On 22 and 23 October, the Botswana High Court heard the case of Bonolo Selelo and Tsholofelo Kumile, whom the Department of Civil Registration refused to register and recognise their marriage.
Supported by LEGABIBO as the third applicant, the applicants challenged the refusal to register their intended marriage and the constitutionality of provisions of the Marriage Act that exclude same-sex couples from civil marriage.
The case raises questions about equality, dignity, non-discrimination and the extent to which the law can exclude people from a fundamental civil institution because of whom they love. The hearing highlighted a bigger struggle of religion, gender, reproduction and who makes up a family in Botswana.
But as I followed the proceedings and reflected on the arguments advanced, I kept returning to a question that goes beyond interpreting the Marriage Act. Why does the possibility of two women of age getting married consensually provoke such a strong response from people who are not being asked to marry them?
This is not a question about whether religious organisations are entitled to hold their beliefs. They are. It is about what happens when those beliefs determine the civil rights of people who do not share them and when religious arguments become the basis for deciding which families deserve recognition and protection under the law.
For me, this is where the marriage equality case becomes much bigger than marriage. It becomes a conversation about power.
When marriage equality becomes a battleground
One thing that stood out in this case was the language used to defend what opponents describe as the proper or traditional understanding of marriage. The Evangelical Fellowship of Botswana, House of Prayer and Transformation, and the Dingwetsi Association of Botswana oppose recognising same-sex marriages in Botswana.
Their arguments are grounded in Christian beliefs, customary understandings of marriage and concerns about the implications of recognising same-sex unions. The state has also argued that the existing legislation does not provide for marriage between people of the same sex.
Marriage is presented as a ‘holy’ institution that is under threat. The heterosexual family becomes something that must be protected. A particular Christian understanding of marriage is elevated into a standard that should govern everyone, including people who do not subscribe to Christianity.
Suddenly, two adult women asking for access to civil marriage are no longer simply two people seeking legal recognition. They are portrayed as a ‘challenge’ to religion, culture, tradition, procreation and African family values. We can even take it a step further to say that they are destabilising the walls of patriarchy.
What exactly is being threatened by allowing two consenting adults to enter into a civil marriage? How does recognising their relationship prevent a heterosexual couple from marrying? Why should the legal recognition of one family require excluding another?
The argument is not merely that the Evangelical Fellowship of Botswana, House of Prayer and Transformation, and the Dingwetsi Association of Botswana believe same-sex marriage is inconsistent with their Christian faith. It is that this belief must affect the legal status of people outside that faith and the protections available to them as citizens. That is where the discussion shifts from religious conviction to this group’s exercise of public power over everyone.
The politics of religion and the anti-gender movement.
I have become increasingly interested in how opposition to LGBTIQ+ rights is connected to a wider set of anti-gender and anti-human rights narratives across Africa. The anti-rights actors are a group of globally coordinated actors pushing rollbacks on sexual and reproductive health rights, comprehensive sexual education, LGBTIQ+ rights and civic space across multiple countries at once.
They frame these narratives as ‘protecting the African child and African family values’, ‘preserving African family sovereignty’ and ‘restoring the moral fabric of society’. These translate into restrictive laws, hate speech, misinformation, disinformation and harassment of sexual and gender minorities. The language sounds familiar because it appeals to concerns that matter to people. But how these values are interpreted, who gets to define them, and whose rights matter in the process?
In anti-gender politics, the concept of gender is often presented as a threat to biological sex, the family and social order. Dr Haley McEwen’s article, Nuclear power: The family in decolonial perspective and ‘pro-family’ politics in Africa, published in Development Southern Africa in 2017, examines how the heteronormative nuclear family functions as a colonial and political construct.
She writes that “in centring the importance of the ‘nuclear family’ model and heterosexuality, pro-family discourses exceptionalise the family as a social institution capable of carrying the lion’s share of responsibility for ensuring the (re)production and maintenance of healthy and prosperous societies. This discourse resonates with neoliberal efforts to deflect responsibility for social and economic policy away from the state and towards individuals. In positioning the heterosexual nuclear family unit as the custodian of a ‘moral’, healthy and economically thriving society, the state is able to outsource its responsibility towards its citizenry.”
In this framing, defending the family becomes a justification for restricting the rights of people whose relationships do not fit a prescribed model.
The appeal to procreation
The marriage equality case in Botswana sits within this broader contest over who gets to define gender, sexuality and family life. We should be careful not to assume that every religious objection is part of a coordinated anti-gender movement. Nor should we treat religious communities as a single political bloc. But we should recognise the overlap between arguments that defend one supposedly natural family structure and broader efforts to limit the recognition of sexual and gender diversity.
Perhaps one of the most revealing aspects of debates about marriage equality is the appeal to procreation and biological complementarity. This push seeks to redefine marriage, who it is for and its purpose. It argues that marriage is between a man and a woman because their biological differences make reproduction possible. From this perspective, marriage’s purpose is closely tied to the possibility of producing children.
If the ability to reproduce is what makes a marriage legitimate, what happens to heterosexual couples who cannot have children? What about couples who are infertile, older couples or people who marry and decide not to have children? Are their marriages less deserving of legal recognition? Yet when same-sex couples seek marriage equality, reproduction is suddenly presented as the defining feature of the institution.
Marriage is also a legal relationship that creates rights, responsibilities and protections between spouses. It provides a framework for property ownership, inheritance, maintenance, next-of-kin recognition and family security. These protections matter whether a couple has biological children or not.
We must realise that reproduction is not the same thing as parenting, and biological connection is not the only basis on which families are formed. In Botswana, children are commonly raised by grandparents, aunts, uncles, siblings, and the community. Some children grow up in households where one parent is absent. After all, it takes a village.
When religious arguments enter the courtroom.
The Evangelical Fellowship of Botswana, House of Prayer and Transformation, and the Dingwetsi Association of Botswana’s presence in this case also raises an important question about the relationship between faith and the constitutional state.
Religious organisations are entitled to participate in litigation, make arguments and express their views. Their participation is not, in itself, evidence of wrongdoing. In a constitutional democracy, people must be free to disagree about difficult questions.
But participation in a legal process does not automatically mean a party’s arguments should determine the outcome. A court must consider the law, the Constitution, the rights at stake and the arguments presented by all parties. It must distinguish between a religious conviction and a constitutional justification for restricting another person’s rights. That distinction matters because civil marriage and religious solemnisation are not identical questions.
Recognising a same-sex civil marriage does not require every religious institution to change its doctrine. Nor does it require every person to approve of same-sex relationships. It asks whether the civil law should deny a couple the legal status and protections available to other couples because of the sex of the people they wish to marry.
Bradley Fortuin is a human rights activist. This article was first published in The Botswana Guardian newspaper.
