CONSTITUTIONAL COURT HEARING ON THE LEGAL RIGHT TO MARRY FOR

LESBIAN AND GAY PEOPLE

Arguments on Constitutional Rights
On the right to equality (section 9), the common law prohibition differentiates between heterosexual people on the one hand and lesbian and gay people on the other. Unlike heterosexuals, lesbian and gay people are denied the following:

the freedom to join in marriage with the person of their choice;
the right to formalise their unions or relationships in the eyes of their families, society and the law;
the benefits that flow from the termination of marriage, whether upon death or divorce, such as rights of intestate succession and the interim rights to maintenance and custody pending divorce; and
the right to participate on equal terms with other people in all aspects of life.

It is apparent that lesbian and gay people are denied the right to marry simply because of their sexual orientation. Like heterosexual people, not all lesbian and gay people want to get married. Similarly, those lesbian and gay people who do want to get married do so for precisely the same reasons as heterosexual people, including the desire to formalise their union in the eyes of their families, society and the law.

The right to dignity (section 10) has been described by the Constitutional Court as the most important of all human rights and the source of all other personal rights in the Bill of Rights. The common law prohibition constitutes an unjustifiable violation of the dignity, self-esteem and identity of lesbian and gay people and is accordingly unconstitutional. The prohibition relegates same-sex relationships to a status below that of heterosexual relationships and regards same-sex relationships as not worthy of respect and protection as heterosexual relationships. In short, it casts lesbian and gay people as undeserving of respect and concern as human beings.

The common law prohibition infringes the right to privacy (section 14) of lesbian and gay people. By refusing to recognise marriages between persons of the same sex, the common law denies those lesbian and gay people who choose to marry, the right to get on with their lives, to marry the person of their choice, to make fundamental decisions about their intimate relationships, to establish their own families and to express their personalities in the process. The freedom to choose one’s partner should not be limited to entering into a relationship with a partner of choice but ought to extend to deciding upon the nature and form of that relationship, whether it be marriage or not.

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Press Statement

The Right to Marry! Same-sex marriage to be heard in the Constitutional Court.

On 17 and 18 May 2005, the Constitutional Court will hear the state’s application for leave to appeal against the judgment of the Supreme Court of Appeal (“the SCA”) in Fourie v Minister of Home Affairs (Lesbian and Gay Equality Project as Amicus Curiae). Together with 16 co-applicants, the Lesbian and Gay Equality Project has applied for direct access to the Constitutional Court for a separate but related matter to be heard on the same date, as the relief being sought in both cases is essentially the same.

The application for direct access has also been set down for hearing on 17 and 18 May 2005. In both matters, the parties have also been directed by the Chief Justice to be prepared to argue the merits of their respective cases.

In 2004, the Equality Project and its co-applicants initiated legal proceedings against the Minister of Home Affairs, the Director-General of Home Affairs and the Minister of Justice and Constitutional Development in the Johannesburg High Court concerning the right of same-sex partners to marry. In addition to developing the common law definition of marriage, the essence of the SCA decision in Fourie, the High Court application also sought to read certain words into the prescribed marriage formula in section 30(1) of the Marriage Act, 1961 so as to render it constitutional and enable lesbian and gay couples to marry.

The purpose of the two applications is to develop the law of South Africa so that it recognises, protects and regulates marriages between two persons of the same sex in the same manner in which it does marriage between men and women.

Prior to the ruling on 30 November 2004 of the SCA in Fourie, the common law expressly prohibited marriages between persons of the same sex by defining marriage as the voluntary union of one man and one woman to the exclusion of all others while it lasts.

The Equality Project, Cape Town’s Triangle Project, the Durban Lesbian and Gay Community and Health Centre, Johannesburg’s Forum for the Empowerment of Women (“FEW”), Pretoria’s OUT and six same-sex couples are asking the Constitutional Court to declare the common law definition of marriage and the prescribed marriage formula in section 30(1) of the Marriage Act 25 of 1961 as unconstitutional.

It is important to note that the application is not directed at compelling any religious denomination to solemnise marriages that are considered to be in contravention of any religious laws or teachings. Rather, it is directed at compelling the state to solemnise and recognise marriages between two people of the same sex.

Wendy Isaack of the Equality Project explains why her organisation is seeking to develop the common law definition of marriage: “Discrimination against lesbian and gay people violates the principles of equality and respect for inherent human dignity. It acts as an obstacle to the full and equal participation of lesbian and gay people in all aspects of civil and political life.”

Donna Smith, Chief Executive of FEW said: “The common law prohibition against marriages between two persons of the same sex violates the constitutional rights of lesbian and gay people to equality, dignity and privacy. This infringement is further aggravated by the fact that not only one right, but a combination of three, have been infringed.”

“Like heterosexual people, not all lesbian and gay people want to get married. Similarly, those lesbian and gay people who do want to get married do so for precisely the same reasons as heterosexual people, including the desire to formalise their union in the eyes of their families, society and the law,” said Donna Smith.

In delivering his judgement in Fourie, Justice Edwin Cameron of the SCA held that the prohibition gives “rise to multiple, overlapping and mutually reinforcing violations of constitutional rights” that touch “the deep, invisible and intimate side of peoples lives”.

“Our constitutional history thus involves ‘a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance’,” the judgment read.

The applicants contend that it would be appropriate, just and equitable for the Court to make an order developing the common law definition of marriage so that it refers to marriage as “the lawful and voluntary union of two persons to the exclusion of all others while it lasts.” In addition, they are asking the Constitutional Court to declare the prescribed marriage formula in section 30(1) of the Marriage Act, 1961 to be inconsistent with the Constitution; and to read the words “or spouse” into the prescribed marriage formula so that it also applies to same-sex marriages.

Since 1994, numerous legal victories in our courts have upheld the rights of lesbian and gay people, as enshrined in both the letter and values of the Constitution. These include numerous groundbreaking Constitutional Court decisions, including two in cases brought by the National Coalition for Gay and Lesbian Equality: 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 purposes of ensuring that the foreign partners of South Africans can become permanent residents.

ENDS

NB
The Equality Project, originally the National Coalition for Gay and Lesbian Equality, is a voluntary association working toward securing social and legal equality for lesbian, gay, bisexual, transgendered and intersex people.
The principal objectives of the Equality Project are to:-
promote commitment in the human rights, legal rights and broader democratic movement to lesbian, gay, bisexual, transgender and intersex equality;
promote equality before the law for all persons irrespective of their sexual orientation;
reform and repeal laws that discriminate on the basis of sexual orientation;
influence the legislative process to secure full recognition of the right to equality; and
challenge discrimination through litigation, lobbying, advocacy, public education and political mobilization.
The Lesbian and Gay Equality Project is a registered non-profit organisation funded by Atlantic Philanthropies, the Ford Foundation, the Open Society Foundation and the National Lotteries Fund.