The Constitutional Court today ruled that the government has one year to legalise gay marriage in South Africa. The court has upheld the Supreme Court of Appeal’s November 2004 judgement, in the case of Marie Fourie and Cecilia Bonthuys, that barring same-sex marriage is unconstitutional.
In the ruling at Constitution Hill in Johannesburg, Justice Albie Sachs announced that “The common law definition of marriage is declared to be inconsistent with the constitution and invalid to the extent that it does not permit same-sex couples to enjoy the status and benefits it accords heterosexual couples.”
While the historic judgement was welcomed by lesbians and gays, some community leaders were puzzled as to why the court decided to grant parliament one year to change the Marriage Act. If this is not done within one year by the legislature, the ruling stipulates that the Marriage Act will automatically be rewritten to include the words “or spouse” to allow for same-sex marriage.
While the justices were unanimous that same sex marriages should be allowed, Judge Kate O’Regan offered a dissenting view, believing that gay couples should be allowed to marry immediately. Bizarrely, the court also ruled that marriage officers could refuse to marry a same sex couple if it went against their conscience.
Predictably, the ACDP (African Christian Democratic Party) has expressed its “disappointment” at today’s Constitutional Court judgment. Reverend Kenneth Meshoe, the president of the ACDP, said in a statement that “the ANC must take the blame for the moral degeneration of the country and break-down of the family [for having agreed to include “sexual orientation” into the constitution’s equality clause]”.
The ACDP and other organisations, such as Doctors for Life, opposing same sex-marriage now see the one year waiting period as a window of opportunity to somehow scupper or soften the judgement in Parliament. The ACDP has already called on the government to consider a constitutional amendment to preserve “the traditional concept of marriage”.
Thuli Madi, Director of Behind The Mask, was unsure about the ruling; “This is victory. I just don’t understand the need to wait twelve months for the Legislature. However, we still need to address hate crime issues. It’s one thing to be able to marry, but if we still live in fear, then we still have massive problems.”
Other countries that have legalised same sex marriage or allow for some form of same-sex civil unions include the Netherlands, Belgium, Denmark, France, Iceland, Norway and Sweden. Soutrh Africa is the first to do so on the African continent.
To download the full judgement, click here. (PDF Document – 466kb)