Lesbian, gay, bisexual and transgender (LGBT) groups have hailed – with reservation – the passing of a Bill by Parliament legalising same-sex marriage in South Africa. The Civil Union Bill was passed late this afternoon with 230 votes in favour, 41 against and 3 abstentions after a contentious debate on the subject.
The African Christian Democratic Party’s Kenneth Meshoe slated the Bill and warned of divine wrath as a result of it being passed, stating that, “Parliament will have gone too far!” He added that Parliament “must stop provoking God.” The Freedom Front and the PAC also opposed the law. The DA allowed its member to vote according to their own beliefs.
The ID voted against the Bill – although it supports same-sex unions – on the basis that it is most likely unconstitutional because it allows marriage officers to refuse to marry a same-sex couple on the basis of conscientious objection. This is something that LGBT organisations have also pointed out.
A representative of the Department of Home Affairs slammed homophobia, and said that she “condemned violence against same-sex couples.” Defence Minister Mosiuoa Lekota made the point that gays and lesbians had played an important part in the country’s liberation struggle. It is widely believed that if the ANC had not insisted that its parliamentarians toe the party line in supporting the Bill, it would not have passed.
The Joint Working Group (JWG), a national network of 17 LGBT organisations, says that it welcomes the historic step taken by Parliament to allow lesbian and gay people the choice to get married.
Unlike earlier versions of the Civil Union Bill, the statute that has been passed no longer creates a separate category for lesbian and gay people exclusively but rather broadens the institution of marriage to include same-sex couples.
JWG says that, “In keeping with the transformation of our society from one based on unfair discrimination and exclusion to one based on equality and dignity for all, our elected representatives have signalled their strong commitment to ensuring that the values of our Constitution are made real for all people irrespective of their sexual orientation.”
Speaking on behalf of the Joint Working Group, Fikile Vilakazi stated: “In large part, the Act signals a rejection of previous attempts to render lesbian and gay people as second-class citizens. It demonstrates powerfully the commitment of our law-makers to ensuring that all human beings are treated with dignity”.
However, while the JWG welcomed “the spirit of the Act”, it still has some reservations about the law. Confusingly, the Civil Union Act creates a new means of marriage for straight and gay couples, parallel to the existing Marriage Act. Gay rights groups have called for same-sex marriage to simply be accommodated in the Marriage Act, rather than creating new laws. The JWG says that there is no need for a separate piece of legislation existing alongside the current Marriage Act.
The organisation believes that, “A parallel administrative system for the two statutes only increases the burden on state machinery and is likely to lead to confusion. In addition, it continues to reinforce the notion that there is a need to separate same-sex couples from other marriage forms, in some way.”
David Bilchitz, Chairperson Jewish Outlook, adds that “There is no rational reason for allowing same-sex couples only to be married under the Civil Union Bill and not the Marriage Act. We urge government to rationalize our marriage laws and create one legal regime for all in South Africa.”
The Joint Working Group also claims that at least one section of the Civil Union Act is unconstitutional and vulnerable to legal challenge. Section 6 allows civil marriage officers to object to marrying lesbian and gay people on the grounds of conscience.
Melanie Judge, Programme Manager of OUT LGBT Well-being, states: “We have no objection to religious denominations only marrying people according to the dictates of their faith. We do, however, object strongly to allowing civil marriage officers to decide who they will marry and who they won’t. This is particularly problematic when the basis for exercising conscience is limited to sexual orientation.”
The JWG says that, “The process of deliberation surrounding the Civil Union Bill has shown that many South Africans harbour deep prejudice and intolerance against lesbian and gay people. Many people have shown their failure to understand the separation of religion and state and even to understand the fundamental rights and values of our Constitution.”
It goes on to call on the government to take a leadership role and to develop public education programmes aimed at deepening the commitment of all South Africans to honouring and embracing diversity whether it be in relation to race, gender or sexual orientation.
The Joint Working Group says that it pledges its commitment to working with government and all other stakeholders towards this end, saying that, “we believe that equality does not exist on a sliding scale: it either exists for all or for none.”
The Bill must still be accepted by the National Council of Provinces and then be signed by the President before it becomes law. The government was given until December 1 to legalise same-sex marriage by the Constitutional Court.