CHRISTIAN LAWYERS ASSOCIATION
Submission to the Portfolio Committee of Home Affairs Stakeholder Public Hearings October 2006
Civil Union Bill – B26 – 2006
TABLE OF CONTENTS
Summary
Introduction
Part I : The Finding of the Constitutional Court in Fourie
I. The Balancing Act
II. Principled Pluralism and a new Modus Vivendi
III. The Nature and Substance of the Equality Protection
IV.
The Route Open to Parliament
V.
Summary of the Essential Holding (Ratio) of the Court
Part II : The Institution of Marriage
I. No Analysis of what Marriage “is” and what marriage “does”
II. Different Models of Marriage
a.
Complimentarity Model
b.
Choice Model
c.
Commitment Model
d.
Analysis of the Dilemma with regard to the alternative models stated above
III. What view should the South African Parliament take on the nature of Marriage, and ultimately the Model of Marriage and what Principled basis should undergird that view.
a.
Fidelity to our Western legal history
b.
Fidelity to our African Understanding of Community and Culture and how it is organised.
c.
Fidelity to normative and descriptive realities of South African Society
IV.
South African Law Reform Commission Document
V.
Conclusion: Why is Marriage Normatively and descriptively a requirement in South African Society.
Part III : The Civil Union Bill
I. Chapter 1 Definitions
II. Chapter 2 Civil Partnerships
III. Chapter 3 Domestic Partnerships
IV. Chapter 6 Unregistered Domestic Partnerships
General Substantive Concerns
Procedural Issues
I. Lack of fulfilment of the Principles stated in Doctors for Life
International v The Speakers of the National Assembly.
II. Lack of Consultation with the House of Traditional Leaders
Part IV : Proposed Amendments to the Civil Union Bill and the Way Forward
SUMMARY
The Christian Lawyers Association (CLA) is of the firm view that the fundamental major issue that has caused much confusion in the drafting of the Civil Union Bill is the Constitutional Court judgment. That is, there seems to be a lack of clarity with regard to the essential holding of the Constitutional Court. What exactly did the Fourie judgment state, and what responsibility did it impose on Parliament?
Did the Constitutional Court mandate Parliament to legalise same-sex marriage?
In this submission we provide an analysis of the judgment, and highlight and reiterate the fact that the Court did not mandate Parliament to legalise same-sex marriage. What the Court did was emphasis the importance of the need for a balancing act, and a process that ultimately ensured that from a policy and legislative perspective, the equality protection claims of gays and lesbians were balanced against the claims of religious communities and understanding of the nature of the institution of marriage.
We elaborate on how the Court separated the incidents (legal benefits) of marriage, from the nature of the institution of marriage. We state that the Court made a pronouncement on the unconstitutionality of the fact that gays and lesbians had no appropriate legislative framework by which they could access the incidents (legal benefits) of marriage that heterosexual couples are able to access through the institution of marriage:
“It is clear that the exclusion of same-sex couples from the status, entitlements and responsibilities accorded to heterosexual couples through marriage, constitutes a denial to them of their right to equal protection and benefit of the law. …. Their omission from the benefits of marriage law is a direct consequence of prolonged discrimination based on the fact that their sexual orientation is different from the norm. This result is in direct conflict with section 9(3) of the Constitution ….”
At the heart of legal disabilities affecting same-sex life partnerships today, then, is the lack of general recognition by the law of their relationships. The problem, does not arise from anything constitutionally offensive in what the common law definition actually contains. Nor has there been any suggestion that the formula in the Marriage Act intrinsically violates the Constitution as far as it goes. Indeed, there is no reason why heterosexual couples should not be able to take each other as husband and wife…”
The above quoted phrases from the judgment clearly indicate that the directive of the Court was that it is not the institution of marriage itself that is unconstitutional, but the fact that there is no manner in which homosexual couples can have access to the status, benefits and entitlements that the institution of marriage provides to heterosexuals.
To this end, the Court gave Parliament the option of deciding how to remedy this defect in the law; and expressly stated that Parliament had a number of
options that it could adopt. Thus, it is important for Parliament to note that the Court did not mandate the legalisation of same-sex marriage.
Our proposal then asks the fundamental question of what legitimate processes Parliament was obligated to follow in order to decide on whether to open up the institution of marriage or not. That is, how does Parliament ultimately decide on whether the appropriate remedy is to have a separate legislative framework or whether it is to open up the institution of marriage?
This submission states that the answer to this question depends on the model that Parliament will ultimately decide to adopt for marriage in South Africa. We argue that there are three models of marriage, the traditional model, the liberal model and the commitment model.
We argue that the traditional model understands marriage as a heterosexual social institution whose origins pre-date the State. That is, according to this model, marriage was conceived in, by and through society, all that the State did was to merely provide the formal legal recognition of an already existing institution. Conversely, the liberal and commitment model perceive marriage as an institution that is formed as a result of two people desiring to formalise their love for each other, or two people desiring to be committed to each other.
We further argue that it is the traditional model that the State is obligated to protect and promote. This protection and promotion of this model is in the context of a number of objective criteria; these being the need for fidelity to our western social pluralistic tradition and our need to respect the role of civil society, and the justifiable limits of a liberal State. That is, to the degree that marriage is by definition an institution that was given birth by civil society it cannot be unilaterally redefined by the State. All that the State can at best do is to extend what it has given birth to, which is the legal incidents (benefits) of marriage; it cannot pronounce nor unilaterally amend the nature of the institution of marriage.
Furthermore, we argue that fidelity to our African cultural understanding of individual persons as first and foremost communal persons, dictate that Parliament understand marriage not in the context of two people who love each other, but rather in the context of a social institution that has a common and shared public meaning.
Finally, we argue that qualitative and quantitative social science data in the context of South Africa dictates that the State has an interest in protecting the heterosexual institution of marriage. That is, there are various social goods that are associated with marriage, primary amongst them - the protection and promotion of the rights of the child. South African social science data clearly shows that what is critically needed is a society where the parental relationship is fostered within the institution of marriage; as the majority of South African children are disadvantaged and raised by single mothers, grandparents or siblings. We show how data reveals that the problem of fatherlessness in South Africa is closely correlated with social ills such as
violence, crime, HIV/AIDS poverty etc. It is in this further context that we argue that Parliament has a responsibility to embrace the heterosexual institution of marriage as the norm if we are committed to dealing with the consequences and realities of the breakdown of our communities and society.
Corollary to this is our firm belief in the need for a legislative regime that addresses the needs of gays and lesbians and protects interests that are peculiar to the homosexual community. We argue that it is not a simple case of applying the same laws for gays and lesbians as one would for heterosexuals, and use the example of children as a case in point. That is, the way that legislation should regulate the interests of gay and lesbian partners with regard to children would be different from the way that the law regulates heterosexual relationships. We provide this example in order to show that the Bill, in its immediate pronouncement of the fact that all laws will change mutatis mutandis, is, with all due respect, oversimplifying a complex matter. We argue that doing justice to gays and lesbians, in order to fulfil the requirements of the Court’s judgment, practically means that Parliament must go back and do its homework and redraft the Bill.
With regard to the Bill itself, we provide arguments for its substantive and procedural flaws, and further highlight the fact that it is difficult to propose amendments to it as the questions that it raises will need policy decisions to be taken. Our foundational argument is that the Bill in essencepromotes form over substance, and effectively amends the institution of marriage in an unconstitutional manner. Fundamentally, our argument is that the Bill is unconstitutional in a number of respects. With regard to the issue of domestic partnerships, we highlight the fact that this regime is clearly not thought out properly and that arguments for it are based on social science data which the Constitutional Court clearly refuted in Volks.
Finally, we highlight the fact that it is difficult to propose amendments to the Bill due to the significant flaws in legal reasoning, drafting and constitutionality. We also highlight the fact that the South African Law Reform Commission document, which was arguably the base research document that informed the drafting of the Bill, is riddled with legal, factual and scientific inaccuracies and can therefore not be used as a reliable base and source document.
RECOMMENDATION
Finally, in the light of all the above, we state that the only way for Parliament to resolve this issue and remain in fidelity to the people and the Constitution, is for it to return to the Constitutional Court to request for an extension.
With all due respect, we are of the firm belief that passing the Bill in whatever modified form, would be an abuse of legislative power, which will open government not only to constitutional challenges of the Act itself, but also to a deep distrust and despondency amongst the people who voted Parliament
into power. Indications of this were evident during the recent public hearings that registered the clear and overwhelming public outcry against the Bill.
Finally, in essence, the CLA submission states that there is a third way, there is a manner of dealing with this matter in a way that will ensure justice for all and also ensure that Parliament is able to logically and legally defend whatever legislation is finally drafts. Unfortunately, this third way was not chosen by government during the drafting of this present Bill, hence the crisis in the nation.
It is this third way, this middle ground, that the CLA proposes that government should engage in, after having requested for an extension from the Court in order to solve the present dilemma.
Contact details:
National Office Christian Lawyers Association P O Box 4665 PRETORIA
Tel: 012-424-9400 Email: cla@motcon.co.za
Contact Person: Denise Woods (National Director)
INTRODUCTION
Few issues have the ability to sharply divide and polarise society like the question of same-sex marriage. Simply put and articulated by the Constitutional Court (“the Court”) in Minister of Home Affairs and Another v Fourie and Another 1(“Fourie”), the divergent beliefs can be divided into two main “camps”; those who agree with same-sex relationships and therefore agree with the concept of same-sex marriage, and those who disagree with same-sex relationships (usually based on religious grounds) and therefore as a result, disagree with same-sex marriage.
The real legal and social questions are as follows: How is Parliament to handle these diverging claims? Are these claims capable of being reconciled or not? Presuming for a minute that they are incapable of being reconciled, is there a realistic middle road to bridge the divide, in essence a “third way”? Further presuming that this so-called third way can be found, what road does Parliament need to travel in order to arrive at this pot of gold? What questions need to be asked? And most importantly, where does Parliament look for the answers to these million dollar questions?
The submission of the Christian Lawyers Association (“CLA”), attempts to, excuse the pun, tread “where angels fear to tread” by hopefully deeply engaging with the above stated questions.
We attempt to do this fully conscious of the fact ‘the stakes are high, the issues are complex, and world attention is riveted’2. We attempt to shed more light than heat, and we do so by going on a journey through ‘shadowy regions’3 of history, philosophy, religion, sociology and law.
