South African Council of Churches


P.O. Box 62098 MARSHALLTOWN 2107

Phone: +27 11 241 7800      Fax: +27 11 492 1448

Submission on the Civil Union Bill [B 26 – 2006]



The confusion between civil marriages and religious marriages in South Africa


The historical context for developing viable options that recognize same sex unions or civil marriages lies within the confusion of church-state relations as well as faith and politics since time immemorial. South Africa has not, like most other contemporary nation–states, for the past three centuries (and more)  been immune to this. It is within these parameters that currently the attempt at unraveling the discussion on civil unions, civil marriages and religious marriages takes place. Some recent examples of how the Churches have been confused – while at the same time blessing the state provisions of marriage in SA – are through their acquiescence to The Prohibition of Mixed Marriages Act, later amended to become the Immorality and Prohibition of Mixed Marriages Amendment Act. These pieces of legislation were used to craft the religious basis for apartheid philosophy and social engineering at the same time prohibiting interracial sexual relations, personal associations and ultimately, marriage. 


We need, however, also to recognize that while the apartheid regime subsumed religion into the legal recognition of marriage, the essence of racial inequality based on the superiority of colonial settlers and their religion cemented this background into our current context. This backdrop maintains its hold on the Marriage Act as well as on civil law governing the interpretation of marriage and family-related law. As a matter of historical interest, the earliest recorded legislative prohibition on marriages between “whites and natives” dates back to Governor van Rheede in 1685 and was later reinforced to include interracial marriages through the “Prohibition of Mixed Marriages Act No. 55 of 1949. While Commissioner De Mist permitted the first secular marriage in 1804, it was soon disallowed by Sir David Baird in 1806 and then reintroduced in 1838.[1]


It is for these historical reasons, amongst others, that South African faith communities have always had difficulty in distinguishing a civil marriage from a religious marriage. The recognition granted (Christian) clergy as state officials for the purpose of performing civil marriages in the Marriage Act as recently as 1961 (Act 25 of 1961) illustrates the difficulty in distinguishing between a civil marriage and a religious marriage.





Extending marriage to all – Celebrating the vineyard of equality 


In his judgment handed down on 1 December 2005 in the Constitutional Court, the case, generally referred to as the Fourie/Bonthuys judgment - Judge Sachs opened the way to fresh rethinking on how to restore the way forward for the atrophied relationship between the institution of marriage and the common law.[2] The case before him was of two women who had lived in a relationship of love, trust and fidelity toward each other for over a decade. Despite all of this, however, and because of limitation in the marriage formula, they were unable to have their relationship legally and socially recognized, registered and protected. In essence, however, Sachs realized that such inability is due in large measure not only to lack of evolution and development in the common law but also because South African society has failed to make adequate progress in advancing the provisions for the right to equality as enshrined and envisaged in our Constitution. The honorable judge therefore ruled that a serious and urgent remedy was required and recommended, with sensitivity and respect for the religious diversity of the nation, that the law play an exemplary role in promoting equality. His argument is cogent and bears quoting to the fullest extent possible as he reasoned that:


“This is a matter that touches on deep public and private sensibilities. I believe that Parliament is well-suited to finding the best ways of ensuring that same-sex couples are brought in from the legal cold. The law may not automatically and of itself eliminate stereotyping and prejudice. Yet it serves as a great teacher, establishes public norms that become assimilated into daily life and protects vulnerable people from unjust marginalisation and abuse. It needs to be remembered that not only the courts are responsible for vindicating the rights enshrined in the Bill of Rights. The legislature is in the frontline in this respect. One of its principal functions is to ensure that the values of the Constitution as set out in the Preamble and section 1 permeate every area of the law.”[3]


At the same time, Sachs argued that the common law and the Marriage Act had won for heterosexual couples extensive social, legal and psychological advantages over the years. In order to enable the gay and lesbian communities to access these privileges denied them in the past, society should celebrate rather than mourn the advent of a justice of equality that is dawning for the advancing of equality in South Africa. To this end, Sachs reasoned that:


