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.
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:
2006 South Africa
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).BACK TO TOP