Our analysis is divided as follows:
a) In Part I we analyse the decision of the Constitutional Court in Fourie in order to ascertain the exact legal nature of the directive of the Court. Critical to this analysis is a clear articulation of the age old concept of principled pluralism and the modern concept of modus vivendi. We argue that it is these concepts, properly understood and applied, which undergird the legal reasoning of the Court.
b) In Part II we provide a detailed analysis on the institution of marriage, and attempt to answer a question which was not articulated (asked) let alone answered by either the documents of the South African Law Reform Commission (“SALRC document”)4 nor the present Civil Union Bill (“the Bill”). This simple yet complex question is “What is Marriage and how should it be defined?” This analysis is provided in the context of social science data; and normative and descriptive arguments of the role of the law and the understandings and personalities of civil society and mediating structures5 such as marriage.
1
2006 (1) SA 524 (CC); 2006 (3) BCLR) 355 (CC) 2
David Orgon Coolidge “Same –Sex Marriage? Baehr v Mike and the Meaning of Marriage” South Texas Law Review March
(1997) Vol 38 No 1 page 3 3
Ibid page 95 4
As is common knowledge, the SALRC document is, to a large degree, the basis/founding document of the Civil Unions Bill 5
The concept of “mediating structures is well articulated by Richard Niehaus and Peter Berger in “To Empower the People: The Role of Mediating Structures in Public Policy” (Washing, D.C.: American Enterprise Institute, 1977). Simply put, Niehaus and Berger argue that there are important civil structures such as marriage, family, faith based organisations, etc, that are outside of the scope of the law and government framework. The real question is how government is to interact with these structures and
c) In Part III we analyse the present Bill, in particular highlighting the problematic areas from a substantive and procedural perspective. Put simply yet strongly, our argument is that the Bill is fundamentally unconstitutional to the degree that it does not fulfil the Fourie judgment requirements, violates constitutional principles stated in previous Constitutional Court cases and in the Constitution itself, and attempts to provide what would seem to be a convoluted, insufficiently researched, and socially unacceptable solution.
d) In Part IV we show that it is legally difficult to propose any amendments to the Bill as there are many issues that have to be dealt with by way of policy decisions. That is, any amendments to the Bill in order to attempt to make it to comply with constitutional requirements would necessitate that government make prior policy decisions on a number of issues relating to the institutions that are presently proposed. It is in this context that we strongly argue that any simple amendments would in themselves not be able to cure the myriad of constitutional deficiencies of the Bill and therefore,
We propose what we believe is the most viable way forward in this matter. We strongly articulate that we believe that a government such as ours, which is founded on the bedrock of the legitimacy provided by the people and is, at least from a theoretical point of view, seen to be ascribing to the notions of a deliberative democracy, has no option but to remain true to the legal and social principles of justice and equity. We further argue that fidelity to these principles leaves government with no other choice but to not pass the Bill, and to approach the Court for a request for an extension, so as to be able to truly do justice to this very critical and hotly debated national issue.
Note: All italised words are either in fidelity to the Latin legal tradition or are for own emphasis.
PART I: THE FINDING OF THE CONSTITUTIONAL COURT IN FOURIE
I. The Balancing Act
What is extra-ordinary and poetically beautiful about the Fourie judgment is its deep concern for the protection of the two main interest groups that are strongly contesting this issue; that is, the gay and lesbian lobby groups and the religious communities of our country. That is, the judgment is at pains to reiterate the fact that what needs to be done is to ensure that ultimately, this matter is handled in a manner that engages in, what we have, for lack of a better term, stated as “the balancing act”. What do we mean by this term?
The Court notes that both contesting groups are citizens of South Africa who are entitled to be protected by the Constitution, and are, most importantly, entitled to have their divergent worldviews shaping the public policy of our country, and being given a practical expression in the crafting and finalising of the law making process. That is, the Court is deeply concerned with ensuring that the matter be resolved in a manner that reflects a principled manner of engaging with divergent (pluralistic) worldviews, simply stated as the concept of principled pluralism. Thus the judgment calls for a legally justifiable sharing of the common space which is the public square:
what role it is to play in strengthening them. The further argument in this submission is that there are further activities, which are outside of the sphere of the liberal state, which, if engaged in, serve to deconstruct civil society, and thus deconstruct and usurp the role of mediating structures.
“In the open and democratic society contemplated by the Constitution there must be mutually respectful co-existence between the secular and the sacred. The function of the Court is to recognise the sphere which each inhabits, not to force the one into the sphere of the other. Provided there is no prejudice to the fundamental rights of any person or group, the law will legitimately acknowledge a diversity of strongly-held opinions on matters of great public controversy. ………
The hallmark of an open and democratic society is its capacity to accommodate and manage difference of intensely-held world views and lifestyles in a reasonable and fair manner. The objective of the Constitution is to allow different concepts about the nature of human existence to inhabit the same public realm, and to do so in a manner that is not mutually destructive and that at the same time enables government to function in a way that shows equal concern and respect for all…..
The constitutional claims of same-sex couples can accordingly not be negated by invoking the rights of believers to have their religious freedom respected. The two sets of interests involved do not collide; they co-exist in a constitutional realm based on accommodation of diversity….
This view is in line with that of Ackermann J in the Court’s earlier decision in National Coalition of Gay and Lesbian Equality and Others v Minister of Home Affairs and Others6 where the Court held that while the Constitution protected the rights of people to uphold religious beliefs, the state was not at liberty to turn religious beliefs into dogma to be imposed on society. . . .Conversely, the Constitution does not allow the state to impose an orthodoxy of secular beliefs on the whole of society. .”7
In short, what the Court requested is that the decision of Parliament, like its decision, be deeply reflective of how to ensure that the issue of marriage and conversely the protection of the equality rights of homosexuals, is resolved in a manner that accommodates both divergent worldviews in a principled manner where they are allowed to ‘co-exist’. Thus what the Court in essence called for is a new modus vivendi. What do we mean by this?
II. Principled Pluralism and a New Modus Vivendi
The central problem with the debate about marriage is that the fundamental starting assumptions of “both sides” are essentially irreconcilable. That is, both sides have strongly held beliefs that are based on their fundamental worldview of what is right and wrong, and how society, in light of their belief systems, should be structured. The flaw in which the matter is presently being handled and resolved is that all debates, be they in the media or be they in the institutional sphere, are incorrectly assuming that society will be able to reach some form of rational consensus on the matter. Conversely, these debates (and ultimately documents such as the present Bill), are further assuming that the either one or both of these groups will have to in essence, for lack of a better phrase, learn to live with the ultimate decision that
6 2000 SA (2) 1 CC at para 137.
Incidently, this call for a balance and accommodation of all citizens and their belief systems is in line with a speech recently delivered President Thabo Mbeki at the 4th annual Nelson Mandela lecture (July 2006) “I believe I know this as a matter of fact, that the great masses of our country everyday pray that the new South Africa that is being born will be a good, a moral, a humane and a caring South Africa which as it matures will progressively guarantee the happiness of allits citizens…”
Parliament makes, immaterial of whether they are fundamentally opposed to this decision or not. This line of thinking, with all due respect, does not fulfill the criteria of principled pluralism as required by the Court as it focuses on a particular group being ultimately effectively ousted from the public square, and thus not properly having its constitutional rights accordingly protected.
It is in this context that the concept of a modus vivendi, a new way of living together, becomes critical. This concept is eloquently articulated by the English philosopher John Gray8 who argues that in typical modern societies where there clearly are irreconcilable worldviews, the role of the various institutions of state is not to be impressed by the fallacy that at some point or the other there will be a rational consensus on hotly contested matters. Taking as his departure point the presumption that there will be no rational consensus in these strongly contested issues, Gray eloquently argues that genuine tolerance and diversity must beware of counterfeits and begin to engage in the difficult process of providing the signposts and guidelines for what he describes as a modus vivendi (or way of living together). This way of living together will ensure fidelity to the concept of principled pluralism as it will deeply engage with questions relating to how to ensure that the public arena is ‘divided’ in a manner that takes into account the divergent worldviews, and facilitates their mutual co-existence, this ultimately breathing life to the concept of according all groups the dignity of taking their worldviews and rights seriously.
He criticizes liberalism for presuming that toleration is justified as a means to truth which can be used as an instrument of rational consensus. That is, he criticizes liberal thinkers for presuming that hearing one another’s views in the spirit of tolerance, will ultimately result in the one side finally agreeing to the other side’s viewpoint. In contrast, he argues that toleration should be used in order to accommodate each other’s worldviews, and divergent ways of living should be welcomed as marks of diversity in the good life.
In short, what Gray is arguing is that institutions should articulate a new way of living together, which does not presuppose that there will be agreement on issues but rather which understands that there needs to be a manner in which various viewpoints and worldviews are given their fair share in the public and private space in order to ensure that the plurality of society, and in this context the plurality of South African society, is correctly reflected in all areas in a principled manner. It is this call that the Court made in Fourie, and it is this task that it engaged in, and also requested that the government engage in.
The million dollar question is how did the Court manage to apply the ethics of principled pluralism and modus vivendi? That is, what guidelines did it provide to Parliament to help in practically ensuring the “sharing” of the public space?
III. The Nature and Substance of the Equality Protection.
The approach of the Court to the constitutional enquiry was different from that of the Supreme Court of Appeal (the SCA”), as well as that of the respective litigating parties. Whereas the judgments of the SCA and the arguments of the parties to the
John Gray, Two Faces of Liberalism (New York: The New Press, 2000) p. 12 .Gray provides a sustained analysis of the dangers to genuine freedom posed by monistic conceptions of liberalism itself. He suggests that the principles key to genuine liberalism must eschew monistic approaches that foresee a common end point in society. He writes that liberal thought “…rarely addresses the deeper diversity that comes when there are different ways of life in the same society and even in the lives of the same individual. Yet it is the latter sort of pluralism that should set the agenda of thought for about ethics and government today. ….
Court considered the enquiry to relate to the nature of marriage and whether same-sex couples can be included therein, the Court considered the enquiry as relating to the incidents (legal benefits) of marriage law and whether same-sex couples were entitled to enjoy them.
That is, the majority judgment avoids the question of whether the gender-specific content of the common law definition was discriminatory against same-sex couples. Instead, the Court focused on the discriminatory impact upon same-sex couples of their exclusion from the status, entitlements and responsibilities enjoyed by heterosexual couples through marriage.9 By the mere act of contracting a marriage, heterosexual couples are entitled, at once, to all the legal benefits and obligations which protect their family lives, as well as to the social status that comes from being married. To the extent that access to these incidents (legal benefits) is provided only to heterosexual couples through marriage and not to same-sex couples, the vehicles of that access (the common law definition and the Marriage Act) were found to be under-inclusive. The conclusion that the focus was on discriminatory impact of exclusion from the incidents (legal benefits) of the law of marriage, as opposed to marriage itself, is supported by the following:
1) The primary clause that was violated was the equal protection clause (section 9(1)). The finding of unfair discrimination on the ground of sexual orientation followed from the finding that the denial of equal protection from the benefits of marriage law is based on same-sex couples’ sexual orientation.
