Why not amend the Constitution?

I got an email this morning from Dr Ben Du Toit from the Dutch Reformed Church wanting to know what he should say to those in the church who argue for a Constitutional amendment to prohibit same-sex marriage. Because the NG Kerk argued from a position accepting the Constitutional Court judgment in Fourie as given, it concluded that one Act should regulate all marriage affairs and he has gotten some serious flack for this position. My answer comes in four sections:

• The Constitutional Court said in the Fourie judgment that what is required is for Parliament to adopt legislation that will recognise same-sex marriage. Same-sex couples already have many of the rights associated with marriage, for example the right to adopt and raise children as couples and the right to inheret without a will. The Court has also confirmed that such couples are just as capable of forming loving and lasting relationships as heterosexual couples and to raise children. The fundamental reason for this is because the court recognises that gay men and lesbians have the same inherent human dignity than anyone else and that to recognise this, their relationships should also be respected and recognised. Furthermore the Court has elsewhere confirmed that our Constitution guarantees freedom of religion and conscience which reqiures respect for diversity and difference.
• That said, as a technical matter Parliament can change any aspect of the Constitution as long as it follows the correct procedure and meets the extraodrinary majorities required by the Constitution. It can, for example, scrap the property clause or the freedom of religion clause or the clause that provides for everyone the right to vote. But to revoke the right of gay men and lesbians would require an extraordinary set of changes to the Constitution. Foremost of these would be an amendment of section 1 of the Constitution, for which a 75% majority is required, because section 1 states that South Africa is one soveriegn democratic country founded, inter alia, on the value of human dignity. They will have to amend this to say:founded on the value of human dignity – but not for homosexuals. They will also have to amend s 15 because freedom of religion and conscience will now be circumsribed and the notion of respect for diversity will have to be scrapped.
• Meanwhile same-sex couples live their lives, raise children etc etc. If you now take away those rights you will create legal chaos and confusion. The children of same-sex couples, for example, have the right to family care or parental care and the state must act in their best interest, but taking away existing rights will leave them in legal limbo. This means one will also have to amend section 28 to say only children of heterosexual couples have these rights. It goes on and on.
• But at the heart the problem is that the amendment of the Constitution to prohibit same-sex marriage after the decision of the Constitutional Court will fatally undermine the very basis of the Bill of Rights. This document is based on the notion that each human being has an inherent human dignity and that the state should respect this dignity by respecting diversity. Such an amendment will be based on the principle that not all people need to have their human dignity respected and that the choice about whose human dignity will be respected will be based on the view of one particular religion or one segment of society or the majority of the society. Slippery slope arguments now arise. For example, why should white people have their human dignity respected given what they ahd done in South Africa over the past three hundred years? It would be an extremely radical “solution” that will fundamentally alter the nature of the Constitutional state in South Africa.

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