The Lesbian and Gay Equality Project and 18 other applicants on Thursday filed an application in the Johannesburg High Court challenging the laws that prevent two people of the same sex from entering into a legally recognised marriage.
The applicants include the Equality Project, Cape Town’s Triangle Project, the Durban Lesbian and Gay Health Centre, Johannesburg’s Forum for the Empowerment of Women, Pretoria’s OUT and seven same-sex couples.
The applicants have asked the court to declare the common-law definition of marriage and the prescribed marriage formula in Section 30(1) of the Marriage Act 35 of 1961 as unconstitutional.
These two provisions prohibit same-sex couples from entering into the institution of civil marriage.
The application cites the minister of home affairs, the director general of home affairs and the minister of justice and constitutional development as co-respondents.
The director of the Equality Project, Evert Knoesen, said the application, if successful, will conclude a decade of law reform spearheaded by the Equality Project and its predecessor, the National Coalition for Gay and Lesbian Equality (NCGLE).
”Recognition of marriages between two persons of the same sex will eradicate unfair legal restrictions against lesbian and gay people and assist in removing the stigma and prejudice associated with the community.
”Although we are litigating against the government, we do realise that it is only because of the liberation movement in this country that we as Africans can make a truly African claim for same-sex marriage. We see ourselves as part of an African gay and lesbian equality struggle and we see this case as a chance for Africa to set an example for the rest of the world,” said Knoesen.
The CEO of the Forum for Empowerment of Women, Donna Smith, said South Africa has a huge role to play in setting an example to the rest of the world.
”We have a fantastic Constitution and we need to set an example. Marriage is a fundamental aspect of equality and dignity, which are core values of our institution,” said Smith.
The Equality Project’s Wendy Isaacks, who runs its legal advice centre, said such acknowledgement is long overdue.
”For as long as there are real social benefits to marriage, we have a responsibility as an organisation to make sure gay and lesbian couples have the rights to those benefits. We want the right to choose whether we get married or not,” said Isaacks.
”Extending the full benefits and protections of marriage to two persons of the same sex is simply fair play,” she added.
Since 1994, the Equity Project and its predecessor, the NCGLE, have won numerous landmark victories including the striking-down of the common-law offence of sodomy (Section 20A of the Sexual Offences Act) and the listing of sodomy as an item in Schedule 1 of the Criminal Procedure Act; and the recognition of permanent, same-sex life partnerships for the purpose of ensuring that the foreign partners of South Africans can become permanent residents.
Crystal Combanis of Nicholls Combanis is handling the case on behalf of the applicants.