“It is clear that the exclusion of same-sex couples from the status, entitlements and responsibilities accorded to heterosexual couples through marriage, constitutes a denial to them of their right to equal protection and benefit of the law. …. Their omission from the benefits of marriage law is a direct consequence of prolonged discrimination based on the fact that their sexual orientation is different from the norm. This result is in direct conflict with section 9(3) of the Constitution ….”10
2) The remedy that is provided by the majority when compared to that of O’ Regan J is consistent with a finding based on discriminatory impact of exclusion from the incidents (legal benefits) of marriage law, as opposed to impact of exclusion from the nature of marriage.
When a court finds law to be inconsistent with the Constitution it must be able to define with accurate precision the nature and extent of the inconsistency, so that it can accurately declare such to be invalid and provide an appropriate remedy.11 The majority held that what was unconstitutional was the combined failure of the common
9
That the focus was on discriminatory impact is supported in the following references: Fourie CCT (note 11 above) para 51-[referring to the Home Affairs case (National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC)) as being of direct relevance to this case- “The issue in the Home Affairs case was the discriminatory impact of a provision of immigration law that gave special protection to foreigners married to South Africans, while ignoring same-sex life partners. The case accordingly has very direct relevance to the present one. The pertinent question was the impact on same-sex life partners of being excluded from the relevant provisions.”; After considering the tangible and intangible benefits that married heterosexual couples enjoy at para 71- “The exclusion of same-sex couples from the benefits and responsibilities of marriage… is not a small and tangential inconvenience…. It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples”; para 72- “If heterosexual couples have the option of deciding whether to marry or not, so should same-sex couples have the choice as to whether to seek to achieve a status and a set of entitlements and responsibilities on a par with those enjoyed by heterosexual couples.”
10
Fourie CCT (note 11 above) paras 75 & 76, Emphasis added 11
Powers of courts in constitutional matters
172. (1) When deciding a matter within its power, a court-
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; …(Emphasis added)
law definition and the Marriage Act to provide same-sex couples with the same status, entitlements and responsibilities that they accord to heterosexual couples through marriage. In other words, the discriminatory impact of their exclusion from the protection of marriage law was the focus of the majority.
This finding of the Court is consistent with the arguments that were made by the State of Canada in Halpern12 were the following was articulated: The Canadian common law captured the definition of marriage by attaching benefits and obligations to the marriage relationship. Accordingly, it is not the definition of marriage itself that is the source of differential treatment. Rather, the individual pieces of legislation that provide the authority for the distribution of government benefits and obligations are the source of the differential treatment.
IV. The Routes Open to Parliament
This being the extent of the inconsistency, it becomes immediately evident that there are many ways through which the legal consequences of marriage can be extended to same-sex couples, including separate legislation.13 In light of the above, the majority decided to suspend the declaration of invalidity for twelve months to enable Parliament to deal with the defect. Despite expressing agreement with the finding of the majority on the extent of the inconsistency,14 O’ Regan J decided that the appropriate remedy was to develop the common law definition and to read-in the words “or spouse” in the Marriage Act.
It is important to note that O’Regan J’s remedy would have been appropriate if the majority had found that the gender-specific content of the common law definition was discriminatory against same-sex couples. However this was not the extent of the majority finding:
At the heart of legal disabilities affecting same-sex life partnerships today, then, is the lack of general recognition by the law of their relationships. The problem, does not arise from anything constitutionally offensive in what the common law definition actually contains. Nor has there been any suggestion that the formula in the Marriage Act intrinsically violates the Constitution as far as it goes. Indeed, there is no reason why heterosexual couples should not be able to take each other as husband and wife.15
Although the majority eventually adopts the reading-in of spouse as an appropriate alternative remedy, it does not, unlike O’Regan J, alter the common law definition at the same time. This omission is significant because it indicates and affirms the fact that the focus of the inconsistency was not the nature of marriage but the discriminatory impact of exclusion from the incidents (legal benefits) of marriage law. If the focus was on the nature of marriage, then the remedy should have been supported by an extension of the common law definition to include same-sex couples.16
12 Halpern v. Canada (Attorney General), [2003] O.J. No. 2268 13 Fourie CCT (note 11 above) para 122: “Thus a legislative intervention which had the effect of enabling same-sex couples to enjoy the status, entitlements and responsibilities that heterosexual couples achieve through marriage, would without more override any discriminatory impact flowing from the common law definition standing on its own.” (Emphasis added) 14 Fourie CCT (note 11 above) para 164 15 Fourie CCT (note 11 above) para 117
See below Part IV: The Alternative Remedy
V. Summary of the Essential Holding (Ratio) of the Court
In short, what we are arguing is that the Court called for a principled sharing of the public and private space that accommodates divergent beliefs.
More importantly, the equality finding related to the incidents (legal benefits) and benefits of marriage, and not to the nature of the institution of marriage.17
Furthermore, the Court held that Parliament could cure this equality violation in a number of ways, including the enacting of separate legislation.
In calling for the possibility of separate legislation, the Court articulated other options such as opening up marriage, civil unions, domestic partnerships, other alternative legislation, etc.18 The Court then rightly concluded that Parliament had the correct instruments to do the necessary research in order to decide on this matter.
In articulating the correct form of legislative intervention, it goes without saying that a number of questions are automatically begged:
What is Marriage? Should it be protected as an institution and if so: Why and How?
PART II: THE INSTITUTION OF MARRIAGE
I. No Analysis of What Marriage “Is” and what Marriage “Does”
To paraphrase G.K. Chesterton, one should never deconstruct a wall until they know what it is, what purpose it serves, and why it was put up in the first place19. It is interesting to note that neither the Bill nor the SALRC document engages in the important process of researching and attempting to provide a definition, nor a detailed study on the Nature of the Institution of Marriage. In fact, all the SALRC document does is to provide a historical account of how marriage was registered and when and how it came under the jurisdiction of the State. This, with all due respect, guides neither Parliament nor the draft makers in understanding how to treat marriage, and in ultimately determining whether to ‘open’ it up as an institution.
It is in the context of the above that the present Bill, which is convoluted in what it attempts to achieve, mixes issues of marriage in the context of civil partnerships, and ultimately provides a solution which fundamentally redefines the nature of the institution of marriage, but then exalts form over substance by engaging in this alteration in a separate piece of legislation. It thus attempts to ‘appease’ both interest groups in a manner that, with all due respect, does not do justice to either side.
We submit that in order to arrive at the conclusion that the nature of the institution of marriage is unconstitutional such that it requires redefinition, which is what the Bill does and is ironically not what the Court held; the State had an obligation to assess the nature of the institution of marriage, which obligation it did not fulfil.
We argue that a detailed analysis of the fundamental legal questions that must be asked in order for the State to perform the proper analysis are simply stated as
17 We emphasise the importance of this statement because of the media review on the matter. Simply put, it would seem that there is a fair amount of confusion as to what the requirements of the Court judgment were. 18 The Court articulated the potential routes as stated in the SALRC document 19 G. K Chesterton in John Barlett, Familiar Quotations 918 (14th ed 1968)
follows: What are the differing Models of Marriage and how and why should Parliament adopt a particular model over another? This question of the modelis critical and answering it in a defining manner would have aided Parliament in determining whether it should open up marriage (either through amending the definition in the Marriage Act or as in the present Bill, through a separate legislative instrument), or whether it should address the equality concern of the gays and lesbians through a separate piece of legislation that does not open up marriage. Incidently, in the later section that deals with the analysis of the Bill, we argue that the present Bill does in effect open up the institution of marriage, and that all that is now left, if anything, is an issue of semantics.
Returning to the issue of importance of models, David Orgon Coolidge crisply articulates the following:
“A “model” of marriage means a claim about what marriage “really” is. A model is an attempt to identify the “essence” if any, of marriage. In short, a model asserts a truth about something. That truth can be related, logically, to other truths; it can be used to classify and evaluate concrete fact; and it can be applied, both critically and constructively, in everyday practice. A model is not “neutral” about what is logical, empirical, or moral. It embodies a commitment to what proponents of the model believe to be basic. … The real debate is about the nature and content of specific “essences” and the relationship of those essences to contingent social forms. ”20
II. Different Models of Marriage21
Orgon Coolidge then continues to look at various models of marriage, in the context of (a) their truth-claims; (b) their deeper convictions; (3) their legal implications and
(4) their apparent weaknesses. These models in their various forms are argued for by the different groups in SA society:
a) Complementarity: The Traditional Model of Marriage
Truth Claims
Marriage is a distinctive social institution. It existed prior to the law and all the law did was recognise an already existing institution. It has certain universal features as a unique community defined by sexual complementarity – the reality that men and women are “different from one another, yet designed for “one another”. Bodies are evidently complimentary, since procreation has traditionally required sexual intercourse between a man and a woman. Social complementarity is also evidenced in the different ways that a mother and father relate to the nurture of young children. The notion of complementarity, however, is not exhausted by particular functions such as procreation and nurture; marriage “is” more than marriage “does” – sex mirrors the way in which men and women are different – yet related in a more general and mysterious way that enriches the entire social order.
20
Ibid at page 28 21
I am indebted to Mr. Orgon Coolidge for his articulation of these models and attempts to define the modus vivendi. My statements with regard to this issue are a mere paraphrasing of his work.
Deeper Convictions
This model implies a larger body of beliefs regarding what is basic about reality. The specifics of this religious/philosophical context may vary, but can be found in many faiths and cultures, both present and past. It has been the basis of defining marriage in male-female terms in both custom and law.
Legal Implications
This definition has been assumed in law, hence the fact that it is embodied in the common law and the fact that the Marriage Act of 1961 has no definition of the word “marriage”.
Furthermore, this traditional model understanding of what marriage is, has in general been universally accepted by legal systems, hence the fact that the common law definition of marriage is assumed as the union between a man and a women; for example, the following are excerpts of the States argument in Halpern: “Marriage is not a common law concept; rather, it is a historical and worldwide institution that predates our legal framework”.22
Criticisms
The emphasis on sexual difference presents a false picture of human persons and is nothing more than a social construct. Furthermore, procreation is not a defining characteristic in conjugal relationships; and emphasis on it fails to recognise the importance of the relationship between the individuals.
b) Choice: The Liberal Model of Marriage; and
Truth Claims
Marriage is an agreement between individuals, a contract which is defined by the individuals who enter into it. The choice of who to marry is a private one and there is no reason to limit marriage to the union of male and female as sexuality “belongs” to the individual and is a means of self-expression.
