Defend Marriage

PLEASE REMEMBER 3RD DECEMBER AS 'SANCTITY OF MARRIAGE SUNDAY'

2006-11-24T03:57:00.001-08:00

'Defend Marriage' is asking all churches to observe the first Sunday in
December as Sanctity of Marriage Sunday. So-called 'Same-sex marriage' is
due to become recognised by South African law on 1st December 2006 to fulfil
the judgement of the Constitutional Court made on 1st December 2005. This
threatens to seriously undermine respect for the Sanctity of Marriage in
South Africa. Respect for marriage is also under attack from numerous other
social sins.

All churches are asked to include in their service a prayer and scripture
reading to promote the Sanctity of Marriage.

This year 'Sanctity of Marriage Sunday' will be on 3rd December 2006.

PLEASE PRAY FOR:
* God to protect and strengthen marriages and protect moral purity in our
church.
* God to protect Christians and other moral people against persecution by
homosexual activists.

Pray for those in authority (1 Timothy 2:1-12):
* Parliament to pass a Constitutional Amendment to protect marriage.
* The Constitutional Court to reverse their decision to recognise 'same-sex
marriage'.
* Against a the proposed 'Domestic partnerships' Bill to recognise couples
living together.
* Home Affairs officials to stand strong against same-sex marriage.

We also need to repent of:
* Our national sins undermining marriage, such as recognising so-called
'same-sex marriage'; 'homosexual rights'; legal pornography and tolerance of
the sex industry; and past migrant labour practices.
* Our personal sins, such as failure to speak up against disrespect for
sexual purity and marriage and compromise in entertainment choices,
relationships and marriages that undermine marriage.

PLEASE READ SCRIPTURES IN CHURCH SUCH AS:
Jesus said "But at the beginning of creation God made them male and female.'
`For this reason a man will leave his father and mother and be united to his
wife, and the two will become one flesh.' So they are no longer two, but
one. Therefore what God has joined together, let man not separate." (Mark
10:6-9).

"In the same way the men also abandoned natural relations with women and
were inflamed with lust for one another. Men committed indecent acts with
other men, and received in themselves the due penalty for their perversion."
(Romans 1:27)

For more information please go to http://defendmarriage.blogspot.com/ and
www.defendmarriage.co.za
* Please could you forward this email to your pastor and encourage your church
to participate. Possibly offer to do the scripture reading and lead the
prayer yourself.
* Please forward this email to your friends or organisations' email list and
include in your newsletter.
* If your church or organisation is supporting and participating in Sanctity
of Marriage Sunday, please send an email to info@defendmarriage.co.za let us
know.

Yours sincerely,

Philip Rosenthal

Submissions to the National Council of Provinces

2006-11-20T02:39:00.001-08:00

The Select Committee on Social Services of the National Council of provinces
(NCOP) will be conducting public hearings on Civil Union Bill [B26B-2006] on
23-24 November 2006 at Parliament.

The bill is also accessible here:
http://www.pmg.org.za/bills/061109B26b-06.pdf

The Committee would like to assess how the legislation would impact on
various communities in the Provinces.

Written comments and contribution to the bill are requested from
stakeholders, civil society and the public.

The closing date is 24 November 2006 at 16:00.

Those who wish to make oral presentations to the Committee should contact
the Secretary.

Enquiries and submission should be addressed to: Mr Arico Kotze (Committee
Secretary), add: Parliament of RSA, PO Box 15, Cape Town 8000, tel: (021)
4083-3662, fax: (021) 403 2808 or email: aktze@parliament.gov.za

Record of Civil Union Bill debate

2006-11-20T01:53:00.000-08:00

UNREVISED HANSARD
NATIONAL ASSEMBLY
Tuesday, 14 November 2006

The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY
CIVIL UNION BILL
(Second Reading debate)
The DEPUTY SPEAKER: Hon Minister, just before you address the House, while we welcome the public to the gallery it must be remembered that this Chamber is a forum for debate by Members of Parliament only. We are not going to allow participation of the members of the public by clapping. Thank you very much, and be good guests to the Assembly.
The MINISTER OF HOME AFFAIRS: Thank you, Madam Deputy Speaker.
Hon members, colleagues and friends, today we present for the consideration of this House the Civil Union Bill of 2006 after an elaborate process of public consultation and debate in this country.
The process of debate on this Bill has been rigorous. The extensive media coverage on the debate on the Bill has resulted in the debate continuing in our homes, workplaces and communities throughout our country. One thing that came out of the debate has been an indication that people in all sections of our society feel very strongly about the issues being dealt with in this Bill.
This dialogue is by no means over, and we continue to engage each other on these matters in a constructive way in order to lead South Africans towards the kind of society that we all fought for, as embodied within our Constitution.
For this reason, we are expecting robust debate even during this second reading debate here in the House. I must also indicate that we have already noted the changes made by the Portfolio Committee on Home Affairs to the original Bill. Understanding the difficulties which they were faced with, we have decided to support those changes.
The challenge that we shall continue to face has to do with the fact that when we attained our democracy, we sought to distinguish ourselves from an unjust painful past by declaring that:
Never again shall it be that any South African will be discriminated against on the basis of colour, creed, culture and sex.
This House, in passing the Constitution in 1996, recognised the fact that our nation’s commitment to this noble principle of equality should be the cornerstone of the society we want to build. In breaking with our past, therefore, we need to fight and resist all forms of discrimination and prejudice, including homophobia.
Mr M WATERS: Why have two Bill?
The MINISTER OF HOME AFFAIRS: We should also condemn violence. Why don’t you wait for me to finish? Then you can raise your issues. [Interjections.] Just be quiet, man!
We also condemn violence against same-sex couples, fuelled by hatred, as recently observed here at home and in other countries. This commitment to our Constitution and in particular the principles of human dignity, equality and freedom of religion informed the drafting and refinement of this Bill.
The opening clause of the Bill of Rights reaffirms this view for us, and I will quote again here:
This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
As far back as 1996, government itself recognised that the legal regime that regulates marriage in our country needs to be realigned with constitutional principles. It is for this reason that the Law Reform Commission started work on the review of the marriage legislation in the country. However, during that process, the definition of marriage in our current law faced a challenge within our courts. The Constitutional Court, in the matter of Minister of Home Affairs v Fourie, and Lesbian and Gay Equality Project and Others v Minister of Home Affairs, 2006, declared that the definition of marriage under common law and the marriage formula as set out in section 30(1) of the Marriage Act of 1961 were inconsistent with the Constitution, and invalid to the extent that they failed to provide the means whereby same-sex couples could enjoy the status and the benefits, coupled with the responsibilities, that marriage accorded to heterosexual couples.
The court ordered Parliament to correct these defects in the law by 1 December 2006, failing which section 30(1) of the Marriage Act will be read as including the words ``or spouse’’ after the words ``or husband’’. This current Bill was drafted in response to the court’s judgment in the Fourie case.
The court, while noting that ``equal’’ does not mean ``identical’’, ruled that while it could not pronounce on the constitutionality of it, it would be helpful to point to certain guiding constitutional principles.
In terms of the first principle, the objectives of the new measure must be to promote, one, human dignity, the achievement of equality, and the advancement of human rights and freedoms. The second guiding principle states that, and I quote:
Parliament must be sensitive to the need to avoid a remedy that, on the face of it, would provide equal protection, but would do so in a manner that is calculated to reproduce new forms of marginalisation.
Whatever legislative remedy is chosen must be as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of intangibles as well as tangibles involved.
The Civil Union Bill presently before this House indeed provides such a remedy. The objects of the Civil Union Bill are to provide for the public solemnation and registration of civil union by way of either a marriage or civil partnership, and to provide for the legal consequences thereof.
As noted in the memorandum on the objects of the Bill, the Bill makes provision for opposite and same-sex couples of 18 years or older to solemnise and register a voluntary union by way of either a marriage or a civil partnership. Care has been taken to ensure that a distinction is drawn between the responsibilities of the state and the church, as section 15(3) of the Constitution is indicative of sensitivity in favour of acknowledging diversity in matters of marriage. The Bill provides for same-sex couples to be married by civil marriage officers and such religious marriage officers who consider such marriages not to fall outside the tenets of their religion.
In order to give effect to the Constitutional Court ruling, same-sex couples have to be allowed to marry so that they can enjoy the status, obligations and entitlements enjoyed at the moment by opposite-sex couples.
The Bill allows for both same-sex and opposite-sex couples to choose the option of having their unions solemnised and registered as a civil partnership by a state-employed marriage officer.
We’ve decided to reject the calls to amend the Constitution. Whilst we understand that the Constitution can be amended from time to time to deal with practical arrangements, we are cautious of an amendment to the Bill of Rights, as it is the bedrock on which our Constitution and our democracy is based.
We also do not share the current view amongst others in our society that in order to recognise one of the rights in our Constitution, you need to take away another. Our Constitution clearly makes room for the right of people to be treated equally without a hierarchy including, as it is in this case, a situation where those rights are for a minority in our country.
The consultation process in the public has been extensive, with the Portfolio Committee on Home Affairs conducting public hearings in all nine provinces and in Parliament. The Constitutional Court itself also noted that the process of the Law Reform Commission has also ensured extensive consultation.
This process of law reform, particularly with regard to the changing concept of family law in our society, remains an issue for further engagement. We will be considering the recognition of religious marriages, revision of the Marriage Act of 1961, and of course, the regulation of domestic partnerships.
I must thank all members of the portfolio committee, its chairperson, Comrade Hlomane Chauke and the different study groups of the different parties represented in the committee for all the hard work they put in finalising this Bill.
I am aware that you have spent a lot of time away from your families as a result of this work. You’ve engaged extensively with the public. You’ve listened carefully to many, many divergent views, and you’ve presented this House with a Bill that is consistent with the principles of our Constitution, and the guidelines set out by the Constitutional Court almost a year ago. If you did not engage as robustly as you did in representing these views, you would have failed in your duties as public representatives.
It is very important for members to appreciate that within the three spheres of government, Parliament should continue to be the one bearing the responsibility to pass legislation and not have the consequences of the judiciary performing this function on behalf of the legislature.
The principle of separation of powers therefore needs to be protected, and it is for this reason that we have chosen to adhere to the directive of the Constitutional Court, and not allow the Court itself to amend a piece of legislation.
The dynamic interface and respect for the different roles of the three spheres of governance will be a reflection of a healthy democracy.
Hon members, I present to you for your consideration the Civil Union Bill of 2006. Thank you very much. [Applause.]
Mr H P CHAUKE / END OF TAKE
THE MINISTER OF HOME AFFAIRS
Mr H P CHAUKE: Madam Deputy Speaker, it has really been a task and a half. On behalf of the portfolio committee, I think there is nothing much to be said today because we have managed to listen and to engage with the public on the Bill that has been tabled before Parliament.
Let me start by taking this opportunity to outline the manner in which we have handled this Bill and that is that, when the Bill was tabled before Parliament, there were problems already around the constitutionality of the Bill. As we all know, the state law advisor found that there are problems within the Bill on which he could not give a clear report to Parliament on the constitutionality of the Bill with a number of recommendations that he made.
By the time the Bill was tabled before the committee jointly by our Minister and the Deputy Minister of Justice, the portfolio committee did its own assessment of the work and the challenge before the committee. We then decided, after listening to the presentation, that it would be necessary, since this matter is one of the most sensitive matters - because even the court itself found that this matter needs to be handled in a sensitive manner - and we made sure that we moved along with the people in dealing with the matter.
We then decided as a committee that we should embark on a programme of public hearings. It’s normal procedure that on any Bill that is before Parliament, we will have to have public hearings but we then extended the hearings to go around the country because of our understanding of the nature and the sensitivity of the matter that was before the committee.
The first hearings were held in Soweto where we invited the residents and people generally of Gauteng, who came in their numbers to participate and to engage robustly with Parliament. They raised their concerns around the issues that we were placing before them, and those hearings continued in all the provinces, to cut matters short.
What I want to raise is that during public participation at the public hearings, there were a number of issues that were raised that came out of the public hearings. One of the issues that came out was the issue of amending the Constitution. There was this general call that sort of rejected what we wanted to do as Parliament, especially looking at the Bill itself that its something that the public will not accept - that we should solemnise marriages of same-sex couples. Then there was this call that said protect the marriage and amend the Constitution so as not to allow these marriages to take place.
The second view that came out of the public hearing was that of having a referendum. This was simply to say that there is a need to test the will of the people on what we want to do as government, and the majority of the people, because this was informed by the notion that says we reject, we don’t agree, we don’t support what government wants to do, and let us call for a referendum to test the will of the people. That was the view that was coming generally from the public.
The third thing that came out very strongly was that the Bill itself in it has a component that dealt with the issue of a civil union and the issue of domestic partnership. The majority of the people again felt that the issue of domestic partnership sort of interfered with customary marriage and that it interfered generally with any relationship because what it was saying was that, like any relationship that you get into, it may be a registered or non-registered relationship, but automatically you would sort of be covered by the law. Most of the people felt very strongly that it was not necessary for us to engage on that matter, especially a matter which was not quite urgent. We should have put it aside and begin a process so that we can begin to engage with the public again.
What was coming across, however, was the fourth point which was the time allocated for Parliament to handle this matter because, generally, the public felt very strongly about the time given to Parliament. The court in its ruling said that it would give Parliament one year to come up with the remedy to deal with this problem. So people felt very strongly that there was a need in fact to have more time so as to allow more debate around the issue which is before us.
The last point obviously was the usage of the word “marriage” in the Bill. People felt very strongly that, whatever it is that we want to do, we should not use the word ``marriage’’. You know that there were a number of organisations and churches that marched to send their memorandums, who sent a number of submissions that were talking about the usage of the word “marriage” itself. Other speakers will come who will open that part as to why we have opted to have ``marriage’’ in the Bill. Speakers who will come after me will raise those issues.
So I think, generally, the approach which we took as Parliament was to recognise the very fact that whatever we do, we are guided by the Constitution. These rights that we talk about are not rights that are made by the ANC somewhere in the corner there. These rights are the rights that we ourselves, who have participated in compiling this wonderful document that we call the Constitution of South Africa which we all pride ourselves on, entrenched in it. These rights are rights that you cannot take away. That is the manner in which we approached these public hearings ourselves. We explained these rights to the people. In fact, we mostly found that people understand the Constitution more than some of you sitting in the Chamber here.
The biggest challenge obviously that is facing us is that we have to make sure that we meet the Constitutional Court judgment and, given the manner in which the Minister has elaborated on these issues, we have tried in fact to respond to that Constitutional Court judgment. We have removed the domestic partnership, as the people have said. We have looked at the Bill itself and said that to make it only for a specific group of people will not be correct. Why can’t we open this Bill to allow not only same-sex partners but also each and every one? Mncwango, if you want to decide and go to another extension of same-sex marriage, you may. [Interjections.]
The SPEAKER: It’s hon Mncwango.
Mr H P CHAUKE: You may obviously use the Bill and make sure that those rights or marriages are solemnised. I am saying that it’s a challenge that we have to take up as a country. There are still marriages that are not yet even covered, and this Bill sort of begins to attempt to cover some of the areas - Hindu marriages, Muslim marriages. There are a number of marriages that are still not yet covered.
Now that is the challenge, and that’s what we have agreed upon in the committee that we still need to sit and look at some of these areas because there will be a need to look at the general law that governs marriages as a state. The part of the celebration of weddings and all of that is not done by the state but is done by formations, organisations and individuals who decide how they want to celebrate their marriage at the end. That is not the responsibility of the state.
What you then found during these public hearings was that the majority of these people who said don’t use the word “ marriage” were from the church formations, but the church formations themselves were very divided. You get the SA Council of Churches coming forward to say, ``We come from the SA Council of Churches and our position on this Bill is that we don’t support it. We don’t support the fact that a man must marry another man or a woman must marry another woman.’’ Throughout as we moved around the provinces and you come to Parliament here with public hearings, the same applies. The SA Council of Churches comes in and says,``You know, those that claim they were representing the SA Council of Churches were lying. Here is the position of the SA Council of Churches. The SA Council of Churches’ position is that we agree that same-sex couples should be given a opportunity to marry.’’
Now it was very clear in fact from the beginning that we have this problem of church formations being very divided in fact on handling the issue that we were dealing with. That in itself obviously wouldn’t hinder the progress that we had to make as a committee but there are other presentations that came forward, for example, from the House of Traditional Leaders. All of them were talking about amending the Constitution. How then do you give this right and tomorrow, because you feel very strongly that you don’t agree with this thing, you then say, amend the Constitution not to give that right? I think it’s a challenge that all of us, when we speak here, must be able to respond to. We must be able to respond to the right that we have given to this individual, this minority, that we are so fearful that they will come in and change the whole marriage system in the country.
I think we should engage on this for us to understand where our standpoint is, because in our deliberation as a committee, having met with almost every single top lawyer in this country, every single constitutional expert that we have met in the committee sort of agreed with us that there is no way that you can move away from the rights of these individuals because it’s entrenched in the Constitution. You cannot run away. It’s something that is given and its something that we have to live with. [Interjections.] So obviously, you gave it; you were part of the Constitution-making process and you were part of the drafting of the Constitution. When we adopted that Constitution, all of us stood there - there is a nice picture that you can see outside there, showing you are there - confirming that we are part, we will respect and uphold the supreme law of the country which is the Constitution.
Without any waste of time, I want to take this opportunity to thank the Department of Home Affairs, the legal team, the Minister for giving that leadership, state law advisor and the parliamentary advisors, and to thank Parliament generally on the support it has given to the portfolio committee. It was not an easy thing for us to have got the resources that were given, the transport arrangements as well as food and everything that was put together in making sure that, in the law-making process, we move along with our people. It is very important.
People have spoken on this issue, and the more we speak about this issue, the more people begin to understand it - that it is something you cannot take away. On that note, I really want to thank members of the committee who really gave of their best - from the DA, IFP, ACDP and everybody, in fact - in making sure that we listened to the people and came up with whatever that we have come up with, which is a Bill we believe will pass constitutional muster. The argument has been that this Bill will not pass constitutional muster but we believe that the work that was done by this committee confirms that this Bill will go through the Constitutional Court. In its findings, if it finds that this Bill is not constitutional, obviously, there will be a particular process that we must engage on with Parliament. [Interjections.] No, there is nothing wrong with doing that. It can be done all over again, but we have a responsibility as lawmakers, and we cannot run away from our responsibility. If the Constitutional Court finds that whatever we have made is still lacking, we will come back to Parliament again and engage and resolve whatever it is that is not in line with the constitutional requirements to make sure that these individuals that we want to cover are covered.
I know that, from the opposition, some of them have already declared their position very clearly, and we will support you. We will make sure that if you want to be unionised, you will be unionised. If you want to get married, we will make sure that you get married. That is our responsibility. As you go out as Members of Parliament, go and preach one gospel: These rights are rightly given and are rights that you cannot take away.
We will still listen to the debate and we will still want to engage more on these issues as you speak. Thank you very much, and thank you very much members on that point. [Applause.]
Mrs S V KALYAN / END OF TAKE / SS
Mr H P CHAUKE
Mrs S V KALYAN: Deputy Speaker, Parliament is doing something unique today by passing the Civil Union Bill. It is following an order by the Constitutional Court to create legislation to remedy a defect in the Constitution of our country, whereby same-sex couples are prohibited from enjoying the same status, entitlements and responsibilities accorded to heterosexual couples through marriage.
Normally, Parliament passes legislation in keeping with the Constitution. Today is different because we are amending an Act of Parliament, which is unconstitutional. We were given a whole year to effect this legislation, but with the deadline almost upon us, the Department of Home Affairs suddenly tabled the Civil Union Bill as a response to the Fourie judgment in the second week of September 2006.
The original Bill tabled allowed for the civil union between same-sex couples and, although there was a reference to the word “marriage” in clause 11(1), we were told by the Justice legal team that this was a mere legal nicety. The portfolio committee embarked on a series of public hearings in all nine provinces and in Parliament to gauge public opinion and sentiment on the proposed legislation.
A wide spectrum of input was received. With the exception of the NG Kerk, all faith-based organisations that presented, were totally opposed to the proposed Bill. Their main objection was that marriage could only be concluded between a man and a woman.
Many Christians, if not all, maintain that the Bible was the first constitution. Many called for the Constitution to be amended to protect marriage as a sacred institution, and some even proposed a referendum to settle the debate. Several legal opinions put forward the concept that the Civil Union Bill was unconstitutional in that same-sex couples could only conduct a union and not a marriage, and that the separate-but-equal approach would not survive a Constitutional Court appeal.
The state law adviser, in fact, refused to certify the original Bill, and even Parliament’s legal opinion was that the Bill was unconstitutional. Gay and lesbian groupings echoed the sentiment that by being allowed to have only civil unions, they were being treated as second-class citizens, and were clearly unhappy with this.
I think the Bill faced its fiercest opposition from the National House of Traditional Leaders and from Contralesa. The National House asserts that the Bill disregards the culture, customs and traditions of the majority of Africans, and thereby opposes this Bill. Contralesa regards Parliament’s task, as ordered by the Constitutional Court, to be embarrassing and divisive, and calls on Parliament to reject the Bill in its entirety.
A significant observation that emerged during the hearings is the extraordinary high level of homophobia and homoprejudice that exists in our country. While much of it is rooted in sheer ignorance, some of the views expressed were just pure vitriol and malice.
On a personal note, during the public hearings I often had to sit on my hand and bite my tongue when outrageous and often provocative antigay comments were made. I would like to applaud the gay and lesbian groupings for standing their ground, often in the face of strong opposition, mockery and sarcasm.
Five thousand eight hundred petitions, 637 written submissions and countless hearings later, we are here to vote on an amended version of the Civil Union Bill. It is quite unfortunate that the ANC pulled the amended version of this Bill out of the bottom drawer merely a day before voting in the committee. It is my considered opinion that the portfolio committee has misled the public in the hearings, because the version before us now is not the one presented during the hearings. I wonder how Judge Sachs will view the public participation clause he so expressly set out in the judgment.
The Bill in front of us today is not purely a Civil Union Bill, but is in fact a second Marriage Act, merely couched in a different name in an effort to appease both sides and arrive at a middle-of-the-road solution. The essential difference is that the Marriage Act of 1961 allows for marriage between girls and boys. The Civil Union Bill of 2006 allows for the union or a marriage between boys and boys or girls and girls or girls and boys. To put it bluntly, the straight guys have two choices in respect of marriage, and the gay guys only have one option.
Yet another significant difference is that in the Marriage Act, one has to be 21 years of age to marry, while in the Civil Union Bill the age of consent is 18 years. One wonders what Judge Albie Sachs will make of the law we have come up with and whether, in his opinion, it will pass the equality test. The removal of all reference to gender, as proposed by the DA, is indeed most welcome. Also, the exclusion of domestic partnerships in this Bill is great, because it doesn’t belong here.
It was quite interesting to note how much support there was by the ANC for the clause that refers to marriage officers who may apply to the Minister on grounds of conscience not to conduct unions or marriages for same-sex couples. This option creates space for further unnecessary discrimination, and causes offence to same-sex couples. It is quite ironic that the ANC will not allow its MPs to vote for the Bill on the grounds of conscience, and yet supports legislation to that effect.
I do have a great deal of sympathy for my colleagues in the ANC who will be forced to toe the line or face disciplinary action. Well done to those who choose to exercise their choice. Judge Sachs was indeed provocative to place a short timeframe on Parliament to enact legislation in this matter. The time we devoted to this Bill was too short, given its consequences, and adhering to a deadline is the wrong reason to pass legislation.
I was rather intrigued to read in the weekend papers a comment by the chairperson of the committee that this is an interim piece of legislation. I haven’t heard the Minister concur with this. If this is the case, then my point about rushing legislation merely to meet a deadline is indeed well made.
Parliament would do well to ask the Constitutional Court for an extension of time, so as to do justice to the task at hand and to rewrite the Marriage Act in the light of our democratic dispensation. Nevertheless, the Bill is a starting point in the right direction, but in the wrong way. The ideal is to have one Marriage Act for everyone. It is the only way to truly recognise the equality of all our people.
As a nation, we have a long way to go to eradicate discrimination on the grounds of sexual orientation. Some members of the DA are opposed in principle to the Bill as they are of the opinion that the Bill fails in terms of the equality clause of the Bill of Rights. The DA will allow a conscience and free vote on this Bill. [Applause.]
Mrs I MARS

Mrs S V KALYAN
Mrs I MARS: Madam Deputy Speaker, Minister, colleagues, the rights of equality and dignity are enshrined in our Bill of Rights contained in the 1996 Constitution of the Republic. As part of the right to equality, the Constitution holds that no one may be discriminated against based on his or her sexual orientation. In the past few years, the affirmation of this latter element of the right to equality has been the subject of numerous legal challenges in the High Court, the Supreme Court of Appeal and, ultimately, the Constitutional Court.
The Civil Union Bill is a result of a directive issued by the Constitutional Court to Parliament to rectify certain defects in our common law to give legal expression to the rights of equality and dignity.
However, the Bill before us today has, in many ways, been a headache and heartache for many South Africans. And, if the Sunday Times quoted the chairperson of the portfolio committee correctly, there is only temporary respite, as the Committee on Home Affairs would begin negotiations with “the Minister next year on a complete revision on the law on marriage, cutting the state’s role to a minimum, while ensuring that all groups and faiths are equally catered for”.
The conclusion – and the only conclusion – we can draw from this is that the whole issue is to be revisited and that, currently we are attempting to satisfy the requirement of the Constitutional Court’s judgment by 1 December. This is a duty we have.
Whether the version of the Bill before the House today will, in fact, meet the requirements of the judgment is open to debate, and one would expect that only the court would provide clarity on this matter.
The issue of major concern for us is more or less the same as that for our colleague from the DA, which is the shortness of time. The issue is so simple, because in the judgment there was a hint of the separation of the religious and the civil aspects of marriage, which should have been considered. We feel that this issue should have been opened up for more in-depth discussion. However, there was insufficient time, as mentioned by the chairperson.
I would just like to say that the course the committee took in taking this Bill to the provinces was really what I would call public consultation. The Bill was put into the hands of ordinary citizens and we did not just listen, as we often do when we have public hearings in Parliament where we hear advocacy groups presenting their cases. We heard ordinary citizens speak and they spoke extremely well, and it was amazing how informed they were.
We as a party support strong moral values and the role of the family as the foundation pillar of society. We know that many colleagues across the political spectrum share this view. This, however, does not imply contempt of the Constitution or of the judgment of the court. Last week, and only last week, the ruling party presented the latest version of this Bill that is now before us. In all honesty, we have not been able to discuss it broadly enough, again, because of the shortage of time.
It would be the understatement of the year to say that the original Bill has caused tremendous controversy on a subject that we all know is very sensitive, as the chairman said, and it should be treated accordingly. When the Portfolio Committee on Home Affairs took the Bill around the country in a comprehensive series of public hearings, it quickly became apparent that not only did it stir up emotions on all sides, it was also opposed by large sections of the communities on religious and moral grounds, as well as by the intended beneficiaries but for very different reasons.
This Bill is not supported by the IFP. I thank you. [Applause.]
Mr K W MORWAMOCHE / END OF TAKE/dhm/LB
Mrs I MARS
Mr K W MORWAMOCHE:
Sepedi:
Sepikara, Motlatša Sepikara le maloko ao a hlophegago a Ntlo ye. Tla ke thome ka gore, tšeo di boletšwego ke Phathi ya Kganetšo mo ke ditaba tša bo, “sehlaga swara, e ja tša bo Pilo”. Ke ditaba tša bo, “ba lla kae re kgone go hula”.
E re ke thome ka go tlaleletša seo se boletšwego ke Modulasetulo wa Komiti ye ya tša Selegae ka ditaba tša theeletšo phatlalatšwa moo setšhaba se bego se lebeletše go šireletša setšo, setlwaedi, sedumedi le ditokelo tša sona - se sa lebelela ditokelo tša batho bao ba sa swanego le bona e lego seo se ka se re išego felo ge re lebeletše.
Ke laetše gape gore maloko kamoka a Ntlo ye ao a lego ka mo gomme a be a eme pele ga sethala a laetša gore a tla ama ke Molaotheo wa Ntlo ye - ge lehono ba hlanoga, Motlatša Sepikara, go rata gore nke le ba senke gore naa tšeo ba bego ba di botša setšhaba ba re ba tla ama ke Molaotheo wa Ntlo ye, ba be ba rereša naa?
Go ditšhišinyo kamoka tšeo di bego di bolelwa ge go be go dirwa theeletšo phatlalatšwa, ke laeditše gore e be e le tšeo ba lebeletšego ditokelo tša bona gomme ba se ba lebelela tša bao ba sa dirego tša go swana le tša bona. E be e le ditokelo tša go swana le gore, a re fetošeng Molaotheo gomme re nyake referentamo gore re kgone go gatelela bao ba se nago ditokelo tšeo di swanetšego - e lego seo Molaotheo wa rena o sa se dumelelego. Ka Sepedi ba re: “Di tlogeleng di gole mmogo le tla di bona ka mohla wa kotulo”.
Go bile le bao ba rego hlalosang lenyalo. Lenyalo o tla le hlalosa bjang mo manyalong ao a lego gona mo Afrika Borwa. Ka lenyalo la setšo re bolela ka monna ge a nyala basadi ka dikgomo. A nyala wona “makubukgomo basadi maraga thetho”. Ge go bolelwa ka lenyalo la semolao, go bolelwa ka monna ge a nyala mosadi o tee gomme le yena mosadi a tlaleletša se re rego: “A ba tlale ba ate monapelo ga a tsebje”. Ka Sepedi ge mosadi a nyalwa ka dikgomo re re: “Moraka monna ke mpa, go apara kobo ke mabala”. Bao ba rego go nyakega gore go be le molao wa manyalo wa go swana, go tla swana bjang mola go se na tshwano mo magareng ga manyalo a? “Monna ge a palelwa ke go tia kati o re kgoro ke ye nnyane”. “Pudi ge e tšhaba go tswala e re kgwatla di a lla”.
English:
The Civil Union Bill provides for the formal and legal recognition of gay and lesbian partnerships with the same rights as conventional marriages. Among its provisions any two people aged 18 years and older may enter a civil partnership, which they may call a marriage and which will carry all the rights of a marriage under the existing Marriage Act. Partners may legally refer to each other as husband, wife, spouse or partner.
No one may be a partner in more than one civil union or marriage under either of the laws providing for marriage. Any marriage officer may solemnise a union under the Civil Union Act after its approval, but any marriage officer may record his or her objection to the law and decline to officiate the same-sex marriage. Churches may apply to have the marriage officer registered under the Civil Union Act, but none are obliged to do so. Partners wishing to marry need only produce a South African identity document or affidavit confirming their identity. Anyone who has previously been married under either law will need to produce proof of divorce or a certificate confirming the death of previous partner. There will be no calling of bans during the ceremony, but objections can be made in writing to the marriage officer before the ceremony and must be investigated.
Civil union marriages must, like traditional marriages, be conducted indoors, in a public office, house, church or wedding centre. The ceremony requires the taking of hands and is completed with a vow.
The ANC supports the Bill. Anyone who is opposing the Bill ...
Afrikaans:
... hulle kan maar lê en gaap en droom. Die ANC gaan regeer. [Tussenwerpsels.]
Mr C H F GREYLING

