South African court clears way for gay marriage

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The Independent Online

South Africa's highest court has ruled that it is unconstitutional to deny gay people the right to marry. The country is now on track to become the first to permit same-sex marriage on a continent where homosexuality remains largely taboo.

The Constitutional Court in Johannesburg ordered parliament to amend existing legislation within a year. It will make South Africa the fifth country in the world to legalise gay marriage after Belgium, the Netherlands, Spain and Canada.

"The exclusion of same-sex couples from the benefits and responsibilities of marriage ... signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples," Justice Albie Sachs said yesterday.

The ruling, which ordered that the definition of marriage written in the South African constitution be changed from a "union between a man and a woman" to a "union between two persons", is a major victory in the battle to outlaw discrimination in a country which has seen more than its fair share of oppression and human rights violations.

Post-apartheid South Africa, in reaction to the bloody years of its recent history, has one of the most progressive constitutions in the world. It was the first such document in the world to enshrine equal rights for gays and lesbians when it was drawn up in 1996. In contrast to many African countries where gays and lesbians are persecuted, activists in South Africa have won many legal victories in recent years, including the right to adopt children and inherit from partners' wills.

The ruling African National Congress, which under Nelson Mandela led the country from apartheid to democracy, said that the developments confirmed the government would not tolerate discrimination against its citizens.

"Today's ruling, like others before it, is an important step forward in aligning the laws of the country with the rights and freedoms contained in the South African constitution," the ANC said.

The ruling was the culmination of a long-running battle by a South African lesbian couple to have their right to marriage recognised. Marie Fourie and Cecilia Bonthuys, both from Pretoria, thought they had succeeded in gaining equal status with heterosexuals last November when the Supreme Court of Appeal ruled they should be allowed to wed. They had previously, in October 2002, been refused the right to marry on the basis of the common law interpretation of marriage.

The women later discovered that they were unable to register for a church wedding and were told that the department of home affairs had refused their application, arguing that only parliament could change the law. Neither Ms Fourie nor Ms Bonthuys were present at the court proceedings.

Reaction to the ruling was not universally positive. Though largely welcomed by rights activists, it was also condemned in some quarters for being too slow-moving. Keketso Maema, a lawyer for the Lesbian and Gay Equality project, explained his dismay that the Constitutional Court had not ordered the amendment to be put into action immediately. "It's a bit disappointing. It feels like it's one step forward and still another one step backwards," he said.

Another protester who had been waiting for the verdict in Johannesburg also felt impatient. "We would've liked to get married as soon as we could," said Fikile Vilakazi, wearing a yellow T-shirt with the words "Marriage - anything less is not equal".

The only one of the court's 11 judges to dissent from the ruling, Kate O'Regan, did so precisely because she argued for the immediate legalisation of same-sex marriage instead of allowing for a 12-month delay.

Opposition to the change in legislation was led by the church and the African Christian Democratic Party.

"Studies of previous civilisations reveal that when a society strays from the sexual ethic of marriage, it deteriorates and eventually disintegrates," the party claimed yesterday.

Around the world


As Britain prepares for its first gay marriages in December, with Elton John and David Furnish among the first, it follows behind the Netherlands, the first country to offer full civil marriage rights to gay couples in 2001. Belgian gay marriages were allowed in 2003. In July, the first gay marriage took place in Spain, as the law changed to allow gay couples to marry and adopt children. Canada also legalised gay marriage in July.


In October, an Afghan refugee and a local tribesman were "wed" in a ceremony in Pakistan. The tribal council instructed the pair to leave the area or be killed. The 145-year-old colonial Indian Penal Code clearly describes a same sex relationship as an "unnatural offence". Despite two million people converging for the Gay Pride march in Sao Paulo, Brazil, in May, violence against gays ranks among the worst in the world.