Civil Union Bill: hearings

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15 October 2006
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HOME AFFAIRS PORTFOLIO COMIITEE
16 October 2006
CIVIL UNION BILL [B26-2006]: PUBLIC HEARINGS


Chairperson: Mr HP Chauke (ANC)

Documents handed out:
Statement by Moegsien Williams, Editor of the Star
Women’s Legal Centre submissions on Civil Union Bill
Oral Submission of the Doctors for Life and John Smyth Personally:Civil Union Bill
His People Christian Ministries submission on Civil Union Bill
South African Human Rights Commission Submission: Civil Union Bill
Southern African Catholic’s Bishop’s Conference Submission: Civil Union Bill
The Equality Project submission
Equality Project, Letter of Complaint
Dutch Reformed Church submission
Civil Union Bill [B26-2006]
Muslim Judicial Council Submission

SUMMARY
The Chairperson expressed his displeasure that the stakeholders concerned with the Film and Publication Bill had not appeared, causing postponement. The Editor of The Star, who had been asked to respond to questions concerning an advertisement on 14 September, appeared and stated that the advertisement had resulted from a typing error. He apologised to the Committee.

Public hearings commenced on the Civil Union Bill. Inclusive and Affirming Ministries stated that most people expressing aversion to the gay/lesbian community had not interacted with it nor understood the facts. It was hoped that parliament could come up with a law that would be fair to all. It was suggested that clause 2(5) of the Bill should be removed because it did not allow for individual clergy to make a decision for themselves.

The Women’s Legal Centre welcomed the introduction of the Bill, and the attempts to recognise same-sex partnerships and domestic partnerships. However, it was concerned that the Bill did not expressly provide for same sex marriages. It was concerned that the Bill did not afford protection where one partner was already married civilly. It was unclear whether the domestic partnership agreements were binding on third parties. Some specific concerns were raised about the wording of the Bill and suggestions made for amendments. In relation to domestic partnerships there must be clarity on Section 15, the omission of citizenship requirements from section 16, and provision to register agreements in the Deeds Registry. Termination of partnerships needed to be provided for. A domestic partner should be placed in the same position as relationships covered by the Administration of Estates Act. Some comments were made on retrospectivity.

The Legal Advisor of Doctors for Life welcomed the drafting of the Civil Union Bill as opposed to any alteration of the Marriage Act. He also congratulated the Committee for holding public hearings in each province. He believed that the Bill was constitutional. However, clause 11 should be deleted. In his view, taking "status" in a legal context, same sex couples would also receive the same status as heterosexual couples.

His People Christian Ministries believed that homosexual behaviour was a violation of the anatomical design of humans and was sinful. It did not believe that the definition of marriage should be altered, and called for a constitutional amendment to protect the definition of marriage as a legal covenant between one man and one woman. Domestic partnerships should not be confused with marriage, nor should the benefits compete with marriage benefits. Restricting marriage to same sex couples was not unfair discrimination as there were already restrictions on who could marry in a heterosexual relationship. Specific objections to the Bill related to the definition now accorded to "family", the provisions of Chapter 2, and the way in which Domestic Partnerships in Chapter 3 would undermine the institution of marriage. HPCM called for an application for extension of the December deadline to allow more time to study the impact of the Bill, and for special protection of the definition of marriage. There was possibly need for a referendum.

The South African Human Rights Commission believed that the Civil Union Bill did not give effect to what the Court intended, thus undermining the Court and giving offence to the GLC. It would contribute towards discrimination and marginalisation. It created a separate system of union, giving effect to the doctrine of "separate but equal". It created the impression that there was a solemnisation whereas in fact it was merely a civil union. Intersex persons were excluded from marriage. SAHRC proposed that the Marriage Act should be amended to allow for all persons to marry, and that this should be couched in gender and sex neutral terms. Alternatively parliament should allow the constitutional court to take its course. However, the work of the South African Law Reform Commission should be brought to finalisation and the marriage laws should be extensively reconsidered.

The Southern African Catholic Bishop’s Conference summarised the teaching of the church, which was that homosexual acts were disordered. Therefore same sex unions would be against the natural law and undermined the nature of marriage and the family. The right to respect should not extend to legal recognition. Individuals’ basic human rights had to be balanced against the good of society. Society had indeed changed but nothing had changed the natural law or the law of God. had the right, even under the Constitution, to deviant behaviour.

Members’ questions sought clarity on points made by individual presenters, but the general trend of questions concerned the constitutionality of the Bill, the public participation, whether it was recommended that the Constitutional Court merely be allowed to read in the interpretation into the Marriage Act, or whether parliament should apply for an extension of time. Further questions related to the freedom of religious officials to decide whether they would perform marriages, the "separate but equal" pronouncement by the Court, and what would compromise dignity and status. The global trends of not permitting same sex marriage was discussed.