At the heart of these principles lies the notion that in exercising its legislative discretion Parliament will have to bear in mind that the objective of the new measure must be to promote human dignity, the achievement of equality and the advancement of human rights and freedoms. This means in the first place taking account of the fact that in overcoming the under-inclusiveness of the common law and the Marriage Act, it would be inappropriate to employ a remedy that created equal disadvantage for all. Thus the achievement of equality would not be accomplished by ensuring that if same-sex couples cannot enjoy the status and entitlements coupled with the responsibilities of marriage, the same should apply to heterosexual couples. Leveling down so as to deny access to civil marriage to all would not promote the achievement of the enjoyment of equality. Such parity of exclusion rather than of inclusion would distribute resentment evenly, instead of dissipating it equally for all. The law concerned with family formation and marriage requires equal celebration, not equal marginalisation; it calls for equality of the vineyard and not equality of the graveyard.”[4]


The SACC’s Open Letter[5] to the Portfolio Committees of Home Affairs and Justice, therefore, conveys two aspects that lie at the heart of this submission. First, it supports the Constitutional Court’s decision and recommendations that parliament craft legislation that seeks to “establish public norms that … protect vulnerable people from unjust marginalization and abuse.” Second, also in line with the Constitutional Court judgment, is our concurrence that legislation so crafted ought not to interfere with the way in which faith communities recognize, celebrate or bless unions/marriages. Overall, our critique of the Civil Union Bill and recommendations to parliament are geared toward the fulfillment of the Constitutional Court’s mandate, acknowledging its sovereignty over parliament. This we do despite knowledge of religious arguments that claim aspiration toward divine sovereignty which, in turn, seek to subvert the parliamentary decision-making process, by calling for an amendment to the Constitution. The SACC considers this mode of address inconsistent with the options set out by the Constitutional Court as well as inappropriate given the constitutional and parliamentary avenues of redress open to the public.


Furthermore, the SACC believes that it is in the national interest to explore the promotion of the equality clauses, including sexual orientation, and that militating against these rights would steer us away from a path that seeks to guide the nation in its quest for genuine constitutional democracy. In so saying, we echo the words of Judge Moseneke when he addressed the SACC Consultation on Same Sex marriages earlier this year. Explaining the background to the Constitutional Court decision in December 2005 he declares that:


“We have been on a journey.  In short, every one of us has the right to be different.  It is quite clear from the constitution.  Every one has the right to speak his or her own language, to follow his or her own faith, to live his or her own life.  It is particularly important to protect this principle if the distinction is immutable, beyond a person’s conscious control. If the law seeks to treat people differently based on one particular aspect of difference, there must be clear grounds.”[6]


It is in this sense of seeking to advance the democratic journey that promotes respect, dignity and equality, the while enhancing our tolerance for difference and diversity that we speak our minds on the Constitutional Courts ruling of an amendment on the Marriage Act. Our critique of the Civil Union Bill, therefore, is based on the search for those values that are prompted by the judgment of the Constitutional Court in December 2005. At the same time we acknowledge that our Constitution and Constitutional Court hold positions of sovereignty above that of parliament. The rules of a constitutional democracy are different from those of a sovereign parliament and we encourage all to play by the rules.  


