The state’s continued opposition to the rights of same-sex couples is doomed to failure because of the stringent constitutional values relating to equality, say constitutional law experts.
This week the Supreme Court of Appeal ruled that the common law definition of marriage as a union of a man and a woman was unconstitutional.
It was at least the fourth time that a government department had opposed and lost a case relating to the rights of same-sex couples in the Constitutional Court or the Supreme Court of Appeal. It was to be expected that the state would be hard-pressed to win a case concerning the equality provisions in the Constitution.
The state in 1998 opposed the striking down of the laws criminalising sex between two consenting men.
The state then lost an application brought by the National Coalition for Gay and Lesbian Equality, which argued that it was unconstitutional for immigration laws to facilitate the immigration into South Africa of the foreign national spouses of permanent South African residents but not to afford the same benefits to South African gays and lesbians in permanent same-sex life partnerships with foreigners.
In the same case, the court ordered that words be added to the statute. Instead of the law reading “spouse”, the court ruled that it should read “or partner in a permanent same-sex life partnership. Permanent life partners are ones who have an established intention to cohabit with one another permanently.”
In 2002 the Constitutional Court confirmed a high court order invalidating provisions of the Judges’ Remuneration and Conditions of Employment Act on the grounds that it discriminated against couples in same-sex life partnerships.
A lesbian couple, “J and B”, asked the Constitutional Court to find Section 5 of the Status Act unconstitutional. The section provided that where a heterosexual married couple use the sperm or ovum of another person to conceive a child through artificial insemination, that child will be considered the legitimate child of the married couple. The provision did not apply to homosexuals, as the law required one mother and one father be registered.
The court confirmed J and B’s views and ordered that the section be read to provide the same status to children born of artificial insemination to same-sex permanent life partners as to the children of heterosexual married couples.
The couple had had twins via artificial insemination, but only the natural mother had been allowed to register as a parent.
Department of Home Affairs spokesperson Nkosana Sibuyi said the department’s opposition to this week’s appeal was not about the merits of the arguments, but rather a call for the courts to wait until the law reform commission had done its work. The commission is looking into ways of bringing the existing law on marriage into line with constitutional values and principles.
“All we asked for was for a little bit of patience and restraint,” said Sibuyi.
Constitutional law lawyer Eddie Maluleke said the Supreme Court of Appeal’s marriage law ruling did not surprise those who had been following court decisions relating to equality and same-sex rights.
“If we trace the jurisprudence of the Constitutional Court, in the first case [relating to same-sex couples], the sodomy case, Justice [Laurie] Ackermann said that given our equality jurisprudence it would seem that laws passed by the government must conform to the constitutional values and principles,” said a constitutional lawyer with the firm Edward Nathan and Friedland.
Pretoria University academic Tshepo Madlingozi said the decision was long overdue. “We must remember that we are the only country in the world whose Constitution specifically includes sexual orientation as one of grounds on which one cannot discriminate.”
Madlingozi cautioned against celebrating too soon, as Parliament could take some time to enact a new, constitutionally valid statute.
“There are people who say they can love each other but they should not get married. That does not help,” he said. “These people have been marginalised for a long time. Perhaps once their union is recognised they will be looked upon as part and parcel of society. Ten years since the interim Constitution [came into effect], it is time that their dignity is restored.”