MINUTES
The Star Newspaper Editor's explanation about advertisement error

Mr M Williams, Editor of The Star, had appeared at the request of the Committee to explain the questionable advertisement that had appeared on 14 of September. The newspaper had placed an advertisement in the adult section that referred to a "12 year old curvaceous babe" as opposed to the intended reference to a 21 year old. The inputter responsible had been counselled to avoid a repetition. In mitigation, the inputters worked under immense pressure and errors sometimes arose. Inputters had been instructed not to refer to certain prohibited words in advertisements. Inputters would refer any incidents of child pornography to the South African Police Services. He read out his statement, where he apologised and informed the committee that this was due to was an input typing error. Those doing the inputs had voluminous work under deadline pressure. The employee was duly disciplined and he informed the Committee of safety measures undertaken to tighten up the classified section.

Discussion
Mgkoshi K W Morwamoche (ANC) said that he was worried that such a mistake could be made by one of the leading and largest newspapers.

Mr SN Swart (ACDP) asked Mr Williams how the media were combating child trafficking and the exploitation of women.

Mr Williams replied that The Star had a policy to show women and children in a positive light as opposed to them being perpetual victims. He further said that The Star would protect the identity and privacy of a child who might be involved in legal cases and engaged with other NGO’s and gender institutions.

Mr MP Sibande (ANC) asked whether The Star was aware that as an international paper such advertising could hurt the country’s image.

Mr Williams replied that The Star was committed to the constitution and to the reflection of the country in a more positive light. It was committed to showing foreigners that South Africa was a viable option.

Mr F Beukman (ANC) noted that he and the other editors should come and engage with the committee.

Mr Williams replied that neither he nor the other editors would wish to undermine the committee; in fact he fully supported the media having more coverage of the committees.

Mr M Swart (DA) said that this did appear to be a genuine error, and suggested the Committee thank the Editor for his appearance and the action taken, and caution that similar errors should not recur.

The Chairperson agreed with Mr Swart. He cautioned that The Star should realise that it must uphold the image of the country and be fully aware of the content of all publications.

Public Hearings on the Civil Union Bill
Submission by Inclusive and Affirming Ministries

Rev P Oberholzer, Director :Inclusive and Affirming Ministries (IAM), informed the committee that IAM was an NGO that tried to facilitate dialogue between churches and the gay community by conducting workshops and seminars. He said that he had two main points. Most people who had an aversion for the gay/lesbian community had never had much contact with members of that community, or any facts around the issue and he hoped that parliament could come up with a law that would be fair to all. Secondly, he submitted that clause 2(5) of the Bill should be removed because it did not allow for individual clergy to make a decision for themselves. He argued that it was possible that the head of the particular denomination might not be in support of same sex marriages, but other individual clergy in the church might be amenable to performing ceremonies.

There was no discussion by the Committee on the submission.

Submission by the Women’s Legal Centre.
Miss Shehaam Johnstone, Legal advisor: Women’s Legal Centre (WLC), made submissions on behalf of the Centre in regard to same sex marriages, domestic partnerships and the constitutional frameworks. She indicated that the WLC welcomed the introduction of the Bill, and the attempts by the legislature to recognise same-sex partnerships and domestic partnerships. However, it was concerned that the Bill did not expressly provide for same sex marriages. She especially highlighted that the Committee, in trying to eradicate marginalisation, should not create a system that would simply create a different form of marginalisation, quoting the judgment of Sachs J in the Fourie matter. In so far as domestic partnerships were concerned, she submitted that the Bill recognised the social changes in South Africa, and welcomed the broad judicial discretion. However, in regard to unregistered domestic partnerships the Bill did not afford protection where one partner was already married civilly as opposed to where the marriage was under customary law. The WLC proposed that the Court should be accorded greater discretion. It was also unclear whether the domestic partnership agreements were binding on third parties.

Michelle O’Sullivan, Director of the WLC, raised some specific concerns about the wording of the Bill and made some suggestions for amendments to the Bill. These included the amendment of various definitions more fully set out in the written submissions, amendments to include the words "the respective financial resources of the parties" to sections 20(3), 30(2), 34(4), 38(2) and 40(2), 42, and 44(4). WLC proposed that a section be inserted to give the Court the power to make orders in respect of pension funds, and outlined the ways this could be done. Further sections similar to those of sections 7 to 8 of the Divorce Act should be inserted. Finally, the WLC believed that the Court decisions and the constitution required that provision be made for marriage of same sex partners. Therefore WLC proposed that Chapter 2 be rewritten, providing throughout for "marriage".

Proposals relating to amendments of the Domestic Partnership aspects of the Bill included clarity on Section 15, the omission of citizenship requirements from section 16, and an amendment of section 19 to provide that the agreements should be registered in the Deeds Registry. This would also require amendment of the Deeds Registries Act. Sections 20 and 34 appeared to conflict, and section 34 was preferred. WLC proposed that the Court be given the power to determine just and equitable maintenance. Further provision needed to be made for termination of domestic partnerships. Some of these points applied also to unregistered domestic partnerhips. The duty of support section 39 should be deleted as it was already properly covered by the common law. A domestic partner should be placed in the same position as relationships covered by the Administration of Estates Act.

Discussion
The Chairperson wanted clarity on the point that the bill was not fair in requiring citizenship.