 The Civil Union Bill[7] – Chapter 2: Civil Partnerships


A “civil partnership” is defined by the Bill as a “voluntary union of two adult persons of the same sex that is solemnized and registered in accordance with the procedures prescribed in this Act to the exclusion, while it lasts, of all others” (emphasis added). The solemnization of this relationship (cf. sections 4 & 5 of the CUB) may be conducted by a marriage officer, defined as a “marriage officer ex officio or so designated by virtue of section 2 of the Marriage Act, 1961 (Act No. 25 of 1961)[8]; or … any minister of religion, or any person holding a responsible position in, any religious denomination or organisation designated as marriage officers under section 5 of this Act”. These provisions for the appointment and functions of a marriage officer mirror those defined in sections 2-6 of the Marriage Act with one explicit difference: The Marriage Act caters for opposite-sex-couples and the CUB for same-sex-couples. A further feature of striking similarity, between the Marriage Act (section 30) and the CUB (section 11) is the wording of both formulae.  In both these sets of legal provision it is clear that the definition of a union/partnership/marriage hinges on legal permissibility and social recognition. In the instance of legal permissibility both prospective partners would require proof of their national identity, marital status – including an affidavit that they are not contracted into a current marital relationship or High Court papers indicating dissolution of such, as the case may be, and/or an indication that they are not marrying within the prohibited degrees of relationship. The legal requirement for social recognition makes provision for objections to be lodged with the marriage officer (sections 23 and 29 of the Marriage Act and sections 9 and 10 of the CUB) while the presence of community - the open doors signify an acknowledgement to a voluntary and un-coerced union – providing for at least two competent, legal witnesses to such union. So, if the CUB provides for an equal institution of union/marriage, why has there been a reluctance to simply apply the Constitutional Court’s recommendation? What would be more rational and simpler than amending the Marriage Act to accommodate all voluntary unions affirmed by religious and/or civil community within the current legal parameters and degrees of relationship?


 We argue that the provisions in the CUB are precisely designed to project and differentiate between the legal status of same- and opposite-sex unions/partnerships. It was in the same gist that provision of separate amenities and institutions under apartheid were designed specially to create the impression that “separate development” provided equally for different population groups. We now know that those claims were mythical and fallacious and that much political obsession with “separate but equal” will only serve to obfuscate any assurances the CUB may make on equity. As is the case with non-Christian marriages, the CUB provides a solution of a second-class status institution to same-sex couples[9]. We therefore concur with many others – and especially with the gay and lesbian communities - that this piece of legislation not only projects inequality but is deeply and gratuitously offensive[10].


A further matter of concern that affects only same sex civil partnerships is the provision in section 6 of the CUB allowing a marriage officer, on grounds of conscientious objection, the ability to refuse to solemnize a civil partnership. Placed within the formulation of this Bill such provision has the unfortunate effect of exacerbating the unequal regard and status afforded the solemnization of same-sex partnerships/marriages. This section will be construed to infer an unequal and discriminatory provision on same sex partnerships. Furthermore, questions about the validity of equality provisions will be seriously questioned when read alongside the Constitutional provisions for racial and cultural equality. Hardly anyone today would uphold any provisions for conscientious objection of a marriage officer who would refuse to solemnize a marriage on the grounds of race and/or culture. The reality of the matter is that the Marriage Act section 31 does not compel a marriage officer to marry anyone and allows for such officer’s freedom of conscience and belief to decide on who s/he may marry anyway. Significantly, the applicable section reads as follows: 


“Nothing in this Act contained shall be construed so as to compel a marriage officer who is a minister of religion or a person holding a responsible position in a religious denomination or organisation to solemnize a marriage which would not conform to the rites, formularies, tenets, doctrines or discipline of his religious denomination or organisation.” [11]


So, the presence of a mechanism for conscientious objection already exists within the Marriage Act and such a mechanism does not necessitate on its own a separate Act.


11.The evolution of two different Acts (The Marriage Act and the proposed CUB) performing essentially the same function for two different groups of people, then, is blatant discrimination at worst and wasteful inefficiency at best. In terms of the latter, we need only imagine an already overextended Department duplicating its training processes, re-printing stationery and redoubling its human resources in order to comply with a piece of legislation that could easily be dealt with under the existing Marriage Act. One of the formulations that appears inherently contorted is the reading together of sections 4 and 5 of the CUB. Many religious denominations and organisations that may have an interest in performing civil unions will already have clergy licensed as marriage officers and, therefore, in terms of Section 4 empowered to perform civil unions. On the other hand, this clause also implies that there might be officers recognized in terms of this legislation to perform civil partnerships who are not also empowered to perform marriages. This implies that there will be a second category of state officials who will be deemed civil partnership officers. While section 5 (4)-(6) seems to imply that a person can apply to be a marriage officer in terms of this legislation. From a bureaucratic viewpoint, one could end up with the following categories of officials:

