Argentina became the tenth country (and the first in South America) to provide full marriage equality (including the right to adopt children) to same-sex couples late on Wednesday night. There are now about 250 million people worldwide living in jurisdictions which provide for marriage equity. Here is the list:
2001 Netherlands
2003 Belgium
2005 Spain
2005 Canada
2006 South Africa
2008 Norway
2009 Sweden
2010 Portugal
2010 Iceland
2010 Argentina
When the South African Parliament, following a judgment of the Constitutional Court, legalized same-sex marriage in 2006, many people argued that it would spell the end of marriage as we know it. Some also argued that it represented a full frontal attack on marriage as an institution and that it would lead to the eventual destruction of marriage.
I never understood this argument. I have never met anyone who has said: “Well, now that gay men and lesbians can get married, I think it is time to divorce my spouse.” Neither have I heard anyone say: “Well, I was going to get married, but now that the homosexuals have spoilt it for the rest of us by organising such fabulous weddings for themselves, I have decided I will rather continue living in sin with my girlfriend.”
The argument that marriage is essentially focused on procreation also makes no sense. As the Constitutional Court pointed out, this argument – if followed to its logical conclusion – would suggest that heterosexual couples who do not plan to have children or cannot have children – either for medical reasons or because they are too old – should then also not be allowed to get married. (And, besides, many same-sex couples do procreate with the assistance of others, so the very premise of the argument is factually incorrect.)
The truth is, of course, that the movement for marriage equality is a conservative one. Its aim is to “normalise” same-sex love and desire and to demonstrate that same-sex couples can basically be just like heterosexual couples. We fall in love, we fight, we have children, we marry, we fight some more, we divorce and sometimes – just sometimes - we live happily ever after. If one is truly conservative and truly revere marriage and monogamy (which, some studies show, is a rather difficult thing to achieve in a long term relationship), one should support same-sex marriage.
But this many conservatives cannot do, because then they will have to let go of their prejudices against gay men and lesbians. And as we know too well, for many people nothing is more precious and more jealously guarded than their own prejudices.
For progressives, the issues are more complex. Obviously, given the fact that marriage still bestows on couples both the full package of legal rights as well as an elevated status in society, marriage should be open to all consenting adults. To hold otherwise would be to discriminate against a group of people for no other reason than because of the moral or religious views of a majority of citizens. It would signal that the state does not believe that the group has the same inherent human dignity than everyone else in society – which is not tenable in a constitutional state.
But marriage is also problematic because it provides special rights for those who have managed to tie the knot. Many people do not want to get married (seeing that it is still associated with patriarchy and the oppression of women) and many others cannot marry because they are the financially and/or emotionally weaker person in the relationship and their partner refuses to marry them.
This refusal is often based on emotional callousness, fear of commitment, or financial considerations. But regardless the reasons, the fact remains that the less empowered partner has no say in the decision at all. Such couples do not enjoy the same status or the same legal protection as married couples do – despite living in relationships that look very much like traditional marriages – and the vulnerable party in such a relationship is therefore not fully protected by the law.
Last year the government tabled a draft domestic partnership Bill to try and address this problem, but nothing has come of it. Perhaps with that serial divorcee and ex-body-builder, Ray McCauley, cozying up with one of the greatest believers in marriage (if not monogamy), President Jacob Zuma, it is not surprising that this Bill has not been taken forward.
The Bill, if it is ever passed, would be bad news for all those men who have girlfriends and do not marry them (either because they are already married or because they do not want to commit themselves emotionally and financially to one person) as it would create some legal rights and duties for people involved in such relationships. Men who have many girlfriends would fear such a law as they would have to start paying up. And it is not every man who wants to be the boyfriend of Khanyi Mbau (or can afford to be).
Prof De Vos said “It would signal that the state does not believe that the group has the same inherent human dignity than everyone else in society – which is not tenable in a constitutional state.”
Respected Prof I am not in disagreement with you as to the equal rights of all people. However, do you not think that your statement is too broad, in that not all constitutional states recognises the inherent human dignity of all its people.
Why is it that in America, many states do not recognise same- sex marriages.
Could you shed some light? The issue I probably am alluding to is that, mere constitutionalism does not guarantee equal rights.
erm… Prof, make that eleven countries. The UK also has civil unions and equality…
I wonder if Brett is part of this group:
http://www.timeslive.co.za/local/article554333.ece/Black-gun-association-to-sue-government
Prof, I am still trying to work out what your article was all about. Take a rest, Prof, we won’t hold it against you if the World Cup hangover has got to you as well. or try writing on the Fic FUFA campaign and how we can link with the next victims, Brazil. But Prof take a rest, I think its needed, maybe you can get married during this time!
I can’t think of anything more pedestrian than gay people wanting to get married, for God’s sake. How banal. Why imitate an archaic heterosexual and utterly ridiculous institution.