Ms O’Sullivan replied that this was an irrational, unjustifiable requirement that was not requested where marriage was concerned. This clearly excluded permanent residents. The issue that was important was not citizenship, but the matrimonial property regime applying at the place of marriage.

Mgkoshi Morwamwache asked for clarification as to how same sex couples could give birth to children.

Ms O’Sullivan replied that this could be done in various ways. It was easier for women, because they only had to look for a sperm donor, but men could arrange for a surrogate mother to give birth on their behalf.

Mr SN Swart asked whether the reading of the Marriage Act as including same sex marriages would be the answer.

Ms O’Sullivan replied that the gay and lesbian community (GLC) might welcome this but partners in domestic partnerships would remain still unprotected. In the Robinson case the Constitutional Court clearly said that this was a matter for the legislature.

Mr Beukman asked further about the point raised that the legislation had some retrospective effects, and asked if this was desirable.

Ms O’Sullivan acknowledged that this was a problematic principle, but she did not believe that a partnership that ended the night before the law came into force should be left out in the cold whilst those whose partnerships ended the following day should be covered. She argued that the principles applied on recognition of traditional marriages must be considered.

Mkgoshi Mworamache asked whether the issue of the biological father would not become an issue in maintenance of children, because as the law stood now it only stated "biological fathers".

Ms O’Sullivan replied that parents were parents regardless of the fact that they were of the same sex and children’s laws should be regulated irrespective of whether there was a biological relationships.

Mr SN Swart asked whether WLC was aware of the recent French decision that had rejected the notion of same sex marriages.

Ms O’Sullivan was not aware of it.

Submission by John Smyth,QC, on behalf of Doctors For Life
Mr John Symth, Legal Advisor: Doctors for Life (DFL), welcomed the drafting of the Civil Union Bill as opposed to any alteration of the Marriage Act. He also congratulated the Committee for holding public hearings in each province despite the fact that it was not obliged to do so. He pointed out that since the last Constitutional Court hearing the tide had turned internationally against same sex marriage and in favour of civil unions. He believed that the Bill was constitutional. However, clause 11 posed a real problem because it offended both same sex and heterosexual couples. He proposed that it be deleted. He commented that although the entitlements and responsibilities of marriage were, by the Bill, conferred upon same sex couples, the question of status remained. In his view, taking "status" in a legal context, same sex couples would also receive the same status as heterosexual couples.

Discussion
The Chairperson asked Mr Smyth to give an indication of what he would consider to be public participation.

Mr Smyth replied that this was any form of inclusion of the public, which had been lacking when other Bills were considered. He was confident that this Committee had fully engaged the public.

The Chairperson asked whether DFL thought the time frame of one year given by the constitutional court to rectify the law was sufficient.

Mr Smyth replied that he would not advise the Committee to ask for an extension. It was better to push for adoption of the Bill by 30 November and to deal with any further legislation when the time came. He added that if an extension was sought the Bill was likely to be introduced after a number of years when public opinion could have radically changed, and might no longer entertain the principles included in this Bill.

Mr Beukman asked how best to balance the disparities between people’s opinion and the constitutional judgment

Mr Smyth replied that the Committee was entitled to limit rights under section 36of the Constitution, if it was reasonable under a democratic society.

The Chairperson asked for the meaning of "gay" and whether this definition should be included in the Bill.

Mr Smyth replied that this was a slang term denoting homosexuals and lesbians, and he was of the opinion that its definition was not fundamental since the phrase "same sex" covered everything.

Mgkoshi Morwamoche asked whether the Constitutional Courts was within its rights to alter the law by reading in interpretations if the legislation was not made.

Mr Smyth replied due to the separation of powers this should not be so, especially in matters of public interest. However, it seemed that reading in was a power the courts had given themselves to make sure that statutes complied with the constitution.

Mkgoshi Morwamoche asked what kind of vows could be given to same sex marriages.

Mr Smyth replied that he could not comment on the issue as he did not have sufficient knowledge.

Ms S Kalyan (DA) asked for clarity on the concept of "separate but equal".

Mr Smyth replied that he could not say much on this point, except that the status conferred by the Civil Union Bill was conferred by more or less the same body that gave effect to marriages. He stated that although there might be differential treatment this does not automatically mean discrimination.

Mr Beukman noted of the Californian judgment in respect of same sex marriages, and noted also that the Court had said that the opinion of the people should count. He then asked Mr Smyth if he could give any estimate of the opinion of the people.

Mr Smyth replied that he was not very sure of the figure, but thought that about 80% of the population was against the idea of same sex unions, morally, socially and theologically, and only about 20 to 30% were in support of the unions.