·         Marriage officers compliant with the Marriage Act;

·         Marriage officers in terms of the Civil Unions Act; 

·         Civil Union officers in terms of the Civil Unions Bill; and

·         Civil Union officers with objector status in terms of the Civil Unions Bill.


The purpose of the Bill was set out to provide for solemnization of civil partnerships and their legal consequences but the resultant disorganization through lack of definitional clarity, raises further concern about dignity, status and whether it will deliver an institution worthy of conveying the Constitutional requirements of dignity, respect and equality. What, therefore, appears to be the problem? The short answer is that drafters of this piece of legislation have gone to extreme lengths, avoiding the obvious prescription and legal solution. This would be for marriage officers – the people responsible for uniting opposite sex couples – to perform the task of uniting same sex couples. There could be, however, a further and deeper problem, namely one of semantics. The Bill avoids referring to same sex unions as marriages yet in section 11.1 allows parties to a civil union the option of requesting the marriage officer to refer to their partnership as a marriage. Once again, this is an option unique to the Civil Union Bill yet, if this is an important privilege, why is it only applicable to same sex partnerships and not accorded uniform application in the Marriage Act?


We have till now argued that elements of the CUB confuse the issue of same sex unions and marriage in that it presents another institution performing the same function for two different groups of people. As such it is unwieldy, projects an inefficient duplicity and presents a case of patently unfair discrimination. We proceed now to deal with the semantics around the word “marriage”. Some will argue that since marriage is defined within the common law as a union between a man and a woman, one could not speak logically about “same sex marriages”. They would argue the point that it would be semantically and linguistically proper to refer to such unions as “partnerships”, “civil unions” or the like. They would argue that they are discriminating fairly on the grounds of language and definition. As an example they might say, Prince Charles will never become queen of England because, in standard linguistic usage, a queen is a woman and Charles is not. So, it would be fair to speak about unions of the same sex as something other than “marriage”. This resort to a definition to bolster discrimination may be a linguistic and semantic victory but ought not be allowed as a necessary and sufficient condition for denying gays and lesbians access to the legal, social, spiritual and psychological status long enjoyed by opposite sex couples. A glimpse at some descriptions of marriage within the marriage formulae of several denominations has, amongst others, some common characteristics. Marriage is frequently defined as “ … a gift from God”, “a lifelong unity of heart and mind, comfort and companionship, enrichment and encouragement, tenderness and trust.”[12] Marriage is also seen as promoting God’s purpose as a “way of life … wherein we may know the security of love and care and grow toward maturity.”[13] Through this way of life, “children may be nurtured, family life strengthened and human society enriched.”[14] When we remove the religious veneer on these definitions the salient characteristics of marriage in contemporary society would be the promotion of a way of life based on mutual love, respect and loyalty. It also more contemporarily includes aspects such as public support, legal recognition of the personal, economic and propertied relations of the persons who volunteer to live in this union. These characteristics are by no means gender-specific. Indeed, the only characteristics which are gender specific are related to procreation. And maintaining these as key or sole characteristics of marriage are highly debatable and demeaning to those who might be unable for one reason or another to bear children. A further element sought to bolster the claim of fair discrimination against same sex couples is the argument that resorts to the definition of marriage as an immutable, unchanging institution. While it may be true that opposite sex marriages have been a constant factor of marriages, many other elements have changed. One such random example of change is the disappearance in modern time of the authority, in Roman Law granted the husband as paterfamilias over his wife and children[15]. This authority was absolute, even to the point of death. In terms of promoting modern alternatives to violence as means of conflict resolution, the recognition of women having equal standing in home and society and the rights to care and protection of children, none would wish to return to such defining characteristics of family life. Many other examples could be given but suffice it to say that the concepts of marriage and family have dynamically evolved over time just as much as language and culture display the dynamic of change. So, it is hard to accept the argument that by definition of marriage the Constitution and common law should fairly discriminate against same-sex couples who seek the social, psychological, spiritual and legal protection that marriage has provided to opposite-sex couples over the ages[16]. Marriage is also perceived to be an institution that is socially beneficial and, admitting gays and lesbians to such an institution would affirm, rather than diminish it. Indeed, Emeritus Bishop David Russell argues strongly that, if we do not admit lesbian and gay people to the blessings of marriage, we have no way of encouraging same-sex couples to establish faithful, lasting and loyal relationships[17]. Failure to do so indicates the inability of the faith community to celebrate the difference of gays and lesbians as well as their sexuality within God’s love. These are moral and theological arguments. To a great extent, they have their rightful place within the spheres of practiced religion (as is permitted by the Constitution) and not as a definitive basis for the legislature. As indicated in the Open Letter, this submission speaks, not from a monolithic foundation but rather from a consultation of voices that constitute a plethora of opinion on sexuality, family and marriage. It would be unfair to our constitutional democracy, therefore, to single out a particular section of (Christian) religious opinion or dogma for the guidance of law-making process on constitutional equality for same sex partners.[18] Suffice it to say at this point that our understanding is clear. The state has a duty and obligation to provide for the registration, recognition and protection of ALL unions/marriages within the national populace. This point had strong support from the SACC’s consultation on Same Sex Marriages earlier this year.


