While same-sex partners will soon be able to marry legally, it seems increasingly likely that heterosexual couples will be able to choose from two marriage Acts to formalise their unions.
The Civil Unions Bill, although purporting to be equal in status and legal rights to the Marriage Act, creates a separate regime for same-sex couples. The union cannot be called a ”marriage”, is open only to same-sex couples and marriage officers can refuse to perform the ceremony. The Bill’s critics argue that it remains discriminatory and seeks to protect the institution of marriage for ÂÂheterosexuals.
As public hearings on the Bill drew to a close in the Woodstock Town Hall in Cape Town on Monday, legal experts predicted that MPs would vote against the legiÂÂslation on October 20.
The Bill’s defeat in Parliament would pave the way for the addition of the words ”or spouse” after ”husband” in the Marriage Act, to include same-sex partnerships as ordered by the Constitutional Court. The court stipulated in last year’s ruling that a decision had to be made by December 1.
In the meantime, the South African Law Reform Commission has backed the Constitutional Court ruling in its newly published report on domestic partnerships. As a ”first choice” the commission project committee, led by Judge Craig Howie, has recommended ”the amendment of the Marriage Act of 1961 by the insertion of a definition of marriage that makes the Act applicable to all couples wanting to get ÂÂmarried”.
As a second choice the commission proposes a piece of legislation titled the Orthodox Marriage Act, which will apply to heterosexual couples only. ”The Orthodox Marriage Act will be enacted in the same format as the current Marriage Act of 1961 with a definition of marriage that limits the application of the Act to opposite-sex couples only. The wording of the Orthodox Marriage Act would otherwise remain the same as the Marriage Act of 1961 and the status quo for opposite-sex couples in terms of this Act would be retained in all respects.”
The enactment of the Orthodox Marriage Act would allow ministers of religion or religious institutions to decide under which Act they wish to be designated as marriage officers. The state will designate its civil marriage officers in terms of the generic Marriage Act. ”The Constitutional Court ruling has made provision for this possibility [the creation of a separate Act] and it would probably not be challenged,” said Pierre de Vos, professor of law at the University of the Western Cape.
He added that although he felt ambivalent about two marriage Acts, he thought it was the best compromise. ”The precedent has been set with customary and polygamous marriages, which are governed by separate Acts. As long as the union is called a marriage we don’t mind. It would be ideal of course to have one Act,” he said.
The National Assembly’s home affairs committee, chaired by Patrick Chauke, has spent a month travelling the country hearing submissions on the Civil Unions Bill — government’s attempt to find a way around the use of ”marriage” as a legal formalisation of same-sex unions.
Lesbian and gay organisations have complained that some of the hearings have taken place in inaccessible venues and that some of those advertised had been changed at the last minute. The September 29 hearing scheduled for Ulundi was suddenly moved to New Hanover, about half an hour outside Pietermaritzburg.
Chauke’s comments at the close of Monday’s spirited hearings were ”guarded”. Public sentiment around the issue of same-sex marriage runs so high in some places that ”you feel you have to run away”, he told about 200 gathered Capetonians.
While a representative of the Muslim Judicial Council, Moulana Abdul Fattaag Carr, and Errol Naidoo of His People Christian Church said they opposed same-sex marriage in any form, the South African Council of Churches made a confident plea in support of its inclusion in the Marriage Act.
”Our national history illustrates all too painfully the folly and injustice of creating multiple legal and administrative mechanisms to perform essentially the same functions for different categories of people. Separate institutions are rarely, if ever, equal. Their chances of achieving equal impact are further reduced if they are embedded in a society that remains afflicted by prejudice and discrimination,” said Reverend Roger Roman, Ecumenical Secretary of the Western Cape Provincial Council of Churches.
Stakeholder submissions will be made to the committee in Parliament on Monday and Tuesday next week, before the vote on Friday.