Submission by His People Christian Ministries
Mr Timothy Makanyu , National Co-ordinator Nation Building, His People Christian Ministries (HPCM), described who the organisation was and who it represented. He summarised that HPCM respected the rights of all citizens but believed that homosexual behaviour was a violation of the anatomical design of humans and was sinful. It did not believe that the definition of marriage should be altered, and called for a constitutional amendment to protect the definition of marriage as a legal covenant between one man and one woman. There were some benefits in the State recognising and rewarding other forms of domestic partnership, but stated that these should not be confused with marriage, that the benefits should not compete with marriage benefits, and that the Bill was flawed in its present form. There was public interest in retaining the traditional forms of marriage. Restricting marriage to same sex couples was not unfair discrimination as there were already restrictions on who could marry in a heterosexual relationship. Extending the definition would be unfair discrimination against children and undermine the effectiveness. HPCM believed that a holistic strategy for protection, celebration and promotion of marriage was in fact required. Specific objections to the Bill related to the definition now accorded to "family", the provisions of Chapter 2, and the way in which Domestic Partnerships in Chapter 3 would undermine the institution of marriage. In summary, HPCM called for an application for extension of the December deadline to allow more time to study the impact of the Bill, protection of the definition of marriage, and for its special recognition and protection by the State, review the Bill and reflect the wishes of the people of the country, failing which a full referendum should be called.

Discussion
Mr Beukman said that he disagreed with the point that the constitution was flawed because at the end of the day it accorded everyone fundamental human rights and did not allow discrimination.

Mr Makanyu replied that marriages were limited, as, for example, one could not marry one’s daughter. He believed that allowing judges, who were not elected by the people, to give a new meaning to the definition of marriage, would give rise to a flawed interpretation of the constitution. HPCM therefore proposed was that the parameters of marriages be determined so that there was no flawed interpretation.

Mr Beukman asked whether he was of the opinion that parliament should not follow the court’s ruling.

Mr Makanyu replied that this was not so. HPCM respected the courts but was appealing to parliament to redefine what had been lost.

Mgkoshi Morwamoche asked whether HPCM objected to the fact that officials had to perform unions, and if unable to do so should provide the reasons.

Mr Makanyu said that he found the idea that religious officials should furnish reasons why they could not unionise a same sex marriage was problematic. He was of the opinion that ministers who wanted to do so should apply for a special certificate to the minister enabling them to do so.

Ms Kalyan asked where he thought the onus should be.

Mr Makanyu replied that the onus should be on the officers who wanted to officiate such unions.

The Chairperson asked for clarity why HPCM did not want these unions to be known as marriages.

Mr Makanyu replied calling the unions marriages would cause problems and confusion among heterosexual and the same sex couples, as well as the general public. Moreover, he was of the opinion that marriages, like other fundamental issues, and should not be changed.

Submission by the South African Human Rights Commission (SAHRC)
Mr Karthy Govender, Commissioner: South African Human Rights Commission (SAHRC), introduced his delegation and named the SAHRC objectives. He stated that SAHRC believed that the Civil Union Bill did not give effect to what the Court intended, thus undermining the Court and giving offence to the GLC. It would contribute towards discrimination and marginalisation. It created a separate system of union, giving effect to the doctrine of "separate but equal". This was enforced by the separate register. It required people to identify whether they were partnered in a marriage or civil union. It created the impression that there was a solemnisation whereas in fact it was merely a civil union. Marriage officers’ ability to refuse to solemnise the partnership left the door open for further marginalisation and was offensive. An analogy should rather be drawn with Section 31 of the Marriage Act. The position of African Customary Law Marriages was not properly addressed. The Bill simply appeared to further the arguments made in opposition to the inclusion of same-sex couples in the Marriage Act, although these arguments had been rejected by the Constitutional Court. It went contrary to the Court’s guiding principles of a remedy and would no doubt not pass the Court’s scrutiny as complying adequately with the order of the Court. There was also the point that intersex persons were excluded from marriage. Therefore the SAHRC proposed that the Marriage Act should be amended to allow for all persons to marry, and that this should be couched in gender and sex neutral terms. Alternatively the Bill should simply not be passed and parliament should allow the constitutional court to take its course. However, the work of the South African Law Reform Commission should be brought to finalisation and the marriage laws should be extensively reconsidered.
Discussion
The Chairperson asked, in the event that the Bill was still found unconstitutional, whether it would be referred back to the parliament, or whether the President would refer it to the Constitutional Court on the basis that there were reservations about its constitutionality.

Mr Govender said this was a moot question but it might be referred back to the National Assembly to clear out reservations, and if this was not properly satisfied, the President could refer it to the Constitutional Court. Alternatively, the Court might reason that they had given parliament adequate time to change the law, and therefore the reading-in would become effective.

The Chairperson asked about the particular involvement of the SAHRC.

Mr Govender replied that SAHRC had been involved in various activities that included making submissions to the committee, representing gay and lesbian couples in various issues and creating public awareness of the Court judgment and the fact that it was not calling for any fundamental change in the freedom of religion.

Mr S Swart asked whether SAHRC had been successful in promoting a culture of human rights and their protection, and the education of people.

Mr Govender replied that SAHRC had expended enormous effort trying to educate people on the issue of dignity, which was one of the founding values of the constitution, and to some extent they might have failed in the light of the currently held views. However, South Africa was a deeply religious country with deeply embedded views of marriage.

Mr Tseliso Thipanyane, Chief Executive Officer: SAHRC, added that he did not consider that SAHRC had failed in its duties as it was involved in gay litigation and had been since 1996.

