, ordering
parliament to amend marriage laws within a year.
The South African
constitution outlaws discrimination against gays and
lesbians.
The court ordered
that the definition of marriage be changed from a
"union between a man and a woman" to a "union
between two persons".
Last year, the
Supreme Court of Appeal had ruled in a case brought
by a lesbian couple that the current law
discriminated against homosexuals.
But the Home Affairs
Department went to the Constitutional Court, arguing
that only parliament could change the law.
Government
spokesperson, Joel Netshitenze, said that the ruling
by the Constitutional Court had been noted and the
judgement would be respected.
"The Department of
Home Affairs will assess what practical steps will
be needed to give effect to the change in the law
and make appropriate recommendations to the
minister," he said.
In his ruling,
Justice Albie Sachs said that "the common law
definition of marriage is declared to be
inconsistent with the constitution and invalid to
the extent that it does not permit same sex couples
to enjoy the status and benefits it accords
heterosexual couples".
It gave Parliament
twelve months to include the words "or spouse" after
the words wife or husband.
If not done in time,
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.
Fikile Vilakazi of
the Forum for the Empowerment of Women said: "We are
not happy...because for a year we don't have
equality. In a year nothing can be done."
While the court was
unanimous on allowing gay marriages, Judge Kate
O'Regan presented a dissenting remedy suggesting gay
couples be allowed to marry immediately.
The African National
Congress said citizens should not be discriminated
against on the basis of sexual orientation.
"Today's ruling, like
others before it, is an important step forward in
aligning the laws of the country with the rights and
freedoms contained in the South African
Constitution," the party said.
Anglican Archbishop
Njongonkulu Ndungane reaffirmed the Anglican
Church's position that a partnership between two
persons of the same sex could not be considered a
marriage in the eyes of God.
Nevertheless,
Ndungane called the ruling a carefully considered
judgement weighing up competing rights in the light
of the South African Constitution.
"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," Ndungane said.
"We recognise that we
live in a country which is home to many beliefs,
cultures and practices.
"It would be arrogant
and presumptuous of us to attempt to force our
values and viewpoints on people who think
differently from us. We would wish to value
diversity in the way demonstrated today by the
Constitutional Court."
South Africa's
constitution, introduced in 1996, was the first in
the world specifically to outlaw discrimination on
the grounds of sexuality.
South Africa will now
join the ranks of a growing number of countries
which have extended equal marriage rights to all
their citizens - Belgium, Canada, the Netherlands
and Spain.
