PRIVATE
MEMBERS' BILL PROPOSING CONSTITUTIONAL AMENDMENT 21 OCTOBER 2006 STEVEN SWART
ACDP MP
As pointed out
by Constitutional Court Judge Sachs in the Fourie matter, the issues relating
to same-sex unions touch on deep convictions and evoke strong emotions. The
ACDP's opposition to same-sex marriages arises from our beliefs and firm
commitment to protect traditional marriage - to be pro-marriage and pro- family
values.
The ACDP believes that the traditional concept of marriage as that between a
man and a woman should be constitutionally protected -as requested by the
Marriage Alliance representing some 70 - 80 denominations and millions of South
Africans, as well as other organizations, including the influential National
House of Traditional Leaders.
We are not homophobic and will always have compassion for those marginalized by
society. That does not mean we are prepared to compromise on our beliefs
regarding the sanctity of marriage.
Indeed Judge Sachs stated in the Fourie case: "... it would be wrong and
unhelpful to dismiss opposition to homosexuality on religious grounds simply as
an expression of bigotry to be equated to racism”
The ACDP shares the view argued in the Constitutional Court that- "to
disrupt and radically alter an institution of centuries-old significance to
many religions, would accordingly infringe the Constitution by violating
religious freedom in a most substantial way."
The Constitutional Court acknowledged that the state does have an interest in protecting
the institution of marriage:
"It is true, as previously indicated, that the protection of family and
family life in conventional spousal relationships is an important government
objective."
See also Judge Skweyiya's comments in the Volks case:
"Marriage and family are important social institutions in our society.
Marriage has a central and special place, and forms one of the important bases
for family life in our society"
Judge Sachs also stated that the "remedy must take into account the
populations religious sensitivities and convictions regarding marriage and also
must protect the religious freedoms of such people,"
and that "... in the open and democratic society contemplated by the Constitution...
.the religious beliefs held by the great majority of South Africans must be
taken seriously."
Thus the attempt to limit the rights of religious groups to accommodation in
private space is disingenuous and not in keeping with our constitutional
framework - we do not have the strict separation between church and state as in
Canada and the USA.
Whilst the ACDP appreciates that the proposed Civil Union Bill is an attempt to
meet the requirements of the Constitutional Court following the Fourie
decision, we cannot support the far-reaching provisions that allow for the
solemnisation of same-sex partnerships or the reference to such partnerships as
marriage. The Court prescribed that a legislative framework be set up to grant
same sex couples the same benefits and status that accorded to heterosexuals.
This has led to the bill presently before parliament. We, together with
millions of South Africans believe the bill goes too far - the gay lobby
believes it has not gone far enough and has indicated it will challenge the
bill in the Constitutional Court.
However, we are all aware that 1 December looms when, should no legislation be
passed, the default position kicks in and the Marriage Act will be amended.
Should the bill be passed in its current form, preferably with the reference to
marriage deleted - we would accord with international best practice, which is
civil unions. Additionally, a constitutional amendment would then assist the
State in meeting any constitutional challenge on the issue of marriage as
opposed to civil union rights.
What is marriage?
The ACDP believes that vital questions regarding a venerable institution of
society - in this instance the institution of marriage - were not adequately
explored during the court hearings. Questions such as: What is the essence of
the nature of the institution of marriage? Is it an institution that originated
prior to the state and is therefore ex post facto approved and legalized by the
state, or was marriage given birth and form by the state? Who really should
have capacity to marry and why? What legal principles and guidelines are to be
used to determine this?
International law
Same-sex marriages are recognised in very few states in the world, and as
argued by this very government in the Appeal Court, we will be out of
step with the rest of the world if we allow same-sex marriages. No other
African state allows same-sex marriages.
In general, it is unequivocally clear that international law instruments
recognize the heterosexual institution of marriage and the rights of children
to be raised by their biological parents. For example, although the New Zealand
Charter provides for an even stronger right for gays and lesbians than the
South African Constitution; that is, the Charter provides for a positive right
to not be discriminated against on the basis of sexual orientation whereas our
Constitution provides for a negative right; the New Zealand government has not
recognized same sex marriages and challenges to the International the Human
Rights Committee on the ICCPR concluded that its inclusion did not sanction the
recognition of same sex marriage.
Our Constitution does not protect freedom of sexual orientation as a basic
human right. It is not a right; it is only a ground on which unfair
discrimination is prohibited.
Many US states have passed amendments to their constitutions defining marriage
as the union of a man and a woman. The high water mark is civil unions, not
marriage. Last week the California High Court (3 judges) upheld a
constitutional amendment banning same sex marriage. It is interesting that the
court noted that the people and not the court through legal fiat should make
the law. The New Jersey Supreme Court, in a 4-3 decision, also ruled last week
that "there is no fundamental right to same-sex marriage."
