A REPORT OF THE PORTFOLIO
COMMITTEE ON HOME AFFAIRS ON PEOPLES’ PUBLIC HEARINGS IN PROVINCES ON THE CIVIL
UNION BILL, 20 SEPTEMBER TO 09 OCTOBER 2006, AND THE PUBLIC SUBMISSIONS
The Portfolio Committee on
Home Affairs, having undertaken public hearings in various communities across
the country on 20 September – 09 October 2006, and having looked at the
submissions received, reports as follows:
In line with Parliament’s vision of providing a national
forum for the public consideration of issues and seeking to act as a voice of
the people, the Portfolio Committee on Home Affairs becomes the first Committee
in the National Assembly to engage in a robust and rigorous process of hearing
the views of the people, on the Bills which are before the House, right where
they live in the rural and urban centres of the country. This is done to hear
the views of the people about certain aspects that are of value and impact on
their lives.
The Committee wanted to interact face-to-face with the
public to hear their views on the Civil Union Bill. The Bill was also
advertised to invite written submissions on it.
2. BACKROUND
2.1. Civil Union Bill
In South Africa, the common law and the Marriage Act (Act
No. 25 of 1961), govern civil marriages. The common law defines marriage as the
union of one man with one woman, to the exclusion, while it lasts, of all
others. Furthermore, section 30(1) of the Marriage Act, which outlines the
formula for concluding civil marriages, only refers to lawful husband and wife,
thereby effectively excluding same-sex partners from the ambit of the Act.
Consequently, same-sex couples have to date been precluded by law from entering
into civil marriage.
Even after South Africa’s transition to democracy in 1994,
this condition has prevailed, despite the fact that unequal treatment of this
nature directly contradicts the human rights principles of equality and human
dignity as enshrined in the Bill of Rights. In particular, section 9 of the
Constitution of the Republic of South Africa (Act No. 108 of 1996) guarantees
equal treatment for all South Africans. It prohibits the State from
discriminating unfairly against anyone on the basis of, amongst others, race,
gender, sex, ethnic or social origin, sexual orientation, age, and disability.
Moreover, section 10 of the Constitution guarantees everyone the right to
inherent dignity, and the right to have their dignity respected and protected.
It is against this backdrop that the Constitutional Court,
in the matters of Minister of Home Affairs v Fourie (Doctors for Life
International and Others, Amici Curiae); Lesbian and Gay Equality Project and
Others v Minister of Home Affairs 2006 (1) SA 524 (CC) (the Fourie-case),
declared that the definition of marriage under the common law and the marriage
formula as set out in section 30 (1) of the Marriage Act, 1996 (Act No. 25 of
1961), were inconsistent with the Constitution and invalid to the extend that
they failed to provide the means whereby same sex couples could enjoy the
status and the benefits coupled with the responsibilities that marriage
accorded to heterosexual couples.
The Court ordered Parliament to correct these defects in the
law by 01 December 2006, failing which section 30 (1) of the Marriage Act, 1961
(Act No. 25 of 1961), will be read as including the words “or spouse” after the
words “or husband”. In arriving at its decision, the Court considered the two
options proposed by the South African Law Reform Commission and concluded that
these were two firm proposals for legislative action, but stated further that
this does “not, however necessarily exhaust the legislative paths which could
be followed to correct the defect”. The Bill was drafted in response to the
Constitutional Court’s judgement in the Fourie-case.
The Civil Union Bills is an important piece of legislation
that is generating a great deal of public interest as is seeks to address
discrimination against same sex couples. The issue of equality features
strongly in the Constitution, which states that everyone is equal before the
law and has the right to have their dignity protected. The state may not
discriminate against anyone on the basis of, among others, gender and sex or
sexual orientation.
The Bill seeks to:
§
Legalise the voluntary union of two adult
persons of the same sex
§
Give legal effect to such a union
§
Legally recognise domestic partnerships
between both opposite-sex couples and same-sex couples who do not wish to marry
or enter into a voluntary union
§
Legally enforce domestic partnerships
3. OUTLINE
OF THE DOCUMENT
The report consists of two major parts. The first Chapter
deals with people’s public hearings held in the nine provinces of the country
and the issues emerged. Chapter Two presents the views of various stakeholders
and individuals, which came through the public submissions.
CHAPTER ONE
1. PROVINCIAL
PUBLIC HEARINGS
1.1.
THE PURPOSE OF THE VISIT
The aim of the visit was to create a
platform closer to the people, specifically to:
§
Hear the voices of traditional leaders,
religious groups, gays and lesbians organisations, media organisations,
individuals and the general public on the Bills; and
§
Educate and consult the general public about the law making
processes
1.2.
DELEGATION
1.2.1. Multi – Party Members
The
visit was undertaken by a multi-party delegation led by the Chairperson, of the
Portfolio Committee on Home Affairs, Mr H P Chauke (ANC). The Members’ team was
comprised of the following:
Mr
P Sibande (ANC)
Mr
K Morwamoche (ANC)
Mr
S Vundisa (ANC)
Ms
M Maunye (ANC)
Mr
W Skhosana (ANC)
Mr
M Sikakane (ANC)
Ms
S Ntombela (ANC)
Ms
S Kalyan (DA)
Mr
M Swart (DA)
Ms
S Swart (ACDP)
Ms
I Mars (IFP)
Mr
I Mfundisi (UCDP)
1.2.2.
Officials
The
following officials accompanied members:
Mr
R Mankge (Committees, Parliament of RSA)
Ms
D Martin (Committees, Parliament of RSA)
Mr
S Vuke (Committees, Parliament of RSA)
Ms
N Magwagwa (Media Management, Parliament of RSA)
Mr S
Mbambato (Media
Management, Parliament of RSA)
Ms M
Moswaane (Media
Management, Parliament of RSA)
Mr
A Sheldon (Sound & Vision, Parliament of RSA)
Mr
C Williams (Sound & Vision, Parliament of RSA)
Mr
T Lamani (Chief Operation Officer, Parliament of RSA)
Ms
M Boikhutso (Language Services, Parliament of RSA)
Mr
B Mbo (Language Services, Parliament of RSA)
Ms
M Makofane (Language Services, Parliament of RSA)
Mr
R Bartlesman (Language Services, Parliament of RSA)
Ms
S Bopape-Dlomo (Chief Executive Officer, FPB)
Ms
M Makwela (FPB)
Ms
Y Langa (FPB)
Ms
J Naidoo (Chief Director – Legal Services, DHA)
Adv
T Sebelemetsa (Legal Services, DHA)
Adv
Y Van Aswegen (Legal Services, DHA)
Adv
D Erasmus (Legal Services, DHA)
Mr
F Khumalo (Legal Service, DHA)
Mr
A Madalane (Legal Services, DHA)
Mr
L Vena (Legal Services, DHA)
Mr
G Mabulu (Ministry, DHA)
Mr
M Mawela (Deputy Ministry, DHA)
1.3.
APPROACH OF THE VISIT AND PLACES VISITED
The
Committee made an attempt to reach out to most people in the nine provinces of
the country as shown below:
20
September 2006 Soweto,
Gauteng
21
September 2006 Polokwane,
Limpopo
26 September 2006 Welkom, Free
State
28 September 2006 Neilspruit,
Mpumalanga
29 September 2006 New Hanover,
KwaZulu – Natal
02 October 2006 Mthatha,
Eastern Cape
04 October 2006 Moses Kotana
Municipality, North West
05 October 2006 Galeshewe,
Northern Cape
06 October 2006 Polokwane,
Limpopo1
09 October 2006 Woodstock,
Western Cape
In all the hearings and
prior to the public inputs, officials from the Department
of Home Affairs presented
the Bills clause – by – clause to the people in their
home languages.
There were also
translators from Parliament to offer translation in other
languages were it was
needed. Key to this was to ensure that every
participant present at
the hearings understands the messages in the Bills
clearly. The two Bills
were also summarised in brochures in various
official languages.
In interacting with the
members of the public, the Committee listened to the inputs made. The members
of the public composed of mainly the various religious fraternity, lesbian and
gay community, traditional leaders and the general members of the public and
individuals.
1.4.
FINDINGS
Inputs made from province to
province raised almost the same issues. Noticeable inputs that were made by the
people are presented in the section below as per province. A full list of
individual participants and stakeholders can be viewed in appendix A.
1.5. PROVINCES
1.5.1. Gauteng Province
The
first public Hearings on the Civil Union Bill were held at Ipelegeng Community
Centre in Soweto, outside the city of Johannesburg.
About
104 people were present at the hearings on 20 September 2006 in Soweto. Inputs
were received from about 32 participants. Out of these 32 participants all were
against the passing of Bill. Notably the Gays and Lesbians indicated that there
was no need for the introduction of the Civil Union Bill as there was the
Marriage Act, 1961, while some Christians and traditional people felt that the
traditional institution of marriage should be protected. A large number of speakers
were made up of priests from a Christian religious fraternity, Gays and
Lesbians Group and individuals. The church organisations were comprised of the
following:
Apostolic Faith Mission Church
Let
my People Go Ministry
Council
of Muslim of Theologies
Christian
View network
Marriage
Alliance of South Africa and
Grace
Bible Church
Gays, Lesbian, Bisexual and
Transgender groups were represented by the organisation know as OUT.
Key
issues, which emerged from the hearings in the province, are presented below as
they arose from various groupings; religious, gays and lesbians, individual
speakers and others.
Religious group
The
Christian and Muslim fraternity in Gauteng stated that the Civil Union Bill
must not be supported or passed because of the following:
Christian
and Muslim believers opposed the Civil Union Bill basing their argument on the
Bible or the Koran. They believed that marriage was created by God as a
voluntary union between a man and a woman. Same sex marriages are regarded as a
sin.
It
was believed that marriage is meant for procreation or making children. It meant
for building a family; that is a man, wife and children. Same sex marriages
would lead to population decline if allowed to go on, because they cannot bear
children.
Same
sex relationships are abnormalities within the Christian society. According to
the teachings of the Bible, those were the things, which happened in Sodoma and
Gomorrah. They said that Sodoma and Gomorrah were destroyed as the results of
this. Hence this brings a fear that the country would be destroyed if same sex
marriages were to be allowed.
Priests
stated that same sex marriages would not bring good values amongst children and
the society. Children growing in a family of a man and a man or a woman and a
woman would be confused.
Proposals
While rejecting the Bill, the
religious groups in Gauteng made the following proposals, that:
Individuals
Most of the individuals who made
their presentations in Gauteng believed that the Bill should not be supported
for the following reasons:
One individual believed that same
sex marriages are un-African, but foreign or western cultures that should not
be allowed to erode the moral fibres of our society. Most argued that the Bill
is against our ethics as to what are we as Africans and that it would send a
wrong message to children. Marriage is naturally for a man and a woman. A woman
is meant to bear children and built a family.
Normally
in African cultures and traditions parents know that as their daughters grow
their would expect lobola from male parents. Same sex marriages would destroy a
traditional institution of marriage because lobola would not be paid for such
marriages.
Proposals
Individuals in Gauteng proposed the
following:
§
Constitutional amendment to protect marriage as a union
between a man and women
Gays and Lesbians Group
The
Civil Union Bill also did not receive a good reception by people it was
designed to help. Gays and lesbians rejected the Bill for the various reasons
as shown below:
The
Gays and Lesbians Fraternity believed that there was no need for the
introduction of the Civil Union Bill as there was a Marriage Act. The Bill
would be discriminatory to the Gays and Lesbians if it is passed. This separate
piece of legislation would not make them feel that there are respected and
given the same status like any other person.
Gays
and lesbians indicated that the Bill was not subscribing to Bill of Rights
found in the Constitution. As homosexuals, they would not be given equal
treatment with heterosexuals. This infringes on their right to freedom, sex or
sexual orientation. If the Bill was to be passed it would be contradicting with
the same principles envisaged in the Constitution. The Gay and Lesbians
Community said that they must be given equal rights like other citizens of the
country because they vote and pay tax like all.
Proposals
The Gays and lesbians proposed that:
§
That the rights of Gays and Lesbians must be protected and
respected
1.5.2. Limpopo
Limpopo
province saw two public hearings on the Bills. The first hearings were held on
21 September 2006 but attracted a low turn out, close to twenty people, due to
short notice on the event. In light of this, the Committee decided to hear the
views of those present and rescheduled the hearings for 06 October 2006.
About
200 people were present at the hearings held in the city of Polokwane on 06
October 2006. Inputs were received from about forty speakers. Three of them
said they supported a “marriage” for gays and lesbians, as it is their rights
to do so. This suggests that all the forty speakers in Polokwane did not
support the Civil Union Bill.
A
large number of speakers in Polokwane were made up of priests from Christian
religious fraternity including, but not limited, to the following:
The Alliance Church of South Africa
Full
Gospel Church
National
Assembly of God
Church
of Nazareth
Baptist
Church
Anglican
Church
AFM
International
Assembly of God
Marriage
Alliance
Zion
Christian Church (ZCC)
A
traditional group was comprised of local chiefs and traditional healers and
representatives from local moral regeneration organisations and youth. The
other group consisted of individual people, medical practitioners and family
law practitioners.
The
unique thing about the hearings held in Polokwane, in October, was that local
gays and lesbians were not visible. However the Gays, Lesbian, Bisexual and
Transgender representative body known as OUT attended the hearing held in
September.
Key
issues, which emerged from the hearings in the province, are presented below as
they arose from various groupings; moral regeneration groups, religious,
traditional groups and others.
Moral regeneration movement and
youth
The
message from the moral regeneration organisations and youth in Limpopo was
clearly saying “no to same sex marriages”. Their sentiments were driven by the
following believes:
The
youth network in Limpopo believed that population would never grow if same sex
marriages are allowed.
Moletji moral regeneration group
felt that same sex marriages would increase moral decay in the society and lead
to rapes of children, grand parents and bestiality. Another fear amongst youth
was that gays and lesbians in search of intimate relationships or life partners
would also propose heterosexuals.