Deeper Convictions
The core of this argument is the commitment to the autonomous individual as the ultimate source of value, identity, knowledge and morality. Here individual choice is sovereign and no substantive good transcends the desires of the individual. All social relations are external and personal choice is the determining factor.
Legal Implications
If choice is the determining factor, then the task of the state is to guarantee equal opportunity to live out one’s individual concept of the good life.
Criticism
This model offers no coherent basis for legal judgments as placing individual choice at the centre makes it difficult to make any justifications for certain forms of state regulation.
22 Ibid
Incidently, when analysing the Bill it will be argued that this is the model that has been followed by the drafters as they have in essence provided what can simply be termed as a buffet of choices, that is, there is a blanket attempt to cater for various forms of individual choices, ranging from marriage to unregistered domestic partnerships.
c) Commitment: The Post Modern Model of Marriage
Truth Claims
This model views marriage as essentially a relationship, whose core transcends the individual selves and which itself gives rise to specific obligations. In essence the focus in on commitment and intimacy and there is no reason to define it legally as a male-female institution. The emphasis here, as opposed to the liberal model, is on the community created as opposed to the individual choice of the persons involved.
Deeper Convictions
As the emphasis is on being grounded in relationship, this means that the concerns that argue for a “reconsideration” of the traditional model are based on the need for a public expression of a particular community.
Legal Implications
Like in the liberal model, the implications are that the law is to embrace a gender–neutral view of the institution.
Criticisms
The concept of intimate commitment seems like one which does not only relate to conjugal relationships and it is unclear as to how intimate commitment relates to sexuality. Also, in claiming the centrality of relationships, does the model also claim that social structure and subjectively are simply determined by intimate commitments?
d) Analysis of the Dilemma with regard to the alternative Models as stated above
The dilemma is that each of the models makes assertions about what marriage is, that is, they all make a claim about what the “essence” of marriage is. Also, each model is ‘set within a wider conceptual context that inevitably draws upon deeper beliefs, which themselves elude logical proof’ as it is ultimately ‘experience, reflection, practice and faith which inform the models.’23
It is because of the above that reason alone cannot solve the conflict. As Organ Coolidge rightly points out “coping with this conflict does not entail abandoning reason – only abandoning faith in reason. Reason alone will not resolve the conflict”24
The million dollar question then becomes the following: If reason cannot solve the conflict on what model of marriage the State should choose, what else is the State obligated to look at, to critically analyse, before coming to a decision on this matter?
23
Ibid at 43 24
Ibid at 43
III. What view should the South African Parliament take on what is in essence the nature of the institution of Marriage, and ultimately the Model of Marriage and what principled basis should undergird and inform that view?
In the paragraphs below we argue that fidelity to the Rule of Law and principle should dictate that there be some coherent manner in which the Parliament ultimately makes the decision on the type of model that is appropriate for South African society. We ultimately argue that the only appropriate model, from both a normative (the way things should be) and descriptive (the way things are) perspective, is the Traditional model.
We argue that the embracing of this model in no manner infringes on the equality rights of gays and lesbians. This is because a policy adoption of this model must be in keeping with the principles of not only the Court judgment but also those of civility and general justice and fairness. That is, embracing this model does not absolve Parliament of the responsibility to ensure that there is a just separate legislative framework that is adopted for the gays and lesbians. This framework must necessarily take into account the particular social framework of the peculiarities and needs of homosexual couples, in order to ensure that the law is able to adequately address and provide for their needs.
Fundamentally, with particular regard to this Bill, our argument is that it is not based on an understanding of the appropriate model of marriage for South Africa, and it is further not based on an understanding of the peculiarities of the legal framework that is appropriate for gays and lesbians. Thus all it does is redefine the institution of marriage in a separate piece of legislation.
The foundations of our arguments below are an attempt to provide the preliminary framework for an objective grid that Parliament should use in answering the question of what model it should adopt. Thus, based on legal jurisprudence and precedent, we attempt to articulate the further issues that Parliament would necessarily need to look at in order to decide on a model of marriage. Amongst these are:
Fidelity to our Western legal history of the social pluralist tradition;
Fidelity to an understanding of the role of civil society and the nature of social
institutions;
Fidelity to an understanding of the role of civil society and the limitations of the role of a liberal state;
Fidelity our African understanding of community and culture and how it is organised;
Fidelity to normative and descriptive realities of South African society.
1. Fidelity to our Western legal history of the social pluralist tradition25
Context
This tradition, which is the basis of law and in particular, the rule of law in all western societies, asserts that (i) reality is inherently ordered and purposeful (ii) its order is plural in character and (iii) this plurality of order is embodied in a plurality of distinctive communities and institutions.
Reality is Ordered
In aligning with ontology (theories of how things are necessarily connected), epistemology (theories of how we know facts) and ethics,(rules of behaviour) the view is that there exists in reality a purposeful order, which humans are capable of knowing and which should therefore be respected and actualised in practices
Reality is Plural In Nature
Here orders of being are accepted as complex and interwoven, with structural, social, subjective and spiritual dimensions.
Plurality of Order is Embodied in Distinctive Communities
Here the emphasis is on “mediating structures”, or “institutions of civil society”. The emphasis is that different institutions embody different purposes. Thus, if one can ‘identify the distinctive form of human communities embodied in an institution, and then identify its purpose, one can start to answer the question of what this institution “is”.
Analysis
In regard to this particular issue, the tradition would suggest that the central questions are around sexuality. In particular, the argument is that
(i) sexuality is a reality with a purpose, and (ii) it has structural, social subjective and spiritual dimensions.
With regard to its purpose, sexuality means the reality that all human beings are embodied as male or female: different, yet designed to complement one another. The purpose of sexual complementarity is meant to unite those different from, yet designed for, each other - male and females. Thus “integral sex complementarity” involves an integration of the biological, cultural, social, individual and personal levels.26
It is based on this understanding of sexuality that one can argue that the purpose of sexuality and human community is embodied in the unique heterosexual social institution of marriage.
25 Ibid 2 at 44 26 Ibid - Orgon Coolidge citing the work of the philosopher Prudence Allen
2. Fidelity to an understanding of the role of civil society and the
nature of social institutions
Civil Society
There is an abundance of research both international and local that speaks about the importance of the role of mediating structures as embodied in various civil society structures. Indeed the very history of the liberation of South Africa from the apartheid system of government has it very foundations and character in the organising of persons in various civil society structures, in order to challenge what was then the regime of the day. It is said that “in civility lies the difference between a well ordered and disordered liberal democracy”27. Indeed, it is commonly understood that a thriving democracy does not just depend on an accountable State, a further sine qua non (requirement) is a strong and vibrant civil society.
In The Politics of Hope28 Jonathan Sacks, Chief Rabbi of the U.K., insightfully provides an understanding of the ordering of civil society by quoting Jean Bodin:
“Whereby it is plainly to be seen, the society of men among themselves, to have been at first sought out for the leading of their lives in more safety and quiet: and them first of all to have sprung from the love which was betwixt man and wife: from them to have flowed the mutual love betwixt parents and their children: then the love of brothers and sisters one towards another: and after them the friendship between cousins and other kinsmen: and last of all the love and good will which is betwixt men joined in alliance: which had all at length grown cold, and been utterly extinguished, had it not been nourished, maintained and kept by societies, communities, corporations and colleges: the union of whom hath for a long time maintained many people, without any commonwealth, or sovereign power over them
Here what Sacks is eloquently arguing is two fold:
Society is ordered in a particular way which inevitably involves
heterosexual bonding which is anticipated to result in procreation;
The basic building blocks are affirmed and strengthened within
the context of civil society
What about social institutions?
The simple argument is that marriage as a civil society mediating structure is a social institution which has certain defining characteristics, primary among them being the fact that it is opposite sexed, which is evidenced in the procreative capacity.
Furthermore, this social institution, as a reality of fact predates the law and thus cannot simply be altered through the vehicle of the law.
We submit that the arguments of marriage predating the law and being about something more than just the law are unquestioned. The SCA and
27 Edward Shils, The Virtue of Civility: Selected Essays on Liberalism, Tradition, and Civil Society (Indianapolis:Liberty Fund, 1997) 320 28 1997 (Random House Press: JHB SA) at 55
the SALRC document, in their historical analysis have pointed this out. Furthermore, the history of customary and religious marriages in South Africa attests to the fact that marriage predates the law and is only given some sort of further formal recognition by the law. That is, although the Customary Marriages Act only came into effect in 1998-2000, people have been married according to custom and these marriages have been recognised by society since time immemorial. Furthermore, presently religious marriages (e.g.: Muslim and Hindu marriages) are presently entered into and persons who enter into these marriages are provided with the social recognition thereof, immaterial of the fact that the South African legal system to date does not recognise such religious marriages. Thus the central issue is what it is that society understands marriage to be, and the fact that the authenticity of this union is not necessarily provided by law, but is merely, from a macro contractual basis, strengthened by the law. Here it is worthwhile to point out that the fact that marriage is about more than the law and predates the law, is arguably precisely why the Constitutional Court made a determination on the legal aspects of marriage, being the incidents (legal benefits) provided by it, and left it to Parliament to determine the nature of it, as this scope is by definition outside of the ambit of the law.
Returning to the question of the definitional heterosexual nature of marriage, if one returned to the issue of the to date non recognised religious marriages (incidently, it is ironical that a law which attempts to redefine marriage and provide a so-called holistic regime like this Bill attempts to do, does not even begin to address the issue of religious marriages); as stated above, these marriages, have social recognition as marriages immaterial of the fact that they do not have the arm and muscle of the law. We cannot help but ask what would happen in society if homosexuals conducted “marriages” without the arm of the law. The answer is simple, society would view them as commitment ceremonies, and not as marriages, because marriage as a social institution has a particular heterosexual definition identity (note, this is not just about generic understanding and meaning, it is about the identity of an institution).
What is the essence of the complementarity of the sexes in the context of procreation argument?
The argument for sexual complementarity is partly based on an acknowledgment of the procreation argument. As to this argument, the Court has dismissed it by stating that procreative capacity is not a defining characteristic in conjugal relationships. However this conclusion, with all due respect, misses and fails to answer the essence of the procreation argument.