Mr K W MORWAMOCHE

Mr L W GREYLING: Madam Deputy Speaker, this is the tenth anniversary of our beloved Constitution. South Africans always mention with pride that ours is the most progressive constitution in the world. Unfortunately, however, the values of our society do not always match the progressive values of our Constitution.
This has been particularly evident in the public hearings on this Bill, which some people have used as a platform to express some of the most deplorable and deep-seated prejudices. It is clear that we have a long way to go before we can build a truly tolerant society where all our divisions can be bridged.
What has shocked the ID, however, has been the attitude of the ANC on this issue. Instead of showing true leadership, they chose to compromise on constitutional principles in an effort to appease both sides. Instead they have alienated both and drafted legislation that could be challenged in the Constitutional Court. In particular the clause that civil marriage offices can refuse to marry gay couples can certainly be seen to be discriminatory. Given our tragic history they should have also known that, as the South African Council of Churches stated, separate doesn’t ever mean equal. As the ID upholds the Constitution and the values therein, we are left with no choice, but to oppose the Civil Union Bill.
Rev K R J MESHOE

Mr L W GREYLING
Rev K R J MESHOE: Deputy Speaker, this I believe is the saddest day of the 12 years of our democratic Parliament when some members of this House, led by the ruling party, will be passing into law the Civil Union Bill which is opposed by the overwhelming majority of our people.
It is indeed very sad that the ANC leadership chose to support this Bill in spite of the overwhelming objections from bodies such as the Marriage Alliance representing millions of Christians, various other church and community groupings and the Congress of Traditional Leaders of South Africa. Their views have, for all intent and purposes, been ignored and rejected.
Hon Steve Swart made excellent legal submissions on behalf of the ACDP during deliberations in defence of the sanctity of traditional marriages and argued that the definition of marriage as a voluntary union between a man and a woman should be protected by a constitutional amendment. This argument was based on the fact that marriage was instituted by God Almighty and not liberals and that we value marriage and the family as a fundamental building block of society.
The ACDP, together with thousands of people and groupings that made submissions to Parliament, have consistently stated that same-sex marriages should not be legalised and that our Constitution should rather be amended to protect the sanctity of marriage as the voluntary union between a man and a woman.
The Civil Union Bill justifies immorality and by inference calls sexual perversion a legitimate alternative lifestyle that should be openly accepted. It calls immorality and perversion a true virtue that is commendable freedom.
May I remind this House that rejecting God’s house and despising His word will result in those doing it being given over to the consequences of their sins and divine wrath. Members must also be reminded that God will not be mocked. When this Parliament, under the instigation of the ANC, passes this Bill today then Parliament will have gone too far and is about to cross the line of God’s patience with us as a nation.
The prophet Isaiah said:

Woe to those who call evil good, and good evil... woe to those who are wise in their own eyes and clever in their own sight.
Why are some forces trying to convince the nation that homosexuality is okay when God calls it an abomination? For the sake of the peaceful future of this nation, Members of this Parliament must stop provoking God to anger as the men of Sodom and Gomorrah did and came under His wrath.
The writer of the book of Hebrews said:
... marriage should be honoured by all and the marriage bed kept pure, for God will judge the adulterer and all the sexually immoral.
Adultery, sexual immorality and homosexuality are grave sins in God’s sight since they are a transgression of His law and are defiling a marriage relationship between a man and a woman. With this Bill, the ruling party and all those who support it are inviting serious trouble on themselves without even considering the impact this Bill will have on future generations.
While the ACDP appreciates that this Bill is an attempt to meet the Constitutional Court ruling, we nevertheless believe it has gone beyond what was required by the court. [Time Expired.]
Ms S H NTOMBELA / END OF TAKE / Nelia (Eng/Afr) Euphraat (Sepedi) / Mlc Checked
Rev K R J MESHOE
Ms S H NTOMBELA: Madam Speaker, Ministers, colleagues, during our public hearing I received this anonymous message. Let me read it to you: I am a boy of 25 years. My appearance is that of a girl. My voice, my movement and everything within is that of a girl. In short, I am a boy in a girl’s body. What must I do? I tried for the past few years to be a boy, playing with boys, tried to make my voice deeper. Tried to move like a boy but I cannot. What must I do? Minister, where must I go? My family won’t understand. They say I bore them. They say I am a disgrace to the family.
*** Language spoken has changed to Sesotho ***
Ke ba tshehisa ka batho, ke tlontlolla lelapa la bona.
*** Language spoken has changed to English ***
The truth of the matter is, I am a boy in a girl’s body. What must I do? Where must I go? Sometimes I feel like killing myself for my family and my community make a joke of me. Sometimes I ask myself: why me in this family? Why did God do this to me? It is because God hates me. Ntate Meshoe, is it because God hates me? What must I do? Where must I go? Lucky are those who don’t have kids like me, those who don’t have grandchildren like me, those who live their lives freely, those who can move and those who are accepted by everyone, those who are loved by God. What must I do? Where must I go?
The fact of the matter is: I am a girl. I feel free when I am with girls. You will never understand what is within me, because you are lucky. You are not like me. You are very lucky because in this land God only loves you. Please, I want to live like you. I want to be accepted like you. I want to practice my rights like you. I am human being. I want to be free. I think God loves me too.
Don’t even wish to have children like me. Don’t even wish to have children and grandchildren like me. I wonder if that happens, what would you do, Ntate Meshoe? It can happen. It can be your child or it can be your grandchild. I am a South African. I belong here. I also want my rights and my dignity to be protected because I am here to stay.
*** Language spoken has changed to Sesotho ***
Mme Sebui, ka morao ha ho bala molaetsa ona, ke ile ka ipotsa hore nna ke mang, ke tswa kae? Ka ipotsa hore na ho a hlokahala hore ke hatelle ditokelo tsa batho ba bang.
Ke mang nna, ya tlang ho tlosa le ho silafatsa seriti sa batho ba bang. Ke mang nna, ya ka etsang hore batho ba bang ba seke ba thabela tokoloho ya bona. Nna ya neng a sena ditokelo, ya neng ha hatelletswe.
Le nna ke ne ke sena ditokelo tse kang ho fumana metsi, ke ne ke fuwa metsi a ditshila, ke nweswa metsi ha mmoho le matata le difariki letamong. Ke nna mang ya ka bang le tokelo ya hore tjhe ho ditokelo tsa batho ba bang. Nna ya neng a sa gone le ho fuwa ntlwana, nna ya neng a sebedisa thota, ke ne ke sebedisa lejwe le jwang jwalo ka pampiri ya ntlwaneng. Ke ne ke amohilwe seriti sa ka.
Ke nna mang ya kareng tjhe ho ditokelo tsa batho ba bang. Ke mang nna ya neng a pepala ngwana fates ha ke ne ithwetse, ke ne ke sa tsamae tliliniki, ke ne ke tholla ngwana fatshe mobung, ho ne ho sena le ngaka, ke ne ke nketswe ditokelo tsaka tsa bophelo bo botle.
Ho baneng ke tshwanela ho etsa dintho tsena ho batho ba bang? Ho baneng ke tshwanela ho kgetholla? Ho baneng ke tshwanetse ho hatella batho ba bang, ha molao theo wa rona o dumelletse hore motho emong le emong o na le ditokelo.
Sebui sa Palamente ha re ne re tsamaile, ntho e hlokolotsi e ileng ya hlaha ke hore, bana ba batho ba bong bo tshwanang ba nyalaneng, ba tla sotlakwa ka thobalana. Modulasetule le manyalong a tlwaelehileng bana ba rona ba ntse ba sotlakwa.
Ho na le bontate ba tswetseng bana, ba be ba boele hape ba robale le bona bana bao, hona jwale re ntse re nyalana re le bomme le ntate. Hona jwale re ntse re nyalana ka tsela ena e tlwaelehileng ho na le ntate mane Bethelem ya ileng a nka bana ba hae ba babedi a ba otla ka lejwe; a ba pakela ka sutukheising; a ba lahlela letamong. E ntse e le motswadi wa bona. Ebe phapang e kae he moo, ho tswa ho botho ba motho, re ke ke ra etsa dintho tse tjena.
Modulasetulo re na le Molaotheo wa rona, Molaotheo ona ha oa ngolwa ke ANC feela, o ngotswe ke Afrika Borwa ka ofela, ho kenyeleditse le bona ba hananang le ona ka jeno leen, e ne le le banka karolo ho ngolweng ha Molaotheo ona.
Re tlameha ho hlompha Molaotheo ona, le hona ho etsa bonnete ba hore oa sebetsa. Ke mosebetsi wa rona ho etsa bonnete ba hore Molaotheo oa sebetsa. Rona ba ANC le ba bang re utlwisisa hore kgethollo bathong ke ntho e jwang. Re phetse tlasa mahlasipa a kgethollo moo re neng re tshwantshwa le ditshwe ebile re bitswa megodutswane. Afrika Borwa ena, ke ya rona bohle, bohle ba dulang ho yona seriti, hlompho le ditokelo tsa bona di tshireletsehile. [Time expired.][Applause.]
Dr C P MULDER /
Ms S H NTOMBELA
Dr C P MULDER:
*** Language spoken has changed to Afrikaans ***
Geagte Mevrou die Huisvoorsitter, die agb lid Mtombela wat so pas gepraat het, het ’n lang betoog gelewer oor die werklikheid van mense met ’n ander seksuele oriëntasie wat in Suid-Afrika bestaan. Dit is ’n werklikheid en ons ontken dit nie, maar dit is nie waaroor dit vandag gaan nie. Dit gaan vandag oor die instelling van die huwelik en die werklikheid daar rondom. Hierdie wetsontwerp wat huwelike tussen mense van dieselfde geslag sal moontlik maak, is uiters omstrede. Niemand wil dit hê nie. Ook nie eens die meerderheid van die ANC se koukus nie. Die ANC moes in ’n besluit al sy lede forseer om vandag vir hierdie wet te stem en tog word dit deurgeforseer.
Die vraag kan gevra word: hoekom is dit die geval? Hoekom? Omdat die Woord van God nie die hoogste gesag in hierdie land is nie, maar wel die mensgemaakte grondwet. Die grondwet behoort daar te wees om die gemeenskap te dien. Dit kan nooit korrek wees dat die grondwet kan verwag dat die gemeenskap sy eie waardes moet verloën nie.
*** Language spoken has changed to English ***
A constitution and its practical implications in law should take the values of the community it serves into account. Exercising rights should not go against the value system of society, because if it does, it estranges the constitution from the community.
*** Language spoken has changed to Afrikaans ***
Dit is presies wat hier gebeur. Hierdie saak druis in teen die waardestelsel van die breë Suid-Afrikaanse gemeenskap.
*** Language spoken has changed to English ***
The strong Christian nature of the South African community and the influence of Islam and the traditional African religions in our communities are all strongly opposed to the legitimising of marriages between persons of the same gender. However, this government does not want to listen to the people and what they are saying.
Afrikaans:
Die Christelike gemeenskap is daarteen. Die Moslemgemeenskap is daarteen. Die tradisionele leiers is daarteen en tog word dit deur geforseer.
English:
Marriage is an institution created by God between a man and a woman. That is why God created Adam and Eve and not Adam and Steve. We will vote against this Bill for that reason. [Interjections.]
THE MINISTER OF DEFENCE / END OF TAKE
Sotho/rm / Mlc afr+ eng
Dr C P MULDER
The MINISTER OF DEFENCE: Madam Chairperson, hon members, I think it is important that we place the Bill in its proper historical context. The roots of this Bill lie in the pronouncements of our people over very many years and decades of struggle. In particular, the roots of this Bill lie in the declaration our people made at the Congress of the People in 1955. In the preamble of the Freedom Charter, our people declared, and I quote:
Only a democratic state based on the will of all the people can secure to all their birthright without distinction of colour, race, sex or belief.
It was this declaration amongst others, which guided us in drafting the present democratic national Constitution, hailed throughout the world as one of the most advanced, at this time.
The Constitution itself does not prevaricate on this question, for it says that in Chapter 2, section 9, subsection 3. We ourselves declare to this House that:
The state may not unfairly discriminate directly and indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
What the Constitutional Court did was not to impose on us the task to make a new law. Rather, the Constitutional Court drew our attention to the fact that we have granted the right to all South African citizens to choose who to marry or take as a life partner. That right is already granted to the citizens of our country.
The Constitutional Court reminded us that, in this regard, we have not as yet delivered in relation to those who prefer same-sex partners for life. They were not saying: Grant new rights. They said: You have already granted this right, but deliver on that right in relation to those who prefer same-sex partners. They said that we had not done so because we had not aligned the law with the basic law of the country, the Constitution.
The question before us, therefore, is not whether same-sex marriages or civil unions are right or not. That’s not the question. The question is whether we suppress those in our society who prefer same-sex partners or not. That is the challenge. Are we going to suppress them? [Interjections.]
At this time, we are bound to fulfil the promises of democracy that we made to the people of our country, especially during the long, hard years of struggle. Are we going to suppress this so-called minority, or are we going to let these people, like ourselves, enjoy the privilege of choosing who will be their life partners or not?
By the way, voting for this Bill is not advocating. We are not being asked to advocate same-sex marriages. We are being asked to grant this right, so if you vote for this, you only deliver, you only grant the right to those concerned; you will continue to live your life as you choose, but let’s grant the right to those who also must exercise the same right.
We have no need indeed to preserve for ourselves, purely because of the majority of our numbers, the exclusive right of marriage as recognisable in law, while we deny others the same right. Why would we want to do that?
I take this opportunity to remind the House, to remind those who know, and inform those who do not know, that in the long and arduous struggle for democracy, very many men and women of homosexual and lesbian orientation joined the ranks of the liberation and democratic forces. [Interjections.] Some went into exile ... [Applause.] Some went into exile with the movement, yet others went into the prisons of the country with us. They accepted long prison sentences. Some stood with us, ready to face death sentences.
Indeed, as we stand here today, we can recall names and graves of comrades who resisted and refused to cave in in the face of probable death sentences. How then can we live with the reality that we should enjoy rights that we fought together with for, side-by-side, and deny them that?
Today, as we reap the fruits of that democracy, it is only right that they must be afforded similar space in the sunshine of our democracy. We do them no favour, but reward their efforts in the same way that our own efforts are being rewarded. I have to remind the House that, after all, culture is not static. There was a time when voting was only for men. It was rejected that women should vote. There was a time when society would not accept that women should vote.
Yet, in the 1890s, New Zealand led the world in granting her women the right to vote. Then, in 1918, Soviet Russia followed suit, and then, in 1921, Great Britain followed. In 1924, the Soviet Union extended the right to women. In this country, in 1930, white women, for the first time, were allowed to vote.
Culture is not static. There was a time when you could not even talk about the possibility of a woman becoming a church minister. Today, denominations, one after another, are accepting that women may indeed become church leaders and church ministers. [Applause.]
Oh yes, there was a time when being a homosexual meant imprisonment. Just by being a homosexual, you got locked up in jail. Oscar Wilde, in Victorian England, was locked up in jail, not for any crime, but simply because he declared his homosexuality. Today, Great Britain is a different society, because culture is not static.
This country cannot afford to continue to be a prisoner of the backward, timeworn prejudices, which have not basis. The time has come that we as this society, as this Parliament, on behalf of our nation, must lead.
I therefore wish to urge members of the House to look past the prejudices of our time, and grant this right to those who have been pleading with us for so long now so that we may bequeath to succeeding generations a society democratic and more tolerant than the one that was handed down to us by those who preceded us. I thank you. [Applause.]
Mr B E PULE / END OF TAKE
THE MINISTER OF DEFENCE
Mr B E PULE: Madam Chair, the UCDP will not align itself with any institution that seeks to negate that marriage is between male and female. The argument that the Constitution calls for same-sex marriages is lame, because that very same Constitution is a result of men and women in this very same Chamber, whereas the Bible has stood the test of time as the inspired word of God.
It is a sad day in the history of this country that such bad legislation has to be passed in our time. What is the result of a union that does not procreate? The legislation is bad in the sense that it allows 18-year-olds to enter into a union even without the authority of their families.
Civil unions are a direct negation of attempts at moral regeneration. We should expect that with civil unions succeeding, we will be legalising sodomy, because the impression we are being given here is that the struggle was for sodomy and not for freedom. [Interjections.] Otherwise, how are these men going to show their marital status? [Interjections.]
The UCDP pities some members of this House who will vote for this Bill much against their will, conscience and religion. Poor colleagues will be voting through fear and not from a sense of justice. The UCDP will always look back and curse the day on which this legislation was passed. [Interjections.] The UCDP will not and will never support the Civil Union Bill. [Interjections.]
The HOUSE CHAIRPERSON (Ms C-S Botha): Thank you. Order, members! Order! Order!
Dr S E M PHEKO

Mr B E PULE
Dr S E M PHEKO: Chairperson, the traditional institution of a union between a man and a woman for procreation must be protected. It cannot be equated with same-sex unions. Same-sex marriages are so repugnant that only four countries in the whole world have legalised them. Do we want our country to be the fifth in the world and the first in Africa in this mess? [Interjections.] Which country in Africa will accept leadership from a country that suffers from Eurocentric eccentricity? Only those who have sold their souls to cultural imperialism will support this obscenity.
It is hypocritical in the extreme to talk of moral regeneration and African Renaissance and then to turn around and surrender to this cultural aberration. It is no excuse that it is in the Constitution. It should never have been there in the first place.
The issues in the country are landlessness, inhumane squatting, unaffordable education, unemployment, lack of good health care and the eradication of poverty. These are the things that people fought for.
This Bill needed a national referendum if this Parliament respects the people of this country. A large body of scientific researchers has established that there is no scientific basis for a homosexual gene. [Interjections.] [Izwe lethu.] [Our land.] [Time expired.]
Mr J B SIBANYONI

Dr S E M PHEKO
Mr J B SIBANYONI: Hon Chairperson, members of the House ...
IsiNdebele :
... kiledibheyidi, ngifuna ukuqala khulu khulu ngehlangothini lomthetho. Lapho ngithi khona: Uthini umthetho? AbeSuthu bathi: Molao o reng? Amakhuwa wona athi: Wat sê die wet? [What does the law say?]

English:
The Constitutional Court ruled that the definition of marriage under the common law and the marriage formula in the Marriage Act of 1961 contradict the Constitution and are invalid to the extent that they fail to provide the means in terms of which same-sex couples could enjoy the status and benefits together with the responsibilities that marriage accorded to heterosexual couples. In this respect, the Marriage Act and the common law definition of marriage are in conflict with the Constitution and violate the rights enshrined in the Freedom Charter and our Bill of Rights.
I will not go into detail regarding the Freedom Charter because the hon Lekota has already done that. But maybe I should immediately say that there are those who are saying that we should consider amending the Constitution and taking away the sexual orientation rights. To them I would like to say that that will not be enough, because you would have to go further than the Constitution and look at the Freedom Charter and try to amend the charter, which was signed in 1956 at which there were 2 808 delegates from all corners of the country. They came from Sekhukhune, from the Cape, from Mafikeng and the like, and they said that “All shall be equal before the law” and that all discriminatory laws shall be abolished.
The quote cautioned providing a remedy to the effect that Parliament should avoid a remedy that, on the face of it, would provide equal protection but would do so in a manner that, in its context and application, would be calculated to reproduce new forms of marginalisation. Historically, the concept of separate but equal served as a threadbare cloak for covering distaste or repudiation by those in power of the group subjected to segregation.
The hon Lekota has elaborated on the fact that when you are in power, you should not oppress or suppress those who are not in power or who are in the minority. Judge Sachs held that whatever legislative remedy was chosen must be as generous and accepting towards same-sex couples as it was to heterosexual couples, both in terms of the intangibles and the tangibles involved, and that appropriate sensitivity must be shown to providing a remedy that was truly and manifestly respectful of the dignity of same-sex couples.
I submit that the present Bill caters for this. Parliament, as we know, has until 1 December to correct this defect. Also, the Constitutional Court has said that if Parliament fails to do so, the word “spouse” will be read as being added to the Marriage Act after the words “wife” or “husband” in order that the defect is cured.
Now, in responding to the Constitutional Court judgment, Parliament enacted this piece of legislation that goes a long way towards confirming our constitutional values of equality, dignity and the advancement of human rights and freedoms.
The Bill defines a civil union as the voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership in accordance with the procedures prescribed in this Act to the exclusion, while it lasts, of all others. The effect of this is that the Civil Union Bill is open to homosexuals, heterosexuals and intersex persons. Intersex refers to persons with ambiguous genitalia and who are neither male nor female. The Marriage Act excludes such persons from marriage.
The Civil Union Bill sets the age of getting married at 18 years. This will be in line with the Children’s Act when it comes into operation. The age of majority will be 18 years. So, too, is the case with the age at which one can become a voter.
The Marriage Act provides for females of 12 years and males of 16 years to get married with the Minister’s consent. But this Civil Union Bill is saying everybody will get married at the age of 18 years.
During the era of the parliamentary state in South Africa, there was what was known as a constitutional crisis. The parliament at that time wanted to take away the rights of coloureds as voters. When the court declared that law invalid, parliament convened and created what they called a high court of parliament. In that court they appointed people as judges who did not necessarily have legal qualifications.
The court also declared that high court of parliament not to be a court of law, but to be parliament operating under another name. I am supporting my argument by saying: let us not do that. Instead, we are going to be affirming or giving rights to the people who do not have rights.
IsiNdebele:
Ngifuna ukutjho ukuthi thina, njengabantu ababuya emtlhagweni we-apartheid, umtlhago nobuhlungu siwazi khulu. Akusingithi godu esingajika sifune ukugandelela abanye abantu sibakhuphele ngaphandle. Umhlonitjhwa ukhulumile bonyana abantu ebebagandelelwa ngaphandle, bagandelelwa ngilabo ababaphetheko begade bathwele budisi kangangani. U-Callian uthi thina esimalunga we-ANC bazosigandelela ukuthi sivowude nofana sikhethe namhlanjesi. Mina-ke ngithi sithabe khulu namhlanjesi ngombana sithole ithuba lokobana sivowude; sinikele abantu amalungelo lawo ebegade banganawo; sibe babantu abanikela abantu amalungelo lapha eSewula Afrika. Abanye bavika ngeBhayibheli. Ngifuna ukutjho ukuthi ...
English:
... marriage is an institution recognised by the state in South Africa. Marriage, in terms of the Marriage Act, is a civil act. It is not a religious act.
Ndebele:
The HOUSE CHAIRPERSON (Ms C-S Botha): Hon member, your time has expired.
Mr J B SIBANYONI: I want to say that the ANC that lives and leads, supports this Bill. [Applause.]
Mr S SIMMONS

Mr J B SIBANYONI
Mr S SIMMONS: Madam Chair, the UPSA will not support this Bill. [Interjections.] The nature and content of this Bill clearly reflects that this institution, namely Parliament, is abandoning the essence of its primary function. This primary function is not just one of lawmaking, but rather of making laws that reflect the norms and values of society.
The Civil Union Bill, in its very essence, represents everything against the norms and values of our society at large. The acceptance of this Bill as an Act would be a failure of this Parliament’s objective to give a true enunciation of society’s values. The sensitive nature of this matter should have given government the opportunity to test this matter, together with the death penalty and affirmative action, by means of a referendum, precisely to test the will of the people.
The desire to have such an ethically challenged law is the wish of only a portion of society, minute in relation to the overwhelming majority of South Africans that finds it undesirable. I thank you. [Interjections.] [Time expired.]
Mr M R SIKAKANE
Mr S SIMMONS
Mr M R SIKAKANE: Chairperson, this is one Bill in which we should have had the Chair saying, “As there is no speakers’ list, the Bill will be sent to the President for concurrence,” or something like that. [Applause.] I don’t know what this is all about, because are you here to suppress other people, to take away their rights? I can’t understand you. What are you talking about? I just can’t believe you.
I take the podium as a disadvantaged person in the sense that I don’t know what happens with technology. This is not the first time that the Minister of Defence has handicapped me. I used to play soccer and I was a star. I’m sorry to tell you that. I played in Durban for Zulu Royals. I was called “Terror”. [Applause.] And, as he is younger than me, when he came into the picture playing for Claremont Home Defenders - we were playing at Msizini – just because Claremont Home Defenders wanted him to be seen like terror, they nicknamed him “Terror”. So all the time he has been following me. [Laughter.]
So, this time I wrote my speech, and the title is: Rights. Now I see he has taken everything – every word – I have written in my speech. [Laughter.] I’m really, really disadvantaged. I don’t know what happens with technology today. I’m not sure.
I want to highlight two things. I won’t bore you now by going back to what my namesake has said. I grew up in Empangeni in the rural area. When I opened my eyes, our neighbour – I’m telling the IFP – was Mulondo. This baba was a huge man, bearded like myself. He used to dress up like this, and then take a doek and put it on his head and put on a pinafore. He was staying with a man, and this was in my youth. When I talk about my youth, you must know I’m talking about the 1940s. He was staying with a man in the rural area, but, for God’ sake, the community respected and accepted that situation. [Applause.] There was no problem whatsoever.
In the early 1960s when I started working, I worked for the Department of Bantu Administration in KwaMuhle, Durban. I went with Durban boy – the ANC used to call him “Durban boy” – Johnny Makhatini. He stayed in North Street. Black people could not stay in town, but he stayed in the back yard.
One day I was with him in his house and we were sitting there talking. There were two guys there I didn’t know – with ... [Inaudible.] ... Ngoma, who was the leader of the youth league. The next thing I saw a curtain open – there was no door leading to the bedroom – and there tata Sulu came out. That was at the time when they wanted tata Sulu dead or alive. He was hiding in Johnny Makhatini’s room in North Street. He started saying to these guys: Hey, what are you doing here? Didn’t I tell you to go and do one, two, three? They jumped up and left. Afterwards, Johnny told me that they were gay, but there were doing underground work for the ANC. They had been part of us in the struggle. So, what are you saying today? [Applause.]
So, just to highlight my speech now ... [Laughter.] When we went out to these public hearings, there was the outcry of “Change the Constitution; call for a referendum”. All the time I was morose, feeling so out of place. I asked myself that if people were saying: “Call for a referendum; change the Constitution”, what does that mean? Does that mean that they want us to change the Constitution so that we suppress other people? Because, in short, that is what they were saying with their call for “change the Constitution; call for a referendum”. Are you sitting here, wanting to suppress other people’s rights? No, people, you can’t say that.
I won’t give my speech now; Terror, my namesake, has said everything. The other thing I want to highlight is that when you say “Change the Constitution” and so forth, what does that mean? Are you telling me you are the first people sitting here to say: “This is our success; today I’m going to have a very good, peaceful sleep”? Because I would say to myself this is one time I have made a contribution because I have liberated other people, I have freed them; I have given them equal rights just like everybody else. So, this is a good time for members to pass and endorse this Bill. [Interjections.] And, understand one thing: when the Constitutional Court said we must amend, what it was saying to us was: “Parliament, you have repealed all discriminatory laws, but I think you have overlooked this one. Just go and repeal this law so that everybody is equal.” So, it is not actually the court that told us what to do. It reminded us of our duty, of our function, to change and repeal this discriminatory law.
The other thing that bothered me during the hearings was people saying, “Don’t use a certain word like ‘marriage’.” I was saying to people, “Where do you get the right to say to other people ‘don’t use this word’?” No one seated here has the right to say “The word ‘marriage’ belongs to me; it’s my right. Don’t use it.” Where do you get the right to say, “This word belongs to us”, or “to me” and “You mustn’t use the word ‘marriage’”?
I don’t want to say it’s all crazy, using that. A very important part of this is that today we are fulfilling the requirements of the Freedom Charter. When you look at it all, all of our struggling, arrested for freedom, arrested for nondiscrimination, arrested for uplifting the lives of other people – how on earth could we think, in all of those respects, of not allowing and giving other people their rights? We are fulfilling our document that was crafted and done by the ANC. That is all we are supposed to do today.
I should thank you that finally we have now honoured the wishes and the aspirations of other people by voting solidly for this Bill. I thank you, Chairperson. [Applause.]
C/W: Mr L M GREEN / END OF TAKE
Mr J B SIBANYONI:
Mr L M GREEN: Chairperson, the FD will never support legislation that undermines the Word of God. The FD rejects the Civil Union Bill because we believe it undermines biblical values, especially the sanctity of marriage between a man and a woman ordained by God.
Michael Cassidy of the Marriage Alliance of South Africa writes in a leaflet entitled Same Sex Marriage, why South Africa should say no to this legislation:
I imagine some 98% of South Africans believe we should say no to the same-sex marriage.
Let me add that I do not know of one Islamic country throughout the world that would support same-sex civil unions. Most Islamic countries view same-sex unions as the immoral decadents of the worst, and they are right in this regard.
Why do committed Christians, Muslims and Jews collectively and unequivocally reject same-sex relations, let alone civil unions? According to the Bible, the Koran and Torah, homosexuality and lesbianism are an abomination in sight of God. The versions of the creature He made in His own image. [Time Expired.]

Mr L M GREEN: Chairperson, I have two minutes and I only used one. [Interjections.] The Bible says in the book of Leviticus 18:22 that homosexuality is absolutely forbidden for it is an abomination.
God has some monopoly on human rights. He created us and he knows what is good for us. He defines what is right and wrong, not culture nor man-made constitutions. God destroyed Sodom and Gomorrah because of the sin of homosexuality.
In the New Testament God equally condemns homosexuality and same-sex unions, especially in Romans 1:26, where the Bible says that, that is why God let go of them and let them do all these things so that even their women turn against God’s natural plan for them and indulge in sexual sin with each other.
As believers we must decide today whether we will accept and support God’s Word or whether we will support the sexual orientation clause in the Constitution. Our decision is quite; we believe that God is greater than our Constitution and our courts and that His Word is the final authority. The FD therefore rejects the Civil Union Bill with the contempt it deserves. [Applause.]
Mr M SWART

Mr L M GREEN

Mr M SWART: Chairperson, the Constitutional Court recently declared two Acts of Parliament unconstitutional due to a lack of public consultation and participation. The Portfolio Committee on Home Affairs however went to great lengths and great expense to obtain the views of the public on the Civil Union Bill being considered here today.
Interested parties were provided an opportunity to present Parliament with written and oral submission and thousands of submissions were in fact received.
Public hearings were mostly held in rural areas and it became abundantly clear that the majority of citizens preferred that reference to the words “marriage” and “same-sex” be deleted from the Bill.
After conducting public hearings the Portfolio Committee held a series of committee meetings at which very little was achieved. One of these meetings was scheduled for 6 November 2006 in which members received scant notice of the meeting. Diaries had to be rearranged and appointments called to attend the meeting.
An hour before the scheduled time, members were advised that the meeting is cancelled. No explanation for the cancellation of the meeting or an apology to members has been forthcoming. It became abundantly clear then that then ANC had not yet clarified their mandate. Committee members were asked to put their mandates before the committee, which they did, but no input came from the ANC.
Only two days later the ANC came up with an amended Bill now before Parliament. The Bill was steamrolled through the committee with no discussion being allowed and in totally unprocedural and undemocratic manner it was virtual disregard of the views of the
public.
According to press reports the chairperson of the portfolio committee now states that the Bill should be regarded as an interim measure. Should this be true, it would probably have been easier and cheaper to allow the Constitutional Court judgement to take its fate, i.e., by inserting the word “spouse” in the Marriage Act.
It would have achieved the same result as this new Bill and it could have been amended in time to come. By just having two Bills there is discrimination. The Bill is therefore unconstitutional; it would attract constitutional action and government should not be surprised if they land up with egg on their face once more.

