Defining moment

South Africa | Same-sex marriage ruling turns on what the word spouse means

Issue: "Daniel of the Year," Dec. 17, 2005

In 1996, South Africa became the only country in the world to forbid discrimination on the basis of sexual orientation in its constitution. At the time Christians warned the provision would open the door to gay marriage. Now it has.

On Dec. 1, South Africa's Constitutional Court, the highest in the land, ordered parliament to change its laws to accommodate gay couples. If it does not within 12 months, the country's marriage laws will automatically include the words or spouse after the words husband and wife.

South African and international media quickly reported that the ruling legalizes gay marriage. In fact, it falls short of that, despite the gay and lesbian celebrations outside the courthouse. The nuanced ruling both orders more legal recognition for gay couples while acknowledging the religious beliefs of the socially conservative majority.

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The case involves two lesbians who wanted their union recognized as marriage by the government. When the lower Supreme Court of Appeal affirmed their stand in 2004, the Home Affairs Department appealed the decision, saying the court had encroached on parliament's authority to make laws. The Constitutional Court then ruled some aspects of marriage laws unconstitutional.

Rather than this ruling being the silver bullet gays wanted, Hazel Gumede-Shelton predicts a protracted fight that will go at least another two or three years. She is one of four attorneys advising the state on the case. Even if parliament fails to act, she said, the words or spouse will not secure gay marriages.

In South African jurisprudence, she told WORLD, spouse has always meant husband or wife: "Gays and lesbians would need to make application to redefine spouse," she said. "The reading-in of the word spouse will not help them at all."

So if it does not help, why did the court order it? Ms. Gumede-Shelton interprets the demand as a court move to force a timely government response-in the past, when asked to make amendments on other issues, the government has delayed and requested extensions.

Ms. Gumede-Shelton said the court also drew a fine line between the social benefits of marriage and the legal benefits that gay couples do not enjoy. To the degree that marriage laws have "positive impacts on heterosexual couples . . . and there's negative impact on homosexual couples, that's unconstitutional," she explained. Parliament's task now is to find a legal remedy to that discrepancy.

Also noteworthy in the ruling is the court's nod to religious views: "Although the rights of nonbelievers and minority faiths must be fully respected, the religious beliefs held by the great majority of South Africans must be taken seriously," the ruling said. "For believers, then, what is at stake is not merely a question of convenience or comfort, but an intensely held sense about what constitutes the good and proper life and their place in creation."

Whatever amendments parliament devises in the next year, Ms. Gumede-Shelton believes it will not be civil unions, the compromise several Western nations have used. She hopes South Africa will come up with a unique solution that renders some legal benefits to gays while still maintaining traditional marriage.

Because the gay lobby is in full throttle, one party sees only one solution: a constitutional amendment that defines marriage as between one man and one woman. Though small, the African Christian Democratic Party was the only one to vote against the 1996 constitution because of the sexual orientation and pro-abortion provisions.

Ms. Gumede-Shelton says pushing for a constitutional amendment would make it harder to find a compromise in parliament that honors marriage. She expects, however, that the issue will end up back in court: "I do know that the government is going to come up with legislation, and gays and lesbians are going to turn around and say, 'We still feel discriminated against.' . . . These guys want marriage. It isn't about legal impact, it's about social recognition."


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