On
other hand, it also emerged that opposing homosexuality could entrench divisions
in the society because of their belief that homosexuals have no morals. This
was illustrated by the fact that one advocate of moral regeneration said that
he had campaigned for the separation of homosexual and heterosexual students
from sharing rooms in university residence, while he was a student at Wits. It
very important to note the University of the Witwatersrand did not tolerate
campaigns, which would fuel homophobia and entrench discriminations amongst
students on campus; hence the campaigner was suspended from the university for
a period of six months as the results of his actions.
Traditional groups
Chiefs and traditional healers in
Limpopo believed that the Bill should not be supported for the following
reasons:
Kings, chiefs and queens are borne
by a man and a woman. Local traditional leaders believed that same sex
marriages would lead to the erosion of traditional leadership because children
would not be naturally born by women out of those marriages to bring heirs to
the royal thrones. For example, Kgoshi Malatjie (from Ga-Mothiba) said that he
is married and blessed with five children, which could not have happened had he
married another man.
The
chief also spoke strongly against domestic partnerships, which he also called
“vat en sit”, saying it creates problems when the other partner has died
whereby families fight over properties. Domestic partnerships would also lead
to the erosion of traditional family structures whereby households are known by
the surname of the male partner as the head.
In an African believe system,
marriage involves families. When lobola or magadi is (are) paid for a man to
get a woman, ancestors are informed to join the two families together. Marriage is naturally for a man and a woman
as a woman is meant to bear children and built a family. It is culturally
acceptable for a man to marry more than one wife to grow the family. Those who
hold a traditional view of marriage believe that ancestors would not bless same
sex marriages. This would lead to a destruction of a healthy family and a
healthy society.
Proposals
Traditional groups in Polokwane
proposed the following:
§
Constitutional amendment to protect marriage as a union
between a man and women; and that
Religious group
The
Christian fraternity in Limpopo stated that the Civil Union Bill must not be
supported or passed because of the following:
Like
many other Christians elsewhere, those in Limpopo believed that marriage was
created for a man and a woman. God created a man and a woman. And He also
demonstrated His intension through His command over Noah that he created an arc
to protect couples (male and female) in human species, animals and birds from
the floods.
God
created the institution of marriage for the purpose of procreation or giving
birth to children so that people could multiply and fill the entire
universe. Same sex marriages would not
fulfil this role, so this is one of the reasons why they must be rejected
because they would lead to population decline.
Other
priests argued that it is not normal for a man to sleep with another man, as
the Bible taught them that those were the things, which happened in Sodoma and
Gomorrah, which was destroyed as the results.
Christians
believe that the issue is not all about what the scriptures say, but also about
morals. The Bill would confuse children. It is natural that a man and a woman
fit together, not the other way round.
It
was further argued that the Bill is against the African Renaissance and would
encourage moral decay. Other speakers believed that HIV/ AIDS and hurricanes
come as the result of people living against the command of God. God created a
man and a woman to live together and build a family. Hence same sex marriage is
a sin and a taboo.
Priests
pointed out that they would not solemnize gays and lesbians marriages as it is
against their belief as Christians.
Proposals
While rejecting the Bill, the
religious groups in Polokwane made the following proposals, that:
Other individuals
While
most people are opposed to the Civil Union Bill, it is not everyone who is
opposed to “same sex marriages”. Proponents of same sex marriages based their
arguments on the following:
People who argued for gay and
lesbian marriages said homosexual are entitled to their rights like everyone
else, as enshrined by the Constitution. They argued that gays and lesbians
should be respected and their rights protected. It appeared some people are
gays and lesbians because that is the way they were born and they cannot change
themselves. That is their identity should be respected. The rights of gays and
lesbians as the minority group in communities within the country should be
protected, as this is their basic human right.
§
Feelings
The issue is not only about rights,
but also about feelings. Some speakers indicated that they have friends and
families who are gays and lesbians and learnt that they have love like any
person and that they can also get hurt.
§
Separate but equal
Others, speaking from their
experience as law professionals, stated that the government could not solve the
problem by creating a separate piece of legislations for gays and lesbians. For
the fact that the Bill is called a Civil “union” not a Civil “marriage” has
disappointed many people as it discriminates against same sex couples. This is
synonymous to the apartheid system in which it was justified for blacks to be
treated like animals and second-class citizens.
Proposals
It was proposed that:
§
The Civil Union Bill be called a Civil Marriage
§
Religious issues should be kept personal and separate from
legal issues
§
Government should protect the rights of the minority group
In addition, other public views
indicated that the Civil Union Bill was being rushed, and that there was a need
for more time to consult widely on it. The processing of the Bill was premature
and it was necessary for people to be informed and educated about the Bill
prior to further deliberations.
Christians
proposed that:
1.5.5. KwaZulu-Natal
1.5.6. Eastern Cape
In
the Eastern Cape Province a total of 136 people attended the public hearings,
held in Mthatha City Hall on 02 October 2006. . A total of 46 people raised
their views on the Bill in the public hearings. All those who participated in
the proceedings were against the introduction of the proposed Bill. Gays and
lesbians were citing discrimination as their main reason for not supporting the
Bill.
The
Christian fraternity in the Eastern Cape stated that the Civil Union Bill must
not be supported or passed because of the following:
Several
speakers opposed the Civil Union Bill basing their argument on the Bible. They
believed that marriage was created by God as a voluntary union between a man
and a woman. The Religious fraternity also believed that God created darkness
and light for a reason. When God created a man and a woman there was a purpose.
The main purpose of the marriage is to bring children into the world.
Similarly
to the experiences in other provinces, the Committee heard that the issue of
morals was a concern for the people of the Eastern Cape. Priest believed that
same sex marriages are going to bring a moral decay in the society. It was said that it is not normal for a man
to sleep with another man. In fact it is an insult before God and it is a
taboo.
The
Church leaders stated that as God does not allow sexual relationships between a
man and a man or a woman and a woman, gays and lesbians needs some help. The
Church was open for gays and lesbians to get help as this is seen as a
sickness.
Proposals
While rejecting the Bill, the
religious groups in the Eastern Cape made the following proposals, that:
Gays and Lesbians
The
Gays and lesbians group believed that a denial to grant them the right to marry
is tantamount to discrimination against them.
Proposals
The Gays and lesbians proposed the
following:
That Parliament passes the law that
would give them an opportunity to marry.
Individuals
Most of the individuals who made
their presentations in the Eastern Cape believed that the Bill should not be
supported for the following reasons:
One individual believed that same
sex marriages are western cultures, which should not be allowed to erode the
moral fibres African society. Marriage is for a man and a woman. Same sex
marriages should not be allowed because they bring about a clash with ethics
and morals of Africans.
It was also mentioned that other
African states also do not allow same sex marriages as African cultures and
traditions are against this. The issues of lobola, and marriage as an
institution, which brings families together and others, also emerged.
Proposals
Individuals in Eastern Cape proposed
the following:
§
That before Parliament can pass the Bill it must also look
at the neighbouring states to see if they agree with same sex marriages
§
Constitutional amendment to protect marriage as a union
between a man and women; and that
1.5.7. North West
In the hearings held at the Moses
Kotana Local Municipality in the province, 266 people were present. A total of
51 inputs were received from different stakeholders, which included, but not
limited to:
Mogwase Taxi Association
Pentecostal Holiness Church
Methodist Church
Anglican Church
CCF-Church
Village FM
There were also chiefs from local
villages, speakers from the UCDP Regional Office, and other persons.
While the overwhelming majority of
the participants rejected the Bill, 5 people argued for the support of same sex
marriages.
The
emerging key issues are presented below as presented by various stakeholders
and individuals.
Local
chiefs and people who believe in the Africa tradition reject the Bill because
of the following:
The
local chiefs and traditionalists in the province rejected the Bill saying that
same sex marriage would be a curse to the Batswana nation. As per the local
cultural norms and beliefs, marriage is a meant to grow the family. African
culture allows man to marry more women. He cannot marry another man, as it is a
taboo.
In
African culture lobola is paid as a token of appreciation to the parents of the
girl who would bear children for the family. However if a man marries another
man, who is going to pay lobola? Another problem is that same sex couples could
not bear children hence the national would decrease - leading to the loss of
generation.
Another
question was that since in African traditional family structures men are
regarded as the head of the household, who is going to assume this role if a
man marries another man.
The
Bill was opposed also on the premise that same sex marriages are foreign
cultures, which could be exploited by opportunists who would want citizenship
in South Africa.
African
cultures also do not allow, “vat en sit” (Domestic Partnerships). The Bill
would encourage men to disregard lobola and send messages that it is acceptable
to register mistresses.
It
is believed that rapes will increase if people of the same sex were to be
allowed to adopt children. Others said that men naturally have feelings, and if
gay couples adopt a girl child she would be at risk of sexual abuse. The Bill
would also send misleading information to children since they would be forced
to call another woman a dad. Children at schools would also end up believing
that it is normal for a boy to kiss a boy or a girl to kiss
Proposals
Participants
in the North West hearings proposed that:
Christians
stated that the Bill should not be passed. Their argument was based on the
following:
Christians
believed that God created a marriage only for a man and a woman. They said is
not normal for people of the same sex to marry, because even a male animal does
not chase another male animal.
It
was believed that gays and lesbian needs help in the form of prayers to change
their sexual behaviour. The Bible teaches that gays and lesbians should be
thrown away, as it things they are doing are those, which happened in Sodoma
and Gomorrah. Accepting same sex marriages for some Christians is like accepting
Satanism.
Others
believed that diseases like HIV/ AIDS come as the results of men sleeping with
another me, which is morally wrong. They felt that such people should be
separated from the society.
Some
priest stated that it is not only the Bible which rejects same sex marriages,
but the natural law. They argued that naturally it is possible for a married
man to have feelings for another married woman but control that. Science also
shows that positive and positive repels while positive and negative
attracts.
Same
sex marriages are seen as sexual deviations, which people learn from their
upbringing or come as the results of broken marriages. Because of this,
Christians, tend to believe that gays and lesbians can be changed.
Opponents
of the Bill argued that it disregards the rights of children if they are going
to be allowed to be raised by parents of the same sex. They have also
criticised the Bill for the fact that it is silent on the rights of the
biological parents of the adopted children.
Other
speakers were concerned that the Bill is silent on the rights of social workers
who have to deal with cases of adoption of children by same sex couples. The
conscience of the marriage officers would also be violated.
On
the other hand some priests in North West said that while they reject same sex
marriages, they support domestic partnerships. They argued that priests should
bless the marriage of couples wanting to marry even if they don’t have lobola.
The
Christian fraternity suggested that:
General members of the public and
individuals
Individual
persons raised their support on the gay and lesbian marriages because of the
following:
Same
sex couples should be allowed to engage in a marriage like heterosexuals
because it is their right as enshrined by the constitution.
Proponents
of same sex marriages pointed out that gays and lesbians also have feeling and
love like any other person, so it would be wrong to separate and discriminate
against them.
A
pastor from the Anglican Church argued that he was worried that other
Christians use the Bible to attack and throw insults at gays and lesbians. He
warned that people should not be mislead or follow the scriptures blindly. In
one hand, the Bible says men sleeping with another men should be killed while
on the other had it says “thou shall not kill”. Others pointed out that people
came before the Bible, so the government must feel free to make laws which are
fair and just to all its citizens.
Labelling
gays and lesbians as the cause of HIV/ AIDS and evils was highly condemned by
the Anglican Church. Botswana has the highest HIV/ AIDS infection rates but
there is no same sex marriage law in that country. People should respect and
protect same sex couples, as they are also part of the society.
A
speaker from the mining compounds in SwartKlip indicated that it is not true
that lobola cannot be derived from same sex marriages. He witnessed three
marriages of same sex couples where one had paid R7000 for lobola for the
partner.
A
former prisoner stated that same sex marriages or same sex relationships have
started in prisons. So if people want to know more about the consequences of
same sex relationships they should approach the Department of Correctional
Services for answers.
On
the other hand, people voiced their support on the Domestic Partnership because
they believed it would protect women. Many children are raised single-handedly
by their mothers with the assistance of uncles because their biological fathers
abandoned them.
Proponents
of same sex marriages recommended that:
Other concerns and recommendations
from the general public were that:
§
The timing given for the debate on the Civil Union Bill was
very short, and information about the hearings could not reach all the people,
hence Parliament should ask for an extension to allow further deliberations on
the Bill
§
The Bill should be widely advertised in the newspapers
1.5.8. Northern Cape
On
05 October 2006, Public hearings on the Bill were held at Galeshewe Social
Centre, in Kimberly. A total number of 200 people attended the
proceedings. 55 members of the public participated in the public hearings
proceedings. All the participants were against the Civil Union Bill.
There were individuals and
stakeholders from various organisations and the community at large. Those
presented their inputs included, but were not limited to the following:
ACDP, pastors
Pastors from PE Christian Church
Representatives of the Future if the
Children
Local councillors
Northern Cape Reformed Churches
African Church
Roman Catholic Church
AZAPO
ANC
SANCO
Joint Working Group for People
Living with HIV/ AIDS
Gospel Church of Power
Local Moral Regeneration Movement
Youth representatives
Spiritual and Traditional Healers
Lutheran Church
Religious group
The
Christian fraternity in the Northern Cape stated that the Civil Union Bill must
not be supported or passed because of the following:
Pastors
said that God created a marriage for people to multiply. They argued that the
focus, that is not on the Bible, on equality and the Constitution, drives
people to forget about the morals in the society. Homosexuals and heterosexuals
cannot be equal as they are different in nature. Homosexuals cannot procreate.
And it is not unfair discrimination to deny same sex couples the right to
marry.
The
Bible teaches people that a man would leave his parents and be part of his
wife, not another man. The Bill would destroy family values.
The
Christian fraternity also indicated that nature, history and social science
also support marriage, as it is understood. Marriage is supreme and it should
be protected as a voluntary union between a man and a woman as God created it.