The argument is not that one needs to be able to procreate in order to enter into a marriage. Rather the argument is the institution of marriage is a mechanism to ameliorate the general automatic consequences of male and female intercourse, which is in essence the ameliorating of the consequences of the procreative potential of these relationships.
Put simply, in adult heterosexual sexual relationships, the general result is the bearing of children. Marriage is therefore the public union of a man and a woman that is designed to protect the children that their sexual
union (and that type of sexual union alone) regularly produces. Specifically, marriage ensures that children born to that relationship will have legally enforceable ties to their biological parents and that fathers will have legally enforceable obligations to the mother and child. In the South African context, the particular vulnerability of children and mothers to the consequences of “unintended” pregnancy is particularly relevant. . This vulnerability is different in kind from the situation in which two adults must intend and plan to bring a child into the world with the help of third parties. This amelioration of the consequences of intercourse between a man and a woman is the genuine state interest in the institution.29
As previously stated, both the SCA and the Constitutional Court have dismissed the procreation argument by noting that same-sex couples may adopt children. But, of course, the reality of same-sex couple adoption is neither inconsistent with, nor undermines, the rationality of society’s deep logic of marriage, with its private welfare purpose. That is, because adoption is not a means of procreation; rather it is a way of placing children who have already been born.30
We therefore submit that there is a difference between heterosexual relationships where the generic automatic consequences are usually procreation and same-sex relationships where children are planned for, and then acquired, either through adoption or artificial insemination. Thus the state should be concerned about ameliorating the usual consequences of heterosexual bonding.
This heterosexual understanding of marriage as a social institution is indeed based on its public understanding which is reinforced by the arm of the law. Using studies about the nature of social institutions, Monte Stewart31 argues that “social institutions are constituted in large measure by shared public meanings.” He argues that the shared meanings that constitute these institutions (especially the core meanings) interact and are interdependent; each core meaning affects and is dependent on all the others:
“Social institutions shape and guide individuals’ identities, perceptions, aspirations and conduct… an institution guides and sustains individual identity in the same way as a family, forming individuals by enabling or disabling certain ways of behaving and relating to others, so that each individual’s possibilities depend on the opportunities opened up within the institution to which the person belongs.32
29 In Morrison v Sadler 205 WL 107151 (Ind. Ct. Appeal 2005) at 13-14 the Indiana Court of Appeals makes clear that the government’s interest in ameliorating the consequence of sexual relations between men and women are not similarly implicated by the relationship of a same-sex couple. It stated that there is a fundamental difference between the way in which “most opposite-sex couples become parents, through sexual intercourse, and how all same-sex couples must become parents, through adoption or assisted reproduction,” and that this difference is fundamental to the rationality of the definition of marriage as the union of a man and a woman.
30
But adoption is the way the law helps cope with the needs of children who, by definition, do not have the ideal situation, where not even one parents is able or willing to care for them.” Maggie Gallagher, “Does Sex Make Babies? Marriage, Same-Sex Marriage and Legal Justifications for the Regulation of Intimacy in a Post-Lawrence World” 23 Quinippiac Law Review 447 (2004) at 471; “Judicial Redefinition” at 49.
31
Monte Neil Stewart, “Genderless Marriage, Institutional Realities, and Judicial Elision”, (2006) 1 DUKE J. CONST. L. &
PUB. POL’Y 1, 8 (hereinafter referred to as Stewart, Genderless Marriage) 32
Ibid 10 [quoting Helen Reece, Divorcing Responsibly 185 (2003)]
They therefore “shape what those who participate in [them] think of themselves and of one another, what they believe to be important, and what they strive to achieve.”33
Does extending the institution of Marriage to gays and lesbians attest to the importance of marriage as a social institution?
The argument that is usually advanced is that gays and lesbians merely want entry into the institution of marriage, and that requiring this entry will further strengthen marriage as it will attest to the importance of the institution.
However, this argument lacks a fundamental understanding of how social institutions continue to be undergirded in society. Stewart further argues that since social institutions are constituted by shared public meanings, they are necessarily changed when those meanings change or are no longer sufficiently shared.34 They “can be entirely dismantled when members of a community fail to recognize or share their core constitutive meanings.”35 These meanings can be changed through one of two factors: forces of society other than the law (civil society organization) or the law itself.36 In the first situation (change via forces of society other than law) the law merely follows and reflects social, and thus institutional, change, whereas in the second situation, a change in the law mandates institutional change. A change in the law will mandate institutional change if such change alters or extinguishes core constitutive meanings of a social institution. This is why legal definitions of social institutions become sites of conflict:
Meaning is not nominal or incidental to the life of social institutions; it constitutes their life. This helps to account for the highly charged nature of conflicts over the core public meanings and purposes of institutions like marriage. In this sense, the politics of definitional discourse is not just a quibble over words. Definitions matter. They constitute and define authoritative public knowledge. We “define” social reality into existence and we define it out of existence. … Changing the public meaning of an institution changes the institution.37
On the other hand, use of the law consistent with the core constitutive meanings of social institutions reinforces the importance of the institutions concerned. “This is because the law has an expressive or educative function that is magnified by its authoritative voice.”38 These understandings of social institutions lead to the following conclusion:
To alter a social institution by altering the shared public meanings that constitute it (whether by use of the law or otherwise) is to also alter (if not
33 ibid 9-10 34 ibid 35 ibid 36 Stewart, Genderless Marriage (note 37 above) 63: “With some subjects, those two phenomenon may play on each other so subtly and imperceptibly that they appear as one.” 37 Monte Neil Stewart, “Judicial Redefinition of Marriage” 21 Canadian Journal of Family Law 11, 77 (hereafter “Stewart, Judicial Redefinition”) [quoting D. Cere, “The Conjugal Tradition in Postmodernity: The Closure of Public Discourse?” (paper presented at the Re-visioning Marriage in Postmodern Culture Conference, Toronto, December 2003) 38 Stewart, Genderless Marriage (note 37 above) 11
immediately then certainly soon) the individual identity, perceptions, aspirations, and conduct formed by reference to the old institution. The greater the alteration to the institution, the greater the changes in the individual. Likewise, the more influential the social institution changed, greater the changes in the individual.39
It is in this context of how social institutions can change that one cannot simply assert that what lesbian and gay couples want is to merely enter the institution. “Entering” the institution would by definition of the nature of social institutions, change the institution into something that it is not. More specifically, a new institution will be created, through the vehicle of the law, without the consent of society.
3. Fidelity to an understanding of the role of civil society and the limitations of the role of a liberal State
As previously articulated, the liberal state derives its legitimacy from civil society. Indeed, our President Nelson Mandela was often quoted as talking about ‘a government of the people, for the people, by the people’ De Coste40 argues that the principle concerns and constitutive task of a liberal democratic state are to maintain the primacy and the autonomy of civil society. In this context, the state is by definition committed to defer to the moral and political primacy of the social life, by acknowledging the limits of its own authority. In this particular context, this would mean that the state has no authority to change a social and civil institution whose definition has not been changed by the people of South Africa. That is, that “the reformation of social institutions, traditions and practice is beyond the authority of a liberal state”41. Furthermore:
“when a state acts to reform, it seeks to replace the values and ways of living of its subjects with its own view of human life properly guided and lived. The liberal state can neither formulate, nor proceed from, any such views. When it adopts and acts on any views of the good life, it denies the self-ownership of its subjects and their sovereignty over their lives. Consequently, it violates the political morality by which it alone is constituted and governed.’42
In short, the essence of the argument is that a redefinition of marriage is outside of the ambit of the law and the state, hence the Courts separation of the legal benefits of marriage from the nature of the institution of marriage.
4. Fidelity to our African understanding of community and culture and how it is organised
One needs no rocket scientist nor prophet or prophetess to understand and argue the fact that African culture is by nature communal. Simply put, it is usually argued that the West is the embodiment of the autonomous individual and Africa is an embodiment of the communal being who understands his or her identity through the way that it is mysteriously expressed in nuclear and extended relationship.
39 Stewart, Genderless Marriage (note 37 above) 14 (Emphasis mine) 40 F.C. de Coste What’s the Charter got to do with it? In Divorcing Marriage (2004) Mcgill University Press Canada at 120 41 Ibid at 123 42 Ibid at 124-5
Furthermore, theories of constitutional interpretation dictate that Parliament and the Courts be intentional about the understanding of culture and the influence that it has over our articulation of constitutional rights and norms. That is to say, fidelity to South Africa and to the Constitution dictates that there be an intentional manner in which the culture is understood as interwoven with our social realities.
In this context, it would be an anomaly to interpret and understand the institution of marriage as one that is defined by the close personal relationship and the individual models.
That is, in African culture, the notion of community is also expressed in the understanding that marriage is not just about two people who love each other coming together and needing to be respected in that choice. Rather, it is about the uniting of two families, two clans, and ultimately entire communities.
Traditional practices such as lobola give expression to this intention as lobola is the manner in which the family of the groom thanks that of the bride for raising a beautiful daughter. Complementary customs such as umbondo and ukwaba reciprocate this extension of family and communal bonding as the bride then takes food and other household goods to the family and community of the groom.
Indeed, the public and communal element of marriage in African culture is on some level even expressed in the Recognition of Customary Marriages Act 120 (1998) where one of the clear requirements of having conducted a valid customary marriage is that there must have been a public celebration43, something which is not required in either the Marriages Act nor in the present proposed Bill.
In short, the essence of this argument is that fidelity to cultural expression and influence in the understanding and interpretation of the Constitution means that any decision that Parliament makes on the nature of the institution of marriage cannot rely on a personal model. It is in this context that the traditional model, as understood in the context of a “social” and not personal institution, is the appropriate route to follow.
5. Fidelity to normative and descriptive realities of South African society
Just as Parliamentarians cannot make decisions in a vacuum without consulting with the electorate, the law cannot exist in a vacuum. It is obligated to take into account social realities when it attempts to explain what the situation is, that is, when it provides a descriptive reality, as well as when it attempts to provide a vision of what things could and should be like, that is, when it provides a normative reality.
Again, in this particular context it is interesting to note that the SALRC document does not attempt to articulate the social goods of marriage and why the State would have an interest in protecting it as a heterosexual institution.
43 Section 3(b)
Before we begin with this attempt at a social enquiry, it is important to note that the Constitutional Court, in previous cases, has clearly articulated that the State has an interest in the protection of the heterosexual institution of marriage:
In the Gay and Lesbian National Coalition Aliens Control Act44 ,Ackermann J (as he was then) in a unanimous judgment of this Court, acknowledged that the State does have an interest in protecting the institution of marriage:
“It is true, as previously stated, that the protection of family and family life in conventional spousal relationships is an important government objective…”45
In Volks NO v Robinson and Others46 Skweyiya J stated the following:
“Marriage and family are important social institutions in our society. Marriage has a central and special place, and forms one of the important bases for family life in our society.”