The DEPUTY MINISTER OF JUSTICE
Mr M SWART
The DEPUTY MINISTER OF JUSTICE : Chairperson, hon members, ladies and gentlemen, when I was growing up in a Christian home I was told that God is love. I was told that religion is about tolerance, inclusivity and love.
I am ashamed to be South African and to have experienced what people had to experience by passing this Bill and by some of the things that were said in this House.
If God is the God of love and you want to come and profess that God to us then show us his loving face. That is what you should be doing. [Applause]
Afrikaans:
Jammer, het ek nie vir jou gewys nie.
English:
I think the second issue is that the ANC has very clearly stated its position on this. The Constitution is very clear; we are not doing any favours to gay people here. We are not giving them little pieces of goodwill. We are here dealing with what we have decided at least 12 years ago when the equality clause was passed, which said we should not discriminate on the basis of sex, sexual orientation or marital status. That is what your Constitution says.
Today some of the people that helped pass that Constitution sit here with wide eyes and say: But we could never have meant that. What on earth do you think you meant, [Laughter.] if you said you are not going to discriminate on the basis of marital and on the basis of sexual orientation?
So, the ANC position which comes from long before the Constitution, which has been entrenched to the Constitution, is that these are rights that a group that has been marginalised in society are entitled to and all that we are doing is making sure that we bring an alignment.
Some people have said here that this has happened the other day. I would remind you that when the Fourie judgment was given, the ANC already made a statement on this matter. On 1 December 2005, the ANC had the following to say about the Fourie judgment:
The ANC reaffirms its view that citizens should not be discriminated against on the basis of sexual orientation and that the Constitution’s legal system and institutions of state have a responsibility to uphold that basic human right.
Today’s ruling, like others before it, is an important step forward in aligning the laws of the country with the rights and freedoms contained in the South African Constitution. So, the issue is not whether we should give rights. The issue is how we should do that, and I will get back to that in a minute.
The second issue, we have some luminaries here, the hon Kaylan being one and the hon Greyling. They tell us that it is definitely going to be unconstitutional to allow people to not solemnise marriages on the basis of their conscience. Now, I see there is a law adviser who also said this in the newspaper. I find this stunning, because all you had to do is to go and read the judgment, which deals with this issue.
So, it shows me that all those members and the legal adviser didn’t read it. Let me remind you what Judge Sachs said on dealing with this issue about conscience. It says in paragraph 159:
The principle of reasonable accommodation could be applied by the state to ensure that civil marriage officers who had sincere religious objections to officiating at same-sex marriages would not themselves be obliged to do so if this resulted in the violation of their conscience.
It goes on to quote the Christian education case where it ends off by saying:
At the same time the state should wherever reasonably possible seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful to the law.
The judgment dealt with it. It says:
Do not allow such people to be forced to do against their conscience.
Now, we are told that the Constitutional Court will find that to be unconstitutional. I think the issue here is simply this, the Constitutional Court in its court order did two things, the substance of marriages is only dealt with in two places; in the common law, the definition of marriage and in the formula for marriage is the substance of marriage dealt with.
In then rest of the Marriage Act it is just the procedures and processes how you do that. Those two substantive issues the court found to be unconstitutional, both the definition of marriage and the formula to marriage.
Now, the issue for us in government was not whether we would allow this or not, it was how to do it best. The problem with amending the Marriage Act is that the Marriage Act we all know really catered for Christian marriages of a certain kind. By doing so there were certain unforeseen circumstances that we are very worried about. For example, the Act, as it stands today, allows girls between 15 and 21 to marry. It allows girls under 15 to marry if they have the permission of the minister to do so.
So, if we were to amend the Marriage Act the consequence of that is that we would have had that problem of children at very young and tender ages getting involved in gay marriages or trying to do so and creating further controversy in society. [Time Expired.]
There were other two unforeseen circumstances. I do not have time to deal with them, but we will do so at a later occasion. Thank you very much. [Applause.]
THE MINISTER OF HOME AFFAIRS / END OF TAKE JH
THE DEPUTY MINISTER OF JUSTICE
The MINISTER OF HOME AFFAIRS: Madam Chair, I just want to correct the fact that some people have made comments which I really think are not correct, and we need to set the record straight.
It is not true that we are dealing here with a new piece of legislation. I think what we are dealing with here is the same Bill which was presented before the portfolio committee or before Parliament.
What has happened is that, on the basis of what has emerged from the public participation process and from the consultation with a variety of stakeholders, certain amendments have been made and that’s what we are dealing with here. So, there is no new piece of legislation.
If I may touch on just two of those, most stakeholders actually made the point that there is a need to deal with the issue of domestic partnerships at a later date, because we had no constitutional deadline to meet. That has been removed from this piece of legislation.
The second issue was the issue of being separate but equal. In spite of trying our best to meet the two principles which were made by the Constitutional Court and also to look at the rights, status, benefits and the responsibilities to give all those to same-sex couples in this particular piece of legislation, people still maintained that this was a separate but equal route. The religious groupings were raising the issue of, for instance, the fact about even the mere mention of same-sex.
To deal with the issue of separate but equal, we then had to actually make sure that this Bill did not only cater for same-sex couples but also for heterosexual couples who want to go the civil partnership route. That’s what we have done here.
So, it is not a new piece, but one area which remains contentious, which I believe is still in the public discourse and there is a need to engage on, is the whole issue of marriage. There has been insistence on that from quite a number of stakeholders that there should be no reference to marriage at all in this piece of legislation. That is the one issue which is the bone of contention here.
What we have been advised is that we then have to engage in a discussion as whether having marriage in this piece of legislation is a legal necessity or a legal nicety. That’s what somebody said. It was said, in fact, that it is a legal necessity because what we are likely be confronted with is a ruling against the Bill, that it is unconstitutional even before people have even looked at this piece of legislation.
I am not sure if in this debate, by rejecting this piece of legislation, people are suggesting that perhaps government should have allowed the courts to then amend the Marriage Act on 1 December.
We believe we knew when we brought about this Civil Union Bill that this is not a matter society is going to agree on. That society is polarised. We are a divided society on this matter, but we have a responsibility of conducting continuous public education, of actually talking to people about the rights which have been provided by this very Constitution which we all passed in 1996; which we provided to all the people of South Africa. We now have a responsibility to deliver the promise contained, amongst others, in that Constitution and that Bill of Rights and that’s what we are trying to provide here.
Now I just thought that we needed to set the records straight that it is not true that we are bringing in a new piece of legislation.
However, people in fact – I have actually seen the submissions of all the parties, including the submission from the DA. One of the proposals you made two weeks or a week ago before this matter was finalised was the issue of actually ensuring that this Bill does not just cater for same-sex partnerships but also is inclusive and therefore you have two consenting adults allowed to go the route of a civil union if they so wish. [Interjections.] You did say that.
But, secondly, you yourselves proposed in your submissions that the entire clause on domestic partnerships should be removed. That is exactly what has happened here; it has been removed.
The issue revolves around marriage, and I think it is the responsibility of all parties, not just the opposition party or the ANC. Our responsibility as leadership or representatives is to continuously engage on the issue because of course some of the people are going to be voting for the Bill because they have obligation to do so to provide these rights, not necessarily because people may be agree about this particular issue.
The last thing I want to say is, I think we all have a responsibility to step back, remove ourselves from the situation and look at the rights of a particular grouping of people here in this country, which does exist. It does exist and you cannot wish them away. There is no dustbin where you are going to collect a particular group of people and throw them into. We have a responsibility to society. Thank you. [Applause.]

Debate concluded.
Question put: That the Bill be read a second time.
Division demanded.
The House divided.
DIVISION
Division demanded.
The House divided.
[TAKE IN FROM MINUTES]
Mr J P I BLANCHÉ: Madam Chair, we seem to have a fault in some of the equipment. Would it have been registered or not?
The HOUSE CHAIRPERSON (Ms C-S Botha): Hon Blanché, will you come to the Table, and they can record your vote here please?
Question agreed to.
Bill accordingly read a second time.
END OF TAKE

Help for homosexuals

2006-11-19T23:33:00.000-08:00

We have had some enquiries about what help is out there for those struggling with homosexual temptation. The main organisation internationally helping such people is Exodus International, but there are many others.

www.exodus-international.org

Human Life International comment on final civil union bill passing

2006-11-19T23:32:00.002-08:00

Press Release

15 November 2006

Contact: Sally E. Hall 021 852-0473 or 082 255-0473

CIVIL UNIONS BILL

Human Life International deeply regrets the passage of the Civil Unions Bill yesterday, which effectively legalises same-sex “marriage” in South Africa.

Despite vehement opposition to the Civil Unions Bill, during public hearings around the country, the views of ordinary South Africans have been ignored. The large amount of time, effort and resources expended by the Department of Home Affairs on conducting public hearings have been largely wasted.

We not only oppose this legislation itself, but we also deplore the undemocratic way in which it was passed. In the name of granting constitutional rights, the ruling party has ignored the constitutional rights of their own MP’s to exercise their freedom of conscience and belief, by forcing them, on pain of penalty, to vote in favour of this bill. Despite much opposition from within the party, MP’s toed the party line and voted in favour of the bill.

The Freedom Charter of 1955 proclaims, ‘No government can justly claim authority unless it is based on the will of all the people’. This piece of legislation expressly contravenes the will of most South Africans, as well as the overwhelming majority of Churches, and the House of Traditional Leaders.

Homosexual persons have the same rights and privileges as all South Africans. Certainly we do not support unjust discrimination against those with a homosexual orientation, and believe that all of us are entitled to the same respect and dignity that is due to us as human persons. However, we believe that this law grants homosexual persons ‘special rights’ to which they are not entitled.

Marriage is an institution that predates the notion of the nation state, and certainly the Constitution of our Republic. This institution is something that exists in it’s own truth. It is the union of a man and a woman, a lifelong partnership, ordered towards the good of the spouses and the procreation and education of children. The law of any parliament cannot alter this reality. It is a truth, which exists, willed by God and unchangeable. It is simply not possible to have a marriage between two persons of the same sex.

We reiterate the position of the Church, expressed in the document: “Considerations Regarding Proposals to give Legal recognition to Unions between Homosexual Persons”, released by the Congregation for the Doctrine of the Faith “The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself”

We therefore lament the passage of this Bill and continue to call for a Constitutional Amendment to defend the true definition of marriage.

Human Life International comment on final civil union bill passing

2006-11-19T23:32:00.001-08:00

Christian Lawyers Association comment on Final Civil Union Bill

2006-11-16T05:54:00.000-08:00

S T A T E M E N T
Christian Lawyers Association
CIVIL UNION BILL CONTROVERSY
- A NATIONAL CRISIS
The Christian Lawyers Association is deeply disappointed at the final outcome of the
process leading up to Parliament’s decision to pass the highly controversial Civil Union
Bill.
The Association is of the view that the Bill falls far short of being a fair and equitable
piece of legislation. It appears that the legislature has gone far beyond what the Court
required in an effort to make the Bill constitutional and at the same time meet the one
year deadline of December 1. Furthermore, it has failed to achieve the objective that
Judge Sachs set out in the judgment when he stated that “the hallmark of an open and
democratic society is its capacity to accommodate and manage difference of intensely held
worldviews and lifestyles in a reasonable and fair manner.” Hence, the demand on
government to divide the public space fairly, giving due consideration to the rights of all
South Africans. The interests of the overwhelming majority of South Africans have not
been taken into account, despite the unprecedented engagement of individuals and
interest groups from different cultures, religious faiths and denominations in the public
hearings that were held around the country.

We believe that Government has failed the people of South Africa.
It took the Minister of Home Affairs a full eight months to act on the judgment that was
passed down on 1 December 2005. The first draft of the Bill was only introduced to
Parliament and made available to the public late in August 2006. This gave only two
months for civil society organizations and other stakeholders to study it and engage with
Parliament on the matter. This simply was not enough time to do justice to assessing the
bill and give proper consideration to the input made by the public. The Association is of
the view that passing the bill amounts to an abuse of legislative power, given the
importance of the issue, the significant public outcry against the bill and the unmitigated
bungle at the last minute in efforts to make ill-advised amendments that will most
certainly have devastating implications in the future. We are of the view that this raises
questions of legitimacy, both of the Bill as well as the process, and we do not believe that
it serves the interests of the country.
In it’s submission to Parliament the Christian Lawyers Association proposed that
government make an urgent application to have the order of the Constitutional Court
suspended in order that more time be given to properly evaluate the draft bill. This would
also have provided for the required participation of the public to be properly assimilated.
Concerns about the impact of the draft bill on other legislation, in particular the
Children’s Act of 2005, were also highlighted in the submission.

There is little doubt that the full consequences of the Civil Union Bill will only become
evident once it has been adopted onto the statute books. The Christian Lawyers
Association anticipates that the Bill in its present form will lead to an unprecedented
wave of litigation in which the rights to freedom of conscience and belief and religious
freedom will be challenged by those wanting to impose the equality rights of the gay and
lesbian minority onto the greater populace. This has been the trend elsewhere in the
world, particularly in Canada, where similar legislation has led to ongoing conflict and
the polarization of society. There is no reason to believe that South Africa will escape this
trend. Questions have already been raised as to the rights of private individuals who, on
grounds of conscience, do not want to make their business premises available for gay
marriage ceremonies. This will no doubt also be the case for civil marriage officers who
object to solemnizing gay marriages. We predict that the cost to the country in the long
term will be immense.
End/.
Released by:
Christian Lawyers Association
P O Box 4665
PRETORIA
0001
Enquiries - Denise Woods (National Director)
Telephone 012-424-9400
Email cla@motcon.co.za

ANC and DA reject Constitutional Marriage Amendment

2006-11-15T07:38:00.001-08:00

15 November 06

Steven Swart, ACDP MP and spokesperson on Constitutional matters made the following statement in the National Assembly yesterday:

At lunchtime today, the ANC and DA rejected the Sixteenth Constitutional Amendment proposed by the ACDP in the Standing Committee on Private Members’ Bills and Special Petitions. Whilst we are grateful to the chairperson that this matter was prioritised, we regret that our recommendation was not accepted.

The ACDP rejects the argument that we would be going back to pre-1996 days should we amend the constitution. This argument flies in the face of this government’s approach to the 12 other constitutional amendments and in particular that relating to floor-crossing. It is well –known that the Constitutional Court in the Certification judgement found floor-crossing undesirable. In the UDM case, which we participated in, the Court rejected the floor-crossing legislation for not having been passed in time. The ANC was quick to pass a constitutional amendment to allow floor-crossing. We are now considering a proposal to again amend the constitution to disallow floor-crossing.

The ACDP proposed that section 39 of the Constitution be amended to read that “the Constitution shall be interpreted to mean that a marriage is a voluntary union of a man and a woman.” We did not propose that section 9, the equality clause be amended in any way.

During deliberations, I argued that -in view of the Constitutional Court decision in the Fourie matter, the only way to protect traditional marriage was by means of a constitutional amendment.

Our view is supported by many millions of South Africans, represented by the Marriage Alliance, The National House of Traditional Leaders, Contralesa, and numerous others.

Internationally, many US states have passed similar amendments to their constitutions. The Californian High Court, upholding a constitutional amendment banning same sex marriage noted that the people and not the court through legal fiat should make the law. More pertinently African countries such as Uganda and Nigeria have adopted legislation to protect traditional marriages, with Uganda amending its constitution.

This very same ANC government argued in court that we would be “out of step” with the rest of the world should we allow same-sex marriage. In an about turn, we will have the dubious distinction of being the only African state to recognize same-sex marriage.

I argued that it is not about human rights – 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. What about democracy and the voice of the people. We offered a solution in line with international law, but it was rejected.

The ACDP believes that a constitutional amendment was all the more justifiable to protect the institution of marriage. Sadly, the opportunity was rejected. In conclusion, in the words of martin Luther, “My conscious is captive to the word of God – here I stand, I can do no other.”
Steven Swart, MP

AFRICAN CHRISTIAN DEMOCRATIC PARTY comment on Civil Union Bill

2006-11-15T07:34:00.001-08:00

AFRICAN CHRISTIAN DEMOCRATIC PARTY
REV KRJ MESHOE
14 NOVEMBER 2006

CIVIL UNION BILL

In the National Assembly today Rev K. Meshoe, ACDP President and MP, delivered the following speech on the Civil Union Bill:

This, I believe, is the saddest day of the twelve years of our democratic parliament, when some members of this house, led by the ruling party, will be attempting to pass into law the Civil Union Bill which is opposed by the overwhelming majority of our people. It is indeed very sad that the ANC leadership chose to support this Bill in spite of the overwhelming objections from bodies such as the Marriage Alliance representing millions of Christians, various other church and community groupings and the Congress of Traditional Leaders of South Africa. Their views have for all intents and purposes been ignored and rejected.

Honourable Steve Swart made excellent legal submissions on behalf of the ACDP during deliberations, in defence of the sanctity of traditional marriage, and argued that the definition of marriage as a voluntary union between a man and a woman should be protected by a constitutional amendment.
This argument was based on the fact that marriage was instituted by God the Almighty and not liberals, and that we value marriage and the family as the fundamental building block of society.

The ACDP, together with thousands of people and groupings that made submissions to parliament, have consistently stated that same-sex marriage should NOT be legalised, and that our Constitution should be amended to protect the sanctity of marriage as the voluntary union between a man and a woman.
The Civil Union Bill justifies immorality and by inference, calls sexual perversion a legitimate alternative lifestyle that should be openly accepted. It calls immorality and perversion true virtue and commendable freedom.
May I remind this House that rejecting God’s laws and despising His Word will result in those doing it being given over to the consequences of their sins and to divine wrath. Members must also be reminded that God is not mocked. If this Parliament under the instigation of the ANC passes this Bill today, then parliament shall have gone too far and is about to cross the line of God’s patience with us as a nation.

The prophet Isaiah said, and I quote, “Woe to those who call evil good, and good evil, …woe to those who are wise in their own eyes and clever in their own sight.” Why are some forces trying to convince the nation that homosexuality is okay when God calls it abomination? For the sake of the peaceful future of this nation, members of this parliament must stop provoking God to anger as the men of Sodom and Gomorrhah did, and came under His judgement.

The writer of the book of Hebrews said, and I quote, “marriage should be honoured by all, and the marriage bed kept pure, for God will judge the adulterer and all the sexually immoral”. Adultery, sexual immorality and homosexuality are grave sins in God’s sight since they are a transgression of His law and are defiling a marriage relationship between a man and a woman. With this Bill, the ruling party and all those who support it are inviting serious trouble on themselves without even considering the impact this Bill will have on future generations.

Whilst the ACDP appreciates that this bill is an attempt to meet the Constitutional Court ruling (the Fourie decision), we nevertheless believe it has gone beyond what was required by the Court.
Even if the Constitutional Court had required same-sex marriage, government could have, followed its OWN argument in both the Constitutional Court and the Supreme Court of Appeal when they argued that and I quote, “we will be out of step with the rest of the world if we allow same-sex marriages”, and then amending the constitution to protect heterosexual marriage. They could easily have done it if they wanted to.
The argument that Parliament could not amend the constitution flies in the face of this government’s approach to floor-crossing. When the Constitutional Court rejected the floor-crossing legislation for not having been passed in time, the ANC was quick to pass a constitutional amendment to allow floor-crossing. A constitutional amendment was all the more justifiable to protect the institution of marriage.

The liberal French parliament earlier this year ruled against same-sex marriages to protect children, citing article 7 of the UN Convention on the Rights of the Child. “Children represent the future of society. They “must not suffer from conditions imposed upon them by adults… The best interests of the child must prevail over adult freedoms… even including the lifestyle choices of parents.”
If the Civil Union Bill is passed today, it will be with the most dire consequences for the ANC which is leading this onslaught against God’s moral law and plan for human beings.
The ACDP will definitely vote against the Civil Union Bill which is unscriptual, unAfrican and legalizes perversion.
Rev KRJ Meshoe, MP
ACDP President

Civil Union Bill vote: A day of shame insulting marriage and trashing democracy

2006-11-14T07:53:00.001-08:00

14 November 2006

Civil Union Bill vote: A day of shame insulting marriage and trashing democracy

Today, 14 November 2006, the National Assembly debated and voted to pass the Civil Union Bill. ChristianView Network director, Philip Rosenthal said “The Bill is an insult to marriage and a trashing of democracy. It will open the door for more attacks on morality, religious freedom and children’s rights. This is a day of shame for South Africa.”.

The revised Civil Union Bill, is a confusing piece of legislation which uses the term ‘civil union’ and ‘marriage’ interchangeably. It thus insults and undermines true marriage more seriously than the previous version of the Bill.

The African National Congress (ANC) took the unprecedented step of not only denying their MPs the right to conscientiously object and vote against the Bill, but also abstain or be absent from the vote. Thus the will of the democratic majority of South Africans has been trampled in favour of the views of eleven unelected and unaccountable judges on the Constitutional Court. A structure set up to protect democracy has been abused to undermine it. Despite the ANC instruction, many MPs did not attend the vote. The IFP and ACDP opposed the Bill, while the DA allowed a free vote.

The fight on this issue is not over. To be implemented, the Bill will still need to go to the National Council of Provinces and be signed by the president. An alternative Constitutional Marriage Amendment by ACDP MP Steve Swart, is currently being considered by the Portfolio Committee on Private Members Bills. Thousands of people have signed petitions in support of this amendment. The campaign will continue.

If ‘same-sex marriage’ is legalised as planned by 1 December 2006, this is likely to unleash a wave of homosexual persecution against Christians and other pro-moral South Africans, as they attempt to force others to recognise their immoral unions and silence opposition through lawsuits and intimidation.

A positive aspect of the Civil Union Bill is that the parts dealing with ‘domestic partnerships’ for unmarried immoral couples living together has been removed. This may possibly be introduced as a separate Bill in future.

All state marriage officers are advised to urgently notify the Minister of Home Affairs in writing that they conscientiously object to solemnising same-sex unions at fax (012) 810 7312. This will entitle them to legal protection in terms of section six of the Civil Union Bill. The Bill fails to protect others who may be forced to obliged to recognise or assist with ‘same-sex marriages’, such as wedding venue owners, catering staff or those in the hospitality industry and other government employees.

As with abortion, the fight against so called ‘same-sex marriage’ will continue however long it takes to put an end to this evil.

Hugh Wetmore (former leader of EFSA) on homosexual marriage

2006-11-03T00:55:00.000-08:00

GAY RIGHTS AND SAME-SEX ‘MARRIAGE’

South Africa’s Constitutional Court has declared the Marriage Act’s heterosexual marriage as discriminatory against the rights of homosexuals because it denies Marriage status to same-sex couples. This is a demonstrably faulty judgement, and must be strenuously opposed in order to preserve Marriage. Gay activists demand the right to same-sex ‘marriage’. This demand must be resisted, in order to preserve Marriage.

An International Human Right

Marriage itself is a Human Right that is definitively heterosexual. This human right is distorted if it is applied to people of the same sex. The United Nations’ Universal Declaration of Human Rights protects and affirms the right to heterosexual marriage. It does not imagine same-sex marriage. Article 16 "Men and women ... have the right to marry and found a family ... The family is the natural and fundamental unit of society and is entitled to protection by society and the state." Note that this is the only clause that departs from the standard introductory phrase "Everyone ....". It specifically speaks of "men and women." Same-sex ‘marriage’ is not a human right ~ it is a denial of the human right to marriage. It makes marriage something it is not.

Some people are not Marryable

Homosexuals already have the right to marry. There is nothing to stop them marrying a person of the opposite sex. Their problem is they want to marry someone of the same sex, someone who is, by definition, not marryable.

The current Marriage Acts also discriminates against some heterosexuals, but no-one complains about these restrictions. It denies marriage to someone who is not marryable: someone who is already married to someone else, someone who is a close relative, someone who is still a child, someone who refuses the marriage proposal. People cannot just marry anyone they want to marry. There are criteria ... and one of these is the spouse must be of the opposite sex.

Lesbians and homosexuals insist that they are discriminated against because of gender. But if this is discrimination, it is fair discrimination, provided for in the Constitution 36 (2). Gender ‘discrimination’ is already regarded as fair in certain instances: Men and women do not compete against each other in many sports, do not share the same public toilets, are not assigned to the same hospital wards.

Why not Legalise Paedophile Marriage?

If our laws legitimise same-sex ‘marriage’ because homosexuals want the right to marry each other, they lead us onto slippery slope that, using identical arguments, could legitimise paedophiles marrying girl- or boy-children. This is not far-fetched: Emperor Nero married a young boy, and the Netherlands has recently registered a political party with an overt paedophile and child-porn platform. After all, paedophilia, bestiality and necrophilia are simply other "sexual orientations" which could arguably be protected by the Constitution.

Apartheid-style Discrimination

Gays accuse those who insist that marriage is heterosexual of 'perpetuating apartheid-style discrimination'. This argument places one’s sexual orientation on the same level as race ~ something one is born into and cannot change. It is not so. No credible, reproducible research has proved that there is a gay gene. And supposing there were such a gay gene, the principle of natural selection would have eliminated homosexuality from the human race by now, as only the fittest ~ those able to increase through procreation ~ would have survived. Homosexuality is a behavioural, not congenital, orientation. There are homosexuals who have learned to harmonise their orientation with their physiological gender, and have happily married heterosexually. This gives hope to others, and make the notion of same-sex ‘marriage’ irrelevant and unnecessary. The 'Apartheid' analogy is a false analogy, with no relevance to gay rights.

Actually Apartheid also discriminated against heterosexual marriage: whites were not allowed to marry people of the opposite gender if they were of another race. Group areas legislation and pass laws kept black husbands and wives apart, destroying not only marriages but integrated family life. We want to reverse such discrimination and build strong marriages and strong mother-father-child families. These are the Rights we must protect.

Furthermore, Apartheid was an attempt at social engineering that was morally wrong. To legalise same-sex marriage is a similar attempt at social engineering that is morally wrong. Its outcomes for the family, and for future generations, are as yet untested. What is tried and tested by reputable research is that children thrive best in a father-mother family. We should do all we can to promote marriage in this context. It is dangerous to risk experimentation on vulnerable children by legalising a same-sex ‘parented’ ‘family’.

To legalise same-sex marriage actually takes away the rights of heterosexual married couples. They will feel that their marriages are meaningless ~ in the same way that extending to soccer players the right to pick up the ball and plant it over a goal-line would make both games meaningless.

Children's Rights

Our Constitution 28 (2) prioritises Children’s Rights ~ "A child’s best interest are of paramount importance in every matter concerning the child". Stanton and Maier’s survey of research published in "Marriage on Trial" (IVF 2004) adduces more than ample evidence to prove that the best interests of children are served through the nurture of heterosexual parents, not ‘parents’ of the same sex.

In France the President of the National Assembly charged a Commission to research the possibility of legalising same-sex marriage and adoptions. The resultant Parliamentary Report on the Family and the Rights of Children, released January 27, 2006 did acknowledge that the French family has altered significantly, becoming "more diverse and less institutionalized", but recommended nonetheless that in the best interests of children homosexual ‘‘marriage’’ should remain prohibited. The decisive factor to the report's conclusions, after an investigation of more than a year, was the commission’s decision to act "to affirm and protect children’s rights and the primacy of those rights over adults ‘aspirations’." A majority affirmed the "fundamental principles of the law of filiation, which are based on the tripartite unit of ‘a father, a mother, a child’, citing the principle of caution. For that reason, that majority also, logically, chose to deny access to marriage to same-sex couples."

Protect Marriage and Family Rights

The State must keep Marriage what it has always been ~ the union of a man and a woman. In so doing we will not be discriminating against homosexuals (for unlike race, some homosexuals have changed their orientation), we will avoid the slippery slope to worse laws, we will preserve the best Children’s Rights, and we will not further weaken marriage and family life. In the words of the United Nations Bill of Rights, to which South Africa is a signatory: "Men and women ... have the right to marry and found a family ... The family is the natural and fundamental unit of society and is entitled to protection by society and the state."

DRC pastors object to denominations position on 'same-sex marriage'

2006-11-02T06:54:00.000-08:00

This is the letter we sent to Dr Coenie Burger as Chairman of the Synodal Commission of the General Synod. The letter was written by dr J Marais of Middelburg- Kanonkop (Mpumalanga) and signed by several dominees from all over the country.

--------------------------------------------------------------------

Die Voorsitter van die ASM

Algemene Sinode van die NG Kerk

Geagte Dr Burger,

Ons rig hierdie skrywe aan u in die lig van verskeie berigte in die media en die voorlegging van drr Ben du Toit en Kobus Gerber, rakende die N G Kerk se aanbeveling dat die huwelikswet herskryf word sodat “aan alle kategorieë van huwelike (en verbintenisse) die selfde waarde toe geken sal word.” Die N G kerk beveel dus aan dat aan gay huwelike (verbintenisse) dieselfde waarde as aan ander huwelike toe geken sal word.

Ons versoek dat die ASM:

1. Verduidelik hoe dit gebeur dat dit wat die N G Kerk nie besluit het nie, as die standpunt van die N G Kerk aan die staat voorgelê word. Dit waaroor dit in die skrywe gaan is dat die N G Kerk die staat vra om gay huwelike (verbintenisse) in die huwelikswet in te skryf. Die N G Kerk het nog nooit so ‘n besluit geneem nie. Ongeag watter argumente aangevoer word om tot die standpunt te kom. Die feit dat die voorstellers nog die heteroseksuele huwelik aanvaar is ‘n bron van dankbaarheid, maar maak die voorstel dat die kerk gay huwelik aanbeveel nie die besluit van die N G Kerk nie.

Ons is nie seker of die ASM die voorlegging goed gekeur het nie. Uit die feit dat die sekretaris van die ASM mede voorsteller van die voorlegging is, en dat die voorlegging op die N G Kerk se webwerf geplaas is, wek die indruk dat u daarmee eens is. Die verder feit dat die ASM nie op die media berigte wat reeds verlede week verskyn het, en oor die kerknuus uit gesaai is, op hierdie punt gereageer het nie, wil dit voorkom dat die ASM bewus was van die aanbeveling in die voorlegging. In die lig van die ontsteltenis van predikante en lidmate versoek ons ‘n openbare verduideliking van die ASM se posisie oor die versoek van die N G Kerk dat gay huwelike (verbintenisse) in die huwelikswet ingeskryf word.

2. Indien die ASM nie bewus was van die inhoud van die dokument nie, wil ons vra hoe dit moontlik is dat kerklike amptenare die mag het om sulke besluite te neem, selfs al het die Sinode dit nog nie gedoen nie. Ons versoek dat die ASM ook in hierdie geval ‘n verduideliking sal gee.

3. Ons versoek die ASM om dit duidelik te stel dat die voorlegging nie enige verband met die werk van die gay taakspan van die Algemene Sinode het nie en dat die taakspan voorstelle vir die Algemene Sinode van 2007 voorberei. Dit moet ook duidelik wees dat die Algemene Sinode oor die saak van gay huwelike (verbintenisse) sal besluit. Wat ons egter vreemd vind is die feit dat hoewel dr Du Toit, wat deel van die taakspan is en deeglik bewus is van die ernstige verskille binne die kerk oor gay huwelike en van die besluite wat ‘n hele aantal streek sinodes reeds in die verband geneem het, nou namens die N G Kerk vra dat die staat gay huwelike (verbintenisse) in die huwelikswet inskryf. Dit is vir ons onaanvaarbaar dat hy sy posisie in die kerk so gebruik.