Christians also believed that God’s word is the oldest one should obeyed and
respected. The concept of marriage originates from the religious institution,
not the sate.
One
of the Church Leaders said that while Bill could be used to protect the rights
of gays and lesbians, the term “marriage officer” should be changed and
replaced by “officiating officer”. A further suggestion was made that
the Government must provide documentation to the officiating officers.
It
appeared that not all Christians Churches are opposed to same sex marriages.
The pastor from the Lutheran Church said that people interpret the Bible
differently hence people should learn to have respect for others. The law
should not discriminate on sexual orientation. The pastor also felt that people
should also be allowed to enter into domestic partnerships, including those
foreigners with permanent residence status in the country.
Proposals
While rejecting the Bill, the
religious groups in the Northern Cape made the following proposals, that:
Moral regeneration, traditional
groups and others
Traditional groups, civic
organisations and others in the Northern Cape rejected the Bill on the
following grounds:
§
Traditional beliefs
A representative of the Northern
Cape Spiritual and Traditional Healers Association argued that traditionally
parents were choosing wives for their boys. Men were also allowed to marry many
wives. Same sex marriages are not allowed in an African society.
God did not create Adam
and Steve. He created a man and a woman.
§
Diseases
It was believed that same sex
marriages would bring more diseases into the society.
§
The rights of the child
Some speakers argued that they
wanted to protect the future generations by rejecting same sex marriages. Gays
and lesbians should not be allowed to adopt children. They argued that the Bill
would bring immorality in the society, which would mislead children. Same sex
marriages bring insult to churches and the people.
§
Separation of powers
Some participants argued that the
Constitutional Court was given too much power to rule over something that
affects the lives of many people. The ruling affects their religious and
cultural believes. They did not understand why the Court argued that it would
automatically change the law if Parliament did not come up with legislation for
same sex couples to marry. It is the work of Parliament to make laws. The role
of the Court is to interpret the laws. They maintained that the judgement did
not have consideration for the rights of the children.
The issues of domestic partnerships
saw a promising reception from a few speakers. Uncles of children left by their
fathers argued that the Bill would protect they sisters.
Proposals
Individuals in Northern Cape
proposed the following that:
§
Constitutional amendment to protect marriage as a union
between a man and women; and that
Gays and Lesbians Group
A representative for the People
Living with HIV/ AIDS & Joint Working Group on Transgender argued that same
sex marriages would make everyone equal before the law.
Proposals
Gays and lesbians organisation
proposed that:
1.5.9. Western Cape
About
160 people were present at the hearings on 09 October 2006 in Woodstock, Cape
Town. Inputs were received from about 41 participants. Out of these, 32
participants were against the introduction of the Bill. Notably the Gays and
Lesbians indicated that there was no need for the introduction of the Civil
Union Bill as there was the Marriage Act.
Inputs
were received from various individuals and organisations including, but not
limited to, the following:
Peoples Christian Church
Baptist
Church
Humanitarian
Church
Christian
Church
Anglican
Church
Muslim
(SAB Community Convention)
South
African Council of Churches (SACC)
Catholic
Church
Triangle
Project
AIDS
Legal Network
Dutch
Reformed Church
Gays and Lesbian fraternity
Gays and lesbians groups rejected
the Civil Union Bill for the following reasons:
§
New kind of apartheid
Gays and lesbians argued that the
Constitution of the country protects all people including gays. However they
felt that the Civil Union Bill violates the Constitution and enforce a “new
kind of apartheid”. “It marginalizes the gay people in South Africa”, said
Mario Valentine of Triangle Projects. It discriminates between Christians, Gays
and Lesbians.
The Civil Union Bill does not
subscribe to principles of Batho-Pele, the Bill of Rights, rights to freedom,
equality and expression.
§
Status of marriage
It was further argued that this
separate Bill sends the message that same sex couples would never be on the
same standards as married heterosexuals. The Bill fails to meet the
requirements in the Fourie – Case.
Proposals
Gays, lesbian and transgender groups
made the following recommendations:
§
That the Civil Union Bill must not be passed
§
There must be equal and legal recognition of all marriages
in the country
§
That the ruling of the Court be brought into place for section
30 (1) of the Marriage Act, 1961, to include the words “or spouse” after
the words “or husband”.
§
Gays and Lesbians are part of South Africa and they must be
given equal rights the same like other citizens
Religious Groups
Christians
Many pastors from different churches
and individual believers raised their objection to the Bill for various reasons.
§
The word marriage
Some Christians felt unhappy about
the fact that there is a use of the word “marriage” in the Bill. They have
argued that while there should be a legal recognition for gay partnerships the
term marriage should not be used in those processes. The heterosexuals are used to the term
marriage as a union between a male and a female.
Using the term marriage in the
context of homosexuals would lead to a disrespect of the institution of
marriage.
§
Institution of marriage
Christians believe that the marriage
institution is the creation of the Lord and it is vital to build the family.
Homosexuality has always been seen as deviant so it could not be associated
with this “holy” institution.
Muslims
The Muslim groups, like Christians,
are also opposed to the use of the term “marriage” in the same sex context.
They also highlighted that the right of adoption should not be granted to same
sex couples.
Proposals
Those who hold a religious view of
marriage proposed that:
§
The Constitution be amended to define Marriage and protect
the traditional institution of marriage
§
National referendum should be introduced
§
Legislators should consult God when making legislations, not
only when requesting blessings through the National Anthem
§
Issues of domestic partnerships should be removed from the
Civil Union Bill
The other view of
Christians
On the other hand, the hearings in
Cape Town also saw a large number of Christian Churches and individuals who argued
strongly in support of gays and lesbian marriages. The Dutch Reformed Church,
the Anglican Church and the SACC and others cited many reasons for doing so:
§
Definition of marriage
Contrary to the belief of many other
Christians, the Anglican Church maintained that a definition of marriage does
not appear in the scriptures. To amend the Constitution to define marriage as a
union between one man and one woman may discriminate against certain cultures
in South Africa. People should be careful when using the word “culture” which
is forever changing and never static.
§
Human Rights
Bishop David Russel (Retired Bishop
of Anglican church) said that gays and lesbians are made in the image of God.
That should be respect, including the constitution that defends and respect
their rights to sexual orientation, freedom and equality.
§
Diversity
Dr Russel further elaborated that
diversity in the country needs to be recognised. And that people should be
careful not to quote the scriptures. The Bible is not the last word. People
interpret it differently in different times and age.
§
The state and religion
The state and religion should be
treated as different entities. One speaker pointed out that in Nederland, in
2001, the government went on to solemnise gay marriages as it was not a
religious issue. People got accustomed to gay marriages. Spain also opened up
civil marriages, and South Africa should follow.
SACC stated that government should
not interpret the Bible, but rather the Constitution. Discrimination against homosexuals should be
opposed.
Proposals
Christians who support marriages for
gays and lesbians proposed as follows:
§
Gays and lesbians are a minority and vulnerable groups, so
the state needs to make more effort to protect them more
§
Religion and the state must be treated as different bodies
Due to the controversial nature of the Bill, and pursuant to
Parliament’s vision to involve the public in its processes, the Portfolio
Committee on Home Affairs invited interested individuals to submit written
comments on the Bill. The Committee received a total of 637 written
submissions. However due to time constraints and capacity challenges, only 143
submissions were analysed.
This report summarises the submissions received and provides
a brief analysis of the trends emerging from those submissions. The submissions
are divided into 4 parts, i.e. Part A: Submissions by organisations, Part B:
Submissions by individuals, Part C: Memorandums.
2. Analytical Comments
3.1 African Christian Democratic Party
(ACDP)
The ACDP
submits that the only way to protect the traditional view of marriage is to
amend the Constitution by inserting a definition of marriage into section 39
(interpretation clause). The definition of marriage proposed by the
organisation reads as follows: “marriage is a voluntary union of a man and a
woman.”
The Islamic Unity Convention expresses its support for
organisations opposing the passing of the Bill. In so doing, it makes a number
of recommendations to Parliament, i.e.:
§
Marriage between male and female
should be protected, as ordained by Divine law.
§
Parliament should give effect to the
democratic beliefs of South Africans by holding a referendum to determine
whether same-sex marriages should be given legal recognition.
§
Parliament should consider the human
rights of humanity and not of individuals.
§
People should be afforded more time
to study and digest the provisions of the Bill.
§
If the route of a constitutional
amendment is followed, enough time must be allocated for people to respond.
The Congregation submits that if that if the gay and
lesbian community in the country want their relationships to be legally
ratified, a separate Act governing same-sex unions, which does not impact on
the existing Marriage Act, should be passed.
African Enterprise opposes the passing of the Bill on
religious grounds, and also in the best interest of the child who, according to
the organisation, deserve to be raised by a mother and a father. The
Organisation supports the call for an amendment to the
Constitution that will define marriage as the union of a man and a woman.
The church opposes the passing of the Bill on religious
grounds, submitting that the sanctity of marriage between one man and one woman
should be upheld. The church also calls for a constitutional amendment that
will enable the upholding of the traditional concept of marriage as between one
man and one woman.
3.6 The
Marriage Alliance of South Africa
The Marriage Alliance of South Africa was formed in 2005 as
a Christian Association supporting and protecting the institution of marriage
in South Africa. The Association represents a number of denominations, churches
and religious institutions. The Association opposes the extension of the
definition of marriage to include same-sex couples, submitting that marriage is
a life-long union between a man and a woman and that children should ideally be
raised in family units headed by both male and female parents. Instead, it
proposes that Parliament adopts a two-pronged approach in order to give effect
to the Constitutional Court ruling, as well as the view of the large majority
of the electorate that marriage is the voluntary union of a man and a woman,
namely:
§
Consider a new law, separate from the
Marriage Act, for civil or same-sex partnerships and unions.
§
Amend the Constitution by adding a
sub-section to section 39 (the interpretation clause) in which it is stated
that the Constitution shall be interpreted to mean that a marriage is the
‘voluntary union of a man and a woman’. The Association submits that such a
definition would determine how the rights in the Bill of Rights should be
interpreted, and any statutory or common-law arrangement relating to marriage
would be subject to and may not be inconsistent with that definition.
3.7 ICAMAGU
Spiritual Development Centre
The ICAMAGU Spiritual Development Centre is opposed to the
passing of the Bill, and submits that it destroys the African way of life. Its
opposition to the Bill is based on three main concerns, i.e.:
§
Marriage is intended for procreation.
§
Ritual participation, which is fundamental
to African Religion, is based on gender roles.
§
A ritual of ukutyiswa amasi (formally
welcoming a daughter-in-law into family) is crucial to the incorporation of
such an umtshakazi (daughter-in-law) into a family.
The AIDS Legal Network is a human rights organisation
committed to the promotion, protection and realisation of fundamental rights
and freedoms of people living with, and affected by HIV and AIDS. It does so
through capacity building, education and training, research, networking,
lobbying and advocacy.
The Network argues that in principle there are
commendable attempts to create a legislative framework for domestic
partnerships, included in the Civil Union Bill. The overall Bill, in particular
the section on civil partnerships, fails to meet the constitutional obligations
as defined in the Bill of Rights. It argues that the Constitution states
“everyone is equal before the law and has the right to equal protection and
benefit of the law, including that the State may not unfairly discriminate
directly or indirectly against anyone on one or more grounds, including sexual
orientation”.
The Network
indicates that creating a separate institution in a civil partnership, which is
exclusively for same-sex couples, is a problem in a number of ways. In a
societal context where gay and lesbian people experience, and are subjected to
stigma and discrimination on a daily basis, creating a separate legislation
will further exacerbate these stigmas.
The Network
highlights the judgement of the Constitutional Court as crucial in guiding
Parliament in processing the Bill. It states that the Court argued, “Parliament
should ensure that same-sex couples enjoy the status and benefits coupled with
the responsibilities that marriage accords to opposite sex couples. However,
the Civil Union Bill fails to uphold the judgement’s call to extend the
symbolic and legal equality of marriage. It further states that the
Constitutional Court indicated that creating an equal status in the law for
same- and opposite-sex partnerships can contribute towards creating an
environment that discourages stereotyping and prejudice. The Network,
therefore, argues that it is imperative for Parliament to provide for the equal
recognition of marriages, irrespective of the couple’s sexual orientation.
The Baptist Union of Southern Africa submitted
resolutions in relation to same sex marriages that were passed by the General
Assembly of the Baptist Union of Southern Africa, which was attended by 425
delegates representing 245 churches. The Assembly declared its opposition to
the Civil Union Bill and resolved that it would not participate in the marriage
or civil union of same-sex couples.
The Cape Town Pride Festival is a Section 21 non-profit
company, which represents over 10 000 gay and lesbian people and holds its
festivals every year. It rejects the Civil Union Bill. It argues that the Civil
Union Bill fails to grant same-sex couples dignity, recognition and the rights
currently enjoyed by opposite sex couples.
The Cape Town Pride Festival calls on Parliament to
protect the rights of same-sex couples by recognising their constitutionally
enshrined rights.
The Christian Action Network represents 30
organisations. It argues that Parliament should enact a Marriage Amendment Act
that would uphold the traditional definition of marriage, as being between one
man and one woman, for life. It believes that this definition would create a
healthy and prosperous future generation in South Africa.
The Christian Action Network argues that Parliament
should not allow an unelected an unaccountable judiciary to invent laws and
then impose them on society. It argues that Parliament should take into
consideration the views of the majority of people in South Africa who are
opposed to the proposed legislation.
3.12 Christina View Network: Limpopo
Province
The Christina View Network consists of different
denomination, cultures and lobbying groups pursuing the Christian viewpoint on
matters in Government and society. It argues that Parliament should amend
Section 39 of the Constitution to describe marriage as a voluntary union of a
man and a woman before an approved authority.
The Network
opposes the recognition of domestic partnerships, as against Christianity. It
argues that domestic partnerships will promote promiscuity.
