MUSLIMS and Hindus are about to find themselves in some highly unusual company as they bid for marital recognition under the new constitution as the gay and lesbian community begins to demand unrestricted marital recognition.
The two religious groups – particularly Muslims – have been clamouring for legal recognition of their religious marriages for nearly two years now, but the battle for recognition of gay and lesbian partnerships is just beginning to gain momentum.
The Law Commission’s Professor Thandabantu Nhlapo said moves to recognise Muslim and Hindu marriages were also under investigation following the commission’s decision to give a “top priority” rating to the reform of marriage and divorce law.
“We haven’t included it in the issue paper on customary marriage simply because it’s simpler to research them separately, but we may still end up with one marriage Act,” he said.
Moulana Ahmed Kathrada of the Natal Jamiat Ul-Ulema said Muslim theologians had presented Bills to the Ministry of Home Affairs in 1994, but “we are still waiting for our first marriages to be recognised, never mind our polygamous marriages”.
Waiting with them is a growing number of gay and lesbian couples who want the state to recognise their partnerships, and give them the right to marry, said Kevin Botha, legal adviser to the National Coalition for Gay and Lesbian Equality.
“I get six or seven calls a day from couples wanting to know whether they can get married,” he said. “The pressure is building in the community.”
While Botha said the coalition was currently campaigning to end discrimination on more practical aspects of gay partnerships, such as workplace discrimination on pensions and other benefits, moves to demand same-sex marital recognition were not far off.
“The current marriage Act isn’t actually discriminatory, but the way common law is applied is and we believe this should also end,” he said. “Marriage should be dealt with as a block and all forms of marriage should be accepted in the new South Africa.”
Madeleine Rose, editor of gay and lesbian magazine Outright, said the main problem was not the right to marry, but the practical problems created for same-sex couples.
“If Bob and Jack are a couple, they buy a house together and Bob dies, then Bob’s parents can throw Jack into the street if the house is in Bob’s name,” she said. “We can’t get bonds together, can’t put our partners on our medical aid schemes, and can’t provide for the immigration of our foreign partners. A heterosexual couple can.”
Rose said she didn’t believe “there is a single gay couple out there who wants to parody a heterosexual marriage, walking down the aisle with one partner wearing a dress and the other a suit, but what we do want it a recognition of partnership in South Africa”.
The Law Commission’s Nhlapo said he was “certain we will face growing pressure over gay marriages in the coming months”, but the gay community is aware it is likely to face vocal opposition.
“The religious right is going to have a field day, but we’re not asking for a minister or a rabbi to condone a heterosexual parody,” said Rose.
Nevertheless, there are signs that the views of some religious leaders are beginning to bend. While most continue to object to homosexuality on religious grounds, many say they will not turn gays and lesbians away from their congregations and some have even begun to re-examine the issue entirely.
Union of Orthodox Synagogues Chief Rabbi Cyril Harris said gay unions were “unacceptable because they are not productive. The purpose of a marriage is twofold:mutual contentment and companionship and productiveness. Show me a gay couple that have produced a child and they’ll be a real star.”
Others such as the Nederduitse Gereformeerde Kerk and the Methodist Church said they would not turn gays or lesbians away, although they do not condone gay marriages.
Rose and Botha said, however, that some churches had already begun to perform gay ceremonies. The coalition had successfully helped defend a priest from the United Congregational Church from censure last year after he performed a same-sex wedding ceremony.