The fight for same-sex marriage in South Africa

The fight for same-sex marriage in South Africa

The fight for the legalisation of same-sex marriages has been a long and difficult one, one that is still ongoing in many parts of the world. Slowly, however, global support for the cause has seen an increase.

Same-sex marriage has been in legal in South Africa since 2006, making it the first African country to do so. However, this did not come easy.

In April 1994, the post-apartheid interim constitution came into effect. Within it was the Bill of Rights, which stated that “No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.”

This was the first bill in the world which prohibited discrimination on the basis of sexual orientation. Yet, it would be years before same-sex marriage was allowed in the country.

According to SouthAfrica.To, the country slowly became more accepting of members of the LBGTQ community. In 1999, immigrant partners of LGBTQ citizens were allowed to apply for residence in the country. Three years later, in 2002, the Constitutional Court made a ruling allowing LGBTQ couples to jointly adopt.

In the same year, on October 18, Marie Fourie and Celia Bonthuys launched an application, supported by the Lesbian and Gay Equality Project, for same-sex marriages to be legalised and registered. The application was dismissed by Pretoria High Court judge Pierre Roux on the basis that the couple had not properly criticized the constitutionality of the existing marriage law.

After much back and forth with both the Constitutional Court and the Supreme Court of Appeal (SCA), their appeal was finally heard by the SCA ,which handed down its judgement on November 30, 2004. The SCA ruled in favour of the couple, noting that the common law definition of marriage, at the time, was invalid as it unconstitutionally discriminated on the basis of sexual orientation. However, on a technicality, the court could not invalidate the Marriage Act, which meant that their marriage could not be immediately solemnized. This matter was then taken to the Constitutional Court.

At the same time, the Lesbian and Gay Equality Project launched a lawsuit which contested the constitutionality of the Marriage Act in the Johannesburg High Court. This was later heard by the Constitutional Court in conjunction with the Fourie and Bonthuys case.

On December 1, 2005, the Constitutional Court ruled that the Marriage Act was discriminatory and unjustifiable. Justice Albie Sachs said: “The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents 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. It reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society, and, as such, do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples.”

Thereafter, parliament was given a year to change the definition of marriage (which originally stated that the union was between husband and wife). Should they not complete the task in time, the law would automatically be altered to include LGBTQ unions.

In September 2006, many South Africans protested against same-sex marriage, as the Civil Union Bill had been approved by the Cabinet the month before. In November, a day before the final reading of the bill in the National Assembly, the Defence Minister Mosiuoa Lekota spoke in favour of it. “The roots of this bill lie in many years of struggle…This country cannot afford to be a prison of timeworn prejudices which have no basis in modern society. Let us bequeath to future generations a society which is more democratic and tolerant than the one that was handed down to us,” said Lekota.

The next day, on November 14, the bill was passed by the National Assembly. It was then signed into law on November 29. South Africa’s first same-sex marriage, between Vernon Gibbs and Tony Halls, took place days later, on December 1.

Ten years after the legalisation of same-sex marriages in South Africa, in 2016, the first traditional same-sex wedding took place, according to Insider. Tshepo Cameron Modisane and Thoba Calvin Sithol married and combined their Zulu and Twana traditions in their ceremony, reported the Huffington Post.

While same-sex marriage has indeed been legalised in the country, many still struggle with violence and acceptance. In 2011, GlobalPost claimed that South Africa was one of the worst countries in which to identify as LGBTQ+. They cited high rates of murder and rape as a danger to the community.

Additionally, at the time when same-sex marriages were legalised, an exemption was added in the marriage law to allow religious institutions and civil officers to refuse to conduct same-sex marriage ceremonies.

While Parliament adopted the Civil Union Amendment Bill in 2018, which repeals the allowance for marriages officers to refuse to marry couples, venues have still denied couples access on these grounds.

Examples of this have occurred as recently as this year, when a Western Cape wedding venue, Beloftebos, refused to allow a same-sex couple to hold their ceremony on the premises. Legal action was taken immediately and the court-case is still ongoing, with the venue recently filing a case for discrimination.

Clearly, the struggle of social acceptance continues in South Africa. However, should a same-sex couple want to get married, they are fully allowed to do so according to the law.

Find the full Con Court ruling for the Fourie case here.

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