Mr Govender replied that the whole exercise had indeed included public participation and he would be very surprised if the bill would be rejected on the premise that there was inadequate public consultation

Mr M Swart asked about the proper steps to be taken if, after consulting with the population, it still appeared that the majority was against same sex unions.

Mr Govender replied that it must be remembered that South African was governed by a constitution and not by majoritarian rule. At the same time the counter-majoritarian argument suggested that when it came to matters of public interest judges, who were not elected representatives of the people, should not be given free reign to change law.

Mr Thipanye added that public opinion should not be disregarded but sometimes public opinion was not always right. He cited the example of the death penalty.

Mr S Swart asked for comment on the issue of the floor crossing, which parliament had allowed through a change in the constitution. .

Mr Govender replied that he understood from the judgment that the court did not make any major changes to what held in the beginning. However, changes in the constitution that would serve to subvert the basic structure of the constitution would not be allowed.

Mr Thipanye added that the issue of floor crossing was already provided for in the constitution, but there was supposed to be reasonable law governing this, and parliament had delayed in providing the legislation.

Ms Kalyan asked SAHRC to elaborate on the issue of the separate but equal argument.

Mr Govender replied that in this case he understood that separation would inevitably impact on dignity.

Mr Thipanye added that the law did allow for discrimination, but prohibited unfair discrimination. The issue whether there should be unions of same sex couples was academic because the constitutional court had already pronounced on it. What remained was decision on the mechanism to achieve this.

Ms Judith Cohen, Deputy Director, Parliamentary Liaison and Monitoring, SAHRC, added that the Bill, by creating a separate union, was allowing lesbians and gays to be targets of discrimination. Moreover, the fact that the officer unionising them should ask the couple whether the union should be referred to as a marriage was an offence to dignity and it provided for the creation of false impressions. The fact that ministers were allowed not to perform the union on grounds of conscience gave room for discrimination because there was a fine line between conscience and dogmatic beliefs. Lastly the bill gave rights grudgingly, which should not be the case.

Mr S Swart asked for comment on the global trend of maintaining the traditional structure of the marriage, whilst at the same time providing some separate legal protection for same sex couples. Most countries had not legalised same sex marriages.

Mr Thipanye replied that global trends were all very well, but South Africa should not be afraid to break out of the mould and be the forerunners of something new.

Mgkoshi Morwamoche asked whether it was important, in relation to this bill to have consulted the traditional leaders, the NCOP and the provincial legislature.

Mr Thipanye replied that this was not a requirement as traditional leaders did not have the required status.

Submission by the Southern African Catholic Bishop’s Conference
Cardinal Mr Wilfrid Napier, President, Southern African Catholic Bishop’s Conference (SACBC) outlined the teaching of the church, which was that homosexual acts were disordered. Therefore same sex unions would be against the natural law. They undermined the nature of marriage and the family. He expanded on the SACBC’s reasoning on the nature of marriage, natural law, and reasons to safeguard marriage as an exclusive union of man and woman. The SACBC response to the question of discrimination was that there was indeed the right to respect but this should not extend to legal recognition. It was true that individuals had basic human rights, but individuals’ freedom had to be balanced against the good of society. Society had indeed changed but nothing had changed the natural law or the law of God. He quoted from Cardinal Ratzinger (now Pope Benedict XVI) on the proposals to give legal recognition, which suggested that legal recognition of same sex unions, or according the same status as marriages, would amount to approval of deviant behaviour, obscuring values and the danger to society.

Discussion
The chairperson asked who constituted the Southern Africa’s Bishop’s Conference.

Cardinal Napier replied that the Southern Africa’s Bishops’ Conference constituted of all bishops in the southern part of Africa including Zimbabwe, Swaziland, Botswana and South African. All were in accord on the subject of same sex marriages.

The Chairperson asked if the major objection was with the term marriage.

Cardinal Napier replied that the joining of same sexes was immoral and no one had the right, even under the Constitution, to deviant behaviour.

The Chairperson asked for elaboration on what he termed deviant behaviour.

Cardinal Napier replied that this would be sexual acts which were unnatural. The male and the female body were made complementary to each other for the purpose of sexual union, and that the union would also provide companionship.

Mr S Swart asked whether SACBC were not being contradictory to the statement that was released by the South African Council of Churches, considering that the Conference was also part of the Council.

Cardinal Napier replied that SACBC repudiated the statement as it was issued without being referred to the member churches.

Mr S Swart asked about the members who comprised the Marriage Alliance.

Cardinal Napier replied that there were various groups that included churches and different organisations, like Doctors for Life, whose basic premise was preservation and protection of the traditional unit of marriage.