It is significant that in Dawood Shalabi and Thomas v Minsiter of Home Affairs47 ,O’ Regan J recognises that marriage is a relationship that is enforceable between spouses.
The South African Context – the legacy of Apartheid and broken down homes and families
The obvious must be stated – there is significant amount of qualitative and quantitative international research which proves the fact that the institution of marriage has certain social goods. More importantly in the South African context, the research shows that the State’s interest in maximising the likelihood that children will be raised by their biological parent, is a powerful and important one.
What do we mean by this? Well, with regard to the goods of marriage on the partners themselves, the research shows that married people are generally healthier, happier and have a longer mortality span. South African research from the Human Sciences Research Council (“HSRC”) confirms this.48 More importantly, there is a dearth of social science evidence showing that children generally fair better and are more likely to grow up and become responsible citizens if they are raised by their biological parents. That is, data confirms that male-female marriage “protects a child’s well-being…by increasing the likelihood that the child’s own mother and father will stay together in a harmonious household49, thus ensuring that “children born to that relationship will have legally
44 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) 45 Ibid Para 59 46 2005 (5) BCLR 446 (CC) page 24: para 52 47 2000 (3) SA 966 (CC) 48HSRC Baba Men and Fatherhood in SA (2006) Edited by L Richter and R Morrell; & Glenn Stanton Why Marriage Matters (1997) Colorado Springs Press at Pg 93: Work done at Princeton University on an international comparison of mortality difference by marital status found ‘the greater longevity of married people as compare with unmarried persons has been repeatedly demonstrated that throughout the twentieth century in a large number of countries…In fact, these difference persist even when the effects of socioeconomic status and other observable factors are controlled’. 49 Maggie Gallagher What is Marriage For? The Public Purposes of Marriage Law 62 La. L. Rev. 773, 782 (2002)
enforceable ties to their biological parents and that mothers will have legally enforceable obligations from fathers50
With particular reference to South Africa, it is common knowledge that one of the main objectives of apartheid was to break down the family by separating fathers from children, and husbands from wives. This separation was endorsed through the various vehicles of the law, and in particular forced demarcations and migrations.
The descriptive reality is that South Africa has a serious crisis of parenthood and in particular fatherhood. Extensive research by the HSRC51 has clearly linked issues such a crime and violence, HIV/AIDS, poverty and lack of education, and a myriad of other social ills to the fact that the average African child grows up in an environment that is usually not characterised by a mother and a father living together.
In particular, the absence of fathers and the lack of fatherhood in society continues to debilitate the raising of responsible children and citizens. In fact, teenage pregnancies continue to be a norm in many townships, and it is interesting to note that the statistics show an increase in the number of children who grow up with absent fathers, as one would have thought that these numbers would decrease in the democratic dispensation.
Table 1: Presence of fathers of children (aged 15 years and younger), 1993-200252
1993 (PSLSD) 1996 (OHS) 1998 (OHS) 2002 (GHS)
Number of children whose fathers are deceased 1 104 364 1 362 253 1 481 428 1 776 183
Percentage of all children with fathers deceased 7.5 9.2 9.5 11.5
Number of children with absent (living) fathers 5 292 568 6 140 479 - 7 073 041
Percentage of children with absent (living) fathers 36.0 41.6 - 45.8
Total number of children 14 720 825 14 759 509 15 579 324 14 434 928
Table 2 Presence of fathers of children (aged 15 years and younger) by population group, 1993-2002 (percentages)
1993 (PSLSD) 1996 (OHS) 1998 (OHS) 2002 (GHS)
African
Deceased father 8.4 10.0 10.6 12.8
Absent (living) father 40.0 45.5 - 50.2
Indian
Deceased father 1.7 4.8 3.1 5.0
Absent (living) father 10.6 16.6 - 8.4
Coloured
Deceased father 5.6 7.3 5.3 7.4
Absent (living) father 31.1 34.3 - 37.2
White
Deceased father 2.1 3.4 3.0 2.4
Absent (living) father 7.5 12.8 - 10.9
50 William C Duncan The State’s Interest in Marriage 2 Ave Maria L. Rev. 153, 168 (2004) 51 Ibid Baba Men and Fatherhood in SA (HSRC, 2006) Edited by L Richter and R Morrell
Ibid. Baba Men and Fatherhood in SA (HSRC, 2006) Edited by L Richter and R Morrell, page 46
Table 3 Presence of fathers of African children (aged 15 years and younger), 1993-2002
1993 (PSLSD) 1996 (OHS) 1998 (OHS) 2002 (GHS)
Rural
Number of children with deceased fathers 755 000 821 593 928 597 971 218
Percentage of children with deceased fathers 8.6 10.6 11.3 12.5
Number of children with absent fathers 3 385 088 3 782 151 - 4 276 243
Percentage of children with absent fathers 38.4 49.0 - 55.0
Total number of children 8 817 864 7 726 371 8 252 513 7 77 734
Urban
Number of children with deceased fathers 255 496 393 645 438 639 666 989
Percentage of children with deceased fathers 7.8 9.0 9.5 13.2
Number of children with absent fathers 1 431 872 1 722 800 - 2 165 451
Percentage of children with absent fathers 43.8 39.4 - 42.7
Total number of children 3 266 098 4 373 030 4 595 105 5 067 372
The descriptive crisis in society is clear, and the need for the State to promote, protect and use the institution of marriage as a vehicle, is unquestionable.
It may be argued that there are various forms of family life in South Africa, and that many people take on parenting roles without being the biological parent. This argument would be missing the point. By all means, taking responsibility in various forms especially for vulnerable children is encouraged. However, the point that is being made here, which is a critical one, is that biological parents, and in particular fathers, should be encouraged to take responsibility for their children and this is ideally done through the institution of marriage. This is the particular social good of marriage. Indeed, this is the state’s interest in ameliorating the automatic consequences of procreation which by definition and not by default, can only occur in a heterosexual intimate relationship. This taking of responsibility by both biological parents is what should be the norm in society and not the default.
Indeed, this principle was recognized in Dawood where O’Regan J expounded on the institutions of marriage and the family, as well as the rights and obligations (burdens) in a marriage relationship, the link between marriage and procreation, and the importance of marriage as a social institution.
“The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated
generally in a public ceremony, often before family and close friends…
‘In terms of common law, marriage creates a physical, moral and spiritual community of life… Importantly, the continuity of life establishes a reciprocal and enforceable duty of financial support between the spouses and a joint responsibility for the guardianship and custody of children born of the marriage’.53
The normative reality, the vision of what could and should be in a society, is born out by the social science data: a society which has strong marriages, with mothers and fathers raising their children in the context of a supportive community, is one that is capable of creating more citizens who are upright, healthy, conscious and responsible.
IV. South African Law Reform Commission Document
We uncategorically assert that the SALRC document, which was the research basis and point of reference for this Bill, is problematic. Below is a slightly lengthy yet necessary elucidation of some of the problems
with this document.
Comment on South African Law Reform Commission (SALRC) Discussion Paper on Domestic Partnerships (DPDP)
The South African Law Reform Commission (SALRC) Discussion Paper on Domestic Partnerships (DPDP) demonstrates questionable legal and academic credibility and its value as a base document is questionable. It contains a number of errors, some of which are listed below:
Documentation context (Section 1)
The SALRC DPDP uses as its basis for deciding on cohabitation (and making recommendations for the regulation of domestic partnerships), a document prepared by the Centre for Applied Legal Studies (CALS). This document, prepared by the CALS Gender Research Project (GRP) draws conclusions on the nature and incidence of cohabitation in South Africa.
In Volks the court found that the CALS GRP report was qualitative and contained a lack of verifiable data. Moreover, the report was considered to not contain a representative sample of South African society. It was noted that the sample consisted of a survey of 68 people in eight poor communities.
It should be noted that although in the above mentioned case, the Court refused to admit the CALS GRP document for the reasons cited above, this CALS GRP document forms the basis for the decision (argument/motivation/case) on cohabitation by the SALRC DPDP.
The DPDP lacks clarity with respect to significant differences between co-habitation, gay marriage and non conjugal relationships. These three scenarios seem to be dealt with interchangeably which
53 Dawood para 33
demonstrates a lack of due diligence (adequate thought/insight/ cognizance) to fundamental differences in the problems and more importantly, appropriate solutions for each individual scenario.
No qualitative and quantitative social science data is used at all (save for the CALS report which was dismissed as not sufficient in its sampling credibility by the Court). Thus there is no statistical research from the HSRC, and no links are drawn with why marriage is important in SA society.
In addition, an analysis of the bibliography shows a clear bias for articles and papers that are in favor of the legalization of same-sex marriages.
Examples of Legal Flaws: Incorrect Premises, Presuppositions and Conclusions (Section 2.1)
Chapter 4: Legal Developments Regarding Domestic Partnerships in South Africa after 1994: Error 4.1.3; 4.1.14: These statements are based on a faulty understanding and/or interpretation of section 9 (3). The inclusion of marital status and sexual orientation as grounds on which unfair discrimination is prohibited is correct. The conclusion, however, that family law in South Africa should therefore be “more inclusive and pluralistic” does not necessarily follow.
In general, it is unequivocally clear that international law instruments recognize the heterosexual institution of marriage and the rights of children to be raised by their biological parents. For example, although the New Zealand Charter provides for an even stronger right for gays and lesbians than the South African Constitution; that is, the Charter provides for a positive right to not be discriminated against on the basis of sexual orientation whereas our Constitution provides for a negative right; the New Zealand government has not recognized same-sex marriages and challenges to the International the Human Rights Committee on the ICCPR concluded that its inclusion did not sanction the recognition of same-sex marriage54.
Our constitution does not protect “freedom of sexual orientation as a basic human right”. It is not a right; it is only a ground on which unfair discrimination is prohibited. The assumption within the DPDP that the current common law definition of marriage amounts to unfair, unjustifiable discrimination is unfounded and not based on a rational or logical argument (Error 4.1.22).
