Seperate always unequal

Business Day yesterday published a letter from Kader Asmal in which he argues that the Civil Unions Bill comply with the Constitutional Court judgment in Minister of Home Affairs v Fourie. He quotes from Sachs’ judgment to the effect that:

Equal treatment does not invariably require identical treatment. thus corrective measures to overcome past and continuing discrimination may justify and may even require differential treatment.

This qoute does not support his argument though. On the contrary, it refutes his argument. In the context of equality, justice Sachs suggests here, those who have been particularly marginalised can sometimes be given preferential treatment. Gay men and lesbians have been particularly marginalised and oppressed so they should, in some cases qualify for preferential treatment. What the Constitution prohibits is for such a marginalised group to be given worse treatment than those who oppress them. And that is eactly what a seperate but equal civil partnership arrangement does. It provides for a seperate institution that may provide same-sex couples with most of the legal rights and duties associated with traditional marriage, but the Civil Union Bill spectacularly fails to extend to such relationship the same status as that associated with marriage. The mere fact that the drafters decided to create a seperate institution is a dead giveaway. If it is not called marriage, it ain’t marriage. As I have argued in my article in the Mail & Guardian two weeks ago:

This is extremely insulting and humiliating towards those of us who might want to marry a member of our own sex. The Constitutional Court warned that creating a special institution for same-sex couples will invariably send the signal that bringing same-sex couples under the umbrella of marriage law would taint those already within its protection. It endorses the view that homosexuals are somehow depraved, impure and tainted and that “pure” heterosexual marriage must be protected from this abomination. As the Constitutional Court pointed out in the Fourie judgment, such a view – no matter how seriously and sincerely held – can only be based on prejudice against or hatred of homosexuals. And prejudice, the Court has said on many occasions, can never justify unfair discrimination.

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