Afternoon session

Reformed Churches of South Africa submission
Mr Koos Vorster (Reformed Churches of South Africa) said that the Reformed Churches of South Africa supported the values expressed in the Constitution in particular the Bill of Rights. Human Rights had to be accompanied by duties and responsibilities. Rights should never be regarded as absolute and were always applied in a certain context. The principle of ‘fair discrimination" had to be observed. Minority rights had to sometimes be limited in the interests of society as a whole. The notion of same-sex marriages should be included under the principle of "fair discrimination". Religious groups had the right to comment on ethical issues with regard to legislation. The core values of the Constitution arose out of the values of society but also played a role in creating values by which people interacted. The concept of gay marriage was being imposed upon South Africa from a secular, humanist point of view. The Bill would estrange communities from the values of the Constitution. The correct approach was to create a separate piece of legislation and not to amend the Marriage Act. However, certain aspects of the Bill took the process too far. A number of legal mechanisms already existed to deal with problems arising from unions and partnerships such as estate disputes. The concept of gay marriage should not be legitimised by the pending legislation.

Discussion
Mr K Morwamoche (ANC) asked for comment on the relationship between the Constitutional Court ruling and the Constitution itself.

Mr Vorster responded that Parliament had been placed in a quandary by the instruction of the Constitutional Court to pass required legislation within a specific timeframe. The Civil Union Bill was a move in the right direction. However, problems arising from same-sex partnerships could be resolved by present mechanisms. The legalising of an immoral relationship would send an unwelcome message to society. Unethical behaviour would be encouraged. The limitation of certain rights was sometimes beneficial for society as a whole. The majority of people in South Africa were opposed to the notion of same-sex marriages.

The Chairperson reminded Members that a small percentage of the population would be recognised by the proposed legislation. Therefore, the scope of a negative impact on society was fairly narrow. He asked whether it would be fair to limit this right. An acceptable reason would have to be provided to justify the limitation of rights enjoyed by the rest of society.

Mr Vorster stated that certain core social values had to be defended. Marriage was the foundation of orderly society and had to be protected. The adoption of children by homosexual couples would be the next logical step. Social science research had shown that a child’s development was impaired when upbringing fell under the responsibility of a same-sex couple. The future of a child had to be protected.

The Chairperson declared that the question of adoption had been raised often at the public hearings. Clarity was sought on why a girl-child would be unfairly prejudiced if she was raised by two men.

Mr Vorster replied that a girl had to identify with a mother-figure at some point. A male same-sex couple could not meet this need.

In reply to the Chair asking if the right of adoption for same-sex couples should be limited if the Bill was enacted, Mr Vorster said that it would be difficult to prevent people the right to have a family. The reason for the Constitutional Court judgement arose from a dispute regarding the estate within a same-sex relationship. Available mechanisms could be used to address such problems instead of producing a new piece of legislation.

The Chairperson asked whether the submission represented the official position of the Reformed Churches and Mr Vorster confirmed this.

In reply to the Chair asking why the various denominations were so divided on the matter, Mr Vorster said that efforts would continue to be made to unify the churches.

Mr M Sikakane (ANC) referred to his own Christian upbringing in the Lutheran Church but reminded Members that his church had never accepted polygamy. Prior to 1994, the customary union had never been recognised in the public sector. Only Christian marriages had been recognised. Polygamy and customary unions had received acceptance post 1994 and the Churches no longer passed judgement on them. He asked whether the same scenario could not in time come to pass for same-sex marriages.

Mr Vorster noted that the Reformed Churches remained opposed to polygamy as marriage was a creational institution.

The Chairperson asked how the churches could deal with the problems arising from a rigid application of the scriptures in the present age.

Mr Vorster replied that the issue focused on hermeneutics. Descriptions in the Bible should not always be regarded as prescriptions. The notion of polygamy arose after the fall of man. The Bible prescribed monogamy and heterosexual marriage. Apartheid theology had used Old Testament prescriptions to create governing principles. A polygamist could become a member of the Reformed Churches but would not be allowed to acquire another wife.

Equality Project submission
Mr Mazibuko Jara recounted the role of the Equality Project in advancing the position of same-sex marriages. The Bill would recognise same-sex unions as civil partnerships. However, the Project regarded the Bill as unconstitutional and did not give full effect to the Constitutional Court ruling. A separate marriage-like institution for same-sex couples would be created. Civil partnerships would be viewed as civil unions. The South African Law Reform Commission had stated that civil unions for same-sex couples would be unconstitutional. It had proposed an amended Marriage Act under which state marriage officers would operate. The Project recommended that the legislative process should be discontinued and the Marriage Act automatically changed on 1 December 2006 which was the deadline set by the Constitutional Court.

A key issue that was not up for debate due to acceptance in law was the right of same-sex couples to adopt children. This had been granted by means of judicial precedent. Same-sex couples would be denied the right to "enjoy the same status, entitlements and responsibilities accorded to heterosexual couples through marriage". Civil partnerships would be accorded a lesser status. Same-sex unions should not be excluded from the institution of civil marriage. The Bill would produce new forms of marginalisation. No conditions or limitations should be imposed on same-sex couples that were not imposed on heterosexual couples. Concerns were raised about the recent public hearings in the provinces. The hearings failed to give full and meaningful effect to the Constitutional Court decision and rather provided a space for the propagation of hate speech.

Discussion
Mr Sikakane noted that the Recognition of Customary Marriages Act had been passed several years ago and the stipulations of the Act applied in a separate and equal manner.