4. Die voorlegging van Drr Ben du Toit en Kobus Gerber wat die staat namens die NG Kerk versoek om die huwelikswet te wysig , blyk voortydig te wees en dra die ondertoon van beïnvloeding van die besluite van die komende Algemene Sinode. Hierteen maak ons ten sterkste beswaar en versoek die ASM om te verseker dat die debat verder in die kerklike media en kerklike vergaderings ewewigtig sal voortgaan, sodat die kerk in 2007 ‘n ingeligte besluit kan neem. Daarmee saam versoek ons deursigtigheid sodat lidmate ingelig sal wees oor die stand van die debat.

Verder:

Ongeag watter argumente drr Du Toit en Gerber gebruik om hulle voorlegging te motiveer, is die boodskap wat die wêreld ingestuur word, dat die N G Kerk gay verbintenisse (huwelike) aanbeveel. Van hierdie boodskap distansieer ons, ons omdat ons geen regverdiging vir gay huwelike in die Bybel vind nie.

Ons betreur dit dat die N G Kerk se optrede verduidelik moet word, omdat dit wat die kerk skynbaar gesê het ontsteltenis veroorsaak, soos in hierdie geval. Die geloofwaardigheid van die kerk kom vir ons hier op die spel.

In die lig van die ernstige ontsteltenis van lidmate en leraars van die N G Kerk vra ons u dringende reaksie op hierdie sake.

Hartlike Groete

Health perspective on homosexuality by Gynaecologist

2006-11-02T05:27:00.000-08:00

Attention: Mr.M.Mangke
Parliament of South Africa Action

Pretoria
South Africa

Dear Mr.Mangke,

With regard to the proposed Bill legalizing Same sex marriage, I
respectfully submit for your perusal, some

important facts surrounding sexual activity of these relationships.
While much sexual activity between heterosexual couples can also produce
pathology, there are very safe guidelines

for this. Unfortunately, the same cannot be said particularly for anal sex
which is unsafe in any circumstance.

There are obvious natural boundaries between healthy experimentation and
high risk sexual behavior. The principle

of first do no harm however cannot be said for male homosexual
experimentation where anatomically, the use of the

rectum as a receptacle for sexual activity is clearly always unhealthy. The
rectum contains 1000 billion organisms

per gram of faeces and is designed very well for the storage and voluntary
expulsion of waste material. We teach our

children from an early age that this is its function and that they must
avoid contamination by hand washing and

basic hygiene. Indeed, as a surgeon, I am constantly mindful of the dangers
of damaging the intestinal tract and I am

aware of the devastating consequences of fecal contamination. Using the
anal canal as a sexual organ has produced

an explosion of pathology, with the rapid spread of HIV, herpes, Human
papilloma virus causing anal warts and anal

cancer and a host of other infective conditions.(1-5) In Alberta, Canada
over 1000 HIV +ve AIDS patients have been

treated to date, over 85% of them men who mostly acquired the disease
through anal intercourse.(6) Their treatment

is funded at taxpayers’ expense to the tune of about C$ 2500 per month per
person. How many South African

homosexuals have been treated for HIV disease and AIDS compared with those
who acquired the disease through

heterosexual contact? Those men living with HIV often continue to have
indiscriminate sex with other men with over

60% reporting not using condoms (8), and some having over 10 new partners
per month, many anonymous. Recent

studies indicate that 1 in 5 HIV+ve men will not inform their
“regular”HIV-ve partners of their HIV status and will

engage in unprotected anal sex with them (9) A man was recently charged
with murder for knowingly infecting two

women with HIV in Ontario.(10) Similar cases are widespread in South
Africa. It is little wonder that the blood

transfusion service regards anal sex as such a risky activity, they will
not use blood donated by men who indulge in

this practice (11) The emergence of super resistant HIV in a New York man
recently has alarmed public health

officials as the patient himself reported that over 3 months, had
“hundreds” of anonymous contacts, while under the

influence of crystal meth. (12)

Some activists would have us believe that sexual experimentation is merely
a wide spectrum of activities, none of

which are unnatural in themselves. One wonders what their attitude is to
the activities of fisting, rimming and

daubing (13,14)*occurring in bathhouses and backrooms of gay clubs all over
the world. This abandonment of

sexual restraint, and advocacy of anonymous sexual partnering sees
sexuality only as genital focused self

gratification. This is a far cry from healthy sex which is the ultimate
expression of intimacy, so exquisite, that out of

it, new life may emerge.

While anal sex has been used by heterosexual couples as a form of
contraception particularly in Africa, it is

associated with severe gynaecological infection, trauma, incontinence and
is generally reserved for those who would

degrade and injure their partners/victims rather than celebrate love (15).
It is also been implicated as a major factor

in the devastating spread of HIV in sub-Saharan Africa.(16)
The use of condoms does not guarantee safety for anal sex * condom breakage
has been reported at 36% and

condom slippage at 21% compared with 6 and 5% respectively for heterosexual
sex.(17) The trauma to the anus from

this activity is so great so as to leave 30% of recipients temporarily
incontinent of stool after their first encounter.
(18)
The pain and physical suffering incurred in dangerous sexual activity is
not confined to infections, cancer, infertility

and degenerative terminal diseases (19). There are numerous studies and
reports referring to the psychiatric and

psychosocial injury such as depression,(20,21) suicide (22,23), partner
violence (much greater than for heterosexual

couples) (24-27) and alcohol (28) and drug (29-31) abuse in homosexual
couples.

The sexual activity among lesbian women is also not without pathology, the
incidence of human papilloma virus

infection is some studies is higher than in the heterosexual population
(32,33) and cross contamination with

menstrual fluid is hardly hygienic with sex toy swapping (34,35) The
Boston Lesbian Health project 2005 report has

recommended yearly PAP smears and Sexually Transmitted Infection screening
yearly for lesbian women.(36)
Much opposition to homosexual lifestyles stems from knowledge of the end
point of sexual expression and is not

really homophobia (an irrational fear of homosexuals) but rather
homorevulsion, where they imagine the sexual

activity advocated and are repulsed by the concept of anal sex and other
related sexual activity. As a result,

discrimination against homosexuals usually begins once their behavior is
perceived as a sexual advance or a sexual

statement. There is a grey area between merely friendly gestures and subtle
to open sexual advances * sexual

predators and pedophiles exploit this zone and are overrepresented in the
homosexual group (37). Homosexual

advocates for reducing the age of sexual consent to 14 (38) help to lure
more confused and ambivalent teens (39)

into premature sexual activity and a hyper sexed lifestyle (40,41). Parents
who oppose the introduction of

homosexual promotion in schools are protecting their children from serious
harm.

It is time for an open discussion and public debate about homosexual
practice at a local, provincial and federal level.

Precedents have already been set with tobacco, alcohol and other dangerous
habits and lifestyles. Dietary

investigation, school cafeterias and exercise programs are now on the
political agenda. We cannot afford to sacrifice

our citizens on the altar of political correctness and ignore this issue.

Before this Liberal government should legislate regarding so called gay
unions, I think it is incumbent on politicians

to be fully informed about the nature, risks, consequences and public
safety of homosexual sexual practice. They

should seek advice from the SA College of Surgeons, gastroenterologists,
sexual disease specialists and others to

convene a Task Force for this purpose. If they do not and turn a blind eye
and a deaf ear to this issue, they will

endorse it by default, sending a message to the nation, and the world, that
South Africa regards homo and hetero

sexual practice as equal despite adequate evidence to the contrary. Should
one South African suffer the

consequences of anal sex and sue the government for not providing
appropriate health warning, this letter will serve

as evidence against them.

Like a car driven on the wrong side of the road, inevitably here will be
consequences both for the aberrant road user

and for others in their path- so will it be for those who engage in
unhealthy sexual practice. While you may be free

to jump off a building, the immutable laws of nature will not allow you to
avoid hitting the street below at terminal

velocity.

We ignore the boundaries provided for healthy sexual expression at our own
(and eventually society’s) peril. It is not

hateful to honestly speak out against harmful sexual practice. We do it for
unsafe and dangerous heterosexual sex. I

would suggest that the hate crime is committed by those who would ignore,
or worse still, suppress the truth about

homosexual sex to the detriment of any individual or society’s health.

Sincerely,

Harvey Ward
References:

1. Chin-Hong PV et al Age-specific prevalence of anal HPV infection in HIV
-ve sexually active MSM: the EXPLORE

study J Infect Dis 2004 Dec 15, 190(12); 2070-2076.. “In the United
States, anal cancer in men who have sex with

men (MSM) is more common than cervical cancer in women. Human
papillomavirus (HPV) is causally linked to the

development of anal and cervical cancer”
2. Renzi et al . Herpes Simplex Virus 2 infection as a risk factor for HIV
acquisition in MSM . Sex Trans Diseases

2003 Jun 1, 187(1) 19-25
3. Sobhani I et al Anal carcinoma: incidence and effect of cumulative
infections. AIDS 2004 Jul 23. 18(11)

1561-1569
4. Goldberg GS et al Microbiology of HIV anorectal disease.Dis Colon
Rectum 1994 May 37(5) 439-443.
5. Centre for Disease Control. Lymphogranulosum venereum among MSM:
Netherlands 2003-4 Morb Mortal

Wkly Rep 2004 Oct 29. 53 (43) 985-8
6. HIV surveillance in Alberta. Website:

http://xweb.crha-health.ab.ca/clin/sac/casesexp.htm

7. Krentz HB , Auld MC, Gill MJ The high cost of medical care for patients
who present late (CD4 <200 cells/
microl) with HIV infection. HIV Med 2004 Mar 5 (2) 93-98. The annual cost
of managing a patient with HIV ranges

between over C$ 9000 and up to over C$ 18000 if they present late. The
cost of treating an AIDS patient is probably

much higher but variable due to the nature of the AIDS defining illness. My
text should have read “up to C$ 1500 per

month for HIV treatment alone” to be more accurate.

8. Crosby R, Mettey A. A descriptive analysis of HIV risk behaviour among
men having sex with men attending a

large sex resort. J Acquir Immune Defic Syndr 2004 Dec 1;37(4) 1496-1499
9. Denning PH, Campsmith ML Unprotected anal intercourse among HIV *
positive men who have a steady male

sex partner with negative or unknown HIV serostatus. Am J Public Health
2005 Jan:95(1):152-158
10. Brown B, Hemsworth W. HIV infection draws murder charge. Toronto star
news service 25 Feb 2005. (Can we

expect lawsuits among men who have sex with men who knowingly infect a
partner?)
11. Canadian Blood Services website: permanent deferrals “All men who have
had sex with another man, even once,

since 1977 are permanently deferred. This is based on current scientific
knowledge and statistical information that

shows that men who have had sex with other men are at greater risk for
HIV/AIDS infection than other people.”

http://www.bloodservices.ca

12. Susman Ed A Case of Apparent Recent Infection With a
Multi-Drug-Resistant and Dual-Topic HIV-1 in

Association With Rapid Progression to AIDS. Abstract 793A]- March 1, 2005.
http://www.docguide.com/news/

content.nsf/news/8525697700573E1885256FB8000A821D
13. Richters J et al . Sex in Australia: autoerotic, esoteric and other
sexual practices engaged in by a representative

sample of adults. Aust NZ J Public Health 2003;27(2):180-190.
14. Van de Ven P, Mao L, Prestage G. Gay Asian men in Sydney resist
international trend: no change in rates of

unprotected anal intercourse, 1999-2002. AIDS Educ Prev; 2004

Feb;16(1):1-12
15. Cossa HA et al. Syphilis and HIV infection among displaced pregnant
women in rural Mocambique. Int J STD

AIDS. 1994 Mar-Apr;5(2):117-123
16. Brody S, Potterat JT Assessing the role of anal intercourse in the
epidemiology of AIDS in Africa. Int J STD AIDS

2003 Jul 14 (7) 431-436
17. Silverman BG et al. Use and effectiveness of condoms during anal
intercourse. Sex Transm Dis 1997;24 (1): 14
18. Miles AJ et al. Effect of anoreceptive intercourse on anorectal
function J Roy Soc Med 1993; 86:144-147. “*
Fourteen of the (40) anoreceptive (AR) subjects but only one of the (18)
non-AR subjects had symptoms of frequent

anal incontinence (P < 0.05)..”.
19. Rosser BR et al. Anodyspareunia: an unacknowledged sexual dysfunction:
a validation study of painful receptive

anal intercourse and its psychosexual concomitants in homosexual men. J Sex
Marital Ther. 1998 Oct-Dec;24(4):
281-292
20 Berg MB, Mimiaga MJ, Safren SA . Mental Health concerns of HIV infected
men and bisexual men seeking mental

health services: an observational study. AIDS Patient Care STDS 2004 Nov
18(11): 635-643
21. Warner J et al. Rates and predictors of mental illness in gay men,
lesbians and bisexual men and women:

Results from a survey based in England and Wales. Br J Psychiatry; 2004 Dec
185:479-485
22 McAndrew S, Warne T. Ignoring the evidence dictating the practice:
sexual orientation, suicidality and the

dichotomy of the mental health nurse. J Psychiatric Ment Health Nurs 2004
Aug;11(4)428-434
23 Mills TC et al. Distress and depression in men who have sex with men:
the Urban Men’s Health Study. Am J

Psychiatry 2004 Feb;161(2):278-285
24 Greenwood GL et al. Battering victimization among a probability based
sample of men who have sex with men.

Am J Public Health 2002 Dec;92(12):1964-1969. * a search on PUBMED using
the words “homosexual, partner

violence” yield more studies
25 Cameron P . Domestic Violence among homosexual partners. Psychol Rep.
2003 Oct 93(2):410-416.
26. Tjaden P, et al. Comparing violence over the life span in samples of
same sex and opposite sex cohabitants.

Violence Vict. 1999 Winter;14(4):413-425 “The study also confirms previous
reports that intimate partner violence is

more prevalent among gay male couples than heterosexual couples.”
27 Burke LK, Follingstad DR. Violence in lesbian and Gay relationships:
theory, prevalence and correlational

factors. Clin Psychol Rev. 1999 Aug 19(5):487-512
28. Roberts SJ et al. Health related behaviours and cancer screening of
lesbians: results from the Boston Lesbian

Health Project II .Women Health 2004;39(4):41-55 . “BLHP II data confirm
other findings that lesbians are more

likely to drink alcohol and to drink more heavily than other women.”
29. Logan TK, Leukefeld. HIV risk behaviour among bisexual and
heterosexual drug users. J Psychoactive drugs

2000 Jul-Sep 32(3):239-248
30. Romanelli F, Smith KM. Recreational use of sildenafil by HIV positive
and negative homosexual/bisexual males.

Ann Pharmacother. 2004 Jun;38(6):1024-1030
31.. Klitzman RL et al. MDMA (‘ecstasy”) use, and its association with high
risk behaviours, mental health and other

factors among gay/bisexual men in New York City. Drug Alcohol dependence
2002 Apr 1,66(2):115-125
32.. Marrazzo JM. Genital human papilloma virus infection in women who
have sex with women. A concern for

patients and providers. AIDS Patient Care STDS. 2000 Aug;14(8):447-451
33. Marrazzo et al. Papanicolaou test screening and prevalence of genital
human papilloma virus among women

who have sex with women. Am J Public Health 2001 Jun;91(6):947-952.

34. Marrazzo JM et al. Characterisation of vaginal flora and bacterial
vaginosis in women who have sex with

women. J Infect Dis 2002 May 1;185(9):1307-1313
35. Berger BJ et al. Bacterial vaginosis in lesbians: a sexually
transmitted disease. Clin Infect Dis 1995 Dec;21(6):
1402-1405
36. Roberts SJ, et al 2004 ibid.
37. Freund K, Watson RJ. The proportions of heterosexual and homosexual
pedophiles among sex offenders

against children: an exploratory study. J Sex Marital Ther 1992
Spring,18(1):34-43. “..the ratio of heterosexual to

homosexual pedophiles was calculated to be approximately 11:1”. But only

1.3% of men and 0.7% of women

considered themselves homosexual. 0.9% of women, compared with 0.6% of men,
said they were bisexual. On a

statistical basis, only 1 in 50-80 pedophiles should be
homosexual/bisexual.

Source: Canadian Community Health Survey, June 2004. A Canadian government
survey of 83,000 people. Ref:

Statistics Canada. Click here.
38. Remafedi G, Resnick M, Blum R, Harris L. Demography of sexual
orientation in adolescents. Pediatrics v1992

Apr;89(4 Pt 2):714-721. 25.9% of 12 year olds were unsure whether they were
homo or heterosexual vs only 5% of

17 year olds (98.5% of all students were sure they were heterosexual)
39.

40. Centre for Disease Control and Prevention (1991 January 4). Premarital
sexual experience among adolescent

women * United States 1970-1988. Morb Mort Wkly Rep 39(51), 929-932
41. Epidemic: How teen sex is killing our kids. Meeker M MD. 2002.
Lifeline press

Human Life International submission

2006-10-24T00:33:00.000-07:00

MEMORANDUM:

To: The Justice Portfolio Committee
From: Human Life International

16 September 2006

CALL FOR CONSTITUTIONAL AMENDMENT TO DEFEND MARRIAGE

We believe that redefining marriage was not the intention of the framers of the constitution and therefore, in order to safeguard the constitution, it is necessary to amend it, by the addition of an interpretive clause which will define marriage as a union between a man and woman only.

Human Life International calls for an amendment to the constitution of the Republic of South Africa by adding to section 39 (Interpretation) the clause:

"The Constitution shall be interpreted to mean that a marriage is the voluntary union between a man and a woman only."

We oppose the proposed “Civil Unions Bill” which is the legalisation of same sex marriage under a different name. We also oppose the legalisation of ‘domestic partnerships’, which will further undermine marriage and family.

Because of the sensitive nature of this issue and the large amount of public interest, we also call on Parliament to request an extension of time from the Constitutional Court in order to properly process the information gathered through wide public consultation.

We reiterate the statement made by the South African Catholic Bishops Conference on 5 December 2005 which states:

“It is true that the Constitution is the supreme law of the land, but in order to be binding on the consciences of its citizens it must conform to the Law of God. And in this case it clearly does not.

Indeed if the S.A. Constitution is being made to supersede the revealed will of God then South Africa is morally doomed. For no one can go against God's Will and come away unscathed. The fact that same sex marriages are approved by the Constitutional Court, does not make them morally right.

The Church has the prophetic duty to point out where the Constitution runs counter to the Commandments of God, our Maker's Instructions which determine how human beings are to live good and moral lives.”

Furthermore we bring to attention the Vatican statement ‘Considerations Regarding Proposals to give Legal recognition to Unions between Homosexual Persons’ (Congregation For the Doctrine of the Faith, 2003) which proclaims:

“The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.”

HUMAN LIFE INTERNATIONAL
P.O.Box 404 MILNERTON 7435
Tel.: 021 552-3850 / Fax.: 021 551-6748 / E-mail: humanlife.int@iafrica.com
www.hli.co.za

By Mail:
The Chairperson,
Home Affairs Portfolio Committee,
National Assembly,
P O Box 15,
Cape Town,
8000,

By Fax
021 403 2808 (Mr Mankge) and 021 403 2854 (Ms Martin)

By Email:
dmartin@parliament.gov.za and mmankge@parliament.gov.za

03 October 2006

SUBMISSION ON CIVIL UNIONS BILL B 26 - 2006.

We object to the proposed Civil Unions Bill, which will provide for the solemnisation of same-sex ‘civil unions’, as indistinguishable from marriage. We oppose the legal recognition of homosexual unions as well as ‘domestic partnerships’. We argue that for the common good of society, marriage, as a union between a man and a woman only, should be defended and promoted by the State, as the basis for a healthy society.

Why we oppose same Sex “Marriage” and the legal recognition of homosexual unions.

Hard Cases make Bad Laws
We recognise the right of every human person to be treated with respect and dignity, including those with a homosexual orientation. Whilst we accept them with respect, compassion and sensitivity and avoid every sign of unjust discrimination in their regard, we can in no way approve of homosexual acts, or the legal recognition of homosexual unions.

Whilst we sympathise with the difficulties that homosexual persons face in their everyday lives, we do not agree that redefining marriage and the family is the answer to these problems. Marriage, as a union between a man and a woman only, is an institution that has served humanity well. It is the ideal environment for procreating and raising children.

We believe that legislation should promote and defend what is best for society, for the common good.

The impact of redefining marriage will have far reaching effects on our society. It will undermine the institution of marriage, which already suffers offences against it’s dignity such as divorce, adultery, incest and cohabitation.

Individual circumstances must be balanced against the duty of the state to do what is in the best interests of society.

The rights of Children
The rights of homosexual persons to marry and to have children, to form a ‘family’, must be balanced against the rights of children.

In general, studies have shown that homosexual relationships do not benefit society like natural marriage does. They are unable to procreate children in a natural way; hence children resulting from the relationship, either through adoption, or through artificial means, are denied the basic right of a mother and a father. Children become the victims of an untested social experiment. To have children is not an absolute right. Children exist for their own good, and their rights should not be overlooked.

Additionally, once ‘same-sex marriage’ is normalised, children will be taught that homosexual relationships are equal and comparable with marriage between a man and a woman. Sex Education will now have to contain information about unnatural homosexual practices. This is a violation of many parents religious convictions and hence a violation of the child’s rights.

It is medically proven that homosexual activity exposes one to greater risk of contracting HIV/AIDS and other sexually transmitted diseases. In the best interests of society, this type of behaviour should not be encouraged, especially to children.

What is best for society?
It is not true that all personal domestic relationships have equal social value and that the law should not favour one over another. Marriage is not just merely a religious, sentimental or emotional relationship; it provides society with social benefits. Studies have proved that marriage contributes to a healthier, wealthier, happier society.

Laws should encourage behaviours that are beneficial to society, and people who engage in those behaviours should be rewarded. The government gives incentives for example to first time homeowners, whilst levying high taxes on tobacco and alcohol. The government is not ‘discriminating’ against smokers, but society benefits when smoking is kept to a minimum.

Marriage benefits society like no other relationship. That is why, historically, it has been promoted by all societies over all other domestic relationships.

Therefore it is ultimately for the benefit of society that marriage, between a man and a woman only, should be extended benefits that are withheld from other couples, whose relationships do not benefit society as marriage does

Marriage does not discriminate
We do not condone discrimination against persons with homosexual inclinations, however, we do not believe that the current marriage act does discriminate. There are numerous persons who are ‘discriminated’ against in the current Marriage Act. One is for instance prohibited from marrying one’s sibling or parent. There are practical, fair reasons for this ‘discriminatory’ prohibition, as there are for prohibiting marriage between two people of the same sex. This constitutes ‘fair’ rather than ‘unfair’ discrimination.

Marriage does not discriminate – it is open to everyone – as long as they fulfil the criteria necessary. One non-negotiable criteria for marriage is that those who enter into it must be male and female

Hate Speech?
We also record our concern that condemnation or criticism of homosexual behaviour, by religious or traditional groups may be classified as ‘hate speech’. We fear that those who in future voice their opposition to homosexual behaviour and the legal recognition thereof may be victimised as purveyors of so-called ‘religious hatred’. We call on government to provide legal protection to those who exercise their right to free speech, in verbalising their opposition to this moral evil.

Comments on Chapter 3 of the Civil Unions Bill – Domestic Partnerships
We strenuously oppose the inclusion of legislation dealing with the legal recognition of Domestic Partnerships within this bill. We feel that it is unacceptable, in a bill which is already attracting so much public interest, and which is being passed within a very short time frame, to include this chapter, which is in itself controversial, but is being overlooked because of the contentious nature of Chapter 1 and 2 of this bill.

Regularising Domestic Partnerships was not part of the requirements of the constitutional Court decision and we therefore strenuously call for this section to be totally removed.

This issue deserves to be properly and openly discussed, within appropriate time frames, within a separate bill. It is unacceptable to include this controversial piece of legislation in a bill with an even more controversial piece of legislation. It violates democratic principles and smacks of legislating by stealth tactics.

Call to Amend the Constitution
We believe that it was not the intention of the framers of the constitution to redefine marriage. We believe that giving legal recognition to homosexual unions is not the will of the people of South Africa.

Parliament should not be a rubber stamp for the decisions of the judiciary. Whilst we respect the constitution, we stress that it is a document that can be interpreted in different ways.

We call therefore for the addition of an interpretive clause to section 39 of the constitution, to read:

"The Constitution shall be interpreted to mean that a marriage is the voluntary union between a man and a woman only."

This will clarify the intention of the framers of the constitution and protect marriage, for the common good.

We request permission to present this submission orally before your committee in parliament.

Sincerely,

Sally E. Hall
Human Life International

Addendum:
CONGREGATION FOR THE DOCTRINE OF THE FAITH

CONSIDERATIONS REGARDING PROPOSALS TO GIVE LEGAL RECOGNITION TO
UNIONS BETWEEN HOMOSEXUAL PERSONS

INTRODUCTION

1. In recent years, various questions relating to homosexuality have been addressed with some frequency by Pope John Paul II and by the relevant Dicasteries of the Holy See.(1) Homosexuality is a troubling moral and social phenomenon, even in those countries where it does not present significant legal issues. It gives rise to greater concern in those countries that have granted or intend to grant – legal recognition to homosexual unions, which may include the possibility of adopting children. The present Considerations do not contain new doctrinal elements; they seek rather to reiterate the essential points on this question and provide arguments drawn from reason which could be used by Bishops in preparing more specific interventions, appropriate to the different situations throughout the world, aimed at protecting and promoting the dignity of marriage, the foundation of the family, and the stability of society, of which this institution is a constitutive element. The present Considerations are also intended to give direction to Catholic politicians by indicating the approaches to proposed legislation in this area which would be consistent with Christian conscience.(2) Since this question relates to the natural moral law, the arguments that follow are addressed not only to those who believe in Christ, but to all persons committed to promoting and defending the common good of society.

I. THE NATURE OF MARRIAGE AND ITS INALIENABLE CHARACTERISTICS

2. The Church's teaching on marriage and on the complementarity of the sexes reiterates a truth that is evident to right reason and recognized as such by all the major cultures of the world. Marriage is not just any relationship between human beings. It was established by the Creator with its own nature, essential properties and purpose.(3) No ideology can erase from the human spirit the certainty that marriage exists solely between a man and a woman, who by mutual personal gift, proper and exclusive to themselves, tend toward the communion of their persons. In this way, they mutually perfect each other, in order to cooperate with God in the procreation and upbringing of new human lives.
3. The natural truth about marriage was confirmed by the Revelation contained in the biblical accounts of creation, an expression also of the original human wisdom, in which the voice of nature itself is heard. There are three fundamental elements of the Creator's plan for marriage, as narrated in the Book of Genesis.
In the first place, man, the image of God, was created “male and female” (Gen 1:27). Men and women are equal as persons and complementary as male and female. Sexuality is something that pertains to the physical-biological realm and has also been raised to a new level – the personal level – where nature and spirit are united.
Marriage is instituted by the Creator as a form of life in which a communion of persons is realized involving the use of the sexual faculty. “That is why a man leaves his father and mother and clings to his wife and they become one flesh” (Gen 2:24).
Third, God has willed to give the union of man and woman a special participation in his work of creation. Thus, he blessed the man and the woman with the words “Be fruitful and multiply” (Gen 1:28). Therefore, in the Creator's plan, sexual complementarity and fruitfulness belong to the very nature of marriage.
Furthermore, the marital union of man and woman has been elevated by Christ to the dignity of a sacrament. The Church teaches that Christian marriage is an efficacious sign of the covenant between Christ and the Church (cf. Eph 5:32). This Christian meaning of marriage, far from diminishing the profoundly human value of the marital union between man and woman, confirms and strengthens it (cf. Mt 19:3-12; Mk 10:6-9).
4. There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God's plan for marriage and family. Marriage is holy, while homosexual acts go against the natural moral law. Homosexual acts “close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved”.(4)
Sacred Scripture condemns homosexual acts “as a serious depravity... (cf. Rom 1:24-27; 1 Cor 6:10; 1 Tim 1:10). This judgment of Scripture does not of course permit us to conclude that all those who suffer from this anomaly are personally responsible for it, but it does attest to the fact that homosexual acts are intrinsically disordered”.(5) This same moral judgment is found in many Christian writers of the first centuries(6) and is unanimously accepted by Catholic Tradition.
Nonetheless, according to the teaching of the Church, men and women with homosexual tendencies “must be accepted with respect, compassion and sensitivity. Every sign of unjust discrimination in their regard should be avoided”.(7) They are called, like other Christians, to live the virtue of chastity.(8) The homosexual inclination is however “objectively disordered”(9) and homosexual practices are “sins gravely contrary to chastity”.(10)
II. POSITIONS ON THE PROBLEM OF HOMOSEXUAL UNIONS

5. Faced with the fact of homosexual unions, civil authorities adopt different positions. At times they simply tolerate the phenomenon; at other times they advocate legal recognition of such unions, under the pretext of avoiding, with regard to certain rights, discrimination against persons who live with someone of the same sex. In other cases, they favour giving homosexual unions legal equivalence to marriage properly so-called, along with the legal possibility of adopting children.
Where the government's policy is de facto tolerance and there is no explicit legal recognition of homosexual unions, it is necessary to distinguish carefully the various aspects of the problem. Moral conscience requires that, in every occasion, Christians give witness to the whole moral truth, which is contradicted both by approval of homosexual acts and unjust discrimination against homosexual persons. Therefore, discreet and prudent actions can be effective; these might involve: unmasking the way in which such tolerance might be exploited or used in the service of ideology; stating clearly the immoral nature of these unions; reminding the government of the need to contain the phenomenon within certain limits so as to safeguard public morality and, above all, to avoid exposing young people to erroneous ideas about sexuality and marriage that would deprive them of their necessary defences and contribute to the spread of the phenomenon. Those who would move from tolerance to the legitimisation of specific rights for cohabiting homosexual persons need to be reminded that the approval or legalization of evil is something far different from the toleration of evil.
In those situations where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application. In this area, everyone can exercise the right to conscientious objection.
III. ARGUMENTS FROM REASON AGAINST LEGAL RECOGNITION OF HOMOSEXUAL UNIONS

6. To understand why it is necessary to oppose legal recognition of homosexual unions, ethical considerations of different orders need to be taken into consideration.
From the order of right reason
The scope of the civil law is certainly more limited than that of the moral law,(11) but civil law cannot contradict right reason without losing its binding force on conscience.(12) Every humanly-created law is legitimate insofar as it is consistent with the natural moral law, recognized by right reason, and insofar as it respects the inalienable rights of every person.(13) Laws in favour of homosexual unions are contrary to right reason because they confer legal guarantees, analogous to those granted to marriage, to unions between persons of the same sex. Given the values at stake in this question, the State could not grant legal standing to such unions without failing in its duty to promote and defend marriage as an institution essential to the common good.
It might be asked how a law can be contrary to the common good if it does not impose any particular kind of behaviour, but simply gives legal recognition to a de facto reality which does not seem to cause injustice to anyone. In this area, one needs first to reflect on the difference between homosexual behaviour as a private phenomenon and the same behaviour as a relationship in society, foreseen and approved by the law, to the point where it becomes one of the institutions in the legal structure. This second phenomenon is not only more serious, but also assumes a more wide-reaching and profound influence, and would result in changes to the entire organization of society, contrary to the common good. Civil laws are structuring principles of man's life in society, for good or for ill. They “play a very important and sometimes decisive role in influencing patterns of thought and behaviour”.(14) Lifestyles and the underlying presuppositions these express not only externally shape the life of society, but also tend to modify the younger generation's perception and evaluation of forms of behaviour. Legal recognition of homosexual unions would obscure certain basic moral values and cause a devaluation of the institution of marriage.
From the biological and anthropological order
7. Homosexual unions are totally lacking in the biological and anthropological elements of marriage and family which would be the basis, on the level of reason, for granting them legal recognition. Such unions are not able to contribute in a proper way to the procreation and survival of the human race. The possibility of using recently discovered methods of artificial reproduction, beyond involving a grave lack of respect for human dignity,(15) does nothing to alter this inadequacy.
Homosexual unions are also totally lacking in the conjugal dimension, which represents the human and ordered form of sexuality. Sexual relations are human when and insofar as they express and promote the mutual assistance of the sexes in marriage and are open to the transmission of new life.
As experience has shown, the absence of sexual complementarity in these unions creates obstacles in the normal development of children who would be placed in the care of such persons. They would be deprived of the experience of either fatherhood or motherhood. Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development. This is gravely immoral and in open contradiction to the principle, recognized also in the United Nations Convention on the Rights of the Child, that the best interests of the child, as the weaker and more vulnerable party, are to be the paramount consideration in every case.
From the social order
8. Society owes its continued survival to the family, founded on marriage. The inevitable consequence of legal recognition of homosexual unions would be the redefinition of marriage, which would become, in its legal status, an institution devoid of essential reference to factors linked to heterosexuality; for example, procreation and raising children. If, from the legal standpoint, marriage between a man and a woman were to be considered just one possible form of marriage, the concept of marriage would undergo a radical transformation, with grave detriment to the common good. By putting homosexual unions on a legal plane analogous to that of marriage and the family, the State acts arbitrarily and in contradiction with its duties.
The principles of respect and non-discrimination cannot be invoked to support legal recognition of homosexual unions. Differentiating between persons or refusing social recognition or benefits is unacceptable only when it is contrary to justice.(16) The denial of the social and legal status of marriage to forms of cohabitation that are not and cannot be marital is not opposed to justice; on the contrary, justice requires it.
Nor can the principle of the proper autonomy of the individual be reasonably invoked. It is one thing to maintain that individual citizens may freely engage in those activities that interest them and that this falls within the common civil right to freedom; it is something quite different to hold that activities which do not represent a significant or positive contribution to the development of the human person in society can receive specific and categorical legal recognition by the State. Not even in a remote analogous sense do homosexual unions fulfil the purpose for which marriage and family deserve specific categorical recognition. On the contrary, there are good reasons for holding that such unions are harmful to the proper development of human society, especially if their impact on society were to increase.
From the legal order
9. Because married couples ensure the succession of generations and are therefore eminently within the public interest, civil law grants them institutional recognition. Homosexual unions, on the other hand, do not need specific attention from the legal standpoint since they do not exercise this function for the common good.
Nor is the argument valid according to which legal recognition of homosexual unions is necessary to avoid situations in which cohabiting homosexual persons, simply because they live together, might be deprived of real recognition of their rights as persons and citizens. In reality, they can always make use of the provisions of law – like all citizens from the standpoint of their private autonomy – to protect their rights in matters of common interest. It would be gravely unjust to sacrifice the common good and just laws on the family in order to protect personal goods that can and must be guaranteed in ways that do not harm the body of society.(17)
IV. POSITIONS OF CATHOLIC POLITICIANS WITH REGARD TO LEGISLATION IN FAVOUR OF HOMOSEXUAL UNIONS

10. If it is true that all Catholics are obliged to oppose the legal recognition of homosexual unions, Catholic politicians are obliged to do so in a particular way, in keeping with their responsibility as politicians. Faced with legislative proposals in favour of homosexual unions, Catholic politicians are to take account of the following ethical indications.
When legislation in favour of the recognition of homosexual unions is proposed for the first time in a legislative assembly, the Catholic law-maker has a moral duty to express his opposition clearly and publicly and to vote against it. To vote in favour of a law so harmful to the common good is gravely immoral.
When legislation in favour of the recognition of homosexual unions is already in force, the Catholic politician must oppose it in the ways that are possible for him and make his opposition known; it is his duty to witness to the truth. If it is not possible to repeal such a law completely, the Catholic politician, recalling the indications contained in the Encyclical Letter Evangelium vitae, “could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality”, on condition that his “absolute personal opposition” to such laws was clear and well known and that the danger of scandal was avoided.(18) This does not mean that a more restrictive law in this area could be considered just or even acceptable; rather, it is a question of the legitimate and dutiful attempt to obtain at least the partial repeal of an unjust law when its total abrogation is not possible at the moment.

