As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Over the past ten years the
Given that the Civil Union Bill will extend marriage to same-sex couples, the million dollar question was what would happen to the rights of unmarried same-sex couples to adopt children, to enjoy immigration rights, pension benefits and the right to inherit from a same sex life partner.
Would a same-sex couple who did not marry on 1 December wake up the next day to find they had the same lack of rights as unmarried heterosexual couples?
Today in the case of Gory v Kolver and Others acting Constitutional Court Judge Belinda Van Heerden (is she destined to become the fourth woman judge on the CC?) confirmed that these hard-won rights would not automatically be amended merely because same-sex couples are now allowed to get married.
We will now have the strange situation where same sex couples will have more rights and more options than heterosexual couples. Even if same-sex couples do not get married they will have, for example, the right to inherent from their life partner – even where no will was left.
But, as the Court points out, Parliament will have the right to amend this kind of legislation to take away the rights of non-married same-sex couples so that they are treated the same as heterosexual couples.
In its haste to pass the Civil Union Bill, Parliament seem to have forgotten about such issues. As the Court pointed out today:
[Q]uestions like what status to accord pre-existing same-sex life partnerships after the expiry of the Fourie deadline, whether to provide a “transitional” period in which partners to pre-existing same-sex life partnerships will qualify for the benefits conferred by law on “spouses”, and if so, the length of such a transitional period are pre-eminently legislative decisions. This kind of decision ought to be taken by Parliament when it enacts the legislation contemplated in the Fourie case, and ought not to be anticipated by this Court.
The underlying issue, which so many so-called pro-marriage opponents of the Civil Union Bill fail to see because of their ingrained homophobia, is that the Civil Union Bill has the potential to strengthen the institution of marriage – not to weaken it.
Many people get married because they cannot easily access the rights attached to marriage in any other way. That is why the second part of the original Civil Union Bill which was dropped from the final version was far more threatening to the institution of marriage than the extension of marriage to same sex couples in the first part.
The second part of the Bill would have extended to non-married heterosexual or same-sex couples many of the rights and privileges associated with marriage without them having to conclude a marriage. The idea is that there is a need to protect the financially and socially weaker partner (usually the woman in a hereosexual relationship) from exploitation.
Such provisions, if adopted, will make marriage for all intense and purposes irrelevant in law.
Lets hope Parliament stick to its promise to reconsider these other aspects of the proposed Civil Unions Bill so that one day marriage will not be about rights and duties, but only about white dresses, giving presents and sharing one’s relationship with close friends and family.BACK TO TOP