As I gay man I wouldn’t get married even if you offered me the whole Spanish football team on a plate (OK, that would be a difficult one to pass).
I am amazed that so many of us moffies ran to the altar to get married. Common man, common. Infra dig.
I don’t care if it’s got to do with equal rights, human rights, and so forth. It’s an archaic rite of passage that nowadays mostly land-up in the divorce courts.
We have gone through this one before.
Herman,
It does gives married couples more rights than non-married couples
But more than that, the option for gay people to marry is also symbolic. It signals that society treats us as equals with heterosexual people.
Even though my civil union ended in divorce, it is still something I would support and do when the next one comes along… any takers?
Herman – what about Foreskin Forlan of Uruguay…?
@ George Gildenhuys,
I think that the good professor specifically talks about marriage (when counting countries) and not institutions giving the same, similar or somewhat similar rights under a different name, like the Civil Union in the UK, the Registrated Partnership in Denmark, Finland and Hungary and some similar institutions in Switzerland, Germany etc.
Regards
@Ricky,
The UK gives exactly the same marriage rights to gay people than South Africa. Just like in South Africa it is not called ‘marriage’, but called Civil Union/Partnership.
yer point?
@ George,
My point was simply that I do not think that Prof. de Vos made a mistake. And, by the way, under the SA legislation if a same-sex couples marry, they can choose to call it either a civil union or a marriage, cf. section 11 of the SA Civil Union Act according to which the parties can decide if their union shall be known as a marriage or as a civil union.
And whereas I do not think it makes a big difference if it is called marriage or not, the reason why the SA Civil Union Act gave the possibility for a same sex union to be called a marriage was exactly because legal scholars believed that the Constitutional Court would not consider legislation only creating civil union but not marriage for same-sex couples constitutional.
Another example is Denmark, the first country in the world to allow Registrated Partnership (similar to marriage apart from certain adoption rights) but still not allowing gay marriage – here some groups are advocating for allowing gay marriages (and not just for the total equalisation between the two forms of partnership) because they feel that only marriage can be considered exactly the same.
And my last example is California and New Jersey where a domestic partnership act, respectively a civil union act, creates basically the same rights as marriage but where activists still demand the right to same sex marriage as the only thing giving total equality.
Does that answer your question?
@Ricky,
You’re definitely answering a question… But not one that I asked.
I am currently in the middle of a South Africa/UK civil union dissolution (aka divorce), and trust me, there is no difference except for the “binne- en buite gemeenskap van goedere” nonsense. (sorry not exactly sure about the English phrase)
Yes, the UK civil union act does not give married couples adoption rights, but that is achieved with different UK legislation. Yes, the UK and South Africa Civil Union Acts are not word for word exactly the same (primarily as the SA version amends the Marriage Act (Act 25 of 1961), whereas the UK used primary legislation).
Either way, no biggie, just thought I’d point out to Prof that it is not ten countries, but eleven, including the UK… but it seems there even more countries according to your post…
The sad thing is that there is just one African country on that list. I would really have thought that after African decolonisation it would scrap all the colonial code that is still being used to supress people across the continent…
@ George,
I could not agree more with you, for me it is also “no biggie” and I do sometimes wonder if the energy used by gay activists to fight for the right to marry in places where civil union gives the exact same rights as marriage (bar the name) – this is to my knowledge the case in New Jersey – could not be spent on more important matters.
Talking about equal rights…………
http://www.bbc.co.uk/news/uk-10658162
The Vatican’s decision to declare the attempted ordination of women a “grave crime” has been fiercely condemned by women’s church groups in the UK.
Pat Brown, of the group Catholic Women’s Ordination, said she was deeply shocked and called the change to Church law “a slap in the face to women”.
………………
The Pope was “talking about paedophiles and talking about women wanting to be priests as a crime against the faith. I cannot understand that language,” said Ms Brown.
Prof,
abidam raises an interesting point.
What are the constitutional implications of the Roman Catholic Church in South Africa explicitly banning female priests?
As far as I can see it, it is discrimination against women… Does section 15 of the Constitution play any role here?
George Gildenhuys, I make a distinction between civil unions and marriage – even when the rights are almost the same, because the terms bestows a different status on the couples involved. Marriage as a concept still implies a higher symbolic status than a civil union so it is not complete equality – merely formal legal equality.
I suspect the CHurch will get away with their discrimination because the freedom of religion will trump the equality provisions. If male only priests is part of Catholic doctrine then the state cannot prevent them from applying it to priests. I suspect the matter would be different if the church refused to employ a woman as a secretary or an organist because those jobs are not directly linked to the practicing of the religion.
Love is love, period, why do we all have so much difficulty with that? A legal joining between same sex adults strives for continuity, legal rights, security, even for heaven’s sake, and justifiably, acceptance by family and community.