The
Fish Hoek Baptist Church indicates that it is very concerned about courts
deciding on key legislative areas such as the issue of civil union. It calls on
Parliament to undertake extensive consolations on the issue.
Focus on the Family Africa provides a comprehensive
analysis of the challenges and benefits of marriage. It also looks at the
arguments presented for the recognition of same-sex relationships and domestic
partnerships. It appeals to Parliament not to provide legal recognition for
civil unions and domestic partnerships. It argues that these forms of unions
have intensified the challenges faced by marriage in recent years.
Focus on the Family Africa calls on Parliament to
instead pass a constitutional amendment to affirm the definition of marriage as
being between a man and a woman. It argues that marriage is the legally
recognised voluntary union of a man and a woman for life to the exclusion of
all others. It indicates that the current national and international law
largely regards marriage as a monogamous institution.
3.16 Foundation for Peace and Democracy
The Foundation for Peace and Democracy opposes the Civil
Union Bill. It argues that the Constitutional Court Judgement was misguided. It
argues that section 36(1) limits marriage to be between a man and a woman. It
states that the Constitution is in line with the Marriage Act, which only
recognises heterosexual unions.
3.17 Human Life International
Human Life International objects to the proposed Civil Union
Bill, which is intended to provide for the solemnisation of same-sex civil
unions, as indistinguishable from marriage. It argues that Parliament should
protect the institution of marriage, as a union between a man and a woman only.
Although Human Life International recognises the right
of every person to be treated with respect and dignity, including same-sex
couples, it opposes the recognition of same-sex marriages. It argues that
same-sex relationships will create a confusing environment for children.
Human Life International is opposed to the inclusion
of legislation dealing with the legal recognition of domestic partnerships in
the Bill. It argues that Parliament should create a broader public
participation process to solicit the views of the people on this issue than
rather “burying” it in the Civil Union Bill.
Naidoo and Paulsen Attorneys oppose the Civil Union
Bill. They indicate that the Constitutional Court erroneously found that the
exclusion of same-sex couples from the status, entitlements and
responsibilities accorded to heterosexual couples. They argue that a decision
to approve the Bill will cause an erosion of morality in South Africa.
The Seventh-Day Adventist Churches in the
Western Cape represents approximately 15 million baptised adult members in over
200 countries. It opposes the Civil Union Bill, as it believes it will
institutionalise same-sex relationships and give them a legal status. It states
that God divinely established marriage as a life-long union between a man and a
woman.
The South African Pagan Rights Alliance (SAPRA) is a human
rights activists’ alliance that promotes the guaranteed liberties and freedoms
for all in South Africa. It indicates that it has a keen interest in seeing the
transformation of the existing Marriage Act, especially with regard to the
redrafting of the existing discriminatory clause in the Act that requires
religious marriages to be conducted “according to Christian, Jewish or Mohammed
rites or the rites of any Indian religion.”
The St. Jude Society is a church organisation, which
represents a patron of hopeless and desperate cases. It opposes the proposed
Civil Union Bill. It argues that the Bill will lead to a new and malformed
section of society.
The Society calls for an amendment of the Constitution
to define marriage as a voluntary union between a man and a woman.
3.22 Doctors
for Life International
The submission by doctors for life focused on the
following aspects of the Bill:
The group argued that the
status of civil union marriages would assume equal status with that of common
law marriages since it will be passed by national Parliament. However, if it
was passed by provincial Parliaments, the Bill will regain a status less than
that of common law marriages.
3.23 The Employee Benefits Committee of the
Financial Planning Institute of Southern Africa
The Financial Planning Institute’s (FPS) main concern
revolves around benefits for partners both in civil and domestic unions.
Especially where the union is dissolved or the other partner is deceased. The
FPI’s concerns can be summarised as follows:
The Financial Planning
Institute thus recommended that the Bill be amended to bring more clarity with
regard to the defining and the division of pension interests in registered and
unregistered partnerships. As this has been a problem area in many divorce
cases.
3.24 Triangle
Project (gays and lesbians community)
The gays and lesbian community
made their submission expressing their concerns regarding the status of
same-sex marriages. Their main concern is that the Bill fails to grant same-sex
couples the same dignity, recognition, and rights that marriage offers to
opposite-sex couples. Concerns include the following:
Attached to the lesbian and gay community submission
document were the following recommendations:
3.25 Woodville
Vision (PTY) Ltd
The
Woodville Vision is a company based on Christian principles. The company’s main
concerns are based on religious grounds. It list its objections as follows:
3.26 Marriage
Alliance of South Africa: Limpopo Province
The marriage Alliance of South
Africa is a body that represents about 70 Christian denominations. The issues
they raise are accordingly based on religious grounds. They are opposed to the
idea of same-sex marriages. Their belief is that same-sex marriage goes against
the historic heterosexual understanding of marriage recognised from creation
and time immemorial.
Accordingly, this understanding which is prior to both law
and the state, affirms marriage firstly, as a given in human creation. Secondly
as the God given locus of covenanted male female bonding, sexual intimacy and
mutual support. Thirdly as the God given means of procreating the human race,
and as the best and safest of God given context for raising and nurturing
children.
The Marriage Alliance of South Africa argue their case
maintaining that gay marriage creates a new form of legal coupling which
instead of simply extending marital rights will, by state definition abolish
the understanding of traditional marriage and put a new, profoundly flawed and
deeply damaged institution in place. Gay marriages according to this group have
increased out-of-wedlock birth rates.
Today, almost 70% of all firstborn children are born
out of wedlock. Marriage is fast loosing its status as the essential sine
qua non condition of parenthood. The
answer is that once marriage stops being about binding mothers and fathers
together for the sake of their children, the need to get married gradually
disappears. Countries contemplating legalising same-sex marriage must know they
are opening a Pandora’s box. Once these wheels are set in motion, the road to a
dark and dysfunctional marital future is embarked upon.
Furthermore marriage, as an
institution, is deemed under attack by the Marriage Alliance of South Africa.
They argue, “the hostility toward marriage on the part of some gay activists,
feminists and other social engineers is truly alarming. Their aim is to
deconstruct marriage, bit by bit, until it no longer exists, thereby “freeing”
people to engage in whatever sort of sexual relationships of whatever number of
people and whatever duration they like”. From this, the attack on traditional
marriage and the family will be ongoing and relentless. Children will be the
ultimate casualties and so will the moral fibre of our whole culture and
civilisation.
3.27 The
Human Rights Commission
The Human Rights Commission
(HRC), the institution that protects and promotes human rights recognises the
Civil Union Bill as a human rights issue. It adopts a human rights approach to
the Bill. It asserts that the challenge facing the South African society is to
respect and accommodate differences, particularly minorities. The HRC is very
critical of some of the provisions of the Bill. In examining the Bill, the HRC
maintains that the union created for same-sex couples affirms the principle of
“separate but equal”. When they are asked if they prefer their civil
partnership to be referred to as a civil partnership or marriage during
solemnisation, the impression created is that they are getting married when in
fact they are being united through a civil union.
The Bill gives marriage
officers the option to refuse solemnising same-sex couples on grounds of
conscience, which will leave a door for discrimination, offence and deep hurt
to be caused toward same-sex couples. Furthermore the Civil Union Bill
contradicts the Constitutional Court’s guiding principles of remedy. In
referring to the doctrine of separate but equal, the Court had this to say,
“The approach is unthinkable in our constitutional democracy today not simply
because the law has changed dramatically, but because our society is completely
different”. Separate but equal thus does not enhance human dignity but
diminishes it. Overall, the Civil Union
Bill, according to the HRC, appears to be a grudging recognition of unions
between same-sex couples.
3.28 Human
Life International
The Human Life
International is opposed to the Civil Union Bill on biblical grounds. It
believes that marriage is instituted by the Creator as a form of life in which
a communion of persons is realised involving the use of sexual faculty. That is why,
according to Human Life, “a man leaves his father and mother and cling to his
wife and they become one flesh”.
Human Life
International bases its argument on the findings of the Human Science Research
Council (HSRC). It asserts that, “regarding sexuality, more than three-quarters
(78%) of adult South Africans feel that sexual relations between two adults of
the same gender are always wrong. Disapproval is at 64% among coloureds, 70%
among whites, 76% among Indians and 81% among blacks”.
The group
lists four reasons against the recognition of civil unions.
3.29 Bethlehem
Ephratah Ministries
The Bethlehem Ephratah Ministries argues that, “it loves
everyone, including the gay and lesbian community with the love of God, but it
will not condone their lifestyle and furthermore cannot stand on the sideline
and keep silent while this community calls for a change of the definition of
marriage. According to the Bethlehem Ephratah Ministries, God’s word is clear,
a marriage is between a man and a woman and not as this community claims to
be”.
3.30 Metropolitan
Churches
The Church believes that God does not discriminate and that
nations that live up to their values of justice and equality are forging a new
era of peace and wholeness for the world.
The Church repudiates the outdated interpretation of
scripture that says that homosexuality, per se, is contrary to the will and
plan of God. The church believes that scripture, rightly understood, says no
such thing. More and more scripture scholars, in every denomination, agree with
the Church and see those interpretations to be just as invalid as
interpretations of the Bible that once supported slavery, or discrimination
against women.
3.31 Christ
Church Waterfall (Church of England in South Africa)
The Christ Church Waterfall indicates that the Bible does
not permit the option of same-sex marriages. It states that it affirms the
values and practices of the Bible: that God created us male and female in his
image, and marriage is between a man and a woman in which the two become one.
The Church indicates that it understands that there are
pressures to protect and ensure the rights of the people of our country, but
asks that due consideration be given to what the Sovereign God of the Bible has
to say. The Church, therefore, ask legislators to stop promoting sinful
practices through the passing of this legislation which, in their opinion,
leads to a corroding of societal, family and marital values.
3.32 Azanian
People’s Organization (Azapo)
Azapo is a political party with one representative in
Parliament. According to the organisation, the recent court ruling on same-sex
marriages have demonstrated the powers judges and lawyers have on matters that
do not only concern the law. These incumbents are not directly accountable to
the public for their decisions and yet have such powers as to tell Parliament
what to do and when.
§
The trend is that even if the Constitution
militates against some of our most sacred cultural and religious beliefs,
citizens are expected to keep quiet because the courts are supreme, impartial
and independent.
§
The ruling on same-sex marriages didn’t
have much consideration for the rights of children who may be raised by
same-sex couples.
§
Azapo contends that some of the provisions
of the Constitution are not necessarily in harmony with the basic norms and
values of the majority in the country and this must be reviewed as a matter of
urgency.
3.33 The
Apostolic Faith Mission of South Africa
The proposed Bill, according to the Faith Mission, is
misleading since it gives equal status to same-sex marriages. The Church would
like to see the current definition of traditional marriage maintained. Instead
of same-sex marriage, the Government must use the words ‘any two persons’ and
not use the word marriage. In the same breath, the faith Mission appeals to the
government for more time for the public to deliberate on the matter, rather
than rush it through.
3.34 Christian
View Network
The Christian View Network is of the view that the current
definition of marriage should be entrenched and not compromised to please
same-sex couples. The Network is also happy to acknowledge that same-sex
marriage is not government policy as in earlier correspondence the department
of Home Affairs made this clear when it said: “ The Department has never
advocated for same-sex marriages. The Department has in fact appealed to the
Constitutional Court against the judgement handed down by the Supreme Court of
Appeal …The Department is unfortunately not in a position to over rule the
decision by the Constitutional Court”.
Furthermore, the Christian View Network is opposed to
same-sex marriages for the following reasons;
§
It is against God’s law and increases the
risk of his judgement
§
It is bad for children, who need both a
mother and a father in a stable home.
§
It is opposed to African culture and
tradition.
§
It undermines respect for true marriage.
§
It is opposed to the views of the
overwhelming majority of South Africa.
§
It undermines sexual morality in a context
of AIDS, etc.
3.35 The
Banking Association of South Africa
Irrespective of the perceptions and merits of the debate on
same-sex marriages, it is essential that the new arrangements comply fully, in
law, with the legal position of married couples to reduce the opportunities for
unintended legal consequences or arbitrage by couples in the commercial
environment.
§
The definition of registered partnership
agreement should read “registered domestic partnership agreement to ensure
consistency with sections 18, 19 and 20.
§
Section 13 appears to be a “catch all”
provision to place the new civil partnerships on the same terms as marriage as
that term is traditionally understood.
§
The Banking Association therefore
recommends that with regard to section 13, the clause should be explicit about
the termination of a civil partnership and the consequences of such
termination, as per the following amendment: “The legal consequences of a
marriage, including those consequences that flow from the termination of a
marriage, apply with such changes…”
§
The registration officer must issue the
partners with a registration certificate stating that they have registered
their domestic partnership and, where applicable, attach a certified copy of
the registered domestic partnership agreement to the registration certificate.
Provided that the registered domestic partnership agreement shall operate
“inter parties” and shall not operate in respect of any person who is not a
party to the agreement.
§
Subsection 20 (2) be amended to include
consideration of serious injustice against an “interested party” and a “family
member” as well, as per the following amendment:
§
If the court, having regard to all the
circumstances, is satisfied that giving effect to a registered domestic
partnership agreement would cause serious injustice to any person, including a
family member or interested party, it may set aside the registered domestic
partnership agreement or parts thereof”.
§
Subsection 44 (4) should also be amended
from “interested parties” to “any interested party” in order to match the
defined term.
3.36 Signatories
against same-sex marriage
This is a group of eight people, members of an unnamed
church. They oppose the idea of same-sex marriage in the strongest of terms.
They uphold the Church’s efforts to protect the sanctity of marriage, based
upon the authority of scripture, the protection of our families, and good moral
values that flourishes in a society where the sanctity of a marriage, a union
between a man and a woman, is given the honour that it deserves.
