In a unanimous ruling issued on December 1, the highest court of South Africa ruled that the continued exclusion of same-sex couples from legal marriage violates two provisions of the national Constitution when considered in combination—the requirement of equality before the law and the ban on sexual orientation discrimination by the government.
A sweeping decision by Justice Albie Sachs of South Africa’s Constitutional Court treated the issue in this case as a logical step after a series of rulings by the Court striking down various forms of unequal treatment of South African gay people.
The Court was actually ruling on two different cases joined for decision. One, brought by a lesbian couple, Marie Adriaana Fourie and Cecilia Johanna Bonthuys, in the Pretoria High Court, had ultimately produced a decision by the Supreme Court of Appeals finding the existing common law definition of marriage unconstitutional. That ruling suggested a convoluted and limited remedy—allowing religious authorities that approved of same-sex marriage to perform such ceremonies that could be recognized by the state.
The other case, brought by the Lesbian and Gay Equality Project in the Johannesburg High Court, had not yet proceeded to trial, but advanced the more ambitious claim that the Marriage Act itself was unconstitutional for excluding same-sex couples. The Court granted an extraordinary petition to consider this case in connection with the other.
Although the Court was unanimous in finding the constitutional violation, it was not unanimous as to the remedy. Writing for all but one member of the Court, Sachs found it would be appropriate to suspend the effect of the Court’s ruling for one year to allow the Parliament to adopt appropriate legislation, reflecting recent activity by the South African Law Revision Commission, which is working on a comprehensive set of legislative recommendations to deal with same-sex marriage. According to Sachs, the SALRC is poised to issue its recommendations to the Parliament, and the legislators should be able to complete their work within a year.
However, Sachs made clear that if Parliament failed to act, the Court’s ruling would automatically go into effect, requiring government officials to allow same-sex couples to marry under existing law by “reading in” to the Marriage Act appropriate language suggested by the Court.
One member disagreed with this approach. Justice Kate O’Regan argued that successful litigants are entitled to relief if it is within the authority of the Court to give it. Since the current “common law” definition of marriage in South Africa is judge-made law, she argued, the Court could change it by simply modifying the definition to be gender-neutral.
Sachs’ opinion for the Court runs more than 100 pages and is available in .pdf form at its Web site, Constituti
Sachs devotes substantial attention to summarizing the Court’s prior gay rights decisions—striking down the sodomy law, requiring the government to recognize same-sex partners for immigration purposes, allowing for joint adoption of children by same-sex partners, and requiring access to pension rights for partners of public servants among them. The common denominator in all the decisions was the growing recognition that the equality and non-discrimination guarantees in the South African Constitution clearly require treating gay people as full citizens with the full panoply of rights enjoyed by all others.
“This court has thus in five consecutive decisions highlighted at least four unambiguous features of the context in which the prohibition against unfair discrimination on grounds of sexual orientation must be analysed,” Sachs wrote. “The first is that South Africa has a multitude of family formations that are evolving rapidly as our society develops, so that it is inappropriate to entrench any particular form as the only socially and legally acceptable one.
“The second is the existence of an imperative constitutional need to acknowledge the long history in our country and abroad of marginalisation and persecution of gays and lesbians
“The third is that although a number of breakthroughs have been made in particular areas, there is no comprehensive legal regulation of the family law rights of gays and lesbians.
“Finally, our Constitution represents a radical rupture with a past based on intolerance and exclusion, and the movement forward to the acceptance of the need to develop a society based on equality and respect by all for all. Small gestures in favour of equality, however meaningful, are not enough. A democratic, universalistic, caring, and aspirationally egalitarian society embraces everyone and accepts people for who they are.
“To penalise people for being who and what they are is profoundly disrespectful of the human personality and violatory of equality. Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a leveling or homogenisation of behaviour or extolling one form as supreme, and another as inferior, but an acknowledgement and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation, and stigma. At best, it celebrates the vitality that difference brings to any society.
“The issue goes well beyond assumptions of heterosexual exclusivity, a source of contention in the present case. The acknowledgement and acceptance of difference is particularly important in our country where for centuries group membership based on supposed biological characteristics such as skin colour has been the express basis of advantage and disadvantage. South Africans come in all shapes and sizes. The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people with all their differences, as they are
“Accordingly, what is at stake is not simply a question of removing an injustice experienced by a particular section of the community. At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect. The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomfiting.”
In the course of his opinion, Sachs addresses each of the issues typically raised against same-sex marriage and provides thoughtful, well-reasoned rejoinders. In particular, he notes that under the Constitution no religious body will be forced to perform any ceremonies that it finds contrary to its own theological requirements, but that the Court must be concerned only with secular arguments, and cannot allow religious disapproval to affect how the government deals with its citizens.
In terms of parliamentary options, Sachs noted one SALRC option which would enact a new Reformed Marriage Act under which couples regardless of gender could marry, while leaving in place the existing law, retitled as the Conventional Marriage Act, to which opposite-sex couples could resort if they wished to use the more traditional formulation of marriage vows (which would be gender-neutral under the Reformed Act). Sachs emphasized that the proposal did not create a “separate but equal” regime, since all marriages, regardless under which Act they were performed, would be treated as identical by the state for all legal purposes.
But it was left to Parliament to decide which course to follow, so long as it produces a result consistent with the Court’s opinion within one year.
In her partial dissent, Justice O’Regan laid out her alternative approach: “In my view, this Court should develop the common-law rule as suggested by the majority in the Supreme Court of Appeal, and at the same time read in words to section 30 of the [Marriage] Act that would with immediate effect permit gays and lesbians to be married by civil marriage officers (and such religious marriage officers as consider such marriages not to fall outside the tenets of their religion).”
It is worth noting that the earlier decision by the Supreme Court of Appeal had been written by that court’s only openly gay member, Justice Edwin Cameron, who sat as a temporary member of the Constitutional Court during 1999 and who has also made history by being the only openly-HIV-positive person, so far, to sit as a judge of any nation’s highest court. Cameron’s ability to frame the Court of Appeals remedy was limited by the arguments advanced by the lesbian couple, who did not mount a full-scale constitutional challenge against the marriage statute, but focused instead on an argument based in the evolution of common law.