Chapter 7: Underlying Policy Arguments: Error 7.1.20-7.1.23; 7.1.33-7.1.46 The argument that history contradicts the common perception held by many that marriage has always been a heterosexual institution, is based on an article by Prof Pantazis. The article draws on unreliable research undertaken by Eskridge and Boswell which has been discredited as unfounded. The research purports to have discovered social acceptance of same-sex marriage in Africa, America and the Far East. It is reported that not
54 Joslin v New Zealand (communication NO 902/1999) (17 July 2002) UN Doc CCPR/C/75/902/1999 (2002)
even homosexual advocates place reliance on this research55. Furthermore, Lauw’s article56 is also questionable due to its reliance on research by Eskridge and Boswell.
Error 7.1.66 The state is not constitutionally obliged to sanction the preferences of individuals in the name of “tolerance”. In Volks paras 82-85, Ngcobo J writing for the majority held that the State has an obligation under international law to protect the institution of marriage. Marriage is also entrenched in our Constitution (Section 15(3)(a)(i) of Constitution- it remains to be seen if there is any tradition or system of religious, personal or family law that recognizes same-sex marriage. It is clear that the Constitutional Court made reference to it in Volks as ordinarily understood).
Problematic use of Social Science and non-legal evidence (Section 2.2)
The SALRC DPDP has not been comprehensively reviewed. A cursory reading however revealed numerous biases in interpretation and factual errors which throw into question the reliability of the document as a whole. Some of these errors are listed below:
Error 2.1.7 “In America 45 percent of all couples living together are unmarried."
Correction: U.S. Census 2000 data indicates that more than 9 out of 10 coupled households in the United States are married57.
Error: 6.6.3 “An increasing proportion of children, one third of babies in the USA, are born to parents who live together but are not married.”
Correction: One-third of children in the U.S. are born outside of marriage, but the majority of these are born to solo mothers, not cohabiting couples. Only about 4 out of 10 babies born out of wedlock are born to cohabiting couples. Only about one out of 10 of all babies in the U.S. are born to unmarried cohabiting parents58.
Key considerations in debate
Family law may require revision in South Africa but the essence of the problems with the document is arguably due to the fact that it seems to have been drafted by a team of lawyers and not a multi-disciplinary team of researchers. It is proposed that research must be undertaken by a team of experts that can demonstrate:
Refer : Article written by Peter Lubin and Dwight Duncan (“Follow the Footnote of the Advocate as Historian of Same-sex marriage” 47 CAth. U. L. Rev 1271,1273,1274) 56 Inge Lauw “Recognition of Same-Sex Marriage-Time For Change” http://www.murdoch.edu.au/elaw/issues/v1n13/lauw131.html 57 Tavia Simmons and Martin O'Connell, 2003. "Married-Couple and Unmarried-Partner Households: 2000," Census 2000 Special Reports, U.S. Census Bureau (February): 2 (Table 1).
58 Larry Bumpass and Hsien-Hen Lu, 2000. “Trends in Cohabitation and Implications for Children’s Family Contexts in the United States,” Population Studies, 54(1): 29-41, 34 (Table 4).
A balanced and knowledgeable view of appropriate social science
evidence held in the local legal context;
An appreciation for and in depth understanding of the cultural,
religious and societal significance of the current institution of
marriage in this country;
A thorough understanding of the bill of rights issues involved; and
most importantly
A deep commitment to the ideals of democracy relating to
principled pluralism.
V. Conclusion: Why is marriage normatively and descriptively a requirement in South African Society
In summary, what we are clearly articulating is the fact that legislation cannot be drafted by the State in a vacuum without an understanding of the nature of the institution of marriage, and the various models that are understood by particular segments of society. Furthermore, our argument is that the appropriate role of the State is to choose to subscribe to a particular model of marriage. Furthermore, we argue that subscribing to a particular model must be based on certain objective facts; amongst them being our western social pluralist tradition, the understanding of the role of civil society and the social institution of marriage, the understanding of the interrelationship between civil society and the liberal state, a fidelity to our African understanding of community and culture, and last but not least, a fidelity to the normative and descriptive realities of South African society.
We assert that adherence to the objective factors stated above normatively and descriptively means that the State has no option but to protect, promote and affirm the traditional model of the heterosexual institution of marriage.
The corollary to that would be that in adherence to the judgment of the Court, the State obligation is to draft alternative legislation that protects and defines the nature of homosexual couple relationships.
Our primary concerns and objection to the present bill are based on the fact that the Bill, although drafted as a parallel piece of legislation, effectively dramatically alters the institution of marriage.
Furthermore, we assert that this altering of the institution has been done in an unprincipled manner by the drafters and has not remained true to the Constitutional Court’s directives. What the drafters have merely done is draft legislation which is parallel to the Marriage Act (in an attempt to appease religious persons) but in doing so have in fact redefined marriage without a proper basis.
Furthermore, part of the Court’s directive is that the State was to not create a system which mimics the principles of ‘separate but equal’. This is what this Bill in effect does.
What is therefore lacking, and what has always been lacking is a thorough investigation by the executive and Parliament of the nature of the institution of marriage, its place and context in SA society, and the why and whether of arguments for normatively maintaining it.
What is also lacking is a detailed social study of the challenges that peculiarly face homosexuals in order to ascertain what kind of a parallel institution would be appropriate for them.
At the risk of flogging a dead horse, we reassert the fact that this Bill, with all due respect, is nothing more than a cut and paste job which has ramifications of unconstitutionality on many angles.
PART III: THE CIVIL UNION BILL
Particular Substantive Issues
I. Chapter 1 – Definitions
1(d) (ii) states that a child of a domestic partnership includes any child that was dependent on the partner “if at that time the domestic partners had not ceased to live together at the time immediately before an application under the Act”.
The words immediately before make it unclear as to whether this means that the Act will have retrospective effect. If so, what is the degree of retrospective application? Is there a cut off date?
A similar issue of retrospective application is further raised by the definition of “domestic partner” and “domestic partnership”, the former which is said to mean “a partner in a domestic partnership and includes a former domestic partner” and the latter which is said to mean “a registered domestic partnership or unregistered domestic partnership and includes a former domestic partnership.” What are the legal implications of the word “former”?
Definition of Civil Union- is said to include a civil partnership or a domestic partnership. There is no mention of the word civil union in the Bill. However, this definition gives the implication that domestic partnerships (of both homosexual and heterosexual couples) are civil unions. Is this true?
Definition of “contribution” in terms of the Occupational Injuries Act, 1993 – the domestic partners are, in terms of the Bill, divided into registered and unregistered partners. The former have the obligation of a duty of support (S21) and the latter do not (S39). Furthermore, the legal consequences in both partnerships with regard to separate versus joint property is different. However, this definition of contribution seems to not draw a clear distinction between the two types of domestic partnerships, and the individual versus joint property. This is clearly arguably unconstitutional as it prima facie (presumptively) burdens defendants who are sued in terms of the Act.
Definition of “family home” – seems to be a bit of an anomaly. Includes the dwelling place used by one of the partners. How can this be as a domestic partnership is by definition characterised by the fact that the partners are presumably living together?
Definition of “financial resources” – seems to touch on the property of unregistered domestic partnerships. How can this be as, in terms of S39, they do not owe each other a duty of support? Also seems to automatically place individual resources
within the ambit of the other partner’s control. This prima facie creates greater rights for these partners in law
Definition of “household goods” –like the definition of financial resources, this definition seems to give domestic partners rights which are greater in law than those of other relationships
Definition of “separate property” seems to be a bit of an anomaly in the context of the above queried definitions
Definition of “couple” – does not clearly provide for partners in intimate relationships
Note – there is no definition of “Marriage” or of “Spouse” yet these terms, which have a fixed legal meaning, are arguably redefined by the Bill.
II. Chapter 2 – Civil Partnerships
a) Section 2 - Objectives of the chapter seem to counter the formula in S11 as the formula provides for marriage
b) Section 4 – there is no specific age provision, merely a reference to adult, which for the purposes of the law, means difference things in difference situations
c) Section 6 – places the burden on every presently registered Marriage Officer to apply to the Minister for an exemption. This unconstitutionally burdens them
d) Section 8 – provides the gays and lesbians with a further option of a civil partnership. This arguably “gives more” to them. Furthermore, it does not make mention of gays in domestic partnerships. How are these persons to be treated in the context of civil partnerships?
e) Section 8 (5) – this section seems unclear as it provides for persons who would, but for the fact that they are persons of the same-sex not be prohibited to marry; however, S11, seems to allow them to marry
f) Section 9 – Attempts to mimic the Marriage Act but the provision is not realistic
g) Section 11 – formula – objections to the use of the word Marriage as this is inconsistent with the aims of the bill. Redefinition of the word spouse without a proper redefinition as this word has a fixed meaning in the common law and in the Constitutional Court case law. This is a classic case of the inconsistency and slapdash approach of trying to appease the religious groups by not using the Marriage Act, yet at the same time trying to appease the gays and lesbian by taking words, in isolation and ultra vires, from the Marriage Act.
h) Section 13 – Legal Consequences – in the first Constitutional Court Fourie case the Court stated that there are 44 pieces of legislation that are affected by the institution of marriage and the definition of the word “spouse”. At the hearing of the second Fourie case, O’Regan J particularly stressed the issue relating to children. One has to return to the seemingly circular but important and distinctive argument of procreation. That is, a prima facie analysis of the relevant legislation relating to children is particularly geared to biological parents, and in the absence thereof, adoptive parents. Are partners of partners
who have children in a gay relationship going to be automatically presumed to
be the biological parents? If so, how, and if not, does this not have an impact
on their constitutional claims? If so, what will happen on termination of the
partnership? Does “the other” parent remain as the parent? How does this
practically affect particular provisions, in, for example, Children’s Act,
Children;s Status Act, Child Care Act etc?
The simple point that we are trying to illustrate in this context is that the 44
pieces of legislation cannot all simplistically apply mutatis mutandis to gays
and lesbians couples. That being the case it begs the question of what
appropriate prior process should have been engaged in so as to ascertain the
level of policy and semantic alteration that is needed to the relevant affected
laws.
i) Section 13 – particular affect on Customary Marriages – the Customary
Marriages Act is not provided for as one of the pieces of legislation that falls
outside of the ambit of this law. This then begs the extremely complex
question of the interrelationship between this law and the Act, once again
pointing to the obvious fact which has been already stated above – there
should have been proper prior research on affected pieces of legislation in
order to ascertain issues of effect and interrelationship.
Should the Committee decide to simply amend this portion by stating that the
Customary Marriages Act falls outside of the scope and ambit, this would then
automatically beg the question of what one does with same-sex partners who
are in customary marriages (as the latter can also be unregistered)
j) Section 13 – definition of husband/wife or spouse is said to include a civil
partner – once again this highlights the anomaly with regard to definitions in
the context of the Marriage Act. As the definition of spouse is traditionally only
found in the common law, does this mean that the words spouse and marriage
have been changed? If so, why the production of a semantics alternative piece
of legislation?
k) No clear provision for termination – the only inference is that civil partnerships
will be terminated by divorce proceedings. It this true, and if so, what is the
difference between the civil partnerships and the gay marriages as provided for
in the formula in S11?