Mr Morwamoche asked whether the Equality Project was aware of the Committee’s jurisdiction over the public hearings process. [A letter of complaint submitted by the Equality Project had criticised the provincial hearings held by this Committee as creating a platform for hate speech].

Ms S Vundisa (ANC) asked for detail on the membership numbers of the Equality Project and what type of society they desired in South Africa. Clarity was sought on the full parental rights requested for same-sex couples.

Mr M Sibande (ANC) asked for further detail on the populist and anti-democratic allegations levelled at the recent public hearings.

Mr Jara replied that issues not up for debate included those already settled by various legal processes and past court decisions. For example, adoption and parental rights for same-sex couples had been established in law. Extensive rights for gay and lesbian people had been secured over the past twelve years. The list of affiliated organisations to the Equality Project would be provided to Members. For example, the Treatment Action Campaign and Amnesty International endorsed the position of the Project. The Project wanted a society in which dignity and equality prevailed for all South Africans irrespective of sexual persuasion. A letter of complaint regarding hate speech at the recent public hearings had been submitted to the Committee and the Minister.

Mr Jonathan Berger (Equality Project) stated that the Customary Marriages Act was different to the Bill as marriages and not unions were recognised. The Civil Union Bill would not afford gay people the option to marry under the Marriage Act. Polygamy was the reason for the existence of the Recognition of Customary Marriages Act as the Marriage Act could not deal with this concept. Current legislation allowed same-sex couples to adopt children jointly or to adopt the child of a partner.

Mr S Swart (ACDP) asked what the Project would regard as hate speech. He asked whether the opposition to homosexuality on religious grounds would be regarded as hate speech.

The Chairperson questioned the Project’s position that a debate on pertinent issues such as adoption was not needed. Extensive consultations on the ramifications of the Bill were required due to the sensitivities involved. The Constitutional Court had requested that in-depth consultations be facilitated.

Mr Jara agreed that extensive consultation on same-sex unions had to occur to give meaning to the legislative process. However, certain issues such as the adoption of children had already been settled through legal action. Such issues should not be debated in terms of the Bill. Earlier submissions had indicated a lack of understanding of certain key issues such as the adoption of children. For example, the Reformed Churches had sought to limit rights on adoption flowing from the proposed legislation. Such a request was unnecessary and inappropriate.

Mr Berger stated that the present legislative process had been initiated by a Constitutional Court ruling that placed a narrow focus on the debate. The public hearings should not have dealt with issues pertaining to homosexuality. Rather, the discussion should have remained focused on the issue of same-sex marriages. References to homosexuality as deviant and immoral could be construed as hate speech in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act.

Mr Morwamoche asserted that the presenters had to better understand the legislative process. Public hearings provided a platform for interested parties to voice their opinions on the scope of the Bill in question.

The Chairperson asked whether the presenters had attended any of the public hearings.

Mr Jara replied that they had not attended the recent provincial hearings. The letter of complaint expressed views gleaned from affiliated organisations that attended the hearings. The Project did not seek to discredit the public hearings process but had the right to voice objections to certain flawed aspects of the process.

Mr Swart asked for comment on the secular versus sacred aspect of the marriage relationship. He asked whether the Project respected the right of religious groups to raise objections regarding gay marriage.

Mr Jara stated that gay people had the right to express their opinions but should do so in a manner that did not trample on the rights of others. Civil servants would confer marriage rights on to same-sex couples without any implications for or involvement from religious groups. The Bill would impose greater restrictions on same-sex couples as same-sex unions could not be facilitated under other pieces of legislation.

Mr Swart asked if a better consultative process would have transpired without the occurrence of hate speech.

Mr Berger replied that a better climate would have prevailed without elements of hate speech. Incidents of hate speech resulted in feelings of victimisation and frustration.

Mr Swart (ACDP) noted the need for counterbalance as religious groups could be accused of bigotry when expressing views on homosexuality. He asked whether religious opposition would be regarded as hate speech by the Project. The passions of the debate had to be toned down.

Mr Jara agreed that interaction with religious groups was necessary to support the debate.

The Chairperson expressed a concern about the letter of complaint submitted by the Project particularly as no presenters had participated in any hearings. Secondary information should not be relied upon. Groups should not discredit the public hearing process. No opposition or criticism had been voiced at the hearings. The Committee did not encourage hate speech at public hearings. All hearings had been recorded and the tapes would be replayed at some point to indicate the level of success.

Mr Skhosana interjected that Members should first study the letter before making further comment.

The Chairperson reiterated that the hearings went very well and no person had asked to express objections at any point. Members would comment on the letter tomorrow.

Mr Jara repeated that the Project had no intention to undermine the hearings process. Detailed evidence of hate speech would be collated to justify the letter of complaint. The submission of a letter of complaint should not be construed as an attempt to undermine Parliament. Such an approach served to hinder robust debate and interaction. Members of the Project did not have to be physically present at hearings to acquire an opinion of proceedings.

