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South Africa
Society | Gay - Lesbian

Same-sex marriage approved in South Africa

afrol News, 1 December - South Africa's Constitutional Court today ruled that same-sex marriages are allowed and gave the Pretoria government 12 months to adjust its marriage legislation to the ruling and the constitutional rights given gays and lesbians. A spokesperson of South Africa's Department of Home Affairs today said government would accept the ruling and take necessary legal steps.

South Africa today became the first African nation to legally parallel heterosexual and homosexual relations. The country's highest court ruled that South Africa's constitution - which explicitly prohibits discrimination of sexual and other minorities - prescribed an equal treatment of same-sex couples. The national marriage legislation needed to be changed to avoid further discrimination, the Constitutional Court ordered.

Judge Albie Sachs gave the Pretoria government 12 months to change the national Marriage Act. According to the judgement, the reformed act should also include the words "or spouse" after the words wife or husband. If the South African parliament failed to change the act within 12 months, this wording would automatically apply, Judge Sachs ruled.

The final ruling in the same-sex marriage case had been awaited with great anxiety among South African homosexuals, many of whom were present in the Johannesburg court. While the audience managed to keep silence during Mr Sach's reading of the sentence, scenes of joy and relief were observed as the crowd left the courtroom. Many gay and lesbian couples are only too eager to give each other an ever-lasting "yes".

Also present in the courtroom were six of South Africa's leading groups defending gay and lesbian rights, including OUT and Behind the Mask. A spokesperson of the six groups said they urged parliament to "rectify" the Marriage Act as soon as possible. The groups deplored that lesbian and gay people "cannot marry with immediate effect." As the ruling had pointed to an unconstitutional act, parliament was challenged "to enact changes to marriage legislation, as speedily as possible, to ensure full equality in status, benefit and protection for same sex relationships. Anything less than this will remain unequal."

Today's court judgement saying the Marriage Act was unconstitutional was unanimous, thus giving a clear signal that the Constitution's provisions against discrimination against minorities was to be taken seriously. The Court only was divided on how and when the Act was to be rectified. A minority had called for an immediate and automatic change to the Act, including the word "spouse". The majority however wanted to give government 12 months to act on its own.

Spokesman Joel Netshitenze of South Africa's Department of Home Affairs, this afternoon told the press that government indeed planned to follow up on the Court's judgement. His Ministry was now to "assess what practical steps will be needed to give effect to the change in the law," Mr Netshitenze said. Minister Nosiviwe Mapisa-Nqakula then would present necessary changes to parliament.

The case of same-sex marriages came up to the Constitutional Court after the lesbian couple Marie Fourie and Cecilia Bonthuys had been denied registering their marriage with the Home Department. The Supreme Court of Appeal ruled that the two women must be allowed to marry according to South Africa's Constitution, but the Ministry appealed to the Constitutional Court one year ago, holding that only Parliament should be allowed to amend legislation, not the country's courts.

Today's judgement totally sidelines same-sex marriages in South Africa with a marriage between man and woman. This also includes the right to adopt children for gay and lesbian couples. The only restriction recognised by the Court was that marriage officers were allowed to refuse to marry homosexual couples if it was against their conscience, thus indirectly letting church societies decide on their own whether they wanted to bless same-sex couples.

South Africa becomes the first African nation endorsing gay and lesbian marriages at a time when many other African states - notably in East and Southern Africa - are enacting laws prohibiting same-sex unions. So far, only Canada, Belgium, the Netherlands, Sweden, Spain and some few US states give equal marriage rights to same sex couples, while a great number of European countries recognise homosexual unions almost sidelined with marriage.

South Africa is further the only country in the world where the Constitution specifically prohibits discrimination against sexual minorities. An organised opposition to same-sex marriages in South Africa is very weak, and mainly composed of conservative minority church groups. South Africans at large, however, are sceptical to homosexuality, recent surveys have shown.



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