According to this group, marriage is neither man-made
nor a human right. The Biblical truth is that marriage is a God-ordained gift
to mankind. It is a privilege. Its divine origins confer upon it holiness, and
a sanctity that prohibits any human being from altering God’s design. The group
therefore implores the political leadership of the country to recognise and
acknowledge the sovereignty of Almighty God.
The institution of marriage is faced by some
challenges, which affect the state of marriage. The migrant labour system, for
instance, has had negative effects on family life in South Africa. Many
children grew up without regular interaction with their fathers or mothers.
Spouses were also separated for long periods of time and that inevitably
brought personal and social instability within families. Today families are
experiencing the devastating effects of HIV and AIDS, as many households have
been left headed by children. These challenges continue to threaten the social
fabric of family. Same-sex marriages will also have similar effects on the
family life, particularly children’s lives.
Legal recognition of same-sex marriages will be a
declaration by the State that same-sex relationships are normal and are
equivalent to opposite-sex relationships. The effect of this on the future
generation cannot be underestimated. Children learn by copying and modelling
what they see around them. Children under the age of 10 years, in particular,
need stable, clear-cut values and examples to live by. The legalisation of same-sex
marriages will inevitably result in these children being taught that marriage
is any one of a number of combinations chosen according to the wishes of the
individual at the time. The outcome of this can be confusion and conflict with
the values taught in most families and children at that impressionable age,
which are not equipped to deal with that.
The
introduction of domestic partnerships creates a second-class form of marriage.
This adds to the confusion that would have already been created by same-sex
marriages. Domestic partnerships may also create an even greater breakdown of
marriage and family life in society.
3.38 The Joint Working Group[1]
The
Civil Union Bill entrenches inequality between same-sex couples and
heterosexual couples. It also fails to accord same-sex couples the full
recognition as stipulated in the Constitution. The Bill fails to meet the
requirements of the Constitution, based on the following reasons:
·
Civil partnerships are inconsistent
with the fundamental guarantee in the Constitution that prohibits
discrimination on grounds of sexual orientation.
§
Creating two parallel institutions
does not constitute equal treatment under the Constitution and amounts to a
form of institutional segregation.
§
Civil partnerships exclusively
applicable to same-sex couples are only legally acceptable in jurisdictions
which have a lesser equality guarantee.
§
Civil partnerships mark and
stigmatise same-sex couples as “other”, second-class citizens and thus violate
both the right and value of dignity set up in the Constitution.
§
Civil partnerships fail to respect
the value of Ubuntu, which requires that same-sex couples be affirmed as full
members of the South African community.
§
Civil partnerships violate the
fundamental freedom that should be afforded to same-sex couples to be able to
choose to get married.
§
Civil partnerships do not respect
the religious freedom of same-sex couples who wish to be married. Allowing
same-sex couples to get married would not violate freedom of any religious
group.
§
Civil partnerships are in conflict
with the Constitutional Court’s judgement in the Fourie case and would thus
spark further litigation and accordingly fail to resolve the status of same-sex
relationships in South African law.
§
Civil partnerships would add to the
administrative burden already borne by the Department of Home Affairs.
§
Civil partnerships are not in the
best interest of the children of same-sex couples, nor do they adequately
protect same-sex families.
In
addition, the Council takes the view the that theological understanding of
equal dignity of all human beings is being given secular expression in the
equality clause of the Constitution. Therefore, the challenge in the review of
Marriage Act would be to keep an appropriate balance between the constitutional
principles of freedom of religious expression and voluntary association on one
hand, while promoting coexistence with the equality clause.
The Church has the responsibility to study the
Scriptures to discern God’s will with regard to the moral and theological
questions associated with same-sex relationships, particularly as they affect
questions of denomination and religious marriage. On the other hand,
Government’s responsibility is not to interpret the Bible. Its responsibility
lies in the interpretation of the Constitution. Its duty is to test legislation
against the Constitutional principles and to protect the rights of all citizens
equally. At the same time, the State has the duty to defend religious freedom
by ensuring that churches retain control over decisions regarding religious
rites and sacraments, including the religious aspects of marriage.
In light of the above positions, the Council urges
Parliament to act expeditiously to reconcile the existing marriage legislation
with the provisions of Section 9 of the Constitution within the timeframe
designated by the Constitutional Court.
The
submission by the Christian Lawyers Association focuses on the technical
aspects of the Bill, these are listed below:
Clause 1(d)(ii) states that a child of a domestic
partnership includes any child that was dependent on the partner “if at that
time the domestic partners had not ceased to live together at the time
immediately before an application under the Act”. The words “immediately
before” make it unclear as to whether this means that the Act will have
retrospective effect. If so, what is the degree of retrospective application?
Is there a cut-off date?
A similar issue of retrospective application is
further raised by the definition of “domestic partner” and “domestic
partnership”, the former which is said to mean “a partner in a domestic
partnership and includes a former domestic partner” and the latter which is
said to mean “a registered domestic partnership or unregistered domestic
partnership and includes a former domestic partnership.” What are the legal implications of the word
“former”?
The definition of Civil Union is said to include a
civil partnership or a domestic partnership.
There is no mention of the word “civil union” in the Bill. However, this definition gives the implication
that domestic partnerships (of both homosexual and heterosexual couples) are
civil unions. Is this true?
The definition of “contribution” in terms of the
Occupational Injuries Act, 1993 – the domestic partners are, in terms of the
Bill, divided into registered and unregistered partners. The former has a duty of support (section 21)
and the latter does not (section 39). Furthermore, the legal consequences in
both partnerships with regard to separate versus joint property are
different. However, this definition of
contribution seems to not draw a clear distinction between the two types of
domestic partnerships, and the individual versus joint property. This is
clearly arguably unconstitutional as it prima facie (presumptively)
burdens defendants who are sued in terms of the Act.
The definition of “family home” – seems to be a bit of
an anomaly. It includes the dwelling place used by one of the partners. How can this be as a domestic partnership is
by definition characterised by the fact that the partners are presumably living
together?
The definition of “financial resources” – seems to
touch on the property of unregistered domestic partnerships. How can this be,
as in terms of S39, they do not owe each other a duty of support? It also seems to automatically place
individual resources within the ambit of the other partner’s control. This prima facie creates greater
rights for these partners in law.
The definition of “household goods” –like the
definition of financial resources, this definition seems to give domestic
partners rights which are greater in law than those of other relationships.
The definition of “separate property” seems to be a
bit of an anomaly in the context of the above queried definitions.
The definition of “couple” – does not clearly provide
for partners in intimate relationships.
There is no definition of “Marriage” or of “Spouse”
yet these terms, which have a fixed legal meaning, are arguably redefined by
the Bill.
Section 2 - Objectives of the chapter seem to counter
the formula in S11 as the formula provides for marriage.
§
Section 4 – there is no specific age
provision, merely a reference to adult, which for the purposes of the law,
means different things in different situations.
§
Section 6 – places the burden on
every presently registered Marriage Officer to apply to the Minister for an
exemption. This unconstitutionally burdens them.
§
Section 8 – provides gays and lesbians
with a further option of a civil partnership.
This arguably “gives more” to them.
Furthermore, it does not make mention of gays in domestic partnerships. How are these persons to be treated in the
context of civil partnerships?
§
Section 8 (5) – this section seems
unclear as it provides for persons who would, but for the fact that they are
persons of the same sex, not be prohibited to marry. However, section 11, seems
to allow them to marry.
§
Section 9 – attempts to mimic the
Marriage Act, but the provision is not realistic.
§
Section 11 – formula – objections to
the use of the word Marriage as this is inconsistent with the aims of the
Bill. Redefinition of the word “spouse”
without a proper redefinition as this word has a fixed meaning in the common
law and in the Constitutional Court case law.
This is a classic case of the inconsistency and slapdash approach of
trying to appease the religious groups by not using the Marriage Act, yet at
the same time trying to appease gays and lesbians by taking words, in isolation
and ultra vires, from the Marriage Act.
§
Section 13 – Legal Consequences – in
the Fourie case, the Constitutional Court stated that there are 44
pieces of legislation that are affected by the institution of marriage and the
definition of the word “spouse”. At the
hearing of the second Fourie case, O’Regan J particularly stressed the
issue relating to children. One has to return to the seemingly circular but
important and distinctive argument of procreation. That is, a prima facie analysis of the
relevant legislation relating to children is particularly geared to biological
parents, and in the absence thereof, adoptive parents. Are partners of partners
who have children in a gay relationship going to be automatically presumed to be
the biological parents? If so, how, and if not, does this not have an impact on
their constitutional claims? If so, what will happen on termination of the
partnership? Does “the other” parent remain as the parent? How does this
practically affect particular provisions, in, for example, the Children’s Act,
Children’s Status Act, Child Care Act, etc?
§
The simple point that we are trying
to illustrate in this context is that the 44 pieces of legislation cannot all
simplistically apply mutatis mutandis to same-sex couples. That being the case it begs the question of
what appropriate prior process should have been engaged in so as to ascertain
the level of policy and semantic alteration that is needed to the
relevant affected laws?
§
Section 13 – particularly affect
Customary Marriages – the Customary Marriages Act is not provided for as one of
the pieces of legislation that falls outside the ambit of this law. This then begs the extremely complex question
of the interrelationship between this law and the Act, once again pointing to
the obvious fact, which has been already stated above – there should have been
proper prior research on affected pieces of legislation in order to ascertain
issues of effect and interrelationship.
§
Should the Committee decide to
simply amend this portion by stating that the Customary Marriages Act falls
outside of the scope and ambit, this would then automatically beg the question
of what one does with same-sex partners who are in customary marriages (as the
latter can also be unregistered).
§
Section 13 – definition of
husband/wife or spouse is said to include a civil partner – once again, this
highlights the anomaly with regard to definitions in the context of the
Marriage Act. As the definition of
spouse is traditionally only found in the common law, does this mean that the
words spouse and marriage have been changed?
§
No clear provision for termination –
the only inference is that civil partnerships will be terminated by divorce
proceedings. Is that the truth, and if
so, what is the difference between the civil partnerships and the gay marriages
as provided for in the formula in S11?
§
Section 16 – what if someone is
arguably in an unregistered domestic partnership as well as a registered one?
§
Section 19 (1) – this provision
seems to be in violation of other provisions which place the property of the
domestic partner within the ambit of the other and it seems to be a potentially
weak attempt to draw distinctions between the various “regimes”.
§
Section 19 (2) in line with section
34 is arguably trying to regulate what is already in the common law. This does not help and it actually defeats
the purpose as firstly, it limits the enquiry and secondly it states what the
courts would in any event look at. This
point goes back to the section 19 (1) point of an attempt to distinguish
between the various regimes without really deciding on what the difference must
be.
§
Section 19 (3) – reiterates previous
points as the registration of the agreement is optional.
§
Section 20 – there is no substantive
provision of what should be in the domestic partnership agreement, that is, the
content. What is the point then, and
what should these partnerships regulate? Furthermore, what if what is regulated
by the partnership is in violation of certain provisions of the Bill, for
example, division of property issues?
§
Section 22 – seems redundant, as you
would ordinarily be joint signatories over joint property.
§
Section 23 (2) – seems to give more
legal rights to domestic partners as this is not a provision that is automatic
for marriages and civil partnerships.
The question of burden and constitutionality arises.
§
Section 25 – what if one partner
does not want to terminate the agreement? Like section 22, this provision
creates burdens in law.
§
Section 29 – What if a child is born
to one parent in a same-sex relationship? Does the other partner have
rights? Furthermore, this provision
seems to strengthen our initial arguments about the optimal rights and
responsibilities of biological parents and the need to protect them.
§
Section 31 – this determination is
in violation of the Constitutional Court decision in the Volks case.
§
Section 36 – Why this burden?
§
No age requirements, no time frames within which two people
must have lived together.
§
Section 38(3) – seems to contradict
Section 38(2) – what is the basis of this finding?
§
Section 38 (4) – makes reference to
a civil marriage – what is civil marriage? Does it mean civil unions or civil
partnerships? In any event, there is no definition of this term and it does not
seem to make sense.
§
Section 39 and 40 – these clauses are
clearly contradictory. Unregistered
partners are under no duty to support each other during the partnership but are
under an obligation to support each other on the dissolution of the
partnership. This once again seems to be
an attempt to draw a distinction between the regimes without clearly thinking
through the consequences.
The Association of Vineyard Churches South Africa
submits that Government should enact a Constitutional amendment to separate
civil unions from the concept of marriage in order to protect the definition of
marriage as it stands and to exclude same-sex unions from the Marriage Act. The
redefinition of marriage should not be implemented due to the following
reasons:
§
Marriage is a self-defining concept
originating from the Bible and from the Judeo-Christian heritage.
§
Same-sex unions are contrary to the
nature of marriage and its God-given intention.
§
Same-sex unions are against culture.
§
Same-sex unions are against
Scripture.
§
Opposition to same-sex unions is not
a rejection of same-sex couples.
1.42 Christian
Citizenship’s Committee Resolutions
The Christian Citizenship argues that God is the supreme
authority in our lives and therefore we must abide by and respect his views and
principles. Its concrete submission is as follows:
1.43 Young
South Africans for a Christian Civilisation
The Young South Africans for a Christian Civilisation
suggests that the proposed amendments to the Bill will substitute the
traditional definition and understanding of the marriage concept. It further
argues that legalisation of homosexual marriage would create an artificial
dichotomy within society. It will also promote family and societal instability
and effectively contribute towards immoral society. The Young South Africans
for a Christian Civilisation argues that constitutional interpretation should
mean that a marriage is a voluntary union between a man and woman.
1.44 Marriage
Alliance of South Africa
The Marriage
Alliance of South Africa has located its argument within the legal framework,
traditional values, cultural values, moral-values and along Christian
lines. According to the Marriage
Alliance of South Africa, the recognition of the proposed Bill will not only
affect the traditional definition of the concept, but also the institution of
marriage itself. This will also have constitutional implications. The Marriage
Alliance of South Africa raises the following;
§
The Bill is silent on the question
of raising children in a stable environment headed by both a father and mother.
