South African LGBT rights organisations across the country have called on Parliament to adopt the current Department of Home Affairs’ draft Marriage Amendment Bill. At the beginning of the month the Department of Home Affairs briefed Parliament regarding last year’s Constitutional Court ruling on same-sex marriages.
Home Affairs has proposed that a gender-neutral reform of the existing Marriage Act be undertaken to fulfill the demands of the Constitutional Court.
At the briefing, several Members of Parliament expressed concern that Cabinet has not left Parliament enough time to craft a same-sex marriage solution that balances lesbian and gay equality with religious freedom. Several religious organisations and conservative political parties have openly opposed the legalising of same-sex marriage.
The Joint Working Group (JWG), a nationwide network of LGBT organisations, has agreed that same-sex marriage legislation should balance these two values, but it says that the best and easiest way to do this is to enact gender-neutral amendments to the existing Marriage Act of 1961, as proposed by Home Affairs.
The Constitutional Court has already ruled that such an option is constitutional. The constitutionality of any other approach Cabinet and Parliament may take, on the other hand, is uncertain.
The JWG goes on to add that, “Many people are unaware that the existing Marriage Act already protects religious freedom. Section 30(1) of that Act allows churches, synagogues, and mosques to submit their own marriage formulae to Home Affairs for approval. Furthermore, under Section 31 of the Marriage Act, religious organisations may refuse to perform any marriage that violates their religious doctrine.”
It adds that a gender-neutral reform of the Marriage Act will not force any religious official to marry same-sex couples. Rather, it will allow religious institutions to choose for themselves whether or not to perform same-sex marriages.
Fikile Vilakazi, Advocacy Officer for OUT LGBT Well-being, said, “Cabinet already has a proposal from Home Affairs that is constitutional and attends to the needs of both LGBT people and religious communities. The most balanced alternative is already on our statute books, easy for Cabinet and Parliament to implement, and easy for the Department of Home Affairs to administer.”
The Joint Working Group has called on Cabinet to table the proposal of the Department of Home Affairs for gender-neutral reform of the existing Marriage Act, adding that “It is a win-win solution simply awaiting Cabinet’s approval”.
On 1 December 2005 the Constitutional Court unanimously ruled that the exclusion of same-sex couples from the institution of marriage infringes their right to dignity, equality and privacy. The legislature has been given until December 2 of this year by the Court to legalise same-sex marriage.