It is unconstitutional to prevent gay people from enjoying the legal benefits of marriage, the Constitutional Court ruled on Thursday.
It gave Parliament one year to rework laws allowing same-sex unions. If Parliament does not do this in one year, the Marriage Act will be rewritten to include the words ”or spouse” to allow these unions to take place.
Last year, the Supreme Court of Appeal ruled that two women, Marie Fourie and Cecilia Bonthuys, should be allowed to get married, but the couple later found they were unable to register their church wedding with the Department of Home Affairs.
The departments of justice and home affairs went to the Constitutional Court, seeking leave to appeal the decision on the grounds that only Parliament, not the courts, may amend legislation and that the court had given a ruling on something for which it had not been asked.
In a separate application, the court has been asked by the couple and by an alliance of gay and lesbian organisations for the marriage formula under the Marriage Act of 1961 to be changed to include the words ”or spouse” instead of ”husband” and ”wife”.
Same-sex couples may marry at present, but the marriage is not recognised in law.
Why wait 12 months?
Gay and lesbian groups were disappointed on Thursday that they will have to wait a year before they can get married.
”Why wait 12 months?,” asked Thuli Madi, from the lesbian and gay rights group Behind the Mask.
”If Parliament does not do anything in 12 months, we can marry anyway, so why not make it effective now?”
Fikile Vilakazi, of the Forum for the Empowerment of Women, said: ”We are not happy… because for a year we don’t have equality.”
‘The wonderful context’
The right-of-centre African Christian Democratic Party (ACDP) expressed its disappointment at the judgement, saying the Constitution should be changed to underpin the traditional concept of marriage.
ACDP member of Parliament Steve Swart said their view was that ”no state or court should seek to alter the traditional, and, from time immemorial, universal understanding of God-given marriage as heterosexual, and of course in terms of Christian understanding, also monogamous.
”We affirm that the traditional understanding of marriage is correct, that it is the God-given context for male/female bonding, mutual care, sexual intimacy and inter-dependent support.
”Then it is the God-given place for the procreation of children and the production of the next generation in the world … it is the proper, best, safest and most wonderful context and shelter for the nurturing and raising of children.” — Sapa