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By Vasu
Reddy and Zethu Cakatha
Introduction
The Supreme Court of Appeal in 2004 declared the
common-law definition of marriage unconstitutional.
This decision followed an appeal by Marie Fourie
and her partner, Cecilia Bonthuys, which resulted
in mixed public reaction. Phumlani Nxumalo (74)
from Orlando West, not too far from Johannesburg,
was appalled at the court’s verdict: “Even
animals of the same sex don’t take this route.
We have lost ubuntu bethu” [1]. Unsurprisingly,
a lesbian couple, Mbali Nkosi (19) and Joy Mbatha
(18) said they were overwhelmed by the outcome:
“We were thinking of eloping because we always
felt that South African law was insular and unfair
to us. But now we are relieved because it is no
longer only about the so-called straight people”
[2].
The idea that ‘ubuntu’
(humaneness or humanity) is lost through the accrual
of rights for lesbians and gays, suggests that such
rights, according to their opponents, should not
be guaranteed. That the virtues of ‘ubuntu’
are only morally sanctioned within a heteronormative
model implies, in our view, a very limited perspective
on equality and human rights.
Legal victories and policy reform
have benefited the construction of lesbian and gay
identities in South Africa (See Table
1). Such victories have progressively promoted
claims to citizenship and nationhood.
However, the struggle for identity
is reinforced in the case for same-sex marriage.
Elsewhere in Africa, Anglican Archbishop Peter Akinola
of Nigeria claimed the US Episcopal Church created
a ‘new religion’ by confirming openly
gay Bishop Gene Robinson in November 2003 in New
Hampshire [3].
Same-sex marriage connects two central
ideas: first, the history and meaning of homosexuality;
and second, the history and meaning of marriage.
In most African states homosexuality
is still criminalised and even actively policed.
Such criminalisation is fuelled by the notion of
the ‘un-Africanness’ of homosexuality,
despite overwhelming evidence of the historically
traceable presence of African lesbians and gays,
and of same-sex practices on our continent.
The main issue about homosexuality
in most parts of Africa less its denial than the
fact that homosexuality is viewed in heteropatriarchal
terms as a behaviour rather than an identity.
Such a perception characterises homosexuality as
a perverse desire associated with pathology, and
signals a return to a biomedical and non-cultural
understanding of human sexuality. The case for ‘marriage’
in many African countries remains a distant ideal,
given the prohibition and criminalisation of same-sex
practices. Our sexualities, by no means representative
of a uniform experience, confirm that pleasure,
desire, and belonging reflect deep-seated political
conflicts over identity, bodily integrity and morality
[4].
The far-reaching judgements (See Table
1) since the formal adoption of the South African
Constitution have systematically advanced the administration
of justice that facilitates identity formation for
lesbians and gays. While the apartheid social and
legal system criminalised homosexuality, the post-apartheid
landscape has shown progressive decriminalisation
which recognises lesbian and gay identities [5].
'First it was the abortion
law, now same-sex couples can marry'
As an institution marriage is an important property
of the state. Such an institution is also accorded
a special privilege by most religions. Viewed as
an arrangement for procreation and the nurture of
children, marriage is seen by patriarchal organizations
and traditions as a part of the natural order requiring
a mixed-gender relationship (man and woman). Marriage
is not simply a symbolic institution that affords
a legal status to a civil relationship, but also
raises jurisprudential issues about the State’s
relationship to its citizens.
Marriage rights do not apply to most
gay and lesbian couples because same-sex relationships
falls outside the scope of the legal definition
of marriage. The case for the redefinition of marriage
in South Africa is in some respects a test for the
post-apartheid state’s recognition of lesbian
and gay citizens as full members of the polity The
Constitutional Court (hereafter CC) decision of
8 December 2005 in favour of same-sex marriages
demonstrates this. The decision of the CC upholds
a Supreme Court of Appeal ruling in November 2004
that said same-sex couples could get married following
the application by lesbian couple Marie Fourie and
Cecilia Bonthuys.
The 2005 decision by the CC requested
that courts change the common law definition of
marriage from being a ‘union between a man
and a woman’ to a ‘union between two
persons.’ The CC indicated that it was the
task of the South African parliament to make the
necessary changes within twelve months. Legal reform
resulting from this positive decision by the court
strengthened the development of lesbian and identities
further by securing rights that strengthen citizenship.
It is for these reasons that it is difficult to
erase sexuality from its relationship to the law
and citizenship.
The meanings attached to marriage
revealed in the debates on marriage equality are
important. A cursory review of public opinion suggests
that same-sex marriage turns on basic attitudes
towards sexuality and gender.
At the heart of the gay and lesbian
lobby’s defence is the right for everyone
to choose the circumstances in which they live their
lives. Marriage is one possibility of a full citizenship
(which includes the right to equality and privacy).
This view is underpinned by the conception of the
gay rights movement as a public demand for respect
for homosexuals (which includes the right to dignity).
Consequently, the primary benefit of marriage is
the extension of citizenship rights that facilitate
the assimilation of gay and lesbian individuals
into the mainstream of society. Such a view does
not imply that all lesbians and gays endorse marriage;
for many, the need for marriage is disputed, as
it signals the assimilation of a heterosexual model.
Some feminists view marriage as an
institution which regulates and controls sexuality
(female sexuality especially) and strictly imposes
a gendered division of labour (even though this
is changing, the situation of many women in such
relationships remains unchanged). The ‘marriage’
strategy, especially as advanced by many activists,
seems to be motivated by the need for the normalisation
of homosexuality.
In contrast, homophobic arguments
mobilised against same-sex marriage are informed
by fears of reproductive relations, gender roles,
and the role of children and adoption, and are voiced
usually in terms of a moral/religious perspective.