CONCLUSION

11. The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.
The Sovereign Pontiff John Paul II, in the Audience of March 28, 2003, approved the present Considerations, adopted in the Ordinary Session of this Congregation, and ordered their publication.
Rome, from the Offices of the Congregation for the Doctrine of the Faith, June 3, 2003, Memorial of Saint Charles Lwanga and his Companions, Martyrs.
Joseph Card. Ratzinger
Prefect
Angelo Amato, S.D.B.
Titular Archbishop of Sila
Secretary

NOTES
(1) Cf. John Paul II, Angelus Messages of February 20, 1994, and of June 19, 1994; Address to the Plenary Meeting of the Pontifical Council for the Family (March 24, 1999); Catechism of the Catholic Church, Nos. 2357-2359, 2396; Congregation for the Doctrine of the Faith, Declaration Persona humana (December 29, 1975), 8; Letter on the pastoral care of homosexual persons (October 1, 1986); Some considerations concerning the response to legislative proposals on the non-discrimination of homosexual persons (July 24, 1992); Pontifical Council for the Family, Letter to the Presidents of the Bishops' Conferences of Europe on the resolution of the European Parliament regarding homosexual couples (March 25, 1994); Family, marriage and “de facto” unions (July 26, 2000), 23.
(2) Cf. Congregation for the Doctrine of the Faith, Doctrinal Note on some questions regarding the participation of Catholics in political life (November 24, 2002), 4.
(3) Cf. Second Vatican Council, Pastoral Constitution Gaudium et spes, 48.
(4) Catechism of the Catholic Church, No. 2357.
(5) Congregation for the Doctrine of the Faith, Declaration Persona humana (December 29, 1975), 8.
(6) Cf., for example, St. Polycarp, Letter to the Philippians, V, 3; St. Justin Martyr, First Apology, 27, 1-4; Athenagoras, Supplication for the Christians, 34.
(7) Catechism of the Catholic Church, No. 2358; cf. Congregation for the Doctrine of the Faith, Letter on the pastoral care of homosexual persons (October 1, 1986), 10.
(8) Cf. Catechism of the Catholic Church, No. 2359; cf. Congregation for the Doctrine of the Faith, Letter on the pastoral care of homosexual persons (October 1, 1986), 12.
(9) Catechism of the Catholic Church, No. 2358.
(10) Ibid., No. 2396.
(11) Cf. John Paul II, Encyclical Letter Evangelium vitae (March 25, 1995), 71.
(12) Cf. ibid., 72.
(13) Cf. St. Thomas Aquinas, Summa Theologiae, I-II, q. 95, a. 2.
(14) John Paul II, Encyclical Letter Evangelium vitae (March 25, 1995), 90.
(15) Cf. Congregation for the Doctrine of the Faith, Instruction Donum vitae (February 22, 1987), II. A. 1-3.
(16) Cf. St. Thomas Aquinas, Summa Theologiae, II-II, q. 63, a.1, c.
(17) It should not be forgotten that there is always “a danger that legislation which would make homosexuality a basis for entitlements could actually encourage a person with a homosexual orientation to declare his homosexuality or even to seek a partner in order to exploit the provisions of the law” (Congregation for the Doctrine of the Faith, Some considerations concerning the response to legislative proposals on the non-discrimination of homosexual persons [July 24, 1992], 14).
(18) John Paul II, Encyclical Letter Evangelium vitae (March 25, 1995), 73.

Christian Lawyers Association submission

2006-10-23T01:23:00.000-07:00

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

Couples for Christ submission

2006-10-20T10:40:00.000-07:00

Submission to Parliamentary Committee on 17/10/06 re homosexual “marriage”/unions:

My name is Fr. Gregory Charnock, the spiritual director for the Cape of Couples for Christ, one of the new movements in the Catholic Church renewing individuals and families in the power of the Holy Spirit – restoring sanity and normality – bringing healing and light. We have already endeavoured to serve our country South Africa and you who are appointed by the people, for the people, to be the servants and protectors of the people. This we have done by writing to you and sending you books, videos and DVD’s.

You have already listened to many words. I shall be brief. I give you instead an African picture.

Summer is almost here and so in the country areas all over we encounter snakes in the bush and sometimes we see them on the roads. Imagine I now pick up a snake, behind its head, so I am not bitten. I hold it here before you. More about this snake shortly.

I don’t want to speak about religion. I want to talk about wisdom. We all wish to be wise, we do not like to be stupid.

Now, love of wisdom is a science. It is called philosophy, philo (love) & sophia (wisdom). A basic principle of this science of philosophy is that two opposite points of view which are diametrically opposed can, obviously, not both be true. One is true, one is false. They cannot both be right, one position is right & one is wrong.

So, you must, if you wish to be wise, and not stupid, ask yourself which proposition is the truth. Then you must act in accordance with that truth. So, now, homosexual marriages/unions are either right or they are wrong. You either, in truth, give them legal recognition or you do not. Love of wisdom – philosophy.

Now, secondly, a word about an open society, such as our new South Africa. Yes to tolerance, from the State’s point of view. Yes to compassion and mercy, from the Church’s point of view. Respect for the dignity of every human being. We say: buckets of love. No insults. Jesus came to save, not to condemn. The Church exists for the forgiveness of sins. Her sacraments, received with the right dispositions, bring new life, in Christ.

However, there seems to be a fanaticism, which will not listen to reason, seeking not just tolerance, but also to impose this new ideology on the entire country, so that vulnerable children are taught that such things are normal. Christians – Catholics – are already being vilified and abused for holding that the basic unit of every civilized society throughout history until now has been, & will always be, the family based on self – giving love between a man and a woman with the stability that gives to children. We are attacked even more viciously for the celibacy & virginity of our Priests and Religious, yet Jesus was an unmarried man and His mother, Mary, was ever virgin. We recall the martyrdom of so many of the early Christians, indeed Christians through the ages, who witnessed to Christ in virginity & celibacy.

Reason and the common good require a wise Government to safeguard national integrity and stability. This is done by nurturing the key social institution, the traditional family, which is under such pressure already; this key basic unit of stability in every village, town and city in our land.

The expense to the taxpayer of alternative arrangements for the proper formation and care of children, and care of the elderly (our senior citizens), will increase substantially, if the stability of the traditional family is further eroded. And no Government can ever substitute for the genuine community and authentic care available in that place of love and life, which is the family as we have always known it.

So, an open society cannot close itself to wisdom, to reason, and, obviously, to life.

Let us see now how this applies to Law.

It is obvious that Law should always be seen to be wise, reasonable and life giving. Otherwise, the law itself is brought into disrepute.

“Human law is law inasmuch as it is in conformity with right reason and thus derives from the eternal law. But when a law is contrary to reason, it is called an unjust law; but in this case it ceases to be a law and becomes instead an act of violence.” “Every law made by man can be called a law in so far as it derives from the natural law. But if it is somehow opposed to the natural law, then it is not really a law, but rather a corruption of the law.” (St. Thomas Aquinas quoted by Pope John Paul II in EVANGELIUM VITAE – the Gospel of Life – dated 25/03/95, paragraph 72. St. Augustine also quoted St. Thomas Aquinas. “ Non videtur esse lex, quae iusta non fuerit.”)

Government should not send a wrong message to the people, by passing such a law, especially to impressionable and to young people, and children, that something which is not good, is in fact so.

Finally, as with everything else I have said here, a word of TRUTH spoken in love.

Honourable Members of Parliament, we have made available to you, with our letters and submissions, evidence of the testimonies of countless homosexuals who have, with great courage, turned their backs on a lifestyle which has eventually brought them nothing but deep sadness and instability. They testify how they have now found peace in the incredible grace, love and mercy of God – not in a false concept of mercy. You see, healing, wholeness and authentic love, which are life-giving, cannot be separated from Truth & right reason.

Even Dr. Robert L Spitzer, who led the campaign inside the American Psychiatric Association to discontinue listing homosexuality as a psychiatric disorder, changed his view: “Like most psychiatrists, I thought that homosexual behaviour could be resisted, but sexual orientation could not be changed. I now believe that’s untrue – some people can and do change.” (See www.narth.com/docs/spitzer2.html.) (See also www.dad.org)

A couple of concluding points must be made.

In terms of United Nations documents, children have the right to proper formation and nurturing in stable families, the right to fathering and mothering, which is necessary for what psychologists/psychiatrists term psychosexual individuation.

Sadly, it is also necessary to say something to you, of those who call themselves Christians and yet support this attempt to persuade Government to describe something as marriage which it can never be, to call something good which is not in fact so. We say they are sincerely wrong. Indeed they should be careful that they do not find a great millstone round their necks as they deform the conscience of our beloved New South Africa. TRUTH is a person. His name is JESUS CHRIST, who is SAVIOUR and LORD. The Catholic Bishops around the world are unanimously in agreement with Pope Benedict in opposing homosexual marriages/unions. So too you will find, are a huge majority of the Anglican Bishops of Africa. Committed Christians are committed to TRUTH.

Look at this snake! It is poisonous. It is not African. It is a foreign import. It is deadly, especially to children. And all of us are precious children of God!!!

Please, dear representatives of the people, protectors of the people, servants of the people, for the sake of the children, do not let this thing happen. Please. In the name of Almighty God, who is our loving Creator and Redeemer, the Father, Son and Holy Spirit. May God bless you all.

Notes:

1. In response to questions form Members of Parliament, I read paragraphs 2357 to 2359 of the Catechism of the Catholic Church ( Year of publication 1995, revised edition 2001) to the Committee.
2. I also expressed my alarm at reports that the new Government in Spain, having introduced homosexual “marriage”, now proposed including this in school curricula for children as young as 10.
3. Having listened to the Parliamentary Liaison officers of the South African Council of Churches and the Dutch Reformed Church repeatedly attempt to reassure the Committee that they had a mandate to represent millions of Christians in South Africa, which is not the case, in saying yes to homosexual marriages, I have been reflecting anew on Our Lord’s words in Matthew 7:15. What we are seeing is – “the darkness of the lack of faith and of apostasy, which has spread everywhere. It is the darkness of evil and sin, which has now obscured hearts and souls. It is the darkness of faithlessness and impiety, of egoism and pride, of hardness of heart and impurity.” (MMP 484, l, m & n).

4. I have also been thanking God again for the infallible teaching in Faith and Morals by the Magisterium of the Catholic Church on the subject of homosexuality, at a time in which clarity and compassion are much needed.

National House of Traditional Leaders submission

2006-10-20T10:34:00.000-07:00

COMMENTS BY THE NATIONAL HOUSE OF TRADITIONAL LEADERS ON THE CIVIL UNION BILL [B 26 - 06]

The National House of Traditional Leaders has received a copy of the Bill which was introduced in the National Assembly on 12 September 2006, and has been classified as a section 75 Bill and a Bill falling within the ambit of section 18(1) of the Traditional Leadership and Governance Framework Act, 2003 (Act no. 41 of 2003).

We have considered the provisions of the Bill and our comments are as follows:

INTRODUCTION

The National House of Traditional Leaders derives its mandate from section 212 of Chapter 12 of the Constitution of the Republic of South Africa, 1996. It is established in terms of the National House of Traditional Leaders Act, 1997 ( Act No. 10 of 1997) , as amended.

The Constitution, 1996 does not allow discrimination on the basis of sexual orientation, the NHTL has a position with regard to the civil Union Bill, it recognizes that in terms of African culture, marriage is a union that brings together families and not only two persons.

The NHTL took a decision in 2005, after the Supreme Court of Appeal took a decision to have a Lesbian couple marriage legally recognized and registered, to hear the views of rural people on same sex marriages by conducting public hearings in provinces where there are traditional leaders, and that is, Limpopo, Mpumalanga, Kwazulu-Natal, North West, Eastern Cape and Free State. The communities were unanimous in their opposition to the legislation of same sex marriages based on the reasons that it is against the religious beliefs, customs, traditions and morality and that the government will be violating their beliefs and it will lead to the eradication of the human species, as same sex marriages would not produce any offspring. The communities made it clear that they would always respect their own culture and that they will make sure that wrong practices do not occur in their community.

The NHTL finds that the practice of same –sex marriages is against most African beliefs, cultures, customs and traditions and it also goes against the mandate of the NHTL which is to promote and protect the customs of communities observing a system of customary law.

COMMENTS

The purpose of the Civil Union Bill is to provide for the solemnization and registration of civil partnerships and the legal recognition of domestic partnerships.

We are opposed to this type of legislation based on the following:
· Religious beliefs
The Bible provides that a marriage is a union between two people of the opposite sex.
· Customs, traditions and morality.
The African Custom and Tradition dictates that lobola must be paid before people can live together. It further dictates that families must approve the relationship and be willing to assist the new couples to build and sustain their relationship in a marriage. Therefore the Bill in question encourages what is normally called “vat en sit” which is not acceptable in African culture. This arrangement will discourage people to marry and people will just enter into domestic partnerships.
· Constitution
The National House of Traditional Leaders recommends that the Constitution be amended to define a marriage as a union between a man and a woman. This amendment will guarantee the production of children and also ensures that the moral values remains intact. The above Constitutional amendment is in line with custom, tradition and religious dictates.

The Civil Union Bill grants all rights of marriage to same sex couples and allows the use of the word “marriage” in the ceremony. Again, the Bill deals with registered and unregistered domestic partnerships for opposite sex couples which creates a marriage alternative and rights for unmarried couples. These rights compete with the rights of those in customary marriages, which is a concern for traditional leaders. It impacts on the rights of spouses and children of those legitimately married under customary law. Many unmarried couples may choose to enter into a domestic partnership instead of marriage and that will give children less security than those with married parents.

CONCLUSION

The NHTL does not support the Civil Union Bill as it finds the gay and lesbian’s practices to be against African beliefs, cultures, custom and traditions

We trust that our comments will be acceptable to Parliament.

KHOSI PF KUTAMA
CHAIRPERSON
NATIONAL HOUSE OF TRADITIONAL LEADERS

Anglican Mainstream Submission

2006-10-12T07:59:00.001-07:00

6 October, 2006
CIVIL UNIONS BILL: SUBMISSION TO PARLIAMENT BY ANGLICAN MAINSTREAM SOUTHERN AFRICA
Introduction
Anglican Mainstream is a community of Anglican clergy and laity within the Anglican Communion internationally, teaching and preserving the Scriptural truths on which the Anglican Church was based, particularly in the context of the various social and moral issues that confront us.
This submission outlines the message that Anglican Mainstream Southern Africa wishes to present orally to the Portfolio Committee in the Stakeholders Hearings to take place at Parliament on October 16 and 17, 2006.
We wish to examine some aspects of the impact that legal recognition of same-sex marriages will have on marriage as a whole, to make observations about the content and logic of the Civil Unions Bill and to pose certain ideas relating to the decisions that need to be made concerning the Bill and beyond.
It is most important to take a step back, and look at the situation holistically. We stand on the brink of the most radical social experiment in our history, and so we need to weigh up everything before we take the leap, as a nation. Taken in isolation, some perspectives may indeed seem compelling, and one does not take lightly a judgment of the Constitutional Court, but this matter goes to the heart of who we are as a nation, and what values will guide us into the future.
Consequences for Marriage and Family as a Whole
It has been pointed out by many people that marriage is not in a good state as it is (and hence why should we be worrying about others who actually want to get married?). This is a sad reality, but it is worth examining a little the reasons for this before leaping into the unknown with a dramatic change to a foundational social institution.
Although a full sociological treatise is not possible here, we can make two particular observations pertaining to the state of marriage in South Africa today.
Factors Affecting the State of Marriage
It is an understatement to say that the migrant labour system had (and continues to have) a serious negative effect on family life in South Africa. For so many children to grow up without regular interaction with their fathers or mothers, and for spouses to be separated for long periods of time must inevitably bring much personal and social instability. But the unseen effects relating to people’s perceptions about the nature of marriage and family may endure even longer. The home and the family centred around a husband and a wife is not the only, or even the dominant model.
In our own time, we see also the devastation of HIV/AIDS and the rise of child-headed households, or the gogo struggling to support a number of grandchildren.
The problem with all of this is that the model of family life that is so important for children growing up is often absent or distorted.
Another trend is the individualization of marital relationships, where marriage comes to be seen primarily for the benefit of the spouses, with children and the broader family being incidental. In this context, an essentially selfish view prevails. This view of marriage can be termed, the companionate view, where the desire for companionship overrides other considerations. Selfishness can never be a healthy foundation for society, or upon which nation-building can be undertaken successfully.
At issue here is what is normative. Marriage is for the benefit of the couple marrying, but is also the most appropriate context in which children can be born and raised. The fact that some marriages are childless does not mean that the norm or standard should be altered. The many people who do not “measure up” to the norm should not be condemned, but neither should the norm be altered because so many are currently outside of it.
If same-sex marriage is recognized in law, then this companionate view of marriage is receiving the “blessing” of the state. It is one thing for a trend to exist in society, but an entirely different thing for that to be made concrete in law. Trends can shift and alter, but law will have the effect of entrenching a pattern that can be viewed as unhealthy at best.
Future Generations
It has been argued that the marriage of a relatively small number of same-sex couples cannot affect the marriage relationships that opposite-sex couples enjoy today. This may or may not be true, but the fact is that we do not live only for now, or for ourselves. Will we be the society and the generation that is judged for forgetting both its history and its future?
The people that will feel the greatest effects of this most fundamental shift will be our children, and then their children. It was correctly observed by the Court that the law is a good teacher, and we must not underestimate the power that this has to affect how succeeding generations will think and live. Legal recognition of marriage between same-sex couples will be a declaration by the State that these relationships are normal, and are equivalent to opposite-sex relationships. What started out as a protection for those choosing to live a different lifestyle is ending up
Children learn by copying and modelling what they see around them. Children under the age of ten, in particular, need stable, clear-cut values and examples to live by. The legalisation of same-sex marriage would inevitably result in our five-, six- and seven-year old children being taught that marriage is any one of a number of combinations, chosen according to the wishes of the individual at the time. The only outcome of this can be confusion, and conflict with the values taught in most homes. Children of this age are not equipped to deal with this.
We are contemplating this sweeping change on the basis of a currently fashionable interpretation of our Constitution, but it seems that we do not care about the implications for future generations. So long as we feel good about it, nothing else matters it seems. We have laws that require environmental impact studies before undertaking significant construction or mining projects, by why do we think that we can engage in this social engineering with no data?
The Bill Itself
There are various technical issues relating to the Bill, but two fundamental observations stand out:
Domestic Partnerships are not Required by the Constitutional Court Decision
The introduction of Domestic Partnerships creates a second-class form of marriage. Added to the fact of same-sex marriage being a distinct category, we have here the recipe for much confusion.
The extent to which the law should explicitly make provision to “tidy up” after people who have made unwise or (socially) unhealthy personal decisions is questionable. However, instead of making sense of muddled circumstances, the introduction of Domestic Partnerships may prove to create an even greater breakdown of marriage and family life in society. Instead of having this single, unambiguous social institution called marriage, we have three different “choices”. As I have said, the most likely result is confusion, and a lack of social and moral cohesion... Marriage could end up being destroyed, rather than bolstered.
But perhaps the most confusing fact about this provision is that it is not required in any sense by the Constitutional Court. Although it may seem to make sense to put all such “partnerships” under one roof, so to speak, and it is true that the subject was discussed a few years ago, the fact remains that discussion of Domestic Partnerships is naturally overshadowed by the marriage question, and so this will not have enjoyed the attention it deserves.
The Civil Unions Bill Does Create Same-Sex Marriage
By the term “marriage”, do we mean a name, or do we mean the social institution that the name refers to? Clearly, marriage is an institution, and not merely a name. The Civil Unions Bill therefore does create same-sex marriage, but it then calls it a “civil partnership”. As William Shakespeare observed, “A rose is a rose by any other name”. Calling it something else does not change what it is.
Sections 11 and 13 make it abundantly clear that there is no difference in fact between a marriage and a civil partnership, as defined.
Any distinction that exists is semantic in nature (although it seems clear that many same-sex couples are not satisfied with even this differentiation).
What this means is that what many may refer to as the “sanctity” of marriage has not been retained! It cannot be said with any shred of honesty that marriage has been kept as marriage, while same-sex couples have some other legal arrangement.
Any attempt to portray this Bill, therefore, as satisfying both the requirements of the Constitutional Court and the concerns of those that wish to preserve the distinctiveness of marriage must therefore be doomed to failure from the start. Only those that wish to be deceived would be persuaded by this argument. And self-deception is hard the basis upon which to grow a healthy society.
The Decision that Lies before Us
I say “us” in referring to this decision in that Parliament is exercising its power and its duty on behalf of all of the people of South Africa. If ever there was a decision that affected every person in an intimate manner, then this is it. It is therefore appropriate and gratifying that Parliament is offering the people this opportunity to put forward their views, albeit that there have been time and administrative constraints.
· Withdrawing or defeating the Bill is merely delaying the fundamental decision. We all know that the Marriage Act will simply be altered if Parliament does not directly address the Court’s view that traditional marriage stands in Contradiction to our Constitution. It is also so that a Constitutional Amendment has been tabled to define marriage as being between a man and a woman, the effect of which would remove the stated contradiction.

Therefore, the actual effect of withdrawing or failing to pass the Civil Unions Bill is that the decision as to whether same-sex marriage should be recognized in law is deferred to consideration of the proposed Constitutional Amendment.

At that point, parliament will still have the capacity to decide whether same-sex marriage should be passed into South African law or not. To state the obvious, passing that Amendment would preserve the traditional view of marriage, while failing to pass it would amount to an acceptance of same-sex marriage.

Passing the Civil Unions Bill makes that decision now. But if it is so that both the proponents and the opponents of same-sex marriage do not find the Civil Unions Bill to be palatable, then we submit that deferring this decision (and allowing more time for debate), is both logical and sensible.
· The human rights perspective. There is not time here to develop this argument, but it has been put forward that the “rights” of same-sex couples, and their struggle for ‘equality” are akin to the struggle against apartheid. This is a convenient means to brush aside all dissenting views because nobody wants to be seen to speak against human rights. Thus, a large body of people who probably do not concur with the notion of recognizing same-sex marriage is silenced.

But, this position is based on an unsubstantiated assumption or comparison. Homosexuality is not something recognized at birth, or at some predictable point in a person’s life, and so it is a little disingenuous to equate it with attributes such as race, gender or age. It is something, but it is not these things.

In attempting to raise the “status” of the quest of same-sex couples to marry to be equivalent to the struggle against apartheid, it could be that this position is actually reducing the status of that struggle that defines so much of our history.
· The validity of hearing the Christian viewpoint. There are some that dismiss a Christian, or biblically-based perspective on social issues, or law, on the grounds that, “you can’t impose your religion on me”. This is a fallacy or misnomer in that an important distinction is ignored. There is a fundamental logical difference between the practice or observance of a religion on one hand, and the use of principles and values in social debate on the other. It is perfectly true that nobody can or should impose a personal observance of religion on another. However, there can be nothing wrong with conducting a debate where one’s ideas and philosophy are drawn from a biblical perspective, for example. These ideas are put forward on merit. And while it is true that those speaking from a religious perspective may be advancing a particular worldview, the fact is that all of us approach these matters from a particular perspective.

And in the matter at hand, there can be no denying that most of human history, and most religions stand in agreement with the Bible’s view on marriage. This cannot be lightly brushed aside as just one perspective among many.
· Parliament really does have a choice. The Constitutional Court judgment did not leave much room for manoeuvre. Although Parliament was given the task of removing the inconsistency, it is not clear what actual choice the Court intended to give to Parliament. Even the Bill, as it stands, has been questioned in terms of its compliance with the Court ruling, despite according full legal status to same-sex marriages.

We submit that the Court is focusing on a narrow, individualistic perspective of rights, and has not properly considered the collective view of society, or of future consequences. And while we are not here to thrash out the Constitutional arguments, we can observe that this is probably not what Parliament intended when it passed the Constitution ten years ago.

The choice open to Parliament, therefore, is what many have pointed out. In being required to resolve the seeming conflict between the Constitution and our definition of marriage, the obvious option remains of accepting what we might term the “Marriage Amendment” to the Constitution. This is a valid and logical course of action for a Parliament representing the sovereign will of the people, and in no way conflicts with the constitutional order. This does not even represent any substantive deviation or change, but is rather a clarification of the original intent of this same body ten years on.

That there should be these debates and questions can be seen as a healthy sign of a maturing democracy, but it is equally so that not every suggestion or interpretation, just because it is made, must be slavishly followed.
Conclusion
We therefore request either the withdrawal of the Civil Unions Bill or, failing that, a decision by Parliament to reject the Bill.
Further to this, we request that the proposed Constitutional Amendment Bill defining marriage as, “a voluntary union of a man and a woman” be duly addressed and voted on by Parliament, and that honourable Members support this in sufficient numbers to protect the traditional definition of marriage.

Mike Atkins Submission

2006-10-12T07:57:00.001-07:00

Michael Atkins
8 Weymouth Ave
Westridge
Durban
4091
031-261 8000
6 October, 2006

Ms Dineo Martin
Home Affairs Portfolio Committee
Parliament of South Africa
CIVIL UNIONS BILL: SUBMISSION
This submission arises from a detailed scrutiny of the text of the Bill, and outlines certain observations, questions and critiques relating to the logical structure of the Bill.
I presume that defects that may be outlined here arise from oversights, and I submit and request that, should the Bill be presented to Parliament for debate and decision, then any such of these observations that are valid should be corrected.
Domestic Partnerships
· There does not appear to be any mention of the age of persons that may conduct a domestic partnership. Presumably it is not the intention of Parliament to allow the registration of domestic partnerships involving persons that have not reached the age of majority.
· S 16(4) of the Bill seems to prohibit the registration of domestic partnerships by persons that are too closely “related” (the term, “consanguinity” relates to having a common ancestor). In making reference to, “Persons who would be prohibited by law from concluding a marriage on the basis of consanguinity”, it is not clear to me whether any such restrictions would, strictly speaking, extend to same-sex couples (would a reading of the existing texts linguistically or semantically be broad enough to include same-sex siblings, for example?).

It is therefore not clear to me whether the Bill prohibits the registration of domestic partnerships between siblings or other close relatives of the same sex.

I am under the impression that an adopted child may not legally marry his or her adoptive siblings. However, the current wording of the Bill would allow the registration of domestic partnerships between adoptive siblings. It is not clear whether this is intended.
· There is no provision for registration officers to decline, on grounds of conscience, to register domestic partnerships between couples of the same sex. If such provision exists either constitutionally, or in this Bill for marriage officers dealing with civil partnerships, then it would seem impossible to deny this ‘right” to registration officers. However, if the right is mentioned explicitly for marriage officers, and is not mentioned for registration officers, then the Bill may be interpreted as meaning that registration officers indeed were compelled to register same-sex domestic partnerships. Indeed, there seems to be no provision for any “officer or employee in the public service or the diplomatic or consular service” to decline designation as a registration officer (on grounds that domestic partnerships may be viewed as the partners “living in sin” by virtue of not being married).
· s 27(1) refers to, “minor children from the registered domestic partnership” (emphasis mine), while s 1 refers to a, “child of a domestic partnership”. Do these terms have the same meaning, or does s 27(1) refer to children born within the duration of the registered domestic partnership?

