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Setting Precedent
by Loann Halden
2005-06-01

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Pictured Openly gay South African Judge of Appeal Edwin Cameron in New York, February 2004, on a fundraising trip for the U. of Witwatersrand. In late 2004, he was part of the Supreme Court of Appeal's 4-1 ruling that declared the country's opposite-sex definition of marriage unconstitutional.

Judge of Appeal Edwin Cameron speaks about South Africa's advancement of gay equality, the AIDS epidemic and being gay on the bench

When South Africa's Supreme Court of Appeal declared the opposite-sex definition of marriage unconstitutional Nov. 30, 2004, it signified another stride past the U.S. on gay issues. The country had already established its progressive reputation with a post-apartheid constitution that bans discrimination based on sexual orientation.

The marriage decision came as the result of a lawsuit brought forth by a lesbian couple after the Department of Home Affairs refused to register their 2002 union. One of the affirmative votes in the 4-1 decision came from Justice Edwin Cameron. The openly gay judge—who has also spoken publicly about his HIV-positive status—has served on the high court since 2000.

He was also easily accessible for an interview.

'When I was appointed to the Supreme Court at the end of 2000, we created a media committee, and started issuing media releases in advance of important cases, and media summaries of all our judgments. As for accessibility, I am involved in a lot of public work, as chair of a major university's governing council, and in the AIDS and gay and lesbian field, and am therefore quite aware of the need to deal efficiently and courteously with inquiries!'

As in the U.S., judges are not permitted to comment directly on rulings, but Cameron did address the public reaction to the decision.

'As they say on Broadway, reaction has been mixed, with much support and much criticism,' he reports. 'The editorial and letters columns have reflected lively debate. Newspaper editorialists have been supportive in their response ... We have a wonderful constitution—perhaps the world's most visionary and generous. But predictably—in a relatively poor country—realization of the rights promised has not been immediate or all-encompassing,' he adds, contemplating South African society's treatment of gay people. 'There is still great poverty, lingering racism and continuing gender inequality. So it is not surprising that many gays and lesbians still report experiencing prejudice and ignorance and active discrimination. Many lesbians especially report demeaning, oppressive and sometimes violent attacks because of their sexuality.

'Despite this, the fact that sexual orientation equality is expressly enshrined in our constitution has made a great deal of practical difference to many gays and lesbians. Both in their self-esteem, as equal citizens, and in their working and community relationships, the equality guarantee has helped fortify their position.'

Born in Pretoria in 1953, Cameron certainly never let his sexual orientation hold him back. He attended Stellenbosch University, earning degrees in law and Latin with honors. He attended Oxford on a Rhodes Scholarship in 1976, and then returned to South Africa to begin law practice in 1983.

'Without any question, I felt that my 'differentness' as a gay man, my vulnerability to prejudice and discrimination, impelled me to 'prove' myself professionally and career-wise,' Cameron said.

In October 1994, then-President Nelson Mandela appointed him Acting Judge of the High Court and chair of a commission to investigate illegal arms transactions. In 1999-2000, he served a year as an acting justice in South Africa's highest court, the Constitutional Court, before moving to a seat on the Supreme Court of Appeal.

'Under apartheid I was a human-rights lawyer with a reasonably high profile working in many different fields. I was also an openly and proudly gay man, committed to gay and lesbian equality,' says Cameron, who worked for the inclusion of sexual orientation in the South African Constitution. 'When I was appointed a judge the question of my homosexuality barely arose. ...

'I was appointed for only one year to the Constitutional Court, as an Acting Justice. Thereafter I was appointed permanently to the Supreme Court of Appeal. My public position on AIDS seemed to constrain any further likely job-shift. Unlike the United States Supreme Court, which hears both constitutional and non-constitutional matters, South Africa's Constitutional Court has only constitutional jurisdiction. The Supreme Court of Appeal is South Africa's highest court on non-constitutional matters, and about 90 percent of the appellate work ends with us. It is a fascinating court to be on ... .'

Five years ago, Cameron made international headlines when he delivered the speech 'Involvement of People Living with HIV/AIDS—How to Make it More Meaningful' in Durban at the National Conference for People Living with HIV/AIDS. During his address, he identified himself as someone living with the virus for 15 years, and shared an experience from two years earlier when he fell seriously ill with the symptoms of full-blown AIDS. He attributed his recovery to the 'blessings of modern medicine,' before saying: 'To me it is a shameful situation that purely because I can afford it, I should be alive tonight and speaking to you, when other people have died in the last two-and-a-half years, and more still are dying now.'

'There are many powerful reasons why judges should generally avoid participation in current political controversy. Without compelling justification, they should keep low profiles and get on with courtroom work,' says Cameron, who remains in good health today. 'But two aspects of the AIDS epidemic in particular for me seemed to provide compelling justification to speak out—the fact that the viral aetiology of the disease was put in doubt by the political leadership in South Africa; [ and ] the unavailability of treatment in Africa. Both seemed to me iniquitous. I could not remain silent. As one privileged to survive in an epidemic wreaking great death and suffering on our continent, I had to bear witness to the truth.'

And has he seen any meaningful progress in his country's AIDS epidemic since his speech?

'In August 2003, the South African government for the first time committed itself to the public provision of anti-retroviral treatment. That was and is a huge step forward,' he says. 'Though the 'roll-out' as it's called, has been dubbed a mere 'trickle,' it is happening, and the fact that AIDS is a medically manageable disease is changing the social nature of the epidemic for the better.'

As for his views of the United States' contributions toward fighting the epidemic, he takes a diplomatic approach. 'I met President Bush and Prime Minister Blair during a 90-minute meeting they had on AIDS at Downing Street, London, in November 2003. I was impressed with his understanding of the emergency the epidemic has created in Africa, and with the intensity of commitment to alleviating it,' Cameron says. 'I have severe misgivings about aspects of President Bush's program—including the misconceived emphasis on abstinence, which is starving many essential programs of funding ... .'

Cameron's current focus is his work on the Supreme Court of Appeal and chairing the governing council at the University of Witwatersrand.

Just don't look for him to walk down the aisle anytime soon.

'I am not currently partnered, and have eluded all recent efforts by others to secure a change in that!' Cameron says. 'As for the future ... who can tell?'


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