§
It has the potential to compromise
children’s emotional, physical health and undermines their stable upbringing.
§
It further argues that the Bill will
have an adverse impact on societal values.
§
Propose Constitutional amendments in
order to define marriage as a voluntary union between a man and woman.
The Apostolic Faith Mission of South Africa’s argument is
not entirely different from those presented by the afore-mentioned Christian
organisations. It argues along traditional, moral and Christian values and also
suggests that children’s rights should be taken into account. It uses France as
a case study in terms of justifying the adverse impact it will on the family’s
traditional unity. Its key submission is that marriage should be interpreted as
a union between man and woman, which suggests that homosexual marriage should
be objected to. According to the
Apostolic Faith Mission of South Africa, marriage is meant to be:
§
The foundational institution of a stable
and healthy society.
§
The establishment of the proper
environment for the creation and nurturing of Godly offspring.
§
Define the parameters within which
sexuality is expressed in a safe and healthy relationship.
The International Federation of Christian Churches believes
that the legalisation of same-sex marriage will be a travesty of the marriage institution.
Furthermore, it will create abnormality within the Christian sector and to
non-Christians. The International Federation of Christian Churches calls for a
Constitutional amendment in order to protect marriage.
The St Andrew’s Church Randburg focuses more on religious
and constitutional values, as it opposes the suggestions that a marriage
officer should sanctify such a marriage. It further argues that same-sex
marriage cannot be sanctified by marriage officers, nor should they be
compelled by law to sanctify it because it could be against their Christian and
religious beliefs. According to St Andrew’s Church Randburg, marriage officers
should only formalise a marriage of a man and woman.
1.50 The
Baptist Union of South Africa
The Baptist Union of South Africa suggests that the
traditional understanding of marriage should not be changed. Instead a separate
legal arrangement must be made in order to ensure that legal rights of the gay
and lesbian community are taken into account. Tampering with the long tested
marriage institution will have serious negative impacts on society.
Venessa
Morton argues in favour of a system that will empower same-sex couples
to enter into a union that will afford them the same legal rights as couples in
heterosexual marriages, but submits that it must be done under a different
name. She thus argues in favour of reference to a civil union instead of
marriage, submitting that this will avoid the church having to get involved in
same-sex marriages, as this is against Christian principles.
Wally
Bodin objects to the possible implementation of the Bill on moral
grounds.
Deepa
Kurien objects to the possible implementation of the Bill on moral grounds,
submitting that same-sex marriages are a farce and a mockery to marriage, which
is a union created by God.
Ivor Temlett opposes the passing of the Bill as it goes
against traditional values of marriage and family. He further argues that the
right of children to be raised by a mother and father should take precedence
over the right of same-sex couples to enter into marriage.
Mike
Odell opposes the amendment of legislation that will change
the accepted definition of marriage on three grounds, i.e.:
§
Same-sex marriages can never be
consummated in the true understanding and meaning of heterosexual marriage.
§
Same-sex marriages cannot provide
the ideal environment for raising children where the father and mother roles
are crucial to children growing up to be well-adjusted citizens of the nation.
§
Same-sex marriages will lead to more
confusion and breakdown in the fabric of society.
Lehlohonolo
Mokhohlouloane opposes the passing of the Bill on moral grounds.
4.8 Noreen Halgreen
Noreen Halgreen opposes the passing of the Bill and
calls for the proposed Constitutional amendment to be effected instead.
Yunus Paruk submits that Parliament
should not approve the Bill, thereby recognising same-sex marriages. Instead,
he submits that marriage should be recognised as the union of one man to one
woman. Mr. Paruk’s submission is made on faith-based grounds.
G. Collins objects to the
legalisation of same-sex marriages through the passing of the Bill. He argues
that same-sex couples only want to legalise their unions to be able to tap into
financial benefits to which heterosexual couples are entitled to finance the
upbringing of their children.
Adele Christian opposes the
passing of the Bill on moral grounds. She argues that the Constitution should
be amended to make it clear that marriage is limited to one man and one woman.
She also calls for more time for public hearings, discussions, public debate
and a referendum, by requesting an extension on the 1 December deadline
provided by the Constitutional Court.
B. Theunissen argues against
broadening the definition of marriage to include same-sex marriages on the
following grounds:
§
Research shows that a broader
definition of marriage and family will ultimately undermine the strength of
society that traditional family provides.
§
A broader definition of marriage
leads to a general lower regard for commitment.
§
Promiscuity and associated evils,
such as the spread of HIV, as well as paedophilia, abound in societies where
homosexuality is promoted.
Martie Lanceras and others
raise their objection to same-sex marriages on various grounds, i.e.:
§
A union between people of the
same-sex conflicts with the definition of marriage.
§
Same-sex couples are disqualified
from the institution of marriage, as they cannot bring forth a new generation.
§
Same-sex marriages are against the
authority of Scripture, the protection of families and good moral values.
§
Same-sex marriages are not in the
best interest of children, as only marriage, as an institution, can guarantee
that children are brought up in a safe and loving environment.
§
Redefining the definition of marriage
to include homosexuals will in effect amount to rejecting the will and opinion
of the majority of South Africans to satisfy the desires of the minority.
The group thus calls for the
preservation of the traditional concept of marriage as a union between a man
and a woman. To this end, they express their support for a constitutionally
protected definition of marriage that would prevent courts from redefining it.
S. Goga objects to the
passing of the Bill on faith-based grounds. He submits that the institution of
marriage should be recognised as being a lifelong union of man and woman, to
the exclusion of all others.
4.15 Michael Cassidy
Michael Cassidy opposes the redefinition of marriage
to include same-sex couples on the grounds that:
§
It is morally novel, ethically
eccentric, reproductively impossible, physiologically unnatural and
psychologically damaging to children within such a family.
§
It is unprecedented in civilisation
until very recently in few western countries.
§
It has the potential to irreparably
damage the family and the institution of marriage and can lead to gender
confusion for children.
§
It will open up a whole new era of
civil disobedience by faith communities if hate-speech legislation prevents
them from denouncing same-sex marriages or writing against it.
§
Denying same-sex couples the right
to marry does not amount to “unfair discrimination” referred to in section 9 of
the Constitution.
Mr. Cassidy further submits that the open letter by
the South African Council of Churches (SACC), in which the organisation
supports the legalisation of same-sex marriages, does not represent the views
of the majority of Christian leaders and ministers in the country. He supports
the suggestion of an amendment to the Constitution that will entrench the
traditional definition of marriage, thereby establishing marriage in perpetuity
as heterosexual.
Advocate Du Plessis opposes the Bill on religious
grounds, stating that homosexuality and lesbianism, as examples of sexual
immorality, are abominable, unholy and the fruit of depraved minds. He further
states that the implementation of the Bill will destroy the most fundamental institution
of society, namely the family.
Malcolm
Stoddart opposes the Bill on moral grounds.
Bishop Russel submits an
article, titled Churches should not disallow gays and lesbians use of the
term marriage, as published in the Cape Times on Monday, 28 August 2006.
The Bishop supports the right of same-sex couples to enter into marriage. He
submits that same-sex couples should be afforded the opportunity to live up to
their own convictions by being able to enter into marriage. He also submits
that churches should respect and affirm the right of Christian same-sex couples
to hold their convictions.
Michael Atkins does not
express support for or opposition to the Bill. Instead, he comments on specific
provisions contained in the Bill, including:
§
The Bill does not mention the age of
persons that may conduct a domestic partnership, which raises the question
whether minors may enter into domestic partnerships.
§
It is not clear whether the Bill
prohibits the registration of domestic partnerships between siblings or other
close relatives of the same-sex couples. Furthermore, the current wording of
the Bill would allow the registration of domestic partnerships between adoptive
siblings.
§
The Bill does not make provision for
registration officers to decline to register domestic partnerships between
same-sex couples on grounds of conscience.
§
The Bill restricts persons from
entering into a domestic partnership if that person is currently married, in a
civil partnership or in another domestic partnership. However, the restriction
for entering into a civil partnership is limited to an existing marriage or civil
partnership. Technically speaking, this provision appears to allow domestic
partners to also register a civil union.
§
Whilst the Bill requires at least
one of the partners to a domestic partnership to be a South African citizen, it
does not contain the same requirement for a civil partnership. It is not clear
whether the same requirement would be applicable to the registration of civil
partnerships.
§
The legal status of civil
partnerships in foreign jurisdictions is not clear.
§
The Bill does not outline any
procedure for partners in a registered domestic partnership to enter into a
marriage or a civil partnership.
4.20 Erasmus D, Gironi P., Govender M., Tennant
S.
The Erasmus D, Gironi P., Govender M., Tennant S.
submit that they want the definition of marriage to remain a union between male
and female.
4.21 Billet C, Billet D.
Billet C, Billet D.
support the current definition of marriage, i.e. the union of one man with one
woman. However, they are not opposed to alternative unions that are not referred
to as Christian marriage.
4.22 Prof. P.
de Vos (University of the Western Cape) and Dr. J. Barnard (University of Cape
Town)[3]
The Prof. P. de Vos and Dr. J. Barnard submit that the
Civil Union Bill, as it pertains to same-sex partnerships, fails to comply
fully with the judgement of the Constitutional Court in Minister of Home
Affairs v Fourie, in that:
§
It
fails to fully correct the defects in the existing law as identified in the
judgement. It does not amend the common law and the Marriage Act, which was
declared invalid by the Court.
§
It
does not provide gay men and lesbian women with access to marriage of equal
legal and social status, as required by the Court.
Thus, the authors argue, even if the Bill is passed in
its current form before 1 December 2006, it will not give legal effect to the
judgement by the Court and the original order of the Court, which amends the
common law and the Marriage Act, will take effect.
The authors advance a number of arguments in favour of
creating a unified marital regime for heterosexual and same-sex couples,
including:
§
The
exclusion of same-sex couples from marriage impacts on them practically and
symbolically. This means that recognising same-sex unions outside of the law
governing marriage cannot rectify the problem. Such separate treatment amounts
to unfair discrimination, as separate is seldom, if ever, equal.
§
The
exclusion of same-sex couples from enjoying the status and entitlements,
coupled with responsibilities that are accorded to heterosexual couples by the
common law and the Marriage Act, constitutes unfair discrimination on the basis
of sexual orientation, as it deprives same-sex couple of the practical legal
benefits associated with marriage and denies them access to the social and
cultural benefits and status that society accords to marriage.
§
In
finding a remedy to the aforementioned problem, Parliament must be sensitive to
the need to avoid a remedy that on the face of it would provide equal
protection, but would do so in a manner that would marginalise same-sex couples
in a different way.
§
The
integration of same-sex and heterosexual couples under one common institution
will allow the greatly marginalised homosexual person a new means of accessing
the mainstream. Integration is indispensable as part of the normalisation of
post-apartheid South African society as a whole.
§
Some
of the most basic due process rights and personal freedom and security rights
include the right of every person to choose whether or not he or she wants to
marry, who they want to marry, how to express sexual intimacy and whether and
how to establish a family.[4]
§
Recognising
the right of a person to marry one of his or her own sex does not in any way
diminish the dignity of heterosexual marriage.
§
The
Supreme Court of Appeal has declared the current definition of marriage as
between one man and one woman to be a colonial imposition, imported into our
legal system through Roman Dutch law, only addressing the needs of white
colonisers and ignoring various other forms of permanent life partner
relationships to be found in indigenous cultures and religious practices in
South Africa.
§
Arguments
about whether or not same-sex couples would provide a conducive environment in
which to raise children are irrelevant, as South African law has never
explicitly prohibited a gay man or a lesbian woman from adopting a child as a
single parent.
§
Same-sex
marriage is not ‘un-African’, as same-sex sexual activity has occurred
throughout Africa long before the term homosexuality was invented as a Western
concept in the 19th Century to label those who engaged in same-sex
activity. Even where same-sex marriage is viewed as contrary to African
culture, the Constitution requires respect for diversity in society and that
the views of some should not be used to justify discrimination against others.
The authors recommend two
options for Parliament to remedy the defects in the current version of the
Bill, i.e.:
§
Delete the entire chapter 2 of the
Bill, which deals with civil partnerships, as well as any other reference to
chapter 2, ‘civil partnership’ or ‘civil partner’ in the remainder of the Bill.
Also delete the definitions of ‘civil partnership’, ‘civil partner’ and ‘civil
union’ in section one of the Bill.
§
Rename the Bill from the Civil
Union Bill to the Domestic Partnership Bill.
§
Amend the Marriage Act by inserting
a definition of marriage into the Act that will read ‘marriage means the union,
while it lasts, between two adult persons to the exclusion of all others for
life’.
§
Amend section 30(1) of the Marriage
Act by inserting the words ‘or spouse’ after the words ‘or husband’
wherever it appears.
§
Delete the entire chapter 2 of the
Bill, which deals with civil partnerships, as well as any other reference to
chapter 2, ‘civil partnership’ or ‘civil partner’ in the remainder of the Bill.
Also delete the definitions of ‘civil partnership’, ‘civil partner’ and ‘civil
union’ in section one of the Bill.
§
Rename the Bill from the Civil
Union Bill to the Domestic Partnership Bill.
§
Do not affect any amendments to the
Marriage Act before 30 November 2006, after which date the order of the
Constitutional Court in Minister of Home Affairs v Fourie will have the
effect the suggested amendments to the Marriage Act will achieve.
Bernard and Gerda Tuffin call for an amendment to the
Constitution in order to protect the traditional notion of marriage, as between
a man and a woman. They argue that marriage is the backbone of society, which
needs to be protected and nurtured. They regard the institutionalisation of
same-sex relationships as immoral.
Bernard and Gerda Tuffin call on Parliament to take
the precedent set by many African countries not to recognise same-sex
marriages.
