Earlier this year a US federal judge jailed Kim Davis, a Kentucky county clerk, for refusing to issue same-sex marriage licences. Davis was rightly held in contempt of court after the US Supreme Court legalised same-sex marriages across the US. Strangely, in South Africa section 6 of the Civil Union Act would have allowed Davis to continue to discriminate against same-sex couples by refusing to register same-sex marriages. The time has surely come to scrap this unconstitutional provision of the Civil Union Act.
In 2005 South Africa’s Constitutional Court held in Minister of Home Affairs v Fourie that the common law definition of marriage as between one man and one woman to the exclusion of all others (the common law differing from customary law in this regard) unfairly discriminated against same-sex couples on the basis of their sexual orientation. The court found that because the common law did not permit same-sex couples to get married and enjoy the same status and benefits associated with marriage, it was necessary for Parliament to rectify the defect.
Probably in an attempt to accommodate the perceived homophobia among many South Africans, our government chose not to fix the problem in the obvious manner – by amending the Marriage Act to cover both different sex and same-sex couples. Instead the government tabled a version of the Civil Union Bill that would have granted same-sex couples the right to enter into ‘civil partnerships’ – but not into ‘marriages’ – in a supposedly ‘separate but equal’ legal arrangement.
At the public hearings conducted by Parliament to consider this draft Bill, some of us pointed out that the draft Bill would not pass constitutional muster. This was so because the Bill did not grant same-sex couples who wished to formalise their unions the right to enter into a ‘marriage’ and because the draft Bill created a separate law for the exclusive regulation of same-sex relationships. As there is obviously a difference in status between a ‘marriage’ and a ‘civil partnership’, merely granting the right to enter into a ‘civil partnership’ to same-sex couples while allowing only heterosexual couples to enter into a ‘marriage’ would not have removed the unfair discrimination.
The Constitutional Court itself had made it clear that a so-called ‘separate but equal’ approach to recognising same-sex unions would be unconstitutional. Although the court curiously suggested that it may be permissible for Parliament to adopt a separate law to accommodate the recognition of same-sex marriages (in the same way it had adopted a separate law to recognise customary marriages), it also stated that such a law would only pass constitutional muster if it did not imply “repudiation”, connote “distaste or inferiority” and perpetuate “a caste-like status” for members of the lesbian, gay, bisexual, transgender and intersex community.
The court added: “This means that whatever legislative remedy is chosen must be as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of the intangibles as well as the tangibles involved. In a context of patterns of deep past discrimination and continuing homophobia, appropriate sensitivity must be shown to providing a remedy that is truly and manifestly respectful of the dignity of same-sex couples.”
Because it would obviously send the signal that same-sex couples are not equally worthy of concern and respect if their unions were called ‘civil partnerships’ while the unions of different sex couples were called ‘marriages’, a law that did not grant same-sex couples the right to enter into a union that was called a ‘marriage’ would not pass constitutional muster.
The Civil Union Bill was then amended to grant same-sex couples the right to enter into a union called a ‘marriage’. The Civil Union Act was also opened up to both same-sex and different sex couples in order to prevent sending the signal that the legislature wished to adopt a separate but unequal marriage regime.
At the time many of us celebrated this partial victory against discrimination. But although it was obviously untenable for the law to discriminate against same-sex couples, I am personally far from convinced that entering into a marriage is always a good idea.
Marriage is an inherently conservative institution. It pressurises couples into ‘performing’ their relationship in stereotypical and restrictive ways. The institution is deeply implicated in the maintenance of patriarchy and often helps to perpetuate and to legitimise oppressive gender roles that marginalise and disadvantage women. Marriage is also by its very nature an exclusionary and divisive institution: it purports to bestow not only legal rights but also special status on married couples which is not bestowed on non-married couples, on people in multiple relationships or on single people.
Nevertheless, it remains a personal choice to get married or not and many people still choose to do so. Many, of course, also choose later to divorce. (Although, it must be said, that these choices are not always available to individuals who are in relationships in which the partners do not have more or less equal power.)
However, it may remain far more difficult for same-sex couples to enter into a marriage than it is for different sex couples. This is partly because many same-sex couples who wish to get married will encounter resistance from family, colleagues and friends. Some parents of same-sex couples are dead-set against their children getting married because they are homophobic or because they fear ‘coming out’ as the parents of a gay, lesbian or bisexual child. (It is for this reason that some progressives argue that it is politically more acceptable for same-sex couples to get married than for heterosexuals to get married.)
But it is also more difficult for same-sex couples to get married because section 5 the Civil Union Act explicitly allows religious institutions not to solemnise same-sex marriages. Few same-sex couples are therefore ever going to get married in church. Moreover, section 6 allows marriage officers who work for the state and who object “on the ground of conscience, religion and belief” to same-sex marriage to refuse to solemnise same-sex marriages – just as Kim Davis did in Kentucky.
Section 6 is extraordinary in that it explicitly allows state officials to unfairly discriminate against individuals in contravention of section 9 of the Constitution. While the right to freedom of religion may arguably justify the inclusion of section 5 in the Civil Union Act in order to accommodate the prejudices of religious institutions, the same cannot be said for section 6.
After all it is unthinkable that the Marriage Act would contain a provision stating that any state marriage officer could refuse to solemnise a heterosexual marriage between individuals of different races on the ground of “conscience, religion and belief” – just because the marriage officer is a rabid racist. It is also unthinkable that the law would allow a state official from solemnising a marriage because of the religious beliefs of the couple concerned. Similarly, it is unthinkable that the law would allow a white Home Affairs official to refuse to serve black citizens at a Home Affairs office on the grounds of that official’s racist beliefs.
Yet, this is exactly what section 6 allows marriage officers to do regarding the solemnisation of same-sex marriages.
Of course, it would seldom be permissible to force someone to act against his or her conscience, religion or belief. If your conscience, belief or religion commands you not to treat others with equal concern and respect because of their race, sex, religion or sexual orientation, you are free to resign from your job and to withdraw from the public sphere to live according to your beliefs. But you do not have a right to work for the state and to have your prejudice endorsed by the state.
A state marriage officer who is opposed to same-sex marriage should not have the right to refuse to marry a same-sex couple as such an exception would endorse unfair discrimination by the state – something that is explicitly prohibited by section 9 of the Constitution. It is for this reason that a constitutional challenge to section 6 of the Civil Union Act would almost certainly be successful.
For some reason no one has as yet challenged this discriminatory provision. It is high time somebody does. DM
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Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
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