South Africa's top court legalized same-sex marriage Dec. 1, saying that banning it violates the nation's post-apartheid Constitution, which prohibits discrimination based on sexual orientation.
The Constitutional Court gave Parliament one year to make the necessary changes in law. If Parliament fails to act, the court will rewrite the Marriage Act itself.
Ten judges supported the ruling and one dissented—but only so she could argue that the ruling should take effect immediately rather than after a year.
In a 'media summary' of the case, the judges said: 'The exclusion of same-sex couples from the benefits and responsibilities of marriage was not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represented a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples. The intangible damage to same-sex couples is as severe as the material deprivation. They are not entitled to celebrate their commitment to each other in a joyous public event recognised by the law. They are obliged to live in a state of legal blankness in which their unions remain unmarked by the showering of presents and the commemoration of anniversaries so celebrated in our culture.'
The decision came in a case brought by Pretoria couple Marie Fourie and Cecelia Bonthuys, after the government refused to recognize their 2002 marriage. The ruling also covered a case brought by the Gay and Lesbian Equality Project which challenged the Marriage Act's references to 'husband' and 'wife.'
Full same-sex marriage also is allowed in Belgium, Canada, the Netherlands, Spain and Massachusetts.
The Constitutional Court, as the high court is known, postponed its ruling for one year to give the Parliament time to amend a 1961 marriage law to reflect its decision. Should the legislature resist, the court said, the statute will be automatically changed to make its provisions gender-neutral. However, few expect the Parliament to balk. The African National Congress, which controls the presidency and more than two-thirds of the Parliament's seats, did not comment on the court's decision.
The Court's ruling followed a Supreme Court of Appeal ruling in November 2004 that said same-sex couples could get married following an application by lesbian couple Marie Fourie and Cecilia Bonthuys, News24.com reported. The government had appealed the ruling, arguing that the Supreme Court had interfered with the Parliament's authority to make laws. However, the Constitutional Court said that the refusal to give legal status to gay marriages, though grounded in common law, violated the constitution's guarantee of equal rights.
In South Africa, homosexuality is not the burning social issue that it is in the United States—a conclusion that some might find astounding for a country that only ended apartheid ( the social policy or racial segregation involving political and economic and legal discrimination against non-whites ) in the early '90s, according to BBC News. South African gays and lesbians have recently won a series of court rulings extending to them the rights and protections afforded other citizens. The government-sponsored tourism board has even announced an advertising blitz in Britain aimed at attracting gay couples to Cape Town 'for the honeymoon of their dreams in 2006.' Johannesburg recently made a solid and well-respected bid to host the 2010 Gay Games, but lost the vote to Cologne, Germany.
Some gay-rights groups have expressed disappointment over the one-year delay. However, most organizations have nothing but praise for the ruling. The Joint Working Group—a coalition of organizations that includes The Triangle Project and The Forum for the Empowerment of Women—issued in a statement that 'the Court 'recognizes the multitude of family formation in South Africa, and the inappropriateness of entrenching any particular form as the only socially and legally acceptable one.' We believe that this principle should guide the statutory process of correcting the current defects in marriage laws, such that lesbian and gay people will be able to claim their right to equal social and legal status in marriage.'
The Human Rights Campaign also praised the Court's decision. 'This ruling demonstrates South Africa's commitment to equality for all of its citizens,' Seth Kilbourn, vice president of the Human Rights Campaign Marriage Project, said in an official statement. 'South Africa joins the trend of nations around the world empowering every couple with the same tools to protect their families, and recognizing their equal dignity as citizens.'
— Also contributing: Andrew Davis