The faith/religious communities, it needs to be pointed out on the other hand, are well protected by our Constitution from any incursion or proscription the State may want to make into the realm of religious belief, practice, or organisation. Judge Sachs has made this point abundantly clear[19]. On the one hand, the Churches’ formularies, moral and theological arguments do not institute necessary or sufficient reason for the legislature to regard an amendment to the Marriage Act - that may seek to admit gays and lesbians to a union or marriage – as unfair discrimination. On the other hand, the State should not seek to formulate legislation (not that we believe that it intends to do so) that might impinge upon the beliefs, doctrines and practices of any faith/religious community or organisation.

The Civil Union Bill - Chapter 3 - Domestic Partnerships


14.The SACC has, however, spoken out in the past against the concept of introducing a registered domestic partnership[20]. Our primary objective in considering the merits of domestic partnerships is to examine the impact of the practice on vulnerable partners – largely, but not exclusively, women. We believe that registration of such partnerships on their own would do little to extend greater protection to vulnerable partners. While there is merit in the registering of a partnership that would otherwise remain legally unrecognized and unprotected, it provides for lesser degrees of commitment and obligation resulting in a down-scaled version of union/marriage. Our objection to such a partnership is that it would undermine the significance of marriage – far more than same-sex marriage/union which is viewed by some Christians as a “threat” to the institution of marriage.


15.In terms of the Constitutional Court ruling, however, proposing domestic partnerships fails to meet the criterion of extending the full benefits and recognition of marriage to couples united in religious ceremonies that are not Christian. In this arrangement legal rights are fully secured if and when such couples enter into a registered domestic partnership. In the same way that the proposed civil unions present a second class status to same sex partners, domestic partnerships present less of a solution in terms of the spirit and letter of section 9 of the Constitution.


16.The SACC would, however, support giving courts the authority, ex post facto, to determine the existence of an unregistered domestic partnership based on objective criteria. This would give recourse to partners deprived of security and/or livelihood by the break up of a domestic partnership or the death of one partner. It would establish the ongoing responsibility of the partners toward each other, even where one or both partners have been reluctant to accept the responsibilities associated with marriage.