Bernadette Crewe-Brown indicates that same-sex
relationships should not be accorded a marriage status. She argues that
Parliament should amend the Constitution to define marriage to mean, “A
covenant made between a man and a woman”.
David Tapping opposes the Civil Union Bill. He warns
that if Parliament passes the Bill all mankind will vanish in 100 years from
now.
E. C. Poulter rejects the Civil Union Bill. She argues
that marriage is a unique and exclusively heterosexual union designed for
procreation and the raising of the next generation.
E. C.
Poulter argues that the legalisation of domestic partnerships will
institutionalise cohabitation. She argues that cohabitation should not be
equated to marriage. She recommends that Parliament amend the Constitution to
define marriage as between a man and a woman.
4.30 Ficky
Kubheka
Ficky Kubheka opposes the Civil Union Bill. She argues that
marriage is a secret and wholly union between a man and a woman.
4.31 Gert
van der Linde
4.32 Karin
Winnifred Stenger
Karin Winnifred Stenger opposes the passing of the Civil
Union Bill. She argues that Parliament should instead adopt a Constitutional
Amendment that will preserve the traditional definition of marriage as between
a man and a woman.
Leo Linz is a teacher and a high school principal. He
argues that the government should make provision for same-sex marriage. He
indicates that South Africa has developed into a society that is founded on the
principles of human rights, freedom and dignity where discrimination of any
kind is unacceptable and unconstitutional. He argues that the government should
take the same courage as it did with the dismantling of all discriminatory
practices after the demise of apartheid in 1994.
Marlene Rowe opposes the Civil Union Bill. She argues that
the Bill is against the Word of God and fundamentally wrong. She states that
marriage is meant to be between a man and a woman in order to build a healthy
family and society.
·
Section 6(1) of the Civil Union Bill
should be amended to not require of a Marriage Officer to inform the Minister
in writing that he or she objects on grounds of conscience to solemnising civil
partnerships in terms of the Bill.
Moira de Swardt is a registered Marriage Officer. He argues
the Constitution of the Republic of South Africa (Act No. 108 of 1996)
enshrines the rights of all the people, including minorities. This includes the
right to be protected against unfair discrimination on the grounds of sexual
orientation. He indicates that the legal recognition of the marriage of
same-sex couples is crucial in protecting their constitutionally enshrined
rights.
4.37 Mvano
Qangule
Mvano Qangule opposes the Civil Union Bill. He argues that
same-sex relationships are “unnatural” and therefore creating new laws will not
make them natural.
Pastor Jenny Roche appeals to Parliament to keep marriage
pure and in accordance with the Bible, which defines marriage to be a union
between a male and a female.
4.40 Sonia-Deborah
Nordengen
Sonia-Deborah Nordengen opposes the Civil Union Bill.
She argues that Parliament should rather amend the Constitution to define
marriage as between a man and a woman.
4.41 Zanele
Mnikathi
Zanele Mnikathi argues that
same-sex relationships should not be regarded as “marriage” because marriage is
between a man and a woman.
Mike and Mandy Ferguson
express their disappointment at what they call an exercise founded on
unspiritual and unethical beliefs. Very saddened that South Africa is following
the same route once travelled by “corrupt civilised” countries.
4.43 Marlene
Briel Madibeng
Marlene Briel Madibeng opposes
same-sex marriages based on the religious grounds that the institution of
marriage is God’s creation and thus, a religious concept and it is neither in
the Government’s hand, nor the courts to change the definition of marriage. If
the Bill legalises same-sex unions it will infringe on the rights of Christians
by tampering with the sacred institution of marriage. Marlene recommends that
the word ‘marriage’ remain intact and be removed from the Civil Union Bill.
4.44 Michael
Lance Morrison
Michael Lane Morrison views on
the Civil Union Bill are framed within the context of the traditional
definition of marriage, as something between man and woman. The family is the
basis of society’s moral values. Allowing same-sex couples may lead to chaos.
Michael strongly argues that changes of this nature should be the duty of the
courts, not Parliament, as Parliament is supposed to represent the will of
people. He submits that this Bill does not represent the will of the people.
4.45 Joseph
and Lynette
Joseph and Lynette raise concerns about same-sex
marriages’ implications on society. They argue that the Constitutional Court
should not be allowed to express the view of the minority, nor of the press,
unless the latter are the majority. They argue that the introduction of
same-sex marriages will destroy marriage as an institution and will inexorably
lead to polygamy.
They state that after this Bill is passed, divorces
will be obtained instantly, without the involvement of a court, and will take
on the status of a driver’s licence. They indicate that the possibility exist
that every school will be required to teach this perversion as the moral
equivalent of traditional marriage between a man and a woman.
4.46 Hugh
Wetmore
In his submission Hugh Wetmore
argues that marriage is not a legal, religious or a cultural matter. He argues
that marriage existed long before the advent of cultures, religions or laws.
These, according to Hugh, simply incorporated existing marriage into their
cultures, religions and laws, giving marriage their respective overlays.
If the Court’s ruling is on discrimination against gays and
lesbians, Hugh differs strongly. He points out that the alleged discrimination
in marriage on the basis of gender is fair, just as it is fair to discriminate
in sport on the basis of gender. Males and females are different. Therefore it
is this difference that makes marriage what it is. According to Hugh, the
Constitution makes allowances for ‘fair’ discrimination (36) (1). He cites that
Black Economic Empowerment as an example of discrimination which is fair.
4.47 Mr.
G. S and Mrs. S. E Moag
As Christians, Mr. and Mrs
Moag expresses their strong rejection of same-sex marriages, based on religious
reasons. They argue that affiliations between members of the same-sex with
sexual overtones are detestable and an abomination by the loving and gracious
God (Leviticus 18:22, Romans 1: 24 et al).
4.48 Kim
Jones
Kim Jones opposes the proposed Civil Union Bill
because it is against the will of God. She feels that the Bill represents the
interests of the minority over the majority. She is urging the Government to
listen to the majority and seek their consent rather than impose their will
against the people’s will.
4.49
Willem Pretorius
Willem Pretorius believes that it is wrong and sinful
to equate same-sex unions with traditional marriage. For those that stand to
benefit from the passage of this Bill, his advice is “Please honour the
Biblical definition of marriage and get right with God; for there is such a
thing as judgement day and those found guilty of transgressing God’s Law will
spend eternity in hell. This does not have to be the case for you – Repent and
trust in Jesus, Luke 13:5 and John 3:16.”
Mr. Frances Bardone submits that the term ‘marriage’
must never be used to describe a union between two people of the same-sex.
4.52
Hans Potgieter
Mr Hans Potgieter points out
that for the sake of equal treatment of all citizens and in upholding the Bill
of Rights legislators should sign the Civil Union Bill into law. He also feels
that an alternative arrangement will be contrary to the spirit of the Bill of
rights as defined by the Constitutional Court.
4.53 Leslie
Cottle Green
Mr. Leslie Cottle Green’s concern is based on the
biblical principle of marriage as between a man and a woman. He argues that in
countries where same-sex marriage has been legalised, the result has been a
breakdown in family life and an increase in psychological problems connected
with such families.
Mr. Green warns that the wrath of God is being
revealed from heaven against all the godlessness and wickedness of men. Because
of that, God has given people over to such deviant behaviour as part of the
revelation of His wrath. They exchanged the truth of God for a lie, and
worshipped and served created things rather than the Creator, who is forever
praised.
Once again, Mr. Green warns that God’s laws are not to
be trifled with. He has given authority to governments, legislators and all in
authority and thus they are responsible first to Him, their creator, and then
to the people they serve. It would be tragic to see God giving them over to a
complete disregard of His ordnances and to those things He expressly forbids.
Mr K. G. Turner’s request is that a Constitutional
amendment that protects the traditional definition of marriage deals with the
demands of the Constitutional Court ruling. According to him, this will satisfy
the need to protect both traditional marriage and the rights of those in same -
sex unions.
4.55 Mrs.
J. E. Bott
Mrs. J. E. Bott rejects the inclusion of ‘same-sex
marriages’ into the Marriage Act. Her main concern is to protect the biblical
concept of marriage as a voluntary union between a man and a woman. It is in
the interest of a stable and healthy society to protect this universally
accepted definition of marriage.
Mr Gillian Kreutzner is opposed to the passing of the
Civil Union Bill and would rather prefer a Constitutional amendment that will
preserve the traditional definition of marriage as between a man and a woman.
The marriage between people of the same-sex is according to Mr. Kreutzner, a
sin. Gillian cautions against the long-term consequences of legalising same-sex
unions in the future generation.
4.57 Mrs
Jill Douglas
Mrs Jill Douglas is opposed to the passing of the
Civil Union Bill and proposes a Constitutional amendment to address the issue
of same-sex marriages.
4.58 Shaun
Steyn
Shaun Steyn opposes same-sex
marriages and urges Parliament to also oppose the passing of the Bill.
According to him, it is of utmost importance that the country preserves the
traditional definition of marriage as between a man and a woman.
Aneesa maintains that the idea
of same-sex marriages is against all faiths and denominations. Should Members
of Parliament fail to show or register their disapproval, they will certainly
be responsible for inviting the wrath of the Creator on this part of the world.
According to Aneesa:
·
God did not create Adam and Steve
but Adam and Eve.
·
This filthy abhorrence emanate from
none other than the Godless Europe who display a veneer of Christianity for
their evil ways.
·
If Parliament does not oppose this
attempted evil, it will be displaying its enslavement to that side of humanity
that has been murdering, plundering, looting and raping the rest of the
children of Adam for the last five centuries.
4.60 Barbra
Watt
Barbra Watt raises a complaint
about the sudden change of venue for the public hearings on the Civil Union
Bill, alleging that this is a deliberate attempt to prevent people from going
to the hearings since it will be difficult to organise transport. Nonetheless,
Barbra registers her concerns on same-sex marriages arguing that the majority
of South Africans are against same-sex marriages and believes that marriage was
instituted by God and will always be between a man and a woman.
4.61 Pastor Errol Naidoo[5]
Pastor
Naidoo opposes the passing of the Bill based on the religious reasons explained
below:
Marriage is the most fundamental of society’s institutions
and serves as the foundational building block of all civilisations. For more
than 5,000 years, the institution of marriage has been the cornerstone of
civilised society. Traditional marriage, in which one man and one woman create
a lasting community, pass on values of the past to secure the promise of the
future.
The redefinition of marriage will not only radically deviate
from the African family context but will also deviate from the familiar concept
of marriage and family as practised by the majority of faiths and people in South
Africa.
The Christian Church’s opposition to the redefinition
of marriage is neither prejudicial nor discriminatory. The Church cannot call
for a ban on same-sex marriage because it is a non-existing phenomenon. The
Church’s opposition to same-sex marriages does not discriminate against
same-sex couples its appeal for the protection of marriage thereby does not
violate section 9 (3) of the Constitution. Marriage has always been properly
and appropriately discriminatory when it prohibits marriage within the family.
It is therefore erroneous to assert that same-sex couples are being denied the
right to enter the marriage union when the immovable foundation of the natural
law dictate that marriage is by definition a heterosexual institution. Marriage
is by definition, is a union between one man and one woman and they are the
only category that can procreate. Therefore, limiting marriage to one man and
one woman cannot be construed as discrimination, rather it is a necessary
condition of a marriage. It is the Church’s obligation to protect the sanctity
of marriage based upon creation, nature, human physiology, the authority of
Scripture, the protection of families and the safeguarding of people’s ability
to build a strong sustainable society on good moral values.
The marriage institution is the best way to guarantee
the rearing of children in a safe and loving environment, sustaining
civilisation and building the future. Worldwide research has consistently
indicated that the rearing of children within the environment of a traditional
family unit produces best results.
In addition, biblically, marriage is neither a
man-made nor a human right, it is a God-given gift and a privilege. Thus there
is no law, State or church that invented marriage. They only recognise marriage
as a pre-existing creation ordinance rooted in biological and social realities.
Governmental authorities only put laws to protect it, therefore it cannot
change or redefine marriage as same-sex advocates require.
Redefining the institution of marriage to include same-sex
couples would effectively require the complete alteration of society to fit the
same-sex couple’s view of human sexuality. The majority of South Africans of
all faiths hold the natural and traditional definition of marriage.
Consequently, redefining traditional marriage will in essence be rejecting the
will of the majority of South Africans, to appease the minority. This also
undermines the constitutional rights of South Africans who uphold the
traditional definition of marriage.
Paragraph 147 of the Constitutional Court’s ruling
states, “There are accordingly two firm proposals for legislative action
that would appear to be ripe for consideration by Parliament. The simple
textual change pleaded by the Equality Project and the comprehensive
legislative project being finalised by the SALRC, do not however, necessarily
exhaust the legislative paths, which could be followed to correct the defect.
In principle, there is no reason why other statutory means should not be
found.”
In light of the above quote which refers to “other statutory
means” to address and correct the defect in the law, a Marriage Protection
Amendment should be included in the Constitution, which would define the
institution of marriage as a union between one man and one woman.
Significantly, this amendment will not only provide marriage with the
constitutional protection it deserves, it will also serve to ensure that the
future generation will be guaranteed the benefits of a safe, loving and
nurturing environment that only the natural and traditional family unit can
provide.
Pastor Errol appeals to the political leaders to
recognise and take cognisance of the legitimate beliefs and concerns of the
majority of religious groupings in South Africa.
Mr. Rapelang Ramosa recommends the protection of Ministers
of Religion on grounds of conscience. The Bill does not adequately protect
marriage officers who are Ministers of Religion and who may not want to
solemnise civil partnerships for reasons of conscience. Mr. Ramosa thus
proposes that existing marriage officers designated under the Marriage Act of
1961 be registered upon written request under the Civil Union Bill for the
purpose of solemnising civil partnerships. By default, therefore, existing
marriage officers not registered would not be obliged to solemnise civil
partnerships.
Mr. Modisa Mzondi calls for political leaders to be
cautious of the distinction between principles and policies. Principles do not
change and they shape the moral value of the society. Policies, on the other
hand, advocate on what can be changed. Mr Mzondi recommends strict measures to
curb pornography.