III. Chapter 3 – Domestic Partnerships
a) Section 16 – What if someone is arguably in an unregistered domestic
partnership as well as a registered one?
b) Age determination?
c) Section 19 (1) – this provision seems to be in violation of other provisions
which place the property of the domestic partner within the ambit of the other –
seems to be potentially a weak attempt to draw distinctions between the
various “regimes”
d) Section 19 (2) – Section 34 is arguably trying to regulate what is already in the
common law. This does not help and it actually defeats the purpose as it, i) in
a manner of speaking it limits the enquiry, ii) states what the courts would in
any event look at. This point goes back to the section 19 (1) point of an
Page 35 of 40
attempt to distinguish between the various regimes without really deciding on
what the difference must be.
e) Section 19 (3) – Reiterates previous points as the registration of the agreement
is optional
f) Section 20 – there is no substantive provision of what should be in the
domestic partnership agreement, that is, the content. What is the point then,
and what should these partnerships regulate? Furthermore, what if what is
regulated by the partnership is in violation of certain provisions of the Bill, for
example, division of property issues?
g) Section 22 – seems redundant as you would ordinarily be joint signatories over
joint property
h) Section 23 (2) – seems to give more legal rights to domestic partners as this is
not a provision that is automatic for marriages and civil partnerships. The
question of burden and constitutionality arises
i) Section 25 – What if one partner does not want to terminate the agreement?
Like section 22, this provision creates burdens in law
j) Section 29 – What if a child is born to one parent in a same-sex relationship?
Does the other partner have rights? Furthermore, this provision seems to
strengthen our initial arguments about the optimal rights and responsibilities of
biological parents and the need to protect them.
k) Section 31 – this determination is in violation of the Constitutional Court
decision in Volks
l) Section 36 – Why this burden?
IV. Chapter 6 – Unregistered domestic partnerships
a) No age requirements, no time frames within which two people must have lived
together
b) Section 38(3) – seems to contradict Section 38(2) – what the basis of this
finding
c) Section 38 (4) – reference to a civil marriage – what is this? Does it mean civil
unions or civil partnerships? In any event, there is no definition of this term and
it does not seem to make sense
d) Section 39 & 40 – these clauses are clearly contradictory. Unregistered
partners are under no duty to support each other during the partnership but are
under an obligation to support each other on the dissolution of the partnership.
This once again seems to be an attempt to draw a distinction between the
regimes without clearly thinking through the consequences.
Page 36 of 40
General Substantive Concerns
Nature of Marriage
As previously stated, the fundamental flaw of the Bill (and its SALRC research document) is that it does not really grapple with the nature of the institution of marriage.
Nature of an Institution that is appropriate for Gays and Lesbians
As further previously stated, the application of all legislation mutatis mutandis does not seem to make sense; in particular with regard to the children – this clearly shows that the executive has not applied its mind properly to the question of the legislative regime that is appropriate for gays and lesbians, hence this convoluted piece of legislation
Creates a system that gives less to all
Secondly, it creates a buffet of legislative options which ultimately arguably devalue the institution of marriage. That is, it creates a system that gives less to all, in violation of the Constitutional Court requirement, which specifically stated that the responsibility of Parliament is that it must not end up with the creation of a regime that gives less to all.
Cohabitation anomaly
Base research for this is flawed as it was not qualitative and quantitive – refer to Volks judgment which refuted this research. Thus a finding for the legalization of domestic partnerships, registered as well as unregistered has no social science data as a basis; and is counter to Constitutional Court principles.
Procedural Issues
This defect is two Fold:
I. Lack of fulfilment of the principles stated in Doctors for life International V the Speaker of the National Assembly and Others:
“I believe that it would be gravely unjust to suggest that the attention the Constitutional Assembly dedicated to promoting public involvement in lawmaking represented little more than a rhetorical constitutional flourish on its part. ….The principle of consultation and involvement has become a distinctive part of our national ethos. It is this ethos that informs a well-defined normative constitutional structure in terms of which the present matter falls to be decided.
…Accountability of Parliament to the public is directly achieved through regular general elections. Furthermore, we live in an open and democratic society in which everyone is free to criticise acts and failures of government at all stages of the legislative process. Yet the Constitution envisages something more.
True to the manner in which it itself was sired, the Constitution predicates and incorporates within its vision the existence of a permanently engaged citizenry alerted to and involved with all legislative programmes. The people have more than the right to vote in periodical elections, fundamental though that is. And more, it is guaranteed to them that the opportunity to object to legislation before and after it is passed, and to criticise it from the sidelines while it is being adopted. They are accorded the right on an ongoing basis and in a very
direct manner, to be (and to feel themselves to be) involved in the actual processes of law-making. Elections are of necessity periodical. Accountability, responsiveness and openness, on the other hand, are by their very nature ubiquitous and timeless. They are constants of our democracy, to be ceaselessly asserted in relation to ongoing legislative and other activities of government. Thus it would be a travesty of our Constitution to treat democracy as going into a deep sleep after elections, only to be kissed back to short spells of life every five years.
Although in other countries nods in the direction of participatory democracy may serve as hallmarks of good government in a political sense, in our country active and ongoing public involvement is a requirement of constitutional government in a legal sense. It is not just a matter of legislative etiquette or good governmental manners. It is one of constitutional obligation.
A vibrant democracy has a qualitative and not just a quantitative dimension. Dialogue and deliberation go hand in hand. This is part of the tolerance and civility that characterize the respect for diversity the Constitution demands. Indeed, public involvement may be of special importance for those whose strongly-held views have to cede to majority opinion in the legislature. Minority groups should feel that even if their concerns are not strongly represented, they continue to be part of the body politic with the full civic dignity that goes with citizenship in a constitutional democracy. Public involvement will also be of particular significance for members of groups that have been the victims of processes of historical silencing. It is constitutive of their dignity as citizens today that they not only have a chance to speak, but also enjoy the assurance that they will be listened to. This would be of special relevance for those who may feel politically disadvantaged at present because they lack higher education, access to resources and strong political connections. Public involvement accordingly strengthens rather than undermines formal democracy, by responding to and negating some of its functional deficits.
A long-standing, deeply entrenched and constantly evolving principle of our society has accordingly been subsumed into our constitutional order. It envisages an active, participatory democracy. All parties interested in legislation should feel that they have been given a real opportunity to have their say, that they are taken seriously as citizens and that their views matter and will receive due consideration at the moments when they could possibly influence decisions in a meaningful fashion. The objective is both symbolical and practical: the persons concerned must be manifestly shown the respect due to them as concerned citizens, and the legislators must have the benefit of all inputs that will enable them to produce the best possible laws. An appropriate degree of principled yet flexible give-and-take will therefore enrich the quality of our democracy, help sustain its robust deliberative character and, by promoting a sense of inclusion in the national polity, promote the achievement of the goals of transformation. “
Simply put, taking into consideration the Constitutional Court’s requirements for public consultation, the manner in which the legislation has been referred to the Provinces, places doubts as to the fulfillment of the Courts requirements. In fact, we can uncategorically state that the requirements have not been fulfilled. Should the State wish to argue that the consultation process was engaged in by the Law Reform Commission, we would bring it to their attention that at the last public meeting in Pretoria (roughly October 2004); the main point raised was that the Commission needs to go back to the people as the requirements for public consultation were not fulfilled. Furthermore, we refer the Committee to our analysis of the errors and inconsistencies in the SALRC document.
II. Lack of Consultation with the House of Traditional Leaders as per the direct in terms of Section 18 (1) of the Traditional Leadership and Governance Framework Act 41 of 2003.
As Customary Marriages are not excluded from the ambit of the Act, the House of Traditional Leaders should have been appropriately consulted.
PART IV: PROPOSED AMENDMENTS AND THE WAY FORWARD
I. Amendments
It is difficult for the CLA to propose amendments as there are many problems with the Bill. Furthermore, certain amendments in the context of the above stated problems would necessitate that a policy decision be made on the appropriate route to follow. For example: how are these regimes to differ and why? In particular, how are civil unions to be different from marriages? Which laws can apply mutatis mutandis and which cannot? How will the regime of children be regulated?
We would thus request that the Committee analyse the sections that we have particularly referred to and if possible within the timeframes, obtain policy directives and make necessary amendments to the legislation.
II. Way Forward
As we have been at ad nausea to point out, the Bill does not answer the fundamental questions that must be looked at in order to address the issue of justice for all, and balancing of the interests of the different spheres of society. This is what the judgment of the Court called out for, and in doing so, gave the executive and the legislature, the very difficult task of deeply engaging with this issue at all levels. This, with all due respect, has thus far not been properly done by government.
Fulfilling this task entails honesty and objectivity with regard to the fact that present proposals of SALRC are unsuitable as a basis for satisfying the Court’s requirements of balancing and providing justice for all. Furthermore, the Bill as drafted, most certainly is unconstitutional.
With regard to the issue of public consultations, Parliament is clearly unable to properly fulfill these criteria within the present time frames.
The CLA therefore believes that the only appropriate route to follow is for Parliament to make an urgent application to the Constitutional Court, requesting for an extension. Indeed, we believe that in light of the overwhelming public opposition to the Bill, and government’s present inability to provide legislation that fulfills the criteria of the Constitutional Court, principles of democracy and accountability, which are the foundations of the new South Africa, dictate that Parliament “do the right thing” by truly engaging with this matter, instead of providing a quick fix solution that is unsatisfactory to all.
It is in this context that a further supplementary document should be drafted and complimentarily used as a basis for government’s final decision.
This document should look at: /end.
The nature of different forms of social relationships. What constitutes
them and what proper and appropriate legal and proprietary
consequences should flow from them – this should coincide with an
analysis of the various forms of legislation that are potentially affected;
A true and detailed analysis of the institution of marriage as a social
institution in the context of, where appropriate and certainly necessary,
using SA detailed data of society’s understanding/ bona mores;
An analysis of African culture; tradition, legal norms and its role in this
particular form of jurisprudential development;
Where appropriate, a detailed analysis of some of the premises of the
Court’s judgment and a response to those directives that potentially do
not make legal practical sense in this context;
SA focused social science and other data that is both qualitative and
quantitative;
An objective analysis of facts and issues which is not based on principles
of inherent bias; etc
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