Inner Circle submission
Mr Moegsien Hendricks stated that the organisation sought to fight homophobic attitudes in the Muslim community. Many diverse voices existed within Islam on the issue of homosexuality and same-sex marriages. Various forms of Islam with differing Koranic interpretations existed in South Africa. Many responses to the notion of same-sex marriages were based on emotions and prejudices. The Koran referred to non-consensual homosexuality. Mohammed never ordered the execution of homosexuals nor banished any from Medina on the basis of sexual orientation. Marriage in Islam was a social contract that allowed people to share in the personal and social benefits that accompanied marriage. A marriage contract was similar to a business contract and did not specify that the participants should be of the opposite sex. Such contracts were therefore not gender-specific. The primary function of marriage was not to procreate. Children had been reared in Islamic homes in the absence of a father or a mother or both. Mohammed was raised without a biological father. The quality of the nurturing provided to children was important as opposed to the gender of the people involved. Same-sex marriages would not result in moral decay. Moral decay could not be confined to sexual orientation or sexual conduct. The Civil Union Bill should be scrapped as it perpetuated discrimination on the basis of sexual orientation.

Discussion
Mr Morwamoche reminded Members that the Constitutional Court judgement empowered Parliament to address imbalances in terms of marriage and civil unions. He asked whether the presenter had read the judgement.

Mr Hendricks replied that he had not read the judgement.

The Chairperson sought further detail on the nature of the Inner Circle organisation.

Mr Hendricks replied that the organisation had been registered two years ago. Previously, it had operated in an "underground" fashion. Counselling and moral support was provided to gay and lesbian Muslims. Interactions with other progressive Islamic organisations occurred at an international level.

Mr F Beukman (ANC) asked what type of advice was offered by the organisation regarding same-sex marriages.

Mr Hendricks stated that the Inner Circle adhered to the view that marriage was a right for all and should be conducted on an equal basis.

Marriage Officer submission
Mr C Andrews (Marriage Officer) explained that he fulfilled two roles namely a priest in the Methodist Church and a civil servant that conducted marriage ceremonies. Gay and lesbian people should have equal access to marriage. Two functions were performed at weddings: namely as a marriage officer for the state and as a Minister for the Church. The role of the marriage officer was regulated by the state. Two processes were at work. The required documentation was completed for Home Affairs and the couple said vows in front of a marriage officer. The second function was that a religious ceremony was conducted. The practice that the state called marriage was not in fact a marriage. Marriage should remain the preserve of the religious sector. Civil unions should serve as an all-embracing term. The Bill should replace the Marriage Act and exclude any reference to marriage. The Bill should regulate all forms of domestic partnerships. The function of church and state should be divided. Marriages should be conducted within the various religious groups. The concept of marriage had been compromised when religious groups allowed it to be conducted by the state. Marriage should be reclaimed as distinct from civil unions.

Discussion
Mr Swart (DA) noted that the system described was applied in Germany and he asked whether the presenter had studied it.

Mr Andrews replied that the submission was based on personal experiences and not on international experiences. Clarity was required on the role of state marriage officers versus representatives of the various religions. The Methodist Church did not currently allow same-sex marriages. The process was not likely to end with the imposed deadline and the debate should continue after 1 December 2006.

Mr Swart (DA) asked whether more civil servants would have to be employed to conduct civil unions as a result of the legislation.

Mr Andrews responded that civil unions occupied a small percentage of the total workload of clergymen. A problem might arise in the rural areas where the church performed an important function.

Muslim Judicial Council Submission
Mr Abdul Fattaag Carr (Member of Muslim Judicial Council) stated that the Council objected to the proposed Civil Union Bill. The Council disapproved of homosexual acts. Marriage should be between a man and a woman only. Marriage was the building block of all societies. The public had made significant input on the Bill. A concern was that religious freedom of expression would be curtailed by the enactment of the Bill. Islam opposed the act of homosexuality as opposed to hating the individuals involved. Partnership outside of marriage would be given legitimacy by the Bill. Islam was totally against sexual relations outside of marriage. Marriage was perceived as a social contract that contained certain rights and responsibilities. The proposed legislation was viewed in a serious light.

Discussion
Mr Morwamoche sought clarity on the Council’s position regarding the Constitutional principle of equal before the law.

Mr Fattaag Carr stated that Islam disapproved of homosexuality as an act as opposed to seeking to victimise homosexual people. The Council did not want to infringe on the rights of others. Homosexuality was seen as possessing negative connotations for society in general.

Ms S Kalyan (DA) asked whether the oppositional stance towards homosexuality could be viewed as homophobia. In the African culture the Rain Queen only had wives and she asked what position the Council would adopt towards this cultural phenomenon.

Mr Fattaag Carr replied that other religions and cultures would be respected. All groups had the right to practice their own beliefs. Islam would seek to preserve its own beliefs and lifestyle without infringing on the rights of others. Islamic principles would not be imposed on others. Islam would not tolerate the spread of homosexuality. However, Islam would not judge other religions or cultural beliefs.

The Chairperson noted that homosexuality was suppressed in most Muslim countries.

Mr Fattaag Carr stated that Islam observed injunctions given by God and homosexuality was forbidden. The growth of homosexuality should be prevented. However, Islam would not judge others that practised other religions or belief systems.

The meeting was adjourned.

 

 

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