This distinction would have an important bearing on which domestic partnerships would require the securing of a court order for their termination.

Civil Partnerships
· While nobody may register a domestic partnership if that person is currently married, "civilly partnered" or "domestically partnered", the restriction on entering a civil partnership is that the person must not be married or in an existing civil partnership. Technically at least, this appears to allow domestic partners also to register a civil partnership. Given that the reverse is not allowed, this must clearly not be the intention of the Bill.
· While it is so that at least one of the persons registering a domestic partnership must be a South African citizen, the same is not said of prospective civil partners. Presumably the same rule would apply to civil partners as would to couples getting married.
· To what extent would the equivalent of civil partnerships (in whatever form) entered into in other countries be recognized in South African law? It would also seem that unless another country specifically recognized South African civil partnerships, then the civil partners would not have any legal recognition in other countries.
· The reason for allowing civil partners to refer to their union as a marriage during the solemnization (s 11) is not clear.

Marriages
· It appears that there is no prohibition on persons that have registered a domestic partnership from entering into marriages with other persons. It is true that they may not first marry and then register a domestic partnership, but the wording of the Bill does not prevent this from happening the other way round. Clearly this is untenable.
· If a couple, on the other hand, had registered a domestic partnership, what would the procedure be for the same couple to enter into a marriage or a civil partnership?

Marriage Officers
· Section 6 expresses the constitutional right of marriage officers to decline to solemnise civil partnerships. However, in requiring that, “such marriage officer has informed the Minister in writing that he or she objects on grounds of conscience to solemnising civil partnerships in terms of this Chapter” (s 6(1)), it is not clear whether a marriage officer must already have informed the Minister in writing at the time of being confronted with a requirement to solemnize a civil partnership. Or, does this section allow the marriage officer to make such a declaration to the Minister after declining to solemnize a civil partnership. Presumably, a marriage officer that may have conducted such ceremonies will be permitted, at a later date, to submit a written objection to solemnising civil partnerships.

Catholic Church submission

2006-10-12T07:56:00.000-07:00

Submission to the Portfolio Committee on Home Affairs on the Civil Union Bill (B26-2006)

1. Introduction
The Southern African Catholic Bishops’ Conference welcomes the opportunity to make a submission on such an important piece of legislation. Participation in the formulation of policy and legislation is an essential part of the democratic process and we would thus like to commend Parliament and this Committee in particular, for the way in which it has encouraged public participation.

We understand that the Constitutional Court judgment in December of last year obliges Parliament to remedy what the Court deemed to be an inequality in our law, and that our comments would be most apposite in a debate on whether or not the lack of recognition of same sex unions is indeed an inequality or not. However, Parliament is the body which legislates for and on behalf of our people as a whole, and it is therefore fitting that we should address our concerns about the Court’s decision to Parliament and, thereby, also make our views on the matter more widely known.

2. The Teaching of the Church
The Catholic Church teaches that “homosexual acts are intrinsically disordered. They are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved.” (Catechism of the Catholic Church, par.2357. see also Romans 1: 24-27; 1 Corinthians 6:10; 1 Timothy 1:10) While the Church says that homosexual ACTS are intrinsically evil, it does not say this about homosexual PERSONS. On the contrary, it states clearly that “it is deplorable that homosexual persons have been and are the object of violent malice in word and action. Such treatment deserves condemnation from the Church’s pastors wherever it occurs” (Letter to the Bishops of the Catholic Church on the Pastoral Care of Homosexual Persons: Congregation of the Doctrine of the Faith, October 1986).
Because homosexual acts are against the natural law, homosexual unions are also contrary to this same law. They undermine the very nature of marriage and the family as ordained by the Creator of all, the One to whom all of us are ultimately responsible and to whom we will have to answer for our actions.

3. The Nature of Marriage and its Unchanging Characteristics
Marriage is God’s gift to the world that he made. It can be described as “a faithful, exclusive, lifelong union of a man and a woman joined in an intimate community of life and love.” The Book of Genesis gives three fundamental elements of God’s plan for marriage:
(i) Genesis 1:27 says “God created man in the image of Himself, in the image of God He created him, male and female He created them.” Because we are created in His image, “sexuality is by no means something purely biological, but concerns the innermost being of the human person as such. It is realized in a truly human way only if it is an integral part of the love by which a man and a woman commit themselves totally to one another until death. The total physical self-giving would be a lie if it were not the sign and fruit of a total personal self-giving” (On the Christian Family in the Modern World: Pope John Paul II, 1981: No.11)
(ii) Secondly, marriage comes from the Creator: “that is why a man leaves his father and mother and joins himself to his wife, and they become one body” (Genesis 2:24). God intended it to be an intimate partnership of life and love. Husband and wife are equal but different. They compliment each other spiritually, mentally and physically. God made them different from but at the same time for each other.
(iii) Thirdly, God gave man and woman a unique part in His creation: “God blessed them, saying to them, ‘Be fruitful, multiply, fill the earth" (Genesis 1:28). This means that the mutual and total giving and sharing of husband and wife in love is, of its very nature, ordered towards the procreation and rearing of children and the continuance of the human race.

Jesus confirmed these teachings of Genesis. He said “But from the beginning of creation God made them male and female. This is why a man must leave father and mother, and the two become one body. They no longer two, therefore, but one body. So then, what God has united, man must not divide” (Mark 10: 6-8). Furthermore, the Catholic Church teaches that the valid marriage between baptised Christians is a sacrament, a visible and affective sign of God’s grace at work in the lives of husband and wife and children. Marriage becomes, for all to see, a living symbol of the total love of Christ for His Church (see Ephesians 5: 25-33) and a way to God for the couple who live in love.

The natural law, sometimes called “natural revelation”, is part of human nature as created by God and an integral component of the common heritage of the human race, of every tribe and people. Sacred Scripture is “Divine Revelation”, God revealing Himself and the mystery of His will to mankind. This revelation has been faithfully handed down to us, the men and women of today. We contend that both the law of nature and Divine Revelation (and the constant teaching of the Church) make it clear that a homosexual union is in no way similar to marriage:
q marriage was given to us by God, is expressly willed by God and is compared by St Paul to the union of Christ and His Church; homosexual acts are against the natural law and are intrinsically disordered
q marriage of its very nature is ordained to the begetting and rearing of children; homosexual acts divorce the sexual act from procreation and the homosexual couple cannot cooperate with God to give new life
q man and woman were made by God in His image and as male and female they complement each other; this unique complementarity which makes conjugal love possible is absent in homosexual unions.

4. Reasons to Safeguard Marriage an Exclusive Union of Man and Woman
What follows flows from what has been said above. It is a summary of the reasons for the Catholic Church’s opposition to the legalizing of same-sex unions.
(i) It is against the Natural Law
We agree that civil law and moral law are two different things but we also say that man-made laws cannot legitimize what is against the natural moral law. Civil law cannot make what is wrong right.
(ii) It undermines the Family
Across cultures and different religious beliefs, marriage is the foundation of the family and these cultures and religions see marriage as a loving and lasting relationship between a man and a woman, a relationship that is open to new life and the future of the human race.
(iii) It undermines the Foundations of Society and is against the Common Good
Again, across different religious beliefs and cultures, the family is seen as the basic unit of society. Society owes its continued survival to the family, founded on marriage. Giving legal recognition to same sex unions would in effect redefine marriage. The very concept of marriage and family would undergo radical transformation. The basic institution of the family has already been weakened by a multiplicity of factors. The cost to society of recognizing same-sex unions as in any way equivalent to marriage would be very high indeed. Legislation bearing on moral issues must be assessed in the light of the way in which they contribute to the common good of society. Marriage as we know it is recognized by the State because it contributes to this common good. Homosexual unions do not exercise this function for the common good and so should not be so recognized.
(iv) It is against the Good of Children
The family provides the best conditions for rearing children, the family being the stable, loving relationship between a married father and mother. Children who might be placed in the care of a same-sex couple would be deprived of the experience of either fatherhood or motherhood. This would be a grave injustice to these children who would be compelled to grow up in an environment that is not conducive to their full human development.
(v) It gives the Wrong Message
Laws play an educational role. When is permitted by law, socially patterns of thought and behaviour change. What is “legal” becomes permissible and acceptable. Legalising same-sex unions would give public approval to homosexual activity and this activity would then become morally neutral.

5. Response to some Objections
(i) The Question of Discrimination
We stated in our introduction that the Catholic Church deplores homophobia. Homosexual persons have a right to be treated with respect by individuals and by society. In fact they may have even a greater right because they are more vulnerable. Here, however, we are speaking about giving legal status to homosexual unions which, we maintain, are not marital and do not contribute to the common good of society. The legal recognition of marriage, including the benefits associated with it, is not only about personal commitment that husband and wife make to the well-being of society. Justice itself demands that it would be wrong to redefine marriage for the sake of providing benefits to those who cannot rightly enter into marriage. Some of these benefits can be obtained in other ways. For example, any two individuals can agree to own property jointly or to choose a beneficiary for their will. These benefits could be extended by provisions that would not amount to a re-definition of marriage.
(ii) The Autonomy and Freedom of the Individual
It is true that each individual has basic human rights and can engage in those activities that interest them. But individual men and women live in society and the exercise of individual freedoms has to be balanced against the common good of that society. Moreover, it is one thing to say that the state should not put unnecessary limits on individual freedom; it is something very different to say that the state should give legal recognition to a relationship that does not make a significant or positive contribution to the development of the human person in society.
(iii) Society has Changed
People who argue in favour of legalizing same-sex unions say that society has changed since biblical times and that it has changed radically in recent years, and that the law should take these changes into account. It is true that society has changed radically, but it is equally true that nothing can change the natural law or the revealed law of God. “No ideology can erase from the human spirit the certainty that marriage exists between a man and a woman who, by mutual personal gift, proper and exclusive to themselves, tend towards the communion of their persons. In this way they mutually perfect each other, in order to cooperate with God in the procreation and upbringing of new human life” (Considerations Regarding Proposals to give Legal Recognition to Union between Homosexual Persons: Congregation for the Doctrine of the Faith, June 2003, par.2).
As said already, a law cannot make what is wrong right. It is also true that there has been a change in society’s attitude to marriage and the family, and even to homosexual activity in society. But it is equally true that the high esteem in which marriage and family are held has not diminished. Marriage is still seen as the best context in which to raise a family and, in spite of a high divorce rate, couples still sincerely pledge their love “until death do them part”.

6. Conclusion
We conclude with the words of the document already quoted, Considerations regarding Proposals to give Legal Recognition to Unions between Homosexual Persons, a document that was signed by Cardinal Ratzinger (now Pope Benedict XVI) with the explicit approval of the late Pope John Paul II. The Conclusion reads:
The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unity of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.

Wilfrid Cardinal Napier
President: Southern African Catholic Bishops’ Conference

Eleanor Poulter submission

2006-10-12T07:55:00.002-07:00

The Chairperson,
Home Affairs Portfolio Committee,
National Assembly.
P.O. Box 15,
CAPE TOWN. 8000

5 October 2006

Dear Sir,

Re Civil Union Bill B 26 – 2006

With regard to the above Civil Union Bill, I wish to submit the following comments:

1. The Bill is an attempt to forge a compromise between the dictatorial, undemocratic ruling of the Constitutional Court and the view of most South African citizens that marriage is a heterosexual union. The Bill also includes legislation (not required by the Constitutional Court) regarding “domestic partnerships” which will also contribute to the undermining and devaluing of marriage.

The attempt to satisfy both parties has resulted in a Bill that is in fact unsatisfactory.

On one hand, the proposed civil partnerships claims not to be marriage, yet it carries the benefits, consequences and obligations of marriage law. It is simply marriage by another name, which makes one ask what marriage is. The section of the Bill on civil partnerships is confused and contradictory in this regard, chopping and changing between calling it a civil partnership and marriage, with the solemnization ceremony being conducted by a “marriage officer”.

Historically, marriage has always been a heterosexual union, with variations such as monogamy, polygamy and, very rarely, polyandry. Marriage has never before been an option for same-sex couples and it is only in recent years that a demand has arisen for homosexuals and lesbians to have the “right” to marry. There is no legitimate “right” for two people of the same gender to marry, and never has been, nor is it “unjust” for them not to be allowed to “marry”. The demand for the “right” to marry is a modern invention to “normalize” what is abnormal. Biologically, same-sex pairs are physically incapable of consummating the union in the manner ordained by nature, an act that is primarily procreative.

Sexual perversion is an inherent feature of same-sex relationships. The politically- correct gay activist agenda one of compelling society to accept their lifestyle and therefore such acts as “normal”, “natural” and even “moral” rather than abnormal, unnatural and immoral. Sexual perversion is sexual perversion regardless of whether heterosexuals or homosexuals indulge in it. There has been an inversion of moral values whereby sexual perversion is condoned and endorsed in the media, while those who take a stand for sound moral values are ridiculed, denounced and marginalised. Therefore the entire issue is a moral one, i.e. of right and wrong, and is not about human rights which are tending to be misused to promote various immoral agenda. All law has some moral basis. When the law is used to legislate an immoral or unjust agenda, this is also a perversion of law. The Government is being compelled to legislate in favour of something which is morally wrong, and society is being told to condone it.

Homosexuals and lesbians certainly have the same basic rights as any citizen, e.g. to vote, to work and earn a living, to have freedom of movement (within legal limits that apply to all citizens), etc. While the oppression and persecution of homosexuals in the past was legalistic and lacking in compassion, in contemporary society they have licence to indulge openly in the gay lifestyle. However, human rights (which are intended to protect people from exploitation, such as slave labour, and political or economic oppression), do not include a right to engage or participate in something to which they are not legitimately or morally entitled.

At the time that the National Constitution and the Bill of Rights was being publicly debated, many people warned in their submissions that the inclusion of “sexual orientation” in the Bill of Rights would result in demands for special privileges which would be termed “rights” by gay activists, and that one of these would be the demand for the legalisation of “same-sex marriage” as a “right”. This view was rejected by the Government who believed the denials of the gay activists.

Much has been made of the need for same-sex couples to secure relational benefits. Many of these have already been achieved, in the form of employee and pension benefits. Also, there are existing legal avenues for same-sex partners to draw up legal documents such as a Will or a legal contract that defines the obligations and limitations they want to apply to their relationship or its dissolution.

Marriage is a unique and exclusively heterosexual union designed for procreation and the raising of the next generation. That some married couples are unable to bear children is no reason to use this as a justification for sterile same-sex marriage. Furthermore, the fact there has been increasing marital and family dysfunction and breakdown in recent decades is no reason to promote same-sex marriage. Rather, this is a sign that action needs to be taken to restore morality, bring healing to individuals, marriages and families, and to equip people to build strong, healthy marriages and families. Mothers and (intriguingly) especially fathers have distinctive roles to fulfil in the raising of children, and it is a tragedy that the breakdown of marriage and the family has resulted in so many children growing up without their fathers. In fact paternal alienation is one of the contributory factors in boys variously developing a same-sex compulsion, being drawn into gangs, engaging in substance abuse, etc. Two “mothers” or two “fathers” cannot fulfil the roles that heterosexual parents are supposed to effect in children’s lives, apart from which there are questions regarding the impact that such an arrangement will have on the child’s life and moral upbringing.

It is furthermore a disgrace that in the 12 years since 1994, Hindu and Muslim marriages, which are real (heterosexual) marriages, still have no proper recognition in South African law, while homosexuals and lesbians, who have no legitimate, moral basis to “marry”, are being granted this recognition. This is a sign that there is something seriously amiss regarding social priorities and morality in South Africa.

Marriage has come increasingly under assault as a progressive breakdown in moral values has led to the social acceptance of sexual licence and cohabitation, due largely to the influence of the mass media in recent decades. In South Africa, the negative impact of the Nationalist Government’s apartheid policies is seen in fractured families, with men having a wife by tribal marriage in the rural area, and a wife, girlfriend or a series of sexual partners in the city. Sexual mores have disintegrated, with cohabitation becoming the norm as many young people have become “detribalised”. Young men are often unable to pay the lobola demanded by their girlfriend’s family, so they cohabit or have a series of casual sexual relationships, fathering children along the way and often the child’s mother has to fend for herself.

2. This brings me to the middle section of the Civil Union Bill, which deals with Registered Domestic Partnerships. This is an attempt to give legal recognition to cohabitation through the signing of a legal document, but apparently can also include any arrangement whereby two people share accommodation. Why such an arrangement should require a registration of domestic partnership is a mystery, since there are legal contracts which can be drawn up to cover responsibilities, obligations and limitations in an arrangement where people share a home, as well as where either one or both parties own the home.

For heterosexual couples who choose to cohabit (“live in sin” as it used to be known), rather than committing themselves to marriage, again there are legal contracts that can be drawn up to specify any legal obligations or limitations regarding the arrangement. The proposed legal conditions regarding Registered Domestic Partnerships will only devalue marriage by equating such partnerships with marriage and its legal consequences.

With the legal implications of Registered Domestic Partnerships delineated in the Bill, people who are reluctant to commit themselves to marriage are unlikely to commit themselves to a Registered Domestic Partnership, unless one party sees an opportunity to gain materially from the partnership. The fact that a Domestic Partnership agreement can be overturned raises questions about the whole concept.

Furthermore, certain clauses in the Bill, e.g. clauses 31, 32 and 33, specifically equate Registered Domestic Partnerships with marriage and its legal implications. This devalues the unique concept and institution of marriage.

3. With regard to Unregistered Domestic Partnerships, the Bill effectively equates cohabitation with marriage. It is unlikely that indigent people, especially women, will benefit from the supposed protections that this proposed legislation is intended to provide, mostly because they will be unaware of these avenues, or else the partner is not in a position to provide financial maintenance.

I suspect it is contrary to the original intentions of this provision for unregistered domestic partnerships, that as people find out to their cost that there are legal and financial consequences to cohabitation (i.e. not just moral and emotional ones), this may discourage couples from cohabiting.

The Unregistered Domestic Partnerships provision should be scrapped because it will not benefit the indigent and, for those who are better informed and more well off, there are legal contracts that can be drawn up. Unregistered Domestic Partnerships will legitimise and equate what is not true marriage with marriage. The Government should rather be encouraging commitment to marriage amongst heterosexual couples and providing those who do not belong to religious communities with guidelines for building a stable marriage and family. I have read that in places where good pre-marital counselling has been provided to couples contemplating marriage, the divorce rate has dropped radically.

The provision for Unregistered Domestic Partnerships devalues marriage and makes it meaningless. After all, if any relationship, whether same-sex or heterosexual cohabitation, with or without registration or solemnization, can be equated with marriage, where does that leave marriage?

Conclusion
The only solution for avoid the redefining, undermining and devaluing of the institution of marriage through allowing same-sex “marriage”, would be to ensure that marriage is preserved through the insertion of a clause in the National Constitution defining it as a heterosexual union.

As a mother I am very concerned about the implications of the endorsing and protection of same-sex relationships as far as morality is concerned. It is one thing to raise children to exercise tolerance and to respect all people, but it is quite another to undermine moral values that contribute to establishing and maintaining a healthy society. The condoning of immorality can only have increasingly negative repercussions in society because this leads to moral anarchy where “anything goes”.

Furthermore, rather than passing legislation that enables claims to made against partners in illicit and immoral heterosexual relationships which should have no standing in law, there should rather be the implementation of programmes to help rebuild values, marriages and families that will enable South Africa to change from being a country with a high rate of familial and social dysfunction and crime to one with healthy marriages and families and therefore a lower crime rate.

Finally, I question whether the whole process of public consultation in this matter is really democratic, since the Constitutional Court has dictated a specific outcome which Parliament has been deprived of the right to veto. This is rendering the whole process a charade, as it seems that public input will make no difference to the outcome since our public representatives have no power to vote against the ruling of the Constitutional Court. Can this be called democracy where an unelected judiciary is dictating that immoral and illicit sexual pairings should be formally legalised?

Therefore the only recourse to prevent future legal assaults on the institution of marriage would be to include in the National Constitution a definition of marriage as a heterosexual union.

Yours sincerely

E.C. POULTER (Mrs)

52 Candella Road,
Sherwood
4091 Durban.

Tel. (031) 2073503
e-mail: ecpoulter@telkomsa.net

cc 1 Mrs Brigitte Mabandla,
Ministry of Justice & Constitutional Development
Private Bag X276,
PRETORIA. 0001

cc 2 Mr Steve Swart

Young South Africans for a Christian Civilisation submission

2006-10-12T07:55:00.001-07:00

Young South Africans for a Christian Civilisation

The Chairperson,
Home Affairs Portfolio Committee,
National Assembly,
P O Box 15,
Cape Town,
8000

Submission re: Civil Unions Bill

Young South Africans for a Christian Civilisation vehemently opposes the proposed Civil Unions Bill 26 - 2006 that will effectively grant marriage rights to same-sex couples, as well as any legislation that seeks to grant same-sex unions legal recognition of any sort.

We also oppose “civil unions” legislation that favour cohabitation, or in any other way undermines the traditional understanding of marriage as being a union exclusively between a man and a woman, within the sacred bonds of what is currently understood to be Marriage properly speaking.

It is self evident that such legislation would inevitably replace the traditional concept of marriage with a definition that contradicts and opposes the currently-held definition of Marriage, and in so doing, necessarily destroy it completely, as two opposing definitions of marriage cannot endure side by side.

This being the case, it then also becomes evident that such legislation, and any supporting legislation, would cause a clash in society between those in the vast majority who hold as sacred that union between a man and a woman that is Marriage, and those in the tiny minority who are the protagonists of this new pro-homosexual legislation so opposed to the institution of Marriage and traditional family.

Some might argue that it is not in the intention of either the pro same-sex “marriage” lobby or the legislators to weaken or destroy marriage, or cause any such clash, or that such an analysis or prognosis is too pessimistic. Regardless of such intentions or their absence, it is an undeniable reality that these consequences are inevitable, despite any such party’s best intentions, which can only be based on ignorance or extreme naïveté, as the facts that are unfolding internationally around this issue prove otherwise.

Indeed, with daily, growing evidence from events in countries and regions where pro-homosexual legislation has been enacted, it is becoming ever more clear, with penalties and even arrests, that the result of such legislation increasingly prejudices those who strive to uphold traditional morals in society, including those morals that govern sexuality and its proper place within the bonds of Marriage.

Not least among those prejudiced and persecuted is the Church, whose position comes increasingly into conflict with such illegitimate laws, as the State creates conditions that can only, and will inevitably, lead to a real persecution of all individuals and institutions whose consciences do not allow them to accept such legislation in any form.

Will we see the beginning of an open persecution against an institution that, in spite of some failings of a small percentage of its human members over time, has nevertheless provided society universally for centuries with self-sacrificing souls that have laboured with charity to care for the sick, the dying, and the orphaned, and has educated and formed young minds to be good, upright and moral members of that society? (Need we mention that the greatest caregiver to Aids patients, after the State, is the Catholic Church?)

These laws could, and probably will, quickly begin to encroach on present rights now enjoyed and presumed sacrosanct – even those of parents over their children, such as when, for instance, schools begin to implement educational policies that expose children to the homosexual lifestyle - in conformity with laws like the proposed bill – and parents are denied the right to keep their children from such influences or classes in the school. This type of thing is already happening in other countries. Who can say it will not happen in South Africa?

This clearly demonstrates the potential, even real tendency, for these laws to create a tyranny of the homosexual culture over all of society. Those that warn against it are labelled “homophobes” or censured for “hate speech” – for merely trying to adhere to the norms and customs of 99% of humankind for 99% of our history.

Naïve efforts on the part of those who may try to curb these disastrous effects while still facilitating pro-homosexual legislation may only briefly postpone the inevitable conflict, where the conclusion of such a clash is inescapable.

It is indisputable that the promotion of the idea of homosexual marriage is part of a political agenda (“Defending a Higher Law” - American TFP), on the part of highly politicised and radical homosexual groups operating in various countries, one that has not excluded activist judges, who have circumvented the due democratic processes that they themselves would most likely have adamantly enforced had it benefited their particular ideology.

This fact has not escaped the attention of even the general public, who are increasingly perplexed at an apparent growing dictatorship of an ideology opposed to the most common and long held traditions of the peoples. Perhaps this can be most acutely observed on our own beloved continent, Africa.

It is also undeniable that, while we have no desire to see people of homosexual tendency being in any way unfairly treated or discriminated against, the common sense and natural disposition of the vast majority of the population is to completely reject the very idea of same-sex “marriage”. (We are in the process of collecting thousands of signatures supporting traditional Marriage and opposing same-sex “marriage” – to compliment thousands already collected.)

If the government or parliament of the country merely facilitates such a judicial decision, pretending to have no choice, especially when it is clearly and expressly against the will of the people they claim to represent, they could not possibly escape the very same attention of the public who will see them as either:
– lacking power and will, subjecting themselves to a judiciary which now replaces both the legislative and executive powers with their own;
– or complicit with that same ideology that is dictating to them policies the people reject with vigour.

Every organisation and individual that brings their concerns to the Public Hearings, or the attention of parliament or government, will point out that to undermine Marriage is to undermine (and eventually destroy) the very foundation of society – the FAMILY. This is so obvious it would seem ridiculous to mention it, were it not that we face the absurdity of the proposed legislation.

In the words of the most prominent philosopher of Christendom, St. Thomas Aquinas, marriage
“…consists in a certain inseparable union of souls, by which husband and wife are pledged by a bond of mutual affection that cannot be sundered. And the end of matrimony is the begetting and upbringing of children; the first of which is attained by conjugal intercourse; the second by the other duties of husband and wife, by which they help one another in rearing their offspring.

This concept has been the blueprint of marriage in the Western world since the even before the official advent of Christian Civilisation.

In recent decades, however, Marriage has suffered its most acute attacks in liberalised legislation, and as a direct consequence the family institution has suffered enormously. With divorce made easily available broken homes increased sharply. Since children from broken homes more easily cohabitate, young people are the most likely to be in live-in relationships, and there is an increased likelihood of the marriage ending in divorce if preceded by cohabitation.

Research in a number of countries have found a correlation between the falling away of the traditional Christian concept of marriage and family, and the increase of social ills: early teenage smoking, drug use, alcohol abuse, increased teenage pregnancies, abortions, youth suicide and needless to say, further along, crime.

In many places, lack of family structure is now a primary indicator for youth crime.

Countries where full homosexual marriage rights have been granted, marriage and normal family structures have suffered even further

Since there is a clear correlation between the breakdown of the family & the increase of social evils, does South Africa want to further increase our pandemic crime rate by destroying the family even further with the legalisation of same-sex “marriage”?

And yet we see the perhaps more imminent, very real danger, simultaneously within the leap toward the destruction of Marriage and the Family, as this veritable clash of civilisations that such a move will necessarily precipitate – between a Civilisation of order and structure in the traditional family that has served humankind’s survival and prosperity from its origins, – and a “civilisation” of a sort of chaos of pseudo-family and pseudo “marriage”. This is an element that cannot be ignored, and indeed, needs to immediately be weighed in the considerations before us.

Those in authority in our society, who now have to decide and act on this matter, have a tremendous responsibility. On their shoulders rests the fate of the nation facing an exceedingly grave situation – one that if ill considered will lead to consequences that for the first time in our history will cause a destruction in our society worse than could have ever been contemplated in the darkest days of the apartheid era or even the possibility of any civil war we may have faced.

Though this destruction might be slower-paced, the effect will be much more profound and much longer lasting, to the point of virtual irreversibility.

Thus, we stand at a crossroads in our nations history.

Those to whom this decision falls, will either uphold the traditional understanding of Marriage in Natural Law, as is their sacred obligation for the good of society, which we pray they do, or they will demolish Marriage, and with it Family and Society in a fulminating blow through this proposed legislation.

Deciding well or badly, they will face the judgement of God and of History, and of generations of South Africans, for decades or centuries to come.

* * *

1. The State, whose solemn duty it is to legislate and govern for the good of society, would be failing in its responsibility if it were to ignore all the evidence of human history, reason, and current international events, to not legislate in favour of traditional Marriage.
Therefore, to do their utmost to protect the society they govern and for which they are responsible, by protecting the family, through protecting the most natural and sacred institution of Marriage, we call on the authorities to take the most necessary action of changing the constitution to read, as was it’s original understanding when drafted, that:
The Constitution shall be interpreted to mean that a marriage is the voluntary union between a man and a woman only.

2. Moreover, for an issue of such seriousness and intense public interest, due to the easily demonstrable confusion with the changes and lack of proper organisation of the public hearings thus far, coupled with unreasonable time-constraints, we call for an extension on the deadline for this legislation.

* * *

Contact: DAVID NASH Tel. (021) 531-0420 Em@il: david.nash@mailbox.co.za

Evangelical Alliance submission

2006-10-12T07:53:00.000-07:00

SUBMISSION IN RESPONSE TO THE CIVIL UNION BILL
AGAINST LEGAL RECOGNITION OF
SEXUAL UNIONS OUTSIDE TRUE MARRIAGE

Prepared for: The ChairpersonPortfolio Committee on Home AffairsNational AssemblyParliament

Prepared by: The Evangelical Alliance of South Africa

Date: 6 October 2006

Contact: Rev Moss NtlhaGeneral SecretaryThe Evangelical Alliance of South Africa
Tel: 011-403 1228
Fax: 011-403 1077
Email: teasa@mweb.co.za
PO Box 1751
Johannesburg
2000

Executive summary

The Civil Union Bill sets out radical proposals to legally recognise sexual relationships outside true marriage in such a manner as to treat them similarly to legally recognised marriages.

Issues that are traversed in this submission include evidence that homosexual relationships are unnatural; reasons not to promote sexual partnerships outside marriage; the status of women; and answering the arguments presented against the Judeo-Christian idealmoral consensus of most major religions regarding the of marriage.

Possible impacts on society such as the institution of marriage; women, children, the elderly, the church and public morality are outlined, although these are not examined in detail. It is suggested that a full Social Impact Assessment be undertaken on the proposals.

