At the opening of the Out In African film festival, the Deputy Chief Justice of the Constitutional Court, Dikgang Moseneke, spoke about the right to diversity, and the rationale behind the Court’s 2005 ruling which legalised same-sex marriage. This is an edited version of his speech.
We have a difficult past as South Africans. We’ve had conflict for 360 years, possibly more, and this was so because colonialism had to find its full sway. That took easily 200 years, followed by another 150 years of conflict, essentially over gold and diamonds. In that process many people’s lives were trampled on. And we ended up with – I will call it a last fling – 50 years of apartheid in which prejudices, differences, insularity and narrow-mindedness found root and became entrenched. And what did apartheid teach in this time? It was premised on the notion that people are deeply and inherently different and that the difference ought to not stay in peoples personal notions but had to be entrenched into law.
And once it had done that it had to find the power of the state to enforce this particular world view on others. And for good measure you could decide who was superior or – inferior: If you were heterosexual it had to be because somebody willed it so – some even suggest the ridiculous notion that God willed it. Some would say that if you were black clearly God sought to place you at some particular place in the social scheme of things. So it was a world that was premised on the notion that you ought to keep out those who are different from you – those who are not part of the mainstream. And around this was the notion of what families are and ought to be; about what good people do, what culture is permissible and what culture is in fact not permissible. We have had a background of amazing repression, of exclusion, of exploitation, but above all of indignity – the absence of equal worth and equal dignity. Under apartheid diversity didn’t exist.
Come 1994, we made a collective commitment to create a number of things. But most people are only prepared to go so far in relation to personal relationships. The South African Council of Churches summoned one of us (Constitutional Court judges) to come and explain our Fourie judgment (ordering the legalising of same-sex marriage). I went and there were many people there, probably all people of the cloth. And the question was: “Haven’t you departed from what is fundamental in all religions?”
I was at pains to suggest that if you sought to exclude people for choices that they make, that they find appropriate in their own lives, you are probably much further away from your convictions; from compassion and understanding that each one of us has a right to be different. Each one of us has a right to live a full life without a need to apologise.
And one of them said: “But I have seen you a few times in a church service. How do you live side by side with jurisprudence that you have been supporting and been a part of?” And I said it’s simple: we have committed to turn our back on all those things that seek to impede the fullness of each one of us – and we should steadfastly continue to do so. It is in that context that we have seen the Court, in a very steadfast way in the last 12 to 13 years, pronouncing on matters which others find to be difficult.
I pay tribute to gay and lesbian structures that helped wittingly and unwittingly in the development of quality jurisprudence in this country. All those struggles around rights of gay and lesbian people have in many ways allowed the Court and allowed our Constitution and many other people to be able to express themselves around issues of equality. We owe a great debt to gays and lesbians in this country around equality issues.
“Our people must have the assurance that there will be protection when they choose to depart from the majoritarian norm…”
It is important to remember that the Constitutional Court has consistently said that South Africa has a multitude of family formations. This is a groundbreaking observation. It may be plain to some, but certainly many people think there is only one family. It’s not unlike three and a half centuries of not recognising Muslim marriages, for instance. It’s not unlike non-recognition of customary marriages, which could not even be called marriages – they were called ‘unions’ that never could equate to marriage, some thought. One of the fundamental things in our jurisprudence is the recognition that there is a multitude of family formations, that they have evolved, and they will continue to evolve as we move to recreate our society.
We must acknowledge the long history in this country, and in many other countries, of the marginalisation and persecution of gays and lesbians. It was important for us to reassert their right to live just as well as everybody else. And it was an important assertion in an environment which was not always friendly.
We observed that there was no comprehensive legal regulation of family and personal rights around gays and lesbians in this country. It was therefore appropriate to put the government on terms: We opted for a very unusual court order where we said that this had to be done in a very specified time – it will be 12 months and if not then certain rights will kick (which we did not create – they sit in the Constitution already). So we were really just messengers of what pre-existed before the Fourie Judgment.
From time to time we need a radical rupture from the past – not limited to race. That rupture includes family relations. It’s a rejection of patriarchy. Probably one of the most entrenched and substantial forms of oppression still in this country is unequal relations between men and women within family arrangements. This explains in many ways a range of deficiencies that women are still subjected to. So we need a more comprehensive rupture that will equalise the power relationships in society and create a much more equitable society.
That’s how I understand my own imprisonment as a young boy of 15 for 10 years. And that’s how I understand the sacrifices many have made in order to ensure that there is a full turning away from an evil past to create a just rearrangement, socially and economically. For me it was race and for many it was sexual orientation. I think it also has to move on to poverty – to equalise economic activity in a range of areas so that we move to embrace a much broader notion of freedom, of equality, and of equal dignity.
It is an important constitutional value to acknowledge diversity, to acknowledge pluralism, freedom of association, the right to be different within a cohesive whole. Our people must have the assurance that there will be protection when they choose to depart from the majoritarian norm, provided the purpose served is legitimate. We should have a society that is capable of enduring that, living with that, and making sure that indeed it becomes a proud part of all of us.
This is an edited version of the speech delivered by Deputy Chief Justice Dikgang Moseneke at the Opening Night of the 13th Out In Africa South African Gay & Lesbian Film Festival on Thursday 1 March.