Uganda and Nigeria have passed laws forbidding same sex marriages, with Uganda
amending its constitution."
South Africa has gone further than the international norm in allowing full
solemnisation of same -sex unions. This the ACDP and millions of South Africans
cannot support.
Rights of the child
Section 28 of our Constitution states that child's best interests must be
adhered to. It is significant that the French Parliamentary Commission earlier
this year ruled against same-sex marriages to protect children, citing article
7 of the UN Convention on the Rights of the Child, stating that "the best
interests of the child must prevail over adult freedoms... even including the
life-style choices of parents."
44 pieces of legislation impacted
"In the Fourie case the 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, 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
gays and lesbians 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."
General
The ACDP holds the view that whatever arrangements the State makes to recognise
such partnerships or unions, it should not do so in a way that denigrates the
institution of marriage and the family.
"Our view is that by recognising all sorts of other relationships, even
for heterosexual couples, the bill does exactly that; it undermines and
devalues the institution of marriage"- the Marriage Alliance of SA;
and
" . . . (A) constitutional amendment defining marriage as a voluntary
union of a man and a woman is the only way in which Parliament can effectively
protect marriage - whatever other arrangements it may decide to make..."-
the Marriage Alliance of SA.
The National House of Traditional Leaders makes a similar call stating that as
much as the Civil Union Bill "tries to address the decision of the
Constitutional Court, it disregard our culture, custom and tradition of the
majority of the
people of south Africa... The Bill does not have regard of the beliefs of
millions of Christians who believe that a marriage is between a man and a
woman. ... .the Bill must not be passed by parliament instead a Constitutional
Amendment be made."
The ACDP embraces the Biblical standard for marriage and the family: that is,
that marriage was instituted by God and is intended to be the life-long union
between a man and a woman11 - it is a covenantal relationship12. .
History, nature, social science, anthropology, religion, and theology all
coalesce in vigorous support of marriage as it has always been understood: a
life-long union of male and female for the purpose of creating stable families.
We fully recognise that the family as an institution is under immense strain
and in many respects there is a breakdown of marriage and the family
structure:. We therefore strongly urge the observance of Biblical guidelines
for keeping marriages and families healthy and intact. That does not mean that
traditional families should be ignored - indeed the state has a responsibility
to
protect this important foundation of society
Marriage is not a South African invention. It has existed as an institution
since the beginning of civilization, and thus supersedes our modern laws. The
ACDP consequently believes that the state or other organs, like the courts,
cannot change the definition of marriage, but can only recognise it in its
existing and traditional form. As one presenter put it - who do we think we are
that with one stroke of the pen we think we can redefine a centuries old
institution without the most dire of consequences.
There are also important reasons why protecting heterosexual marriage is in
the interest of society: it recognises a social pattern that every civilised
society has adopted in order to propagate the human race and raise children.
Laws protecting marriage do not impose a religious belief, but are based on
rational moral principles and historical evidence showing that the protection
of the family promoted the public interest.
Cultural anthropology has taught that heterosexual marriage has always been the
assumed norm for all societies on earth. The idea of homosexual 'marriage' is a
modern aberration spurred on by Western society's "Iiberalised"
self-developed value systems. This humanist ideology rejects all moral and
cultural knowledge passed down from generations, and conflicts with indigenous
law in Africa.
Furthermore the five major world religions, Buddhism, Christianity, Hinduism,
Islam, and Judaism recognize and uphold the natural, heterosexual understanding
of marriage. The religious ceremony whereby marriages are blessed as a sacred
covenant for the propagation of children is a crucial part in these
celebrations. By contrast, these religions teach that same-sex marriage is
morally unacceptable. It is disgraceful that Hindu and Muslim marriages are not
properly recognised whilst so much attention is given to same-sex unions.
Marriage is unquestionably good for individuals and society. It is a sacred
union, ordained by God to be a life-long, sexually exclusive relationship
between one man and one woman. It deserves respect and protection.
In view of the Constitutional Court decision, the ACDP has consistently stated that
the only way to protect traditional marriage is by means of a constitutional
amendment. This is the reason for this' Private Members' Bill -seeking a
constitutional amendment to protect the common law definition of marriage as
being the voluntary union of a man and a woman.
Regrettably, due to time considerations, it is unlikely that this proposal will
be finalised before the 1 December cut-off date. MP's should be given the
opportunity to consider this proposal as a possible option. The Marriage
Alliance, consisting of 70 to 80 denominations and representing some 20 million
people has called for a constitutional amendment.
I would then humbly move that this Committee resolve that it is desirable to
continue the debate on this issue and that the Home Affairs Portfolio Committee
be consulted as that Committee is the lead Committee on the issue and is
dealing with the Civil Union Bill. Many submissions that have requested a
constitutional amendment are being dealt with by that Portfolio Committee.