Op-Ed

Legislation still not recognising problem of ‘separate but equal’ same-sex marriage

By JACO BARNARD-NAUDE and PIERRE DE VOS 30 November 2018

The Home Affairs Portfolio Committee earlier this week approved an amendment to the Civil Union Act that would repeal a controversial section of the Act that allows state marriage officers to refuse to solemnise same-sex marriages. While the amendments must be welcomed, it does not address the problems created by the “separate but equal” marriage regime.

In an article published in 2007 after the adoption of the Civil Union Act 17 of 2006, we described the Act as a “concession to colonialism”. While many were (rightly) celebrating the unique legalisation on the continent of same-sex marriage, we warned that marriage law in South Africa was not yet fully democratised (‘decolonised’ is perhaps the better word these days).

We addressed two aspects of the Civil Union Act which led us to describe the Act as a concession to colonialism – despite its legalisation of same-sex marriage as a form of civil union. We relied then, as now, on a definition of colonialism in its widest sense, namely as denoting an oppressive take-over. At the heart of our objection was the decision of the legislature to create a ‘separate but equal’ marriage regime for same-sex couples.

The question that now arises for our argument, is whether the Civil Union Amendment Bill, adopted by the Home Affairs Portfolio Committee, changes our view of the Act. The short answer is that it does not. The Amendment Bill repeals the controversial section 6 of the Act which provided for a conscientious objection on the part of the State’s marriage officers, to refuse to solemnise a civil union where it is proposed between partners of the same-sex. No such objection was ever available where the civil union was proposed between heterosexual partners. Section 6, in effect, allows civil servants, whose salaries are paid from the fiscus, to discriminate against citizens because of their personal beliefs.

The legislative message conveyed by section 6 to same-sex couples, indeed to all queer people in South Africa, was loud and clear: from the point of view of the State, same-sex couples are still somehow tainted and inferior and thus deserved to be treated “separately”. The same-sex couple was in fact confined to the Act in a way that their heterosexual counterparts were not and section 6 left them at the mercy of the state’s marriage officers, who could legally choose whether or not they wanted to solemnise the union.

While every type of discrimination is different and is experienced differently by people who are differently situated because of their race, class, gender and the like, the denial of equal concern and respect of queer people by a supposedly progressive piece of legislation has an apartheid-like character that is difficult to deny.

In this way, section 6 represented a concession to colonialism and at the same time a confinement of the same-sex couple as legal subject. That this concession and confinement are without any reasonable, justifiable rationale in an open and democratic society translates, of course, into the legal term ‘unfair discrimination’. Unlike religious leaders, there can be no justification whatsoever for state officials to discriminate against fellow citizens because of their beliefs. To hold otherwise would be to argue that it is justifiable for state officials to refuse to provide services to black people, Jews or Muslims, women, or disabled persons.

The proposed amendment contained in the Civil Union Amendment Bill is, therefore, necessary to cure part of the unconstitutionality contained in the Civil Union Act. But what about the argument that the Civil Union Act is by itself unconstitutional? While this is a less straightforward argument, we suspect that the “separate but equal” marriage regime created by the Civil Union Act might itself be unconstitutional.

Here it must be noted that the Amendment Bill proposes a delay of 24 months before implementing the amendment. The justification for this delayed implementation – what the Department calls a “transitional” period – is that the 24 months will allow the department to train marriage officers who were previously exempted by Section 6.

One has to ask: what sort of training does the Department envisage? Surely, the whole point is that the procedure for solemnising a marriage or civil partnership between heterosexual partners must be exactly the same as the procedure for solemnising a marriage or civil partnership between partners of the same-sex? What further training – moreover, requiring 24 months to complete – does a marriage officer, who has been solemnising heterosexual civil unions all along, now require in order to apply the same procedure in the case of solemnising a same-sex civil union? Is simply substituting “husband” and/or “wife” in the formula, for spouse / civil partner A and/or spouse / civil partner B, really that hard?

Or does the problem that the transitional period wants to address relate, rather, to the continued co-existence of the Marriage Act alongside the Civil Union Act? In our view, the greatest problem with the current Act is and remains its co-existence with the unconstitutional Marriage Act, which relies on the common law (one could also say the colonial) definition of marriage as the exclusive union between a man and a woman.

The problem here is that the choice for heterosexual couples is a choice between the Marriage Act and the Civil Union Act, whereas homosexual couples who want to marry can only do so by way of the new Civil Union Act. The regrettable reality is that most heterosexual couples still marry in terms of the 1961 Marriage Act. Moreover, reports indicate that department of home affairs officials often resist attempts by heterosexual couples to solemnise their marriage under the Civil Union Act.

In the minds of state officials (and probably also the overwhelming majority of members of the public) the firmly fixed default for heterosexual couples is the Marriage Act which is viewed as the primary Act regulating marriage, with the Recognition of Customary Marriages Act and the Civil Union Act viewed as ‘second best” options to enter into marriage. This means that symbolically, the state continues to view traditional, colonially imposed, heterosexual marriage entered into in terms of the Marriage Act as the norm.

The ideological message to society is that such a marriage has a higher status than marriages conducted in terms of one of the other pieces of legislation regulating marriage. No wonder, then, that even so-called marriage law specialists who really should know better, continue to write Family Law textbooks in which this hierarchy is not only legitimated but perpetuated.

The Constitutional Court held in Minister of Home Affairs and Another v Fourie and Another that a “separate but equal” marriage regime in which one type of marriage has a higher status than other forms of marriage was “unthinkable”. Sachs J explained that in crafting a new marriage regime Parliament had to be:

…sensitive to the need to avoid a remedy that on the face of it would provide equal protection, but would do so in a manner that in its context and application would be calculated to reproduce new forms of marginalisation. Historically the concept of ‘separate but equal’ served as a threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to segregation. The very notion that integration would lead to miscegenation, mongrelisation or contamination, was offensive in concept and wounding in practice.”

There can therefore be no constitutionally acceptable reason for the continued existence of the exclusive Marriage Act. The only constitutionally acceptable options are to either open the Marriage Act to same-sex couples (as well as including the regulation of customary marriages under the Marriage Act), as was contemplated in the Constitutional Court’s Fourie judgment, or to repeal it.

Opening it to same-sex couples removes part, at least, of the rationale for the Civil Union Act, which would then require further amendment. And despite the Portfolio Committee’s indication that the Amendment Bill has no financial consequences for the State, amendments cost money that the State does not have. Thus, unless and until the Marriage Act is repealed in its entirety, same-sex couples and all queer people in South Africa will continue to suffer, without rhyme or reason, the consequences of a “separate-but-equal” regime that the Constitutional Court in Fourie rightly condemned. DM

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