The Civil Union Bill’s proposals are discussed: creating a marriage like alternative called 'civil unions' for same-sex couples; and accommodating normal couples living together outside marriage through 'registered partnerships' (concubinage) and 'unregistered partnerships'. All of these alternatives are rejected, as they would promote immoralitybehaviour considered by many to be unacceptable and immoral and undermine the fabric of society.
society. It is neither wise nor proper for the sate to take upon itself the liberty to fundamentally alter the worldview of morality espoused by the majority of the people, while it is still struggling to find a formula for moral
It appears that the homosexual lobby has been abusing the Bill of Rights to advance their agenda in a manner not intended by the framers of the constitution. It is recommended therefore that the Bill of Rights be amended to remove the words 'sexual orientation'. After this, other legislation such as the 'Promotion of equality and prevention of unfair discrimination Act', 2000 should also be amended to remove promotion of the homosexual agenda. Homosexuals should be encouraged to seek help to overcome their unnatural desires for one another so that they can enter normal relationships. Unmarried heterosexual couples living as if they were married should be encouraged to get married.
regeneration
The alternative of a Constitutional Amendment to protect marriage should be considered in parallel with the Civil Union Bill. We urge Parliament to reject the Civil Union Bill and request that Parliament support the alternative of a Constitutional Amendment with the words ‘We recommend adding to section 39 (Interpretation) the clause: "'The Constitution shall be interpreted to mean that a marriage is the voluntary union between a man and a woman."
Table of contents
Executive summary ii
Table of contents iii
Abbreviations and glossary iii
1. Introduction 4
Background 4
Referencing and use of terms 4
Outline of document 4
2 Questioning the needmotivation for the Civil Union Bill 6
Motivation for the Civil Union Bill 6
Legal issues 7
3 Issues 10
Evidence that homosexual relationships are unnatural 10
Reasons not to promote sexual unions outside true marriage 10
The status of women 10
4 Impacts on society 12
Impacts on the institution of marriage 12
Impacts on women 12
Impacts on children 12
Impacts on the elderly 12
Impacts on pro-family 12
Impacts on public morality 12
Uncertainty on social consequences 13
5 Response to specific proposals 14
Registered domestic partnerships 14
Unregistered domestic partnerships 14
6 Conclusions and recommendations 16

Abbreviations and glossary

TEASA The Evangelical Alliance of South Africa

SUBMISSION IN RESPONSE TO THE CIVIL UNION BILL
AGAINST LEGAL RECOGNITION OF
SEXUAL UNIONS OUTSIDE TRUE MARRIAGE

1. Introduction

Background

The Civil Union Bill sets out radical proposals to legally recognise sexual relationships outside true marriage in such a manner as to treat them similarly to legally recognised marriages.

These proposals include the recognition of 'same-sex civil unions'; registered partnerships; and unregistered partnerships. The latter means recognising and granting legal rights to registered and unregistered partners living together in a sexual relationship outside marriage.

The assumptions about sexuality, behind the Civil Union Bill go against the deeply held beliefs of the majority of South Africans who know that marriage has been the bedrock of stable societies for thousands of years. The Evangelical Alliance of South Africa starts from the assumption that the institution of marriage is one ordained by God, which other social institutions such as the church and state are supposed to uphold.

For purposes of this submission, the term 'marriage' refers to a marriage between an adult man and an adult woman. So-called 'same-sex marriage' is not recognised as true marriage.

This document responds to the arguments and proposals presented in the discussion paper.

Referencing and use of terms

Quotations from the Bible are all from the New International Version, referenced (Book Chapter: Verse).

The term 'marriage' in this submission refers to the traditional definition 'Marriage is the recognised voluntary union of a man and a woman for life to the exclusion of all others'. It does not include so-called 'same-sex marriage', which is a misuse of the word.
Outline of document

Section one introduces the issues, proposal and this document.

Section two questions the need for the Civil Union Bill

Section three analyses key issues raised in the document.

Section four discusses the possible impacts on society and the uncertainties about those impacts.

Section five gives responses to specific proposals.

Section six makes conclusions and recommendations on the proposals.

2 Questioning the need for the Civil Union Bill
Motivation for the Civil Union Bill
The proposed changes to the law, have been motivated amongst other things by:
1 The prohibition on unfair discrimination on grounds of 'sexual orientation' and 'marital status' in clause 9(3) of the Bill of Rights. It is however acknowledged that these rights are limited in terms of section 36 of the constitution.
2 Perceived changes in public mores
3 Court judgements in favour of homosexuality, opposite sex couples living together outside of marriage and so called ‘same-sex marriage’
4 Media articles
5 Homosexual lobby groups.

It is submitted that the above motivations are false, because:

1 Homosexuals are not being unfairly discriminated against.

· If they wish to marry someone of the opposite sex and the other person agrees, there is no law to stop them doing so. The conventional definition and practice of marriage has always been and still remains a union between persons of the opposite sex. A casual and cursory glance at human institutions bears this practice out, whether or not the institutions be “civilised” or “backward”, “western” or “third world”, Judaeo-Christian” or “non-Christian”. It stands to reason therefore that persons of the same sex who have a sexual relationship cannot, strictly speaking, marry, the question is “who is the male and who is the female in a same sex relationship so that that relationship can properly be brought within the purview of the conventional definition?”. If this question cannot be answered authoritatively in such a way as to discard the conventional definition, the same sex relationship should be declared unconventional and therefore deviant social behaviour. Two men having a sexual relationship cannot marry, in the same way that a man cannot marry a dog, a cow or a sheep. The current law simply acknowledges the reality that two people of the same sex cannot physically marry.

· It is regrettable that the Constitutional Court has called on parliament to recognise ‘same-sex marriage’. To call such deviant relationships by the name 'marriage' is a fiction and degrading to the institution of marriage. The solution to this problem is a Constitutional Amendment to define marriage as between a man and a woman.

· There is no indication that the legislators who agreed to the term 'sexual orientation' in the Bill of Rights ever intended it to imply a need to redefine the institution of marriage to include homosexual couples. One of the basic tenets of the interpretation of a statute stipulates that in a bid to properly interpret a statute, the interpretation should not lead to the result that the boni mores of the community is undermined or circumvented by the interpretation. It would thus be untenable for activists and activist-judges to now try and impose an unintended meaning to the words. Had the Constitutional Assembly intended to make any change to existing law as major as the re-definition of the nature of marriage, they would have stated this explicitly in the text.

· Many homosexuals are found amongst the high-income group and in senior positions in many professions. There is no real evidence of unfair discrimination.

2 Contrary to popular belief, the rising tide of immoral behaviour in the country does not have the support of the majority of population. The Moral Regeneration movement is an instance of the state trying to re-build morality rather than undermine it. Likewise the human and financial cost of the AIDS plague is strongmotivation for the state to promote true marriage, as opposed to accommodating sexual relationships outside of marriage. Despite this increase in immorality, the majority of South Africans still believe that sex outside of marriage is wrong. Almost all South Africans agree that sex between two people of the same sex is wrong.

3 The argument that courts have ruled often in favour of 'homosexual rights' is a circular argument. Rather this should be seen as a problem, which should be remedied by rectifying legislation and the Bill of Rights to discourage this. The simplest way to do this is a Constitutional Amendment to define marriage as between a man and a woman.

4 Media articles promoting so called 'same-sex marriage' are likely solicited by homosexual lobby groups and should therefore be ignored.

5A tiny minority of homosexual lobbyists funded from overseas should not be empowered to force the majority to change the legally recognised structure for family relationships.

Other possible unstated motivations promoting legal recognition of same-sex relationships may include that homosexuals tend to have difficulty with self-acceptance and blame this on the lack of acceptance of the world around them. Radical homosexual activists are seeking social approval for what many South Africans know of their immoral relationships.to be unacceptable behaviour. They believe that somehow if the state were to recognise these relationships, they would somehow become moral. Nevertheless, this hope is futile, since the immorality of homosexual relationships is decreed by God and the state can do nothing to change this. Most South Africans strongly disapprove of homosexual relationships and become moral. It would be an abuse of state power to foist on the public a morality that on a deviant few embrace.
would even more so disapprove of recognition of such unions. If homosexual unions were recognised in law, that would not make the public accept them. Since the purpose motivating the activists is futile, it is recommended that the law not be changed to try to satisfy it. This article has argued that same sex relationships are unnatural; it goes without saying that parties involved in such relationships must not be discarded and rejected by society. To the contrary, it is suggested that such parties should be encouraged to seek counselling and help with regard to their unnatural behaviour.

Legal issues

The preamble of the Civil Union Bill cites Sections 9(1), 9(3) and 10 of the Bill of Rights. We believe that the Constitutional Court made an error in their interpretation of the Bill.

Equality (Clause 9)
1 Everyone is equal before the law and has the right to equal protection and benefit of the law.
2 Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
3 The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.
4 No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
5 Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Nevertheless, the above rights may be limited in terms of the following criteria:

Limitation of rights (Clause 36)
1 The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

(b) Limitation to prevent undermining of the definition of marriage has a high importance because of its social and religious impacts and the way that the proposals would affect other rights. Social impacts could include:
· Undermining the dignity and meaning of true marriage;
· Promoting acceptance of homosexuality and thus the number of people indulging in such behaviour;
· The alternative so-called 'domestic partnership' proposals available to heterosexual couples living together outside marriage would have even greater social impacts.
(c) The extent of the existing limitation is narrow in that it is not preventing homosexuals in any way from conducting normal lives. It is simply limiting their right to:
· indulge in a fantasy of so called 'same-sex' marriage.
· have their immoral unions recognised, acknowledged and legally supported by the rest of society.
(e) There are no less restrictive means that would achieve the same purpose.

It is further submitted that the homosexual lobby has persistently abused the two words that they lobbied for insertion into the constitution 'sexual orientation' to encroach on the rights of other citizens in the process of creating special rights for themselves. The constitution was framed to protect legitimate rights, which the homosexual lobby is not respecting. For example they threatened to take a Christian singer Danie Botha to the Human Rights Commission for expounding various biblical texts citing homosexual as sinful. Rather than forcing pro-family citizens to argue each and every new issue that the homosexual lobby wishes to dispute, it would be much simpler to remove these two words and terminate the debate.

10. Human dignity
Everyone has inherent dignity and the right to have their dignity respected and protected.

We submit that the non-recognition of same-sex sexual relationships by the state does not in any way undermine the dignity of the persons concerned. Rather unnatural sexual behaviour undermines their own dignity and the law can do nothing to rectifythis.

this.
Issues
Evidence that homosexual relationships are unnatural
The fact that homosexual relationships cannot be considered morally equivalent similar to heterosexual relationships is proven from:based on:
· The Bible, as well asmoral consensus of most major religions, definesdefining marriage as between a man and a woman (Genesis 2:24);
· The design of the human body indicates that male and female are meant for each other:
- They physically fit together without harm;
- Sexual acts can produce children.
· Adults in stable married relationships indicate greater social contentment and health than those who are not.
· Children are most successfully brought up by a father and mother in a stable relationship. Men and women have complementary abilities which together help bring up good children.

In contrast, homosexual relationships:
· The Bible condemns homosexual relationships are condemned as unnatural (Romans 1:26-27);by major religions.
· Sexual acts between two men using the anal orifice tend to result in serious health problems including:
- damage to the anal sphincter;
- cancers;
- rapid spread of many diseases;
- damage to the lining of the rectum.
indicating they were not designed to fit together.
· Social relationships between homosexual couples tend to be unstable, short-lived and in the long term unfulfilling.
· Homosexual parenting of children has not proved successful.
Reasons not to promote sexual unions outside true marriage
The state should promote institutions beneficial to society. Marriage between a man and a woman is an institution that promotes mutual caring and respect and the responsible upbringing of children.
The status of women

The ‘domestic partnerships’ proposed in the Civil Union Bill would lower the status of women by encouraging more women to agree to concubinage (domestic partnerships) as an alternative to marriage. It is submitted that the interests and status of women are much more strongly protected within a marriage relationship than by an insecure 'concubinage' relationship. In the event of separation, the woman is the one who has to carry the responsibility of the caring for the children, while at the same time having the stress of earning and income. Separation is much more likely in the case of a limited commitment 'domestic partnership' than with marriage. If the 'domestic partnership/concubinage' relationship was given legal recognition, it would make it much more popular, thus reducing the number of people getting married.

Christian teaching on homosexuality

The teaching of the scriptures on homosexuality is clear, for example: Romans 1:27 In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed indecent acts with other men, and received in themselves the due penalty for their perversion.

The Bible commands churches to excommunicate people who unrepentantly practice sexually immoral behaviour including homosexuality and what the Civil Union Bill 'domestic partnerships' (1 Corinthians 5:11; 6:9).

This view was consistently applied by the early Church. Sodomy was made illegal when the legal system of the Roman Empire was Christianised, and this policy applied in other Christianised countries. It was in fact considered so unacceptable, that the crime of sodomy was usually referred to by a euphemism rather than directly. Christianity has its roots in Judaism, which also condemns same-sex sexual relations (Leviticus 20:13).

3 Impacts on society

The Civil Union Bill would have severe social impacts, which have not been properly considered by Parliament, the South African Law Reform Commission process or any other state investigation.
Impacts on the institution of marriage
The proposals to change the definition of marriage to include homosexual couples would undermine the respect and dignity accorded to marriage by allowing a mockery of it.

Proposals to create alternatives to marriage would discourage people from getting married, thus increasing the number of couples living together outside marriage and illegitimate children resulting from them.
Impacts on women
Proposals to re-legalise concubinage (domestic partnerships) would reduce the status of women who agree to this option rather than getting marriage.married. In a conjugal relationship, most of the responsibility to care for children usually falls to the woman, while the man concentrates on earning money. With less protection in the event of separation, and separation even easier than in the case of divorce, women will be hurt more than men.
Impacts on children
With less people getting married, more illegitimate children will be born. With more separations resulting from people living together outside of marriage, more children will grow up without a father in the home. Such children are much more likely to grow up disadvantaged and with behavioural problems.

The Bible promotes faithfulness in marriage as the way to ensure children are brought up in a godly way (Malachi 2:15-16). The implication is that childrenChildren brought up outside of marriage have more chance of growing up with behavioural problems. Sociology has confirmed this.
Impacts on the elderly

The elderly are best cared for and supported by the extended family. However with the weakening of the extended family through marriage like alternatives such as 'domestic partnership', there is going to be less of an obligation to care for old people not related by blood. This diminishing social support network will mean more people grow old lonely and uncared for.
Impacts on pro-family
Granting new rights to homosexuals has usually been used to try to persecute pro-family people who disagree with such behaviour. For example, a bed & breakfast in Canada that refused to allow a homosexual couple to share a room was forced to close down. Homosexual radicals have tried to introduce their ideology to schools. France has also reviewed same sex relationships
Impacts on public morality

The legal recognition of immoral homosexual unions and/or couples living together outside marriage would encourage more people to choose such relationships, thus undermining public morals. The undermining of public morals has a major impact on society.
Uncertainty on social consequences
Previous major changes to social laws have had major unforeseen social consequences. The legislation of homosexual unions and domestic partnerships has only occurred in a few places on other continents and for a few years. One does not know what long-term effects it will have on society.

It is suggested that before introducing such legislation, a Social Impact Assessment be undertaken.

4 Response to specific proposals
Civil Unions

Civil Unions, as proposed in the Civil Unions Bill is a social institution granting the same legal consequences as marriage. The Bill leaves the issue of whether Civil Unions constitute marriage somewhat ambiguous. Mostly in the Bill the relationship is referred to as a ‘Civil Union’. Nevertheless section 11 allows the word ‘marriage’ to be used in the ceremony and the term civil partnership is used interchangeably with the word marriage as if the two had the same meaning.

While calling homosexual unions something different to 'marriage' would remove the impact on degrading true marriage, explained above, the proposal is still objected to for other reasons:
· It would give homosexual relationships more legitimacy, thus encouraging more people to enter such relationships;
· It would likely be used by the homosexual lobby to leverage the next in the list of issues on their agenda to try to promote their behaviour and restrict the freedom of pro-family people.

The proposal to allow 'same sex couples' to use the term ‘marriage’ in their exchange of vows (Section 11 of the Civil Union Bill) would undermine and insult the true definition of marriage. Such action would be like printing counterfeit money - it undermines the value of real money.

The state does not have authority to re-define the institution of marriage, but only to recognise and promote a real institution that really exists. If the state were to issue car licences for bicycles, that would not turn the bicycles into cars. Neither can the state by issuing a piece of paper make two men married. A man cannot marry a chimpanzee or a horse or another man even if the state were to say that ithe can do so. The whole idea is just very silly and likely to cause problems.

Registered domestic partnerships

The Civil Union Bill provides for Registered Domestic Partnerships that would give some of the benefits of a civil marriage, but reduces the right to maintenance for children after separation. It would be available to both homosexual and normal couples.

This option is effectively a re-legalisation of 'concubinage', a form of union that has thankfully vanished from our legal system for over 1000 years. It would encourage more couples to 'live in sin', as it has in countries such as France which have chosen this option. Such action would severely undermine the fabric of society and mean that less couples would get married.
Unregistered domestic partnerships

The proposal for unregistered partnerships would mean that couples living in a sinful sexual relationship, whether homosexual or heterosexual would have certain automatic legal rights and obligations even without actively registering such a partnership.

Again, such actions would encourage more people to 'live in sin' and are thus discouraged.

It is suggested that society has survived for a long time without such institutions and to introduce them now would simply complicate matters.

5 Conclusions and recommendations

The sexual relationships recognised by the state in terms of the Civil Union Bill include: civil unions for same-sex couples; registered partnerships for same and opposite sex couples; and unregistered partnerships for same and opposite sex couples, are all unacceptable and should be rejected.

Since the arguments used in favour of the legal recognition of homosexual unions are based primarily on the two words 'sexual orientation' in clause 9(3) of the Bill of Rights, the simple solution would be to amend the constitution to remove these words. After this, other laws promoting acceptance of homosexuality such as the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 should be amended to remove such words. Other statements already protect legitimate rights and these words are not needed, and just encourage the abuse of the Bill of Rights to promote the homosexual agenda.

The simplest immediate method of avoiding the needfor to pass the Civil Union Bill is the alternative of a Constitutional Amendment to protect marriage. We urge Parliament to reject the Civil Union Bill and request that Parliament support the alternative of a Constitutional Amendment with the words ‘We recommend adding to section 39 (Interpretation) the clause: "'The Constitution shall be interpreted to mean that a marriage is the voluntary union between a man and a woman."

Focus on the Family Submission

2006-10-12T07:52:00.001-07:00

AN APPEAL NOT TO PROVIDE FOR THE SOLEMNISATION OF CIVIL PARTNERSHIPS OR TO BESTOW LEGAL RECOGNITION ON DOMESTIC PARTNERSHIPS BUT RATHER TO PRESERVE THE DEFINITION OF MARRIAGE AS CURRENTLY EXPRESSED IN SOUTH AFRICAN LAW.

SUBMISSION REGARDING THE CIVIL UNION BILL: PROPOSED LEGISLATION EXECUTIVE SUMMARY

The proposals of The Civil Union Bill

The Civil Union Bill proposes:

A. that civil partnerships involving same-sex relationships be solemnised and be acknowledged by law. The formula used to effect the solemnisation can use the words ‘marriage’ or ‘civil union’. We appeal to Parliament to preserve the historical and natural definition of marriage.

B. that domestic partnerships be given legal recognition and enjoy legal consequences. We appeal to Parliament not to bestow legal recognition on domestic partnerships.

Analysis

Marriage in South Africa is currently defined as 'the legally recognized voluntary union of a man and a woman for life to the exclusion of all others'. We believe this definition should continue to be supported by the law. South Africans are almost unanimously opposed to sexual relations between people of the same sex, and the government and courts should not feel pressured to change the law in response to the demands of a tiny, but vocal minority. Their manipulation of the political process, media and judiciary should be opposed.

Research has demonstrated the benefits of monogamous heterosexual marriage for stable healthy relationships and successful upbringing of children - over all other alternatives such as same-sex parenting; single-parenting or co-habiting couples. It is therefore in the best interests of society that the state promotes traditional marriage rather than the other alternatives advanced in the Civil Union Bill.

RECOMMENDATION

We therefore recommend that:

All the alternative proposals to legally recognise homosexual relationships and cohabiting unmarried couples through the proposed Civil Union Bill be rejected.

Parliament instead pass a Constitutional Amendment to affirm the definition of marriage as being between a man and a woman.

AN APPEAL NOT TO PROVIDE LEGAL RECOGNITION FOR CIVIL UNIONS AND DOMESTIC PARTNERSHIPS

The proposed Civil Union Bill will provide for:

1. the solemnisation of civil partnerships for same and opposite sex couples and the legal consequences of such partnerships .

2. the legal recognition of domestic partnerships for same and opposite sex couples and the enforcement of the legal consequences of such partnerships.

According to the proposed Bill a ‘civil union’ means a civil partnership or a domestic partnership.

1. Civil Partnerships

A ‘civil partnership’ means the voluntary union of two adult persons of the same sex that is solemnised and registered in accordance with prescribed procedures. A civil partnership may be solemnised by a marriage officer and the couple concerned can choose whether they would prefer the civil partnership to be referred to as a civil partnership or a marriage during the solemnisation ceremony. If ‘marriage’ is the preferred term, the marriage officer must refer to marriage in reading the formula.
The definition of marriage and its recognition as a human right

The present definition of marriage in South African law is the western Judeo-Christian concept of marriage which reads as follows:

'Marriage is the legally recognised voluntary union of a man and a woman for life to the exclusion of all others' .

From this definition it follows that the South African law presently regards marriage as an opposite sex, monogamous institution. This view is in line with the tradition and experience of the vast majority of the nation.

The United Nation’s Universal Declaration of Human Rights, the cornerstone of human rights throughout the world, clearly establishes in Article 16 that:

‘men and women of full age ……… have the right to marry and to found a family….The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’

Harvard law professor, Mary Ann Glendon, has stated that ‘…the Declaration is the single most important reference point for international discussions of how to order our future together in our increasingly conflict-ridden and interdependent world.’ .
Other fundamental international legal instruments also recognize the right of men and women to marry and to found a family. For example, Article 23.2 of the International Covenant on Civil and Political Rights reads as follows:

‘The right of men and women of marriageable age to marry and to found a family shall be recognized.

Unfortunately, the human rights recognized by the Universal Declaration, the International Covenant on Civil and Political Rights, and other international instruments are under constant attack. Referring to the Universal Declaration of Human Rights, Habib C Malik, son of one of the main authors of the Universal Declaration, wrote:

‘One disturbing phenomenon gaining ground today can best be described as the systematic hijacking of human rights to serve special interests and promote dubious agendas of a political and generally secular nature.’

In examining the meaning of marriage and its relationship to democracy, individual rights and constitution law, neutrality is impossible. For some, sexuality is the starting point. Sexuality is essential for pleasure and intimacy. Marriage is, from this point of view, a state mechanism to encourage committed and stable relationships for those who might wish them. For persons who subscribe to this theory, the definition of marriage as it now stands is a matter of simple discrimination against homosexuals and lesbians. For others, marriage is the starting point. We exist as male or female, intended for community with one another. From this viewpoint, marriage is primarily a shared, socially beneficial way of life as male and female and a marriage recognition statute is a matter of simple definition.

Answering arguments supporting legal recognition of homosexual unions

Professor Barbara Cox, from the California Western School of Law, in her 1996 article claims that a statute which upholds heterosexual marriage only is unconstitutional because its purpose is to discriminate against same-sex couples and the only reason to support it is 'homophobia'. In a paper in the Creighton Law Review (1998) Coolidge and Duncan put forward the view that in order to hold that a law supporting a heterosexual view of marriage is unconstitutional, it must be concluded:
(a) that that law has a ‘homophobic’ purpose;
(b) that by limiting marriage according to the traditional definition, government disables homosexuals in such a sweeping manner as to make them “strangers to the law”;
(c) that none of the rationales offered in support of marriage have any reasonable connection to this definition and
(d) that a law that views marriage as a unique male-female sexual community is blatantly irrational and based on bigotry.

The implication of this would be that the majority of citizens in South Africa who identify with a heterosexual definition of marriage are 'anti-gay bigots'! Indeed, this implication would extend to the great majority of people around the world who know, rationally or intuitively, that marriage is the union between a man and a woman. The heterosexuality of marriage is not the result of prejudice. Rather it is a global, historical and measurable acknowledgment of the benefits married men and women bring to society by forming families. What is now needed is a clear legal-political reaffirmation that marriage is a unique male-female community and social institution.

Homosexuals are not being unfairly discriminated against by not being allowed to marry, since real marriage can only be between a man and a woman. Same-sex marriage is in fact an impossibility and the law should not recognise something which is not real. Such recognition would simply degrade the value of the recognition of real marriage.

Do the majority of South Africans want legal recognition of homosexuality?

It is argued that there is a trend in favour of recognition of homosexual relationships in South Africa, and various court cases and media reports are cited in support of this argument. A 'Social attitude survey' conducted by the Human Sciences Research Council in 2003 found that only one in every fifteen South Africans believed that it was 'not wrong' for two adults of the same sex to have sexual relations .

Why then should a small minority having liberal attitudes on homosexuality led by an even smaller minority of homosexual activists be allowed to impose their views on marriage on the rest of South African society? Evidence also tends to suggest that even amongst this tiny minority, even fewer actually have any interest in getting married. Rather, a few activists are through the law seeking social acknowledgement for their unnatural relationships. But the vast majority of South Africans don't accept same-sex relationships and don't want the government to do so either.

The fact that this tiny minority has managed to get public attention shows only their capacity to manipulate the media, judiciary and political system rather than any substantial support. Our government should not waste effort on revising legislation to accommodate their demands.

Benefits of real marriage for bringing up children

Richard Duncan(1997) offers the following list of legitimate governmental interests that justify a law that marriage requires a man and a woman:
(1) public morality;
(2) encouraging childbirth within marriage;
(3) the advantages of dual-gender parenting; and
(4) educative effects.

A change in the definition of marriage is a risky social experiment that will have serious implications for our society. Those who propose such a change ignore the fact that marriage is a social institution, not merely a vehicle to promote individual self-interest.

Allowing such a change would send the message that marriage is a means to satisfy the personal desires of adult individuals, rather than an institution that is primarily, though not exclusively, about meeting the needs of children and the community.

Changing the definition of marriage would deny the significance of the right of every child to have a mother and a father, as well as the significance of the different roles mothers and fathers play in the rearing of children. Social science evidence shows clearly that men and women bring different but complementary skills and aptitudes to the critical partnership known as parenting. There is a large and growing body of evidence that indicates the benefit children gain from regular interaction with two parents of the opposite sex - their father and mother. While homosexual activists hold up studies that conclude that same-sex parents are no different than opposite-sex parents, a closer examination of these studies reveals a number of statistical and methodological flaws that put in doubt that assertion. In their review of 39 such studies, researchers Robert Lerner and Althea K. Nagai concluded that

“these studies prove nothing. Therefore they should not be used in legal cases to make any arguments about ‘homosexual v. heterosexual’ parenting. Their claims have no basis.”

British researcher Patricia Morgan is even more blunt in her assessment of the research supporting same-sex parenting:

“It is difficult to find such poor quality research as that which purports to show that same-sex parenting is at least as good if not superior to parenting by married couples. In many cases the word ‘research’ is a misnomer since often the only evidence consists of collections of anecdotes. This is often advocacy parading as research.”

The benefits of marriage result from the unique nature of the heterosexual bond. South African families will experience negative repercussions from the redefinition of marriage.
In heterosexual marriage, husbands and wives benefit each other, resulting in better physical and emotional health, and financial well-being. Furthermore, fathers and mothers benefit their children in different yet complementary ways. Studies show that mothers and fathers interact differently with children and that both types of interaction are valuable and even necessary for healthy child development. For example, research shows that a father who is involved in the life of his child contributes to higher educational achievement, more pro-social behaviour, and higher self-esteem.

To the benefit of both marriage and parenting, a heterosexual union also:

§ recognises and addresses the fact of sexual difference and opposite sex attraction
§ affirms the significance of sexual complementarily, as well as the important place of male-female bonding in human life;
§ encourages the procreativity of heterosexual bonding;
§ provides the unique atmosphere of heterosexual parenting which bonds children to their parents; and
§ explains the rich genealogical nature of heterosexual family ties.

By their very nature, same-sex marriages cannot experience or provide the above marriage and parenting benefits found within a heterosexual marriage. The re-definition of marriage will result in a marked increase of same-sex unions and parenting.

Clearly, the research community has been able to adequately appraise and ascertain whether one family lifestyle is healthier than another. The empirical evidence falls overwhelmingly in favour of stable marriage and against all other alternative forms of family life: cohabitation, divorce, and stepfamilies. What is striking is that even though there is a very strong consensus on this issue in the academic research community, many of the cultural institutions, the gatekeepers of popular opinions and ideas, are not willing to make a considered and confirmed judgement on what is the best model for family life. They continue to play the role of family relativists, trivializing marriage as an institution and championing the idea that one form of the ‘family’ is just as good as another.

Should the proposed Civil Union Bill be enacted, our government will have chosen to abandon a long history of law recognizing marriage as the union of a man and a woman. In writing this new legislation they will be disregarding the basis for marriage that is so universal and so foundational to culture that it far predates the Parliament of South Africa. Our Parliamentarians were elected to represent the views of the entire nation. As Christians, who believe marriage to be a sacred, biblical institution and a divinely established covenant, most of the citizens of our nation would not be in favour of the proposed changes. Marriage is a concept that is inseparable from its societal and religious meanings and origins and as such we should not attempt to redefine it!

2. Domestic Partnerships

A domestic partnership means a registered or unregistered domestic partnership between same and opposite sex couples.
The negative social impact of cohabitation

The law is a powerful tool. It clearly shapes our behaviour. While it is acknowledged that we are moving from a marriage culture to a ‘living together’ culture, evidenced by the fact that non-marital cohabitation has increased dramatically as an alternative form of family life, providing legal recognition for such relationships will result in explosive growth in the number of such relationships. Even more alarming will be the growth in the number of children being raised by parents in a cohabiting relationship. Alarming because research indicates that starting conjugal life in a cohabiting relationship, as opposed to marriage, sharply increases the probability of this first union ending in separation. This will have negative effects on children born from this relationship. More serious is the finding reported in a special issue of the Journal of Comparative Family Studies that “children living with caretakers other than two biological parents are at greater risk for child maltreatment”.

In Canada, the increased legal recognition of cohabitation has had a clear impact on Canadian society. Through the 1980s the federal and provincial governments of Canada have increasingly treated cohabitation as equivalent to marriage. Statistics Canada tells us that the majority of young people today are entering their first conjugal union through cohabitation.

Sociologist Zheng Wu suggests that:

“the experience of cohabiting itself affects the attitudes of individuals towards marriage and decreases their propensity to marry.”

Other researchers have found that marriages preceded by cohabitation are twice as likely to end in divorce than marriages not preceded by cohabitation, even after factoring for other potential causes. This trend is especially troubling when the well-being of children is considered. In her analysis of data for Statistics Canada’s national Longitudinal Study on Children and Youth (NLSC), Nicole Marcil-Grafton indicates that children born to parents living in a cohabitational relationship are nearly five times more likely to see their parents separate by the age of 10 compared to children whose parents are legally married and have never cohabitated. Even if a child’s parents subsequently marry (either before or after the child was born), parents who have cohabitated are still twice as likely to separate than married parents who have never cohabitated.

Statistics Canada researchers have further found that men and women in cohabitational relationships are four times more likely to report spousal abuse than those in legally married relationships. When it came to fatal domestic violence, “the rate of spousal homicide for women in common-law marriages was….more than 8 times higher than married couples.”
The Canadian research findings are upheld by research findings conducted in several Western countries including New Zealand, Sweden, Australia and the United States.

The Canadian experience provides valid evidence that the increased legal recognition of cohabitational relationships has not led to positive results. Is there any reason to think that the legal recognition of ‘registered and unregistered domestic partnerships’ is somehow going to be positive for South African society?

Recommendation

Conjugal relationships outside of marriage should not be legally supported by the state in any form, either with civil unions or registered or unregistered domestic partnerships.

Parliament should instead pass a Constitutional Amendment to affirm the definition of marriage as being between a man and a woman.

