Same Sex Marriage campaign

The Constitutional Court Hearing – A Brief on the Same Sex Marriage Campaign

On the 17th of May 2005, the Constitutional Court heard an application from 18 different applicants, including Forum for the Empowerment of Women, on the right to choose to marry for lesbian and gay people in South Africa. This follows the decision of the Supreme Court of Appeal on the 30th of November 2004, that the common law definition of marriage should be developed to include lesbian and gay people. The current definition states

“Marriage is a voluntary union between one man and one woman to the exclusion of all others for life.”

A lesbian couple, Fourie & Bonthuys, challenged government to recognise their relationship of 11 years as civil marriage so as to allow them to enjoy all the benefits and rights that flow from a marriage. In doing so, the couple directly challenged the current common law definition of marriage as stated above. The case was dismissed by the different courts until they decided to apply to the Supreme Court of Appeal for remedy. On the 30th of November 2005, the Supreme Court of Appeal ruled in favour of Fourie & Bonthuys, stating that the common law definition is unconstitutional because it excludes lesbian and gay couples. The SCA ruled that the common law definition of marriage should therefore be developed to include couples of the same sex who choose to marry. The proposed definition by the Supreme Court of Appeal is that

“Marriage is a voluntary union between two persons to the exclusion of all others for life.”

The Department of Home Affairs appealed against this decision to the Constitutional Court stating that this is a matter of public interest and should therefore be left to Parliament to decide. The Lesbian and Gay Equality Project acted as amicus curae (friend of the court) in the Fourie & Bonthuys matter, and then brought its own application, joined by FEW and 16 other applicants, challenging the constitutionality of the present marriage law. Both cases were scheduled for hearing at the Constitutional Court on the 17th of May 2005, and FEW was instrumental in organizing a strong community presence at the hearing.

The main argument has always been that lesbian and gay people need to be given the right to choose to marry. The argument is premised on the values of privacy, dignity and equality as enshrined in the Constitution of the Republic of South Africa.

The Constitutional Court reserved judgement in both cases. Forum for the Empowerment of Women is confident that the court will apply its discretion to protect the fundamental constitutional values of privacy, dignity and equality in its ruling. The upcoming decision will set the pace for lesbian and gay people to be able to exercise choice in the nature of partnerships they wish to enter into without being prejudiced in any way. We are of the view that lesbian and gay rights are human rights and that the Constitution should prevail.