Only those uncomfortable with their own sexuality have difficulty with same sex relationships. As for Paul of that ultimate Big Book, a hypocrite and spin doctor totally messed up by a minuscule enlightenment.
Seek love, give love. I recall that the Christian founder JC suggested as his ultimate teaching: love one another. I don’t recall any comments he made suggesting limitations on said advised loving.
Prof, it seems a little pedantic to argue there is any really difference between Civil Partnerships and marriage in countries that gives exactly the same rights to both….
For instance, me and my partner was/is (not exactly sure where the court procedures are right now) in a Civil Partnership as defined by the UK Civil Partnership Act 2004.
All our friends referred to it as marriage. My employee file at a UK government department referred to me as being ‘married’, my bank details say ‘married’, not ‘civil partnered’.
Even when I renewed my UK visa recently, “married/civil partnered” is in the same box.
I fail to see how I would have had more ‘status’ if the legal term was marriage and not civil partnership.
I do accept that some countries do apply different rights/privileges, but as far as I have experienced, it is exactly the same rights and privileges in the UK except in a very technical legal phrase.
Well said, Herman Lategan.
All I can add is that the concept of ‘gay marriage’ is parasitic. Gays like Herman Lategan are demonstrating that they are independent thinkers and do not need to follow an outdated and outmoded heterosexual institution.
No wonder why some are hellbent on saying the Son of Man is coming on the 21 May 2011 to judge this world. Sin is spreading like wild fire in the name of human rights….human rights my voet!!!
Just google this date and be amazed. 21 May 2011.
Unfortunately this debate has become tedious through overuse and I suspect that it undermines the peace of mind of many of those gays who just want to get on with their lives. Gays are now an accepted part of most civilised communities, and so it should be. Militant activism can morph into being detrimental to the broader community which it represents
Gay rights have made huge positive strides over the past 40 years. If I cast my mind back to the days that I was in high school it was almost unheard of that anyone would admit to be being gay.
What will the future bring in terms of levelling the hetero / homosexual playing field? Could we see militant homosexual demands for the notional right to procreate.
MINUS ONE
“President Robert Mugabe has vowed that the new constitution currently being drafted in Zimbabwe will have no provision for gay rights”
http://www.hindustantimes.com/Mugabe-says-no-to-gay-rights-in-Zimbabwe/Article1-574298.aspx
I am not sure if I missed the point of the article or not, but to my understanding, the new Bill to which Pierre refers is designed to give rights to people who have not engaged in a legal relationship – marriage or civil partnership.
I believe that it is time that some sort of “common-law” marriage protection be provided to couples (straight or gay) who make the CHOICE not to get married but who wish to live together. The laws regarding marriage are based on a fundamentally Christian premise and in effect, force the concept of marriage on people by providing them with particular rights, which does not apply to people who choose not to get married. To my thinking, this is discriminatory in itself, as it enforces a religious concept as the only acceptable solution to managing relationships.
I fully supported the legislation on Civil Partnerships in light of the rights it bestowed on same-sex couples, but I would be more supportive of legislation that bestows rights on couples who CHOOSE not to “legalise” or “solemnise” their relationships.
There are far too many unhappy and acrimonious marriages that cannot be dissolved because of financial and/or other reasons to justify the idea that only those who are married are entitled to specific rights.
Wow! Samantha, are you arguing that the purest constitutional argument for extending to gays the statutory protections the contract marriage offers is in terms of the equal protections clause?
Shock! Horror!
What happens to group hugs! Feelings of affirmed dinity? Singing ‘Kumbaya’ during reminiscenses of the bad old days before the decriminilisation of homosexuality?
Samantha says:
July 19, 2010 at 8:36 am
I believe that it is time that some sort of “common-law” marriage protection be provided to couples (straight or gay) who make the CHOICE not to get married but who wish to live together. The laws regarding marriage are based on a fundamentally Christian premise and in effect, force the concept of marriage on people by providing them with particular rights, which does not apply to people who choose not to get married. To my thinking, this is discriminatory in itself, as it enforces a religious concept as the only acceptable solution to managing relationships.
@ Brett Nortje,
Errm, no. I am not arguing the point to which you refer. Good grief!! I hardly thought my post was of a nature that would induce such apoplectic ranting.
I am arguing for legal recognition of common-law relationships – you will see I also included in brackets “gay or straight” in the excerpt you quote, but maybe you saw the word “gay” and got sidetracked into hysteria.
My understanding of Pierre’s post is that it is not about marriage or civil union partnerships, but about people who choose not to get married and who need legal rights iro that relationship.
Feel better now?
LOL! No – disappointed! I thought: Eureka!
Well, sorry about that!! It’s not in my nature to spoil others’ Eureka moments!! I’ll try harder next time not to disappoint.