ENDNOTES
South African Law Reform Commission. Discussion Paper 104, Project 118, Domestic Partnerships Volume 1 p 159.
Mary Ann Glendon:A World Made New (New York: Random House, 2001) pp xvi- xvii.
Eds:Teresa Wagner, Leslie Carbone, Fifty Years After the Declaration, (Lanham, New York, Oxford: University Press of America, 2001), p xvii.
Robert P George & Gerard V Bradley, Marriage and the Liberal Imagination, 84 Geo. L.J. 301 (1995).
Cox B: Nat’l J. Sexual Orientation 1996.
David Orgon Coolidge, William C Duncan: Definition or Discrimination? State Marriage Recognition Statutes in the “Same-sex Marriage” Debate. Creighton University 1998
Human Sciences Research Council: South African Social Attitudes Survey. Unpublished 2003 study. Personal communication with Dr Stephen Rule.
Richard F Duncan: The Narrow and Shallow Bite of Romer and the Eminent Rationality of Dual-Gender marriage: A Response to Professor Koppelman,6 Wn & Mary Bill Rts. J. 147, 158-65 (1997)
Glenn T Stanton : Why Marriage matters: Reasons to Believe in Marriage in Post-modern Society (Colorado Springs: Pinon, 1997)
Lerner Robert & Althea K Nagai, No Basis: What the Studies Don’t Tell Us About Same-sex Parenting. Washington D.C., Marriage Law Project, January 2001
The Christian Institute, News Release: Same-sex Parenting is Bad for Kids. February 6, 2002
Linda J Waite & Maggie Gallagher, The Case for Marriage (New York: Broadway, 2000)
Kerig, P K & Cowan, P A: Marital Quality and Gender Differences in Parent-child Interaction, Developmental Psychology 29,6 (1993): 931-939
Horn W: Father Facts, editions 3 and 4, National Fatherhood Initiative, Gaithersburg, MD
List provided by Dr Dan Cere, head of The Canadian Institute for Marriage and
Family and professor at McGill University, Montreal.
Glenn T Stanton: Only a Piece of Paper? Public Policy Division, Focus on the Family, Colorado Springs,1995
Le Bourdais Celine, Ghyslaine Neil & Pierre Turcotte: “The changing face of conjugal relationships” Canadian Social Trends. Spring 2000, Statistics Canada, Cat. No. 11-008 p15
Malkin, Catherine and Michael lamb (1994): Child maltrreatment: A test of sociobiological Theory”, Journal of Comparative Family Studies, 25: 121-133
Zheng Wu, “Premarital Cohabitation and the Timing of First Marriage.” Canadian Review of Sociology and Anthropology, 1999, Vol. 36, No. 1, p. 109 –126
Hall D R & J Z Zhu, “Cohabitation and Divorce in Canada: Testing the selectivity hypothesis.” Journal of Marriage and Family, 1995, Vol. 57, p 421 - 427
Marcil-Gratton Nicole, “Growing Up with Mom and Dad? The intricate family life course of Canadian Children,” July 1998, Ottawa, Statistics Canada Cat. 89-566- XIE
Bunge Valerie Pottie and Andrea Levett: “Family Violence in Canada: A Statistical Profile 2000, Statistics Canada, July 2000 p. 15
Bunge Valerie Pottie and Andrea Levett, ”Family Violence in Canada: A Statistical Profile 1998. Statistics Canada , May 1998, p. 29

Defend Marriage submission

2006-10-12T07:50:00.000-07:00

The Chairperson,
Home Affairs Portfolio Committee,
National Assembly,
P O Box 15,
Cape Town,
8000,

Submission on Civil Unions Bill 26 - 2006

Defend Marriage is a group of organisations and concerned individuals who are strongly opposed to the legalisation of same-sex marriage, civil unions, domestic partnerships and any other legal recognition of relationships which undermine marriage as it currently stands in law.

We voice our absolute rejection of the Civil Unions Bill B 26 – 2006.

Defend Marriage calls for an amendment to the Constitution of the Republic of South Africa in order to defend this definition by adding to section 39 (Interpretation) the clause: "The Constitution shall be interpreted to mean that a marriage is the voluntary union between a man and a woman only."

Defend Marriage has circulated a petition to this effect, which has been sent to the Ministry of Justice and Constitutional Development. We attach a petition form, just one of the thousands, which are currently circulating. For a full register of all petitions received by the ministry to date, please call 012 3578217.

We strongly disagree with the view expressed by some political leaders that they are obliged to comply with the Constitutional Court ruling. Certain activist judges have made an error in their interpretation of this issue in the constitution, which is evidenced by the fact that this issue was never even considered at the time of the CODESA negotiations. Parliament is well within its constitutional rights to amend the constitution to honour the traditional definition of marriage instead of complying with the ruling of the Constitutional Court. We urge this amendment to be passed as soon as possible.

We urge you to take heed of the voices of the millions of South Africans who believe in the sanctity of marriage. Changing the definition of marriage will gradually affect the whole of society. South Africans are overwhelmingly opposed to recognising homosexuality as a legitimate lifestyle, worthy of legal recognition.

The proposed Civil Union Bill includes provisions for Civil Unions for same-sex relationships; Registered Partnerships for same or opposite sex partnerships and unregistered partnerships for couples who live together outside of marriage. The Civil Union element is an almost exact copy of the legal rights of marriage, and allows the use of the term ‘marriage’ in the ceremony. These marriage-like proposals all undermine the uniqueness and sanctity of marriage and in the case of opposite sex partnerships create alternatives to marriage, which will result in less people getting marriage. This is seriously harmful to society and therefore needs to be rejected.

South Africans have fought for freedom and democracy, for the principles and morals that we hold dear as a nation. South Africans have turned out in great numbers at public hearings to make their voices heard. We ask you to listen to the voices of the voters, as they almost unanimously reject the notion of legal recognition of homosexual unions and domestic partnerships. As South Africans we want our government to respect and defend the institution of marriage as a union between a man and a woman only.

Not allowing Homosexuals to get married is ‘fair’ rather than ‘unfair’ discrimination. Two people of the same sex simply cannot get married. It is physically and reasonably impossible. To perform such a ceremony, or provide legislation for it, is fraudulent and a mockery of true marriage.

We don’t realise what we are doing, because we don’t realise what we are undoing. Marriage and family is the basic building block of society. By extending marriage rights to homosexuals we are not just allowing more people to be /get married. We are totally undermining the basis on which our society is built. We take the influence of marriage on our society for granted, because we have never lived in a society where it has not been the cornerstone of society.

We have seen in the past how evil laws, which entrenched the migrant labour system, led to a disintegration of family structures and we are still reaping the consequences of this today. Let us not make the same mistakes and further insult the family unit by undermining its very basis.

We accept individuals who suffer with homosexual inclinations as human beings made in God’s image and likeness, worthy of the respect and dignity owed to them as members of the human family, but we disagree that homosexual relationships are equal to heterosexual relationships. They are not natural and they are immoral. Homosexuality is a risky and unhealthy lifestyle. We cannot put the invented ‘rights’ of a tiny minority of people ahead of the well being of our entire society. It is also in the best interests of homosexuals to help them to live normal straight lifestyle rather than institutionalising such an unhealthy lifestyle, through the proposed ‘Civil Partnerships’.

Defend Marriage also calls parliament’s attention to the chaos and irregularities surrounding the public hearings, the short notice given to interested parties, the confusion with regard to the time and location of the hearings. We call for an extension of the deadline for this legislation. It is unreasonable for a matter of such importance to be subject to such time constraints.

Defend Marriage requests permission to present this submission at the oral hearings at Parliament.

Marriage Alliance submission

2006-10-12T07:48:00.000-07:00

6 October 2006
MARRIAGE ALLIANCE OF SOUTH AFRICA

SUBMISSION TO HOME AFFAIRS STANDING COMMITTEE
ON THE CIVIL UNION BILL

INTRODUCTION

The Marriage Alliance of South Africa is a Christian association representing a number of denominations, churches and religious institutions that recognise and value the institution of marriage in South Africa. We believe that the extension of the definition of marriage to include same-sex couples would seriously undermine marriage and the family as the fundamental building blocks of society.
We believe marriage is intended to be the life-long union of a man and a woman. We believe the purpose of marriage is to –
· be the foundational institution of a stable and healthy society;
· establish the proper environment for procreation and nurture of godly offspring;
· define the parameters within which we can express our sexuality in a safe and healthy relationship;
· reflect God’s love and concern for people and the church in the union of man and woman in a covenantal relationship.

In our view, marriage as a life-long union of a man and a woman, and as the safe and proper environment for raising children, is essential to secure a stable and healthy society. Children should ideally be raised in families headed by both male and female parents. A mother and a father each contribute vitally to the formation of their children’s character and the modeling of family structure. This view of the family and of that, which is in the best interests of our children, is universally recognised by most people and religions as divinely ordained, and as a key to the moral structure of a healthy society. No same-sex relationship can be equivalent to marriage, can compare to marriage, can fulfill the purposes of marriage, or should be allowed to be called marriage.
We recognise that the Civil Union Bill is the government’s response to the order of the Constitutional Court in Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs requiring Parliament to adopt, within a year, legislation enabling same-sex couples to enjoy the same status, benefits and responsibilities that marriage accords to heterosexual couples. We also note that the Bill aims to grant legal recognition to civil and domestic partnerships and to regulate the legal consequences of these relationships.
We cannot in good conscience support or endorse this Bill. As explained below, the Bill seeks to legalise same-sex marriages, as well as certain other types of partnerships or unions. Our view is that whatever arrangements the State makes to recognise such partnerships or unions, it should not do so in a way that denigrates the institution of marriage and the family. Our view is that by recognising all sorts of other relationships, even for heterosexual couples, the Bill does exactly that: it undermines and devalues the institution of marriage.
We accordingly reiterate our view that a constitutional amendment defining marriage as a voluntary union of a man and a woman is the only way in which Parliament can effectively protect marriage – whatever other arrangements it may decide to make to recognise or regulate other kinds of unions. We motivate our call for a constitutional amendment in our concluding remarks.
Our submission in relation to the Bill addresses the following aspects:

1. Substantive concerns:
a. Protection of marriage officers (S 6)
b. Requirements for solemnisation and registration of civil partnerships (S 8), with specific reference to the termination of civil partnerships by separation
c. Civil partnership formula (S 11)
d. Legal consequences of civil partnerships (S 13)
e. Registration of domestic partnerships (S 18)
f. Property regime (S 19)
g. Registered domestic partnership agreement (S 20)
h. Maintenance after death and intestate succession
i. Section 30 of the Bill
j. Determination of existence of unregistered domestic partnerships
k. Protection for partners in unregistered partnerships
l. The duty of support in unregistered partnerships
m. Customary spouses v unregistered partners: spousal benefits
n. intestate succession: unregistered partners

2. Procedural concerns
a. The public hearing process and the requirements of public participation,
b. Failure to refer Bill to National House of Traditional Leaders

1. SUBSTANTIVE CONCERNS

We cannot agree to it that same-sex partners be allowed to have their relationship solemnised as a marriage (S 11). In our view the Bill moreover does not protect marriage from being undermined by various other unions and partnerships. We are convinced that the effect of making all these unions and partnerships possible will put the institution of marriage under further pressure. In our view it even encourages heterosexual couples to live together in a domestic partnership, rather than enter into marriage. Why do the drafters of the Bill find it necessary to encourage people to live together outside of marriage at all? The Bill also does nothing to promote the raising of children within a stable family environment headed by both a father and mother who are joined together in the institution of marriage. Instead, under this Bill, children run the risk of being exposed to all sorts of relationships that may very well compromise their emotional and physical health and undermine their stable upbringing. We have no doubt that this Bill will have immensely detrimental effects on our society. We now turn to several specific aspects of the Bill to which we feel led to respond.

a. Protection of marriage officers (S 6)

The protection that the Bill provides to marriage officers who object to solemnising civil partnerships on grounds of conscience is inadequate. The definition of “marriage officer” in section 1 includes persons who have already been designated by the Minister under the Marriage Act 25 of 1961. Section 6(1) requires marriage officers who object to solemnising civil partnerships to inform the Minister of Home Affairs in writing of their objection on grounds of conscience, failing which they can be compelled to solemnise a civil partnership. In other words, the Bill requires by default that every marriage officer (including a minister of religion) solemnise a civil partnership. To avoid this default position, marriage officers who object to solemnising civil partnerships must inform the Minister in writing of their objection on grounds of conscience. In the absence of evidence before a court that the Minister has received an objection of this nature, a minister of religion in a given case can be compelled by court order to solemnise a civil partnership. This arrangement puts everybody, marriage officers as well as couples, in a situation of potential embarrassment and pressure. A better arrangement would be the opposite: to invite marriage officers prepared to solemnise civil partnerships etc to apply for the appropriate designation. Couples may access the list of names at the Department of Home Affairs before they approach a marriage officer.

b. Requirements for solemnisation and registration of civil partnerships (S 8)

Section 8(5) provides that “[a] civil partnership may only be registered by prospective civil partners who would, apart from the fact that they are of the same sex, not be prohibited from concluding a marriage.” It is unclear what this subsection means. We suppose the provision refers to other impediments to marriage such as age and family relationship.
Apart from a death certificate, section 8(3) does not refer to a document that will serve as proof that a previous civil partnership has been terminated by separation. The only reference made to a document serving as proof that a previous relationship has been terminated by separation is a “divorce order”. The only type of relationship that is currently terminated by a divorce order is a marriage.
The absence of such reference suggests one of two things: 1) the drafters mistakenly omitted to make reference to a termination document for civil partnerships; or 2) the drafters believed that civil partnerships would, like marriages, be terminated by a divorce order. We believe that the second scenario is the more plausible interpretation. This conclusion seems to be supported by sections 16(3) and 13 of the Bill. Like section 8(3), section 16(3) does not refer to a termination document for civil partnerships. Apart from a divorce order, the only document that serves as proof that a previous relationship has been terminated by separation is a termination certificate, which only applies to domestic partnerships (see definition of “termination certificate”). If these sections are read with section 13, which extends the legal consequences of a marriage to a civil partnership and includes a civil partnership in the definition of marriage, then it becomes clear that the drafters believed that a civil partnership should be terminated like a marriage – by a divorce order. But then the Divorce Act 70 of 1979 would have to be amended, and yet it is not the subject of this law reform process.

c. Civil partnership formula (S 11)

Section 11 provides prospective parties to a civil partnership with the option of solemnising their union as a civil partnership or a marriage and expressly provides this option in a formula. The name of this Bill and the textual content of chapter 2 as a whole (with the exception of section 13) suggests that it does not regulate the institution of marriage, which is regulated by the Marriage Act 25 of 1961, but aims to create a separate institution governed by a different piece of legislation. The reference to “marriage” in the civil partnership formula is therefore misleading because the Bill is not meant to regulate the institution of marriage. It also amounts to a misuse of a word that is still understood to refer to a male/female union, creating confusion about the nature of the institution.
The rights to equality and dignity do not require the homogenisation of behaviour and of procedures regulating different relationships. The judgment of the Constitutional Court does not necessarily require a solemnisation procedure that mimics the procedure in the Marriage Act. A registration procedure like the one in section 18 would suffice.

d. Legal consequences of civil partnerships (S 13)

Section 13 aims to make the legal consequences of marriage apply, “with such changes as may be required by the context, to a civil partnership”. It aims to do this by redefining “marriage” in any other law to include a civil partnership as defined in the Bill [section 13(2)(a)] and “husband, wife or spouse” in any other law to include a civil partner as defined in the Bill [section 13(2)(a)]. The reference to “any other law” includes statute and case law.
Firstly, like the civil partnership formula in section 11, this section creates confusion about whether the Bill regulates the institution of marriage or aims to create a separate institution governed by separate legislation. The title of the Bill and the textual content of chapter 2 suggest that it aims to regulate a separate institution. If that is the case, then every reference to the institution of marriage should be removed from this Bill. We would also suggest that persons who officiate the contracting of civil partnerships not be referred to as “marriage officers”.
If, however, the Bill does aim to regulate the institution of marriage then, apart from our textual comments, this raises the following concerns:

· In effect, the section amends the meanings of the words “marriage”, “husband”, “wife” and “spouse” in every existing piece of legislation containing them to include, subject to context, same-sex unions. In Fourie v Minister of Home Affairs, the Constitutional Court noted that there were “at least 44 Acts of Parliament in which reference is made to ‘husband’ and/or ‘wife’ either in the body of the Act or in the regulations to the Act”. (If one includes legislative references to “marriage”, then there are statutes that are certainly more affected.) However, in one section, and without any consideration of its implications for these other laws, these words are amended in these statutes. Such amendments are improper. The words “marriage”, “husband”, “wife” and “spouse” in every affected statute will have to be reconsidered in order to determine the impact of this sweeping change.
.
· The section contradicts the very judgment that it aims to fulfil. In the Supreme Court of Appeal judgment, the majority decided that the words “husband and/or wife” could not be read as “spouse” (as the minority judgment had held) because of the different ‘nature’ of these words. They preferred the remedy of reading-in. The judgments of Sachs J and O’ Regan J do not contradict or challenge this holding, but rather confirm it as they also preferred the remedy of reading-in. For the same reason, same-sex couples in a civil partnership cannot be included in references to “husband and/or wife”- as section 13(2)(b) attempts to do, because of the different nature of these words, even taking context into account.

· If the Bill becomes an Act, the effect of this section will be that the Marriage Act 25 of 1961 will be affected, regardless of the express exception of it. That will be so because the word “marriage” in this Act would have to include same-sex couples in a civil partnership. The combined effect of sections 11 and 13 would result in the amendment of the Marriage Act.

e. Registration of domestic partnerships (S 18)

There is no majority age limit for persons desiring to register their relationship as a domestic partnership [no reference to “adult” in section 18(1)]. The only limit is in section 16(4).

f. Property regime (S 19)

Section 19(4) is unclear.

g. Registered domestic partnership agreement (S 20)

This section empowers a court to set aside a registered domestic partnership agreement if it is satisfied that giving effect to it would cause “serious injustice”. It then stipulates, in a non-exhaustive fashion, factors that the court may have regard to in determining whether serious injustice would result from giving effect to the agreement. These factors are open-ended to the extent that they do not sufficiently guide a court in coming to this conclusion. Two examples are sections 20(3)(c) and (d): how does a court determine unfairness or unreasonableness; what distinguishes the two criteria (note “or”). As presently formulated, this provision can constitute a severe restriction on the partners’ freedom of contract unless clearer and restricted factors are given for a court to determine what makes an agreement “unfair” or “unreasonable” and what constitutes “serious injustice”.

h. Maintenance after death and intestate succession

Section 31 aims to include a surviving partner of a registered partnership into a reference to “spouse” in the Maintenance of Surviving Spouses Act 27 of 1990. Firstly, there is no definition of “spouse” in that Act, but a definition of “survivor” which refers to the “surviving spouse in a marriage dissolved by death”. Secondly, and more importantly, it is not possible to include a surviving partner of a registered partnership into the word “spouse” because that word refers specifically to a “spouse in a marriage”, and a registered partnership is not a marriage. Thirdly, even in the absence of that qualification, decisions of the Constitutional Court have interpreted the word “spouse” as referring to a partner in a marriage (it has a technical meaning already). Fourthly, section 2(1) of the Maintenance of Surviving Spouses Act makes reference to the provision of maintenance until “re-marriage”. A surviving partner of a registered partnership may not have been previously married and could therefore not remarry. The context and structure of the Act does not permit of the interpretation sought by section 31 of the Bill.
The third reason provided above applies with equal force to the interpretation of “spouse” in the Intestate Succession Act (section 32). Neither does the context and structure of this Act permit of the interpretation sought by section 32 of the Bill.

i. Section 30 of the Bill

Section 30(1) makes reference to “an agreement”. It is not clear whether it refers to a registered partnership agreement (section 20) or to a termination agreement (section 26), both of which may regulate the financial matters pertaining to the relationship.

j. Determination of existence of unregistered domestic partnerships

Part VI of the Bill provides benefits to a partner of an unregistered domestic partnership: (1) a right to claim maintenance after separation; (2) a right to claim maintenance after the death of one’s partner; (3) a right to inherit from the intestate estate of one’s partner; and (4) a right to benefit from a judicial division of property. Access to these benefits depends on a determination of the existence of an unregistered domestic partnership. According to section 45(1), read with section 38(2), the existence of an unregistered domestic partnership is determined by a court upon an application made within two years after the date on which the partnership is terminated through separation or death (emphasis added).
Firstly, in light of the nature of some of these benefits (or obligations), particularly those that operate after the death of one partner [(2) and (3) above], it is not appropriate that the existence of an unregistered partnership be an “after-the-fact” determination. Opportunistic individuals (note section 38(1): an application may be made by one partner only) whose partners become deceased may take advantage of this “after-the-fact” determination to burden their partners’ estates, even where their partners would not have intended for their relationships to attract such burdens. Numerous court applications (well-meaning, spurious and/or fraudulent) may be made by individuals aiming to prove that they were in relationships that are worthy of being termed “unregistered domestic partnerships.” These will burden the court system. The above-mentioned concerns are likely to lead to a lack of commitment to relationships, even those of a friendly nature.
Furthermore, the judicial determination of an unregistered domestic partnership will depend on the weight that a particular judge places on particular factors listed in section 38(2), as well as unmentioned ones [section 38(3)]. This constitutes a threat to the rule of law and to legal certainty.
Secondly, at which point does a judge conclude that an unregistered domestic partnership commenced and at which point does he/she conclude that it ended. At which point does he/she determine that it ended by separation or by death. Clarity on these factors is important in order to enable the law to legitimately place legal obligations on individuals in these relationships, particularly those extending to the estate of a partner in this relationship.

k. Protection for partners in unregistered partnerships

The absence of clear lines demarcating the commencement and existence of an unregistered domestic partnership makes partners in these relationships vulnerable to being “cheated on” by others who may be in secure relationships with third parties. Section 38(4) provides that a court “may not make an order under this Chapter regarding a relationship of a person who, at the time of that relationship [i.e. the unregistered partnership], was also in a civil marriage, civil partnership or registered domestic partnership with a third party.” The innocent unregistered partner who did not know that his other partner was, at the time of their relationship, also in a civil partnership or a civil marriage, will not benefit from a court order made in relation to her unregistered partnership with the latter because section 38(4) excludes a court’s jurisdiction over the unregistered partnership.
This vulnerability also manifests itself in the application of sections 40-43. The awarding of a maintenance order and the amount to be paid to a surviving partner in an unregistered partnership must take into consideration the existence of a surviving partner of the deceased in a customary marriage and, in other circumstances, a partner to another unregistered partnership.

l. The duty of support in unregistered partnerships

The obligation of spouses to maintain each other during the subsistence of a marriage derives from the duty of support, which arises automatically on the conclusion of a marriage. As a result of this automatic duty of support, a spouse can be held liable during the existence of a marriage if he/she fails to maintain his/her partner. The Maintenance of Surviving Spouses Act 27 of 1990 is a legislative intervention aimed at extending this duty of support beyond the death of one of the spouses; the obligation to maintain that exists during marriages passes to the estate of the first-dying spouse.
Section 39 provides that unregistered partners “are not liable to maintain one another and neither partner is entitled to claim maintenance from the other” except in terms of this Chapter. This is not surprising when one considers that the existence of an unregistered partnership, for purposes of attaching legal consequences, is an “after-the-fact” determination. There can therefore be no entitlement to maintenance before that determination. In light of the above, it is anomalous that sections 40 - 42 provide a partner to this relationship with the entitlement to claim maintenance after separation and after death. In the absence of such entitlement at the time when the partners were together, there is no basis for the posthumous creation of an entitlement after the relationship has ended – by separation or by death. Section 41 is an amended version of the Maintenance of Surviving Spouses Act in the context of an unregistered domestic partnership.

m. Customary spouses v unregistered partners: spousal benefits

It is surprising that the existence of a customary marriage between one of the partners of an unregistered partnership and a third party does not, unlike the existence of a civil marriage, civil partnership or a registered partnership, remove the jurisdiction of a court from making an order on the legal consequences of an unregistered partnership involving the former (as section 38(4) does). What is more disturbing is that in relation to spousal benefits conferred in this Chapter, spouses of customary marriages are placed on the same level as partners in an unregistered partnership, despite the fact that a customary marriage is of a higher status. This should not be so. Spouses in customary marriages ought to be given greater security than is given under this Bill.

n. Intestate succession: unregistered partners

Surviving partners in an unregistered partnership are given a right to inherit from the intestate estates of their deceased partners (section 43). As was argued under (l) above, in relation to the “after-the-fact” determination of the existence of an unregistered partnership, it is not appropriate to impose a burden on the estate of a deceased who during his lifetime would not have agreed to this. Secondly, and more importantly, the surviving partner of an unregistered partnership cannot be included under the reference to “spouse” in the Intestate Succession Act because in its textual and structural context, that word refers to a spouse in a marriage.

2. PROCEDURAL CONCERNS

a. The public hearing process and the requirements of public participation

The Marriage Alliance of South Africa is concerned about the limited opportunity afforded to the public to make a meaningful contribution to the law-making process in relation to this Bill. Most people, particularly ordinary citizens, only obtained information about hearings in their area within 24 hours of them taking place, the main advertisement being by word of mouth. There were very few local newspapers that advertised these hearings, and those that had adverts did not give specific venues or times. It was mainly interested non-governmental organisations that took the effort to phone parliamentary officials and the portfolio committee secretaries for confirmation of venues or times. As a result of this delayed awareness, people did not have the opportunity of accessing and studying the Bill before the time of the hearing. They therefore could not apply their minds on its contents and implications for their lives.
We are also concerned about the manner in which the public hearings process was conducted. Only one hearing was scheduled per province. The times, venues and locations of some hearings have been changed at the last minute. In Polokwane, for example, the hearing started at 11:30 when it was supposed to commence at 10:00, and the venue and time were summarily moved to the local township to commence that afternoon. The Pietermaritzburg hearing scheduled originally for Saturday 30th September was moved forward to Friday 29th September, and most interested parties in KwaZulu-Natal were not aware of the change.
We believe that the public hearing process does not comply with the duty of the National Assembly to “facilitate public involvement in the legislative and other processes of the Assembly and its committees” (section 59(1)(a) of Constitution). In Doctors for Life International v The Speaker of the National Assembly the Constitutional Court considered the meaning and scope of the duty to facilitate public participation in the law-making process. The majority held that there were at least two aspects of the duty to facilitate public involvement: (1) the duty to provide meaningful opportunities for public participation in the law-making process; (2) the duty to take measures to ensure that people have the ability to take advantage of the opportunities provided.
The first aspect requires Parliament to take measures to equip the public to participate in the law-making process in a meaningful way (emphasis added); i.e. “provide notice of and information about the legislation under consideration and the opportunities for participation that are available” ; provide “access to information and the facilitation of learning and understanding in order to achieve meaningful involvement by ordinary citizens;” “create conditions that are conducive to the effective exercise of the right to participate in the law-making process”.
The second aspect requires Parliament to take measures to ensure that the public does participate in the law-making process (emphasis added); i.e. the opportunity to submit representations and submissions, written and/or oral; conducting its business in an open manner and holding its sittings and those of its committees in public.
Whether the legislature has taken steps to afford the public an opportunity to participate effectively in the law-making process (i.e. whether it has discharged its duty to facilitate public participation) depends on what was reasonable in light of all the circumstances. Factors relevant to determining reasonableness are:
· parliamentary rules adopted to facilitate public participation;
· the nature and importance of the legislation under consideration and the intensity of its impact on the public; and
· what Parliament considers to be appropriate and practicable in light of money and time constraints.

It is our view that the steps taken by Parliament to afford the public an opportunity to effectively participate in the process of passing this Bill does not comply with the requirement of reasonableness if consideration is given to the importance of the Bill and the impact which it will have on society in general, on the timeless institution of marriage; on every statute governing the legal consequences of marriage; and on religious and cultural beliefs and customs around marriage in South Africa. Parliament has not succeeded in this short time since the introduction of the Bill to equip the public to engage the contents of the Bill in any meaningful way, and has also failed to ensure adequate public participation given the importance of the Bill.
Adoption of this Bill will be ill considered, premature and unwise. In addition, it will be inconsistent with the court’s approach to the importance of public participation laid down in the Doctors for Life judgment.

b. Failure to refer Bill to National House of Traditional Leaders

To the extent that the Bill affects the status of customary marriages (an important and sensitive cultural institution), particularly in relation to the rights of surviving spouses of these marriages and the fact that there are traditional leaders who also act as marriage officers, this Bill ought to be referred to the National House of Traditional Leaders in terms of section 18(1) of the Traditional Leadership and Governance Framework Act 41 of 2003.

CONCLUDING REMARKS

It should be clear that the Bill in its present form is fatally flawed. It probably creates more legal and social problems than it solves. And, most importantly, it does not protect marriage as a union of a man and a woman. In our view this Bill is not the proper way to protect the institution of marriage; it does nothing to protect the family as a foundational element of society, nor does it effectively regulate other kinds of relationships.
Rather than proceeding with this Bill, we believe Parliament has the moral and legal responsibility to adopt a constitutional amendment in which a marriage is defined as a voluntary union of a man and a woman. That would effectively protect marriage against any statutory or judicial challenge.
We say that Parliament has the moral responsibility, because as the elected representatives of the people it is morally obliged to protect the integrity of marriage as a heterosexual institution. The majority of South Africans do not believe that same-sex relationships can ever be morally equivalent to marriage as has been accepted for generations. In our opinion the demand for same-sex marriage is a challenge to the strongest and most important foundational element of society, i.e. marriage and the family. The adoption of same-sex marriage will radically redefine marriage and family, will have far-reaching social consequences for generations to come, and will contribute to the social and moral confusion and instability we already experience in our society. We appeal to Parliament to conserve the existing moral consensus by the adoption of a constitutional amendment defining marriage as a heterosexual institution.
Parliament also has the legal responsibility to act on this matter. The constitutional authority to determine the content of the Constitution, also by way of amendment, is vested in Parliament. The function of the Constitutional Court is to interpret and apply the Constitution as handed down to it by Parliament. If the Constitutional Court’s interpretation of the Constitution has the effect of overturning foundational elements of society, such as marriage and the family, which are supported and valued by the large majority of South Africans, it is Parliament’s right and duty to amend the Constitution in order to prevent that from happening. By doing so, Parliament will not be challenging the authority of the Court; it will simply confirm the constitutional authority and role of both institutions. By amending it, Parliament will moreover confirm the authority of the Constitution as the supreme law of the Republic.
The obvious objection is that the time for a constitutional amendment has run out, and that all that Parliament has before it is the Civil Union Bill that has to be finalised before 1st December. Our reply is that Parliament is the highest legislative institution of the Republic with the constitutional authority to amend the Constitution whenever it deems necessary. No time constraint except those in the Constitution itself can stop Parliament from doing so. The question is not one of too little time, but of political will. If Parliament is prepared to listen to reason, and to the voice of the people, and it is prepared to provide the moral and constitutional leadership we request, it will take up this challenge on behalf of the people and amend the Constitution.

We pray that Parliament and this Committee will receive the wisdom and clarity required to take the proper action in this difficult matter. We pray that you will be prepared to take a moral stand in accordance with God’s will. We pray that God will protect our marriages and our nation.

God bless South Africa. Nkosi Sikelel’ iAfrika.

Co-Chairpersons of the Marriage Alliance of South Africa:
Cardinal Wilfrid Napier
(Chairman of the Southern Africa Bishops Conference)
Rev Moss Ntlha
(General Secretary of the Evangelical Alliance of South Africa)
Dr Michael Cassidy
(International Team Leader/African Enterprise)

For more Information:
General Administration/Communications:
Naomi Boshoff Cell 083 675 1001
E-mail: xformt@mweb.co.za Phone: +27 12 343 9488 Fax: +27 12 343 5280