Mr Horst Müller opposes the redefinition of marriage on the
grounds that the definition of marriage has always been that of a union between
a woman and a man. If a government wants to change the legal status of other
unions, it should not change the definition of marriage but rather create a new
term, such as the proposed “Partnership”. Changing the meaning of marriage
ignores all major cultures and religions on this issue.
Rob Bircher Bircher submits that the Church welcomes
same-sex relationships. Nevertheless, the Church opposes redefinition of
marriage to accommodate same-sex marriage. Marriage, by definition, is the
legal union of two people of opposite sex. Heterosexual marriage has always
been one of the cornerstones of society and of the family and therefore it will
be harmful to change the composition of that cornerstone.
Amanda Jones submits that the Church opposes the amendment
of the Marriage Act to incorporate same-sex marriages. Recognising same-sex
marriages, broadly speaking, would imply that other practises, such as
polygamy, group marriage and other alternative unions can be legalised. Also,
recognising same-sex marriages would have implications on the moral values
being taught to children.
Mr. and Mrs. Terblanche strongly oppose the redefinition of
marriage to include same-sex marriages. Same-sex unions should be legislated
under a different law and be given a different name to marriage. Marriage
should remain defined as a union between one man and one woman.
Mr D. Leff expresses that support of the South African
Pagan Rights Alliance for the transformation of the Marriage Act, especially
with regard to the redrafting of the existing discriminatory clause in the Act.
B. S. Stephens submits that marriage is a voluntary union
between a man and a woman. If the Constitutional Court should deem that
same-sex union requires recognition of a contract, that union should be called
a same-sex civil contract, not marriage.
Mr M. B. Moabelo opposes same-sex marriages on the
grounds that recognising it would create confusion in youth in that, one side,
the political leaders call for moral family lifestyles and on the other side
they condone what the youth knows as immorality, that is, same-sex
relationships.
Cllr Strauss opposes same-sex marriages, based on
religious reasons quoted in the Bible, that is, 1 Corinthians 6:9-10, which
says, “ Do not be deceived: Neither the sexually immoral nor adulterous male
prostitutes nor homosexual offenders…will inherit the Kingdom of God.”
Ms. Boshigo Matlou opposes the adoption of the Bill,
based on biblical reasons. Marriage is a union between a man and a woman
primarily with the objective to procreate. Ms Matlou further opposes
unregistered domestic partnerships as a way of promoting co-habitation.
4.74 Mr. Jurgen Doll
Mr. Jurgen Doll opposes the redefinition of marriage on the
grounds that the existing definition of marriage is not in conflict with the
Constitution. The fact that the law does not cater for certain unions and
therefore is in conflict with the Constitution does not make the definition of
marriage incorrect. It is the law that is inconsistent not the definition. Mr.
Jurgen Doll argues that the solemnisation of same-sex unions may mislead the
public into referring to unions in general as marriages, since they are also
solemnized by a marriage officer.
4.75 Ms
Dieter von Fintel
Ms. Dieter von Fintel opposes the adoption of the Civil
Union Bill, based on personal experience of having engaged in same-sex
relationships. Same-sex relationships do not contribute towards building up
individuals or families. Families are building blocks in a society. Because
society no longer protects the family, the problem of crime, rape and street
children has intensified.
Mr. Stuart Sue opposes the passing of the Civil Union Bill
and proposes that Parliament adopts a Constitutional amendment that will
preserve the traditional definition of marriage as between a man and woman.
4.77 Mr.
Rosh Sewpersad
Mr Rosh Sewpersad holds the view that laws have to be made
consistent with the rights and values entrenched in the Constitution. However,
he rejects the concept of civil unions and proposes that marriage should be
open to all.
4.78 Ms
Nazeer Cassimjee
Ms
Nazeer Cassimjee opposes the passing of the Civil Union Bill due to religious
reasons that God only created a union between a man and a woman.
4.79 Ms
Gill Gibson
Ms Gill Gibson raises dissatisfaction with the organisation
and location of the public hearings. In KwaZulu-Natal they took place in a
rural agricultural community in New Hanover. Dates were also changed, resulting
in some people not being able to attend the hearings. The population of
KwaZulu-Natal was therefore not properly represented and the public was not
given a meaningful opportunity to participate.
Ms
Gibson opposes the passing of the Civil Union Bill, based on the following
reasons:
§
Marriage is an institution between one man
and one woman who are committed to each other for life for the purpose of
mutual companionship, support and procreation.
§
The Civil Union purports to provide an
alternative solution to the problem of legal rights in respect of inheritance,
property and finance for those who have not traditionally been granted the
right to marry (same-sex couples). However in section 11.1, it makes it clear
that “civil partnerships” can be regarded and registered as a “marriage” should
couples wish so. This according to Ms Gibson is fraudulent.
§
Section 11.1 seems contradict with section
8.2. The question is, if a person cannot be a party to a civil partnership as
provided in section 8.1, how then can that civil partnership be registered as a
marriage as stipulated in section 11.1?
§
South Africa is experiencing many social
ills, which is a direct result of the breakdown of family life. The family has
always been considered the basic unit of society, a place where children learnt
more values and relationship skills as modelled to them by a mother and a
father, working together in partnership to provide for the nurturing of the
children. Family life in South Africa is already threatened by easily available
divorce, apartheid and the history of the migrant labour system, the passing of
the Bill will thus add to the breakdown of family life.
§
The Bill undermines the institution of
marriage by making provision to legitimise relationships outside marriages
through both domestic partnerships and civil partnerships.
4.80 Ms
Nompumelelo Hlatshwayo
Ms Nompumelelo Hlatshwayo moves along Christian and
religious values to suggest that such a marriage (homosexual) is unholy and
against the bible and God’s will. Secondly, she suggests that by doing so the
Government will create an abnormal society because marriage is an agreement
between a man and woman.
4.81 Pastor
Samt Smith
Pastor Samt Smith’s argument is framed within religious
values. as it opposes the proposed Bill and suggests that a referendum must be
called to test the public’s opinion on the matter.
4.82 Pastor
Shipalana
Pastor Shipalana moves from a cultural and religious point
of view to suggest that this is against South African people is culture and is
punishable in the eyes of God. According to the Pastor, marriage amongst
others, is meant for reproduction. However, in this case it is impractical.
4.83 Bret
Whall
Bret Whall opposes the Civil Union Bill due to the fact that
marriage is meant to be a union between a man and woman. Marriage amongst
others, is meant to produce children within a stable environment. This implies
that homosexual marriage is incapable of attaining the afore-mentioned goal.
4.84 Brett
Anderson
Brett Anderson is a student Pastor at the university of
Stellenbosch. His argument is framed within religious and Christian beliefs and
values and suggests that it is a union of a man and a woman that has a legal
standing. This suggests that extension of the concept to include homosexual is
not within the interest of God. According to Brett, to oppose the Bill should
not be misconstrued
to suggest discriminatory action against homosexual people, rather for the
protection of marriage and ensuring that is accorded the respect it
deserves.
4.85 Brian
Johnson
Brian Johnson suggests that tradition should be supreme to
everything. Thus, any accommodative approach in this regard would be
detrimental to society. He submits that the Bill should not be modernised in
order to sanctify same-sex marriage.
4.86 Brendon
Theunissen
Brendon Theunissen argues that the proposed Bill will
encourage immoral behaviour within society, which will move from generation to
generation. It will thus be morally incorrect to enact such amendment. The
legislation will have negative impact on the institution of marriage, which
serves as a fundamental block to society.
4.87 Francois
Williams
Francois Williams is arguing along a traditional perspective
to suggest that legislating the proposed amendment Bill will disturb the
traditional healthy marriage, which serves as a block for good societal
behaviour and a vibrant society. In this context, he argues that Government
should preserve the traditional definition of marriage for a healthy and moral
society.
4.88 Anthony
Caetano
Anthony Caetano argues that marriage is defined legally,
therefore people should not use legislation to promote homosexual orientation.
In justifying his input, he argues that inclusion of homosexual marriage to
heterogeneous marriage is tantamount to abuse of power. Thus, the current
understanding and definition of marriage should be left untouched.
4.89
Lynne Rose and J. M. Adams
Lynne Rose and J. M. Adams support the proposal for a
Constitutional amendment as proposed by the Marriage Alliance of South Africa
in order to protect the concept of marriage.
4.90 R.
J. Gooch and E.W. Gooch
R. J. Gooch and E.W. Gooch submits that their argument is a
result of a broader consultation with various religions and theological
perspectives to suggest that marriage of homosexual individuals would not add
value to the acceptable moral standards.
4.91 Kamil
Karam, Elsa Karam, Elizabeth Karam, Peter Karam, Cedric John, Jenna, Alan John,
Jacqueline John and Jared John
Kamil Karam, Elsa Karam, Elizabeth Karam, Peter Karam,
Cedric John, Jenna, Alan John, Jacqueline John and Jared John are suggesting
that instead of incorporating the civil union into the Marriage Act, a separate
Bill can be developed. Their argument suggests that it is unnecessary to tamper
with the Marriage Act. For compliance purposes, as expected by the
Constitutional Court, a new separate Act can be developed. It is believed that
this will ensure that homosexual individual’s needs and rights are catered for
and the traditional marriage institution is unaffected.
4.92 Dino
Vieira
Dino Vieira suggests that the Webster dictionary correctly
defines what marriage is. According to Vieira, the definition should be
maintained, as it contributes towards the nation’s development through the
reproduction of children. His submission suggests that Parliament should not
pass the Bill, based on the afore-mentioned reasons.
The Portfolio Committee on Home Affairs received a
total 5 822 petitions in response to the Civil Union Bill. The memorandums and
the petitions received indicate that many people are opposed to the Bill.
About 4091 petitions from individuals and
organisations call for a change of the Constitution to confirm that marriage
can only be between a man and a woman. Again, about 1731 calls on Parliament to
ensure that same-sex couples are allowed to be married and are afforded all the
legal benefits and consequences of marriage, in keeping with the Constitution
of South Africa
A few examples of the memorandums and petitions are
explained in the section below.
5.1 The
Triangle Project
The Triangle Project calls on Parliament to ensure
that same-sex couples are allowed to be married and are afforded all the legal
benefits and consequences of marriage, in keeping with the Constitution of
South Africa. The petition expresses the organisation’s disapproval of the
Bill, based on the following facts:
·
The Bill fails to grant same-sex
couples the same dignity and recognition, as well as rights that marriage
offers to heterosexual couples.
·
The fact that the relationships of
same-sex couples should be treated separately to heterosexual relationships is
contrary to their constitutional rights to equality, dignity and freedom, and
thus undermines the notion of an inclusive and tolerant society.
5.2 Abdullah Saeed
Abdullah Saeed submitted a memorandum of people who argue
that the passing of laws should be the exclusive responsibility of Parliament.
They also indicate that Parliament should take into consideration the views of
the majority of the people in South Africa who still regard marriage as between
a man and a woman.
The Church of the Resurrection Anglican Church in
South Africa submitted a memorandum of signatures from individuals and
organisations calling for a change of the Constitution to confirm that marriage
can only be between a man and a woman.
5.4 Jenny Harrington, Mike Harrington,
Theresa Lange, Nicole Strydom, Greg Strydom, Teryl Harrington, Laurin Willson,
Sean Willson, Keegan Willson, and the Secular Franciscan Order of Society
The above families and the Secular Franciscan Order of
Society oppose the Civil Union Bill. They argue that marriage needs to be
protected as a secret union between a man and a woman.
They indicate that the ruling by the judiciary undermines
the respect for marriage and creates a confusion that will damage the respect
for marriage.
6. CONCLUSION
Various organisations including the
human rights groups, gays and lesbians fraternity and some Christian church
organisations and individuals rejected the Civil Union Bill because they
believed that it was not subscribing to Bill of Rights found in the
Constitution. Homosexuals would not be given equal treatment as heterosexuals.
This infringes on their right to freedom, sex or sexual orientation. They
wanted gays and lesbians to be treated the same and given the same status of
marriage as heterosexuals. Hence section 30 (1) of the Marriage Act,
1961, should include the words “or spouse” after the words “or husband”. On
the other hand, Christian groups and traditional leaders were opposed to same
sex marriage, as they believed it violates a traditional institution of
marriage that is a union between a man and a woman. They wanted the
Constitution to be changed to protect a traditional institution of
marriage.
Domestic partnerships were given the
support by those who believed that it would protect women. However, those who
hold a traditional view of marriages opposed it for the fact that it would kill
lobola in a traditional marriage.
1 The Committee had decided to visit Polokwane again since there was few people during the first hearings held on 21 September 2006 due to a short notice of the event.
[1] Activate WITS, Behind the Mask, Durban
Lesbian and Gay Community and Health Centre, Forum for the Empowerment of
Women, Gay and Lesbian Archives, Gender DynamiX, Good Hope Metropolitan
Community Church, Hope and Unity Metropolitan Church, Jewish OUTlook, LEGBO
Northern Cape, OUT LGBT Well-being, Out In Africa South African Gay &
Lesbian FILm Festival.
Rainbow UCT, Triangle Project and XX/Y Flame.
[2] Christian Citizenship’s Committee Resolutions 2006.
[3] Submission endorsed by the Triangle Project, the Gender Equity Unit (UWC), the Constitutional Monitoring Project (UWC), the Law Students’ Council (UCT), Rainbow UCT and Professor Drucilla Cornell, Rutgers University, New Bruinswick, USA.
[4] Citation from Goodridge v Department of Public Health Advisory opinion of the Supreme Court of Massachusetts (2003) in Reader at 117.
[6] On behalf of the Hilton Assembly of God
[7] On behalf of the Reaching Out Ministries
[8] On behalf of the South African Pagan Rights Alliance
[9] On behalf of the Sebešong Le Kgorong (SLK) organisation