For example, Johanna Bonoko stated that “first
it was the abortion law, now same-sex couples can
marry […] we’re heading for disaster”
[6]. In the same interview, Carol Makhanya cautioned
that the decision reflected that the decision was
one of “the signs of doom and corruption […]
man has turned his face from God”.
The focal point of the social structure
of marriage, for those opposed to same-sex unions,
is a traditional understanding of the family. Underlining
the fear of equal marriage rights is a moral panic
that introduces the notion of the family into the
dispute about marriage. To some extent the debate
about same-sex marriage invariably slips into a
moral argument about what constitutes a family.
In the case against same sex marriage, ‘family’
is conceived as a social institution, biologically
determined in terms of patriarchy. Marriage is viewed
as a space for the moral development of heterosexual
parents and their children.
The Civil Union Bill in South
Africa
Despite ongoing public debate about the issue, South
African lesbians and gays woke up to new possibilities
on 30 November, 2006, after Deputy President of
South Africa, Phumzile Mlambo-Ngcuka (acting as
president on this occasion) signed the Civil Union
Bill into law in Pretoria on 29 November.
The new Civil Union Act of 2006 provides
for the formal and legal recognition of gay and
lesbian partnerships with the same rights as conventional
marriages. Among some of its provisions are the
following:
- Any two people aged at least 18 may enter a
single civil partnership which they could call
a marriage which will carry all the rights of
a marriage of the existing Marriage Act. Partners
may legally refer to each other as husband, wife,
spouse or partner.
- Any marriage officer may solemnise such a union
under the Civil Union Act, and such an officer
may equally register objection to the law and
decline to officiate at a same-sex marriage.
- Churches are not obliged to register under
the Civil Union Act, but they may do so if they
choose.
- Partners wishing to marry need only produce
a South African identity document or an affidavit
confirming their identity.
- People who previously married under the Marriage
Act or Civil Union Act will need to produce proof
of divorce or a certificate confirming the death
of a previous partner if they wish to remarry.
- The ceremony requires a taking of hands but
not an exchange of rings and is completed with
the question (‘Do you A take B as your lawful
spouse (or civil partner if the couple prefer
the term)’ and is sealed with the traditional
words: ‘I do’.
The Civil Union Bill means that the
traditional Marriage Act remains intact and available
only to heterosexual couples. It provides separately
for a civil partnership or marriage for same-sex
couples, to the disappointment of many activists.
Despite this limitation, the parallel marriage law
catering for lesbians and gays suggests an affirmation
of identity in the progressive development of a
rights-centred jurisprudence. The institution of
marriage implies a practical and symbolic guarantee
of equality for two people of the same-sex to formalise
their commitment to each other. The question of
choice therefore remains central.
Conclusion
The legal recognition of a civil union for lesbians
and gays suggests a journey towards social justice.
Marriage is a dynamic institution, always in transition,
and is increasingly losing some of its sacred appeal
and becoming secularised. The latter, in our view,
is not a sign of weakness in the institution but
rather a reflection of its response to social change
and growing inclusiveness. We have witnessed changes
to the nuclear family, alternative family arrangements,
and new ways of being in the world in the broad
development of our sexualities.
The case for same-sex marriage reflects
much contestation (most recently reflected in the
Nigerian bill to ban same-sex marriage). We must
remain vigilant about the prospect that rights
do not necessarily sustain justice. The
victory in South Africa confirms developing freedoms
for lesbians and gays, but does not resolve the
persistent threat of homophobia, prejudice, stigma
and persecution, reinforced by religious and cultural
intolerance. The leader of the Council of Traditional
Leaders of South Africa, Patekile Holomisa, recently
stated at a national congress that the Constitutional
Court erred in ruling civil unions between same-sex
partners be legalised: “We will continue to
inform our people this is something we don’t
support […] It is taboo […] If you accept
this [being gay], you might as well accept people
having sex with their relatives or with animals
for that matter.” [7]
Sadly, such views reconfirm for us
the need to hold onto struggles for rights, to reinforce
public education, and to challenge discrimination.
The journey means that democracy comes with risks
that we must continuously fight to protect.
References
1. ‘Same Sex Marriages’
(2004). Sowetan, 1 December: 3.
2. ‘Same Sex Marriages’ (2004). Sowetan,
1 December: 3.
3. SAPA-AP (2004). ‘I didn’t write the
Bible’. Daily News, 11 October: 8.
4. Reddy, V. (2004). ‘Sexuality in Africa:
some trends, transgressions and tirades’.
Agenda, 62: 3-11.
5. Reddy, V. (2005). ‘Moffies, Stabanis, Lesbos:
The Political Construction of Queer Identities in
Southern Africa’. Unpublished PhD thesis,
University of KwaZulu-Natal.
6. ‘Same Sex Marriages’ (2004). Sowetan,
1 December: 3.
7. Du Toit, C. (2007). ‘Chiefs Bash Gays’.
The Citizen, 19 February: 1-2.
* Vasu Reddy (PhD) is a Chief Research
Specialist and Acting Director of the Gender &
Development Unit, Human Sciences Research Council
(Pretoria, South Africa). He is also an Honorary
Associate Professor of Gender Studies in the School
of Anthropology, Gender & Historical Studies
at the University of KwaZulu-Natal. He is the co-founder
of the Durban Lesbian & Gay Community Centre
(http://www.gaycentre.org.za).
E-mail: vasureddy@hsrc.ac.za
Zethu Cakata is a Senior Researcher and Doctoral
Intern in the Gender & Development Unit, Human
Sciences Research Council (Pretoria, South Africa).
E-mail: zcakata@hsrc.ac.za
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