17. Judge Sachs ruled decisively that a “legislative remedy” would need to be crafted that deals with social and legal discrimination that prevents same sex partners from entering into a union/partnership that is as socially, spiritually and legally ratified as marriage is for opposite sex partners. In possible recognition of the fact that such a step would require social, political, legal and spiritual redress, Sachs ruled that:

“In the present matter, this means that whatever legislative remedy is chosen (it) must be as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of the intangibles as well as the tangibles involved. In a context of patterns of deep past discrimination and continuing homophobia, appropriate sensitivity must be shown to providing a remedy that is truly and manifestly respectful of the dignity of same-sex couples.”[21]           

In summary, our concerns with the Civil Union Bill have been on the question why, if there is so much concern for providing an equal institution of union/marriage for same sex couples, the lawmakers desisted from applying the simple (and obvious) Constitutional Court remedy of amending The Marriage Act? Despite attempts to project civil unions as an institution equal to marriage, it falls into the apartheid era trap of “separate implies equal” and appears to be a second-class solution for gays and lesbians. Other elements of serious inequality in the CUB compared with the Marriage Act are to be found in:

The lack of dignity accorded by dealing with an unwieldy bureaucracy that includes a record of distinction (section 11.1) between a “union” and a “marriage”. These appear aimed at making institutional distinctions on the grounds of sexual orientation – this is unfair discrimination;

b. Possible “victory be definition” where a static understanding of marriage and language may claim the right to fairly discriminate against same sex marriages;

The proposals for Domestic Partnerships which the SACC have long rejected as being more damaging to the stability of traditional marriage than, say, same sex marriages, as some would have us believe.

19. The criteria for a legal remedy, recommended Judge Sachs, should be “as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of the intangibles as well as the tangibles involved.”[22] The points raised in summary indicate, question not only the level of generosity but also whether it adequately raises “a remedy that is truly and manifestly respectful of the dignity of same-sex couples.” The SACC’s recommendation, under these circumstances, therefore, is to support the first option and simple recommendation of the Constitutional Court to amend the Marriage Act to include the word “spouse” after “husband”. We believe from a faith perspective that such an amendment would be “generous”, simple and illustrative of our commitment to advance the quest for genuine equality amidst our national diversity and difference. Furthermore, we look forward to this exercise being a small step toward the reform of all marriage legislation[23], in as far as is possible, under one legislative umbrella providing equity of social and legal protection for all who seek such a blessing. Nkosi sikeleli’ Afrika.   



[1] See references to family law in South Africa in, for example, PJJ Olivier, The South African Law of Persons and Family Law, 1975, Butterworth, pp. 211ff.

[2] The Constitutional Court heard and delivered judgment on two cases by 1 December 2005.  These were CCT 60/04 in the matter of The Minister of Home Affairs and the Director General of Home Affairs (amici curiae) versus Marié Adriana Fourie and Cecilia Johanna Bonthuys and the other, CCT 10/05, The Lesbian and Gay Equality Project and eighteen others versus the Minister of Home Affairs, the Director General of Home Affairs and the Minister of Justice and Constitutional Development. A record of these and other judgments may be electronically accessed at For brevity we refer to the judgment  as the “Fourie/Bonthuys”case.

[3] ibid., para. 138, p.86.

[4] ibid., para. 149, p. 92.

[5] A copy of the open Letter by SACC General Secretary, Mr. Eddie Makue, delivered to the Chairpersons of the Portfolio Committees of Home Affairs and Justice and Constitutional Development is attached to this submission. The Open Letter followed a process of consultations and hearings initiated by the SA Law Reform Commission in 1993, discussion documents published and consultations held by the SACC in that same year, subsequent SACC National Executive Committee decisions as well as an open National Consultation on Same-Sex Marriages held in January 2006. The Open Letter is consistent with the record of that consultation which may be accessed at 

[6] See record of the SACC National Consultation on Same Sex Marriages at

[7] The Civil Union Bill [B – 2006] initially was not certified by the State Law Advisors and later was made available as The Civil Union Bill [B26-2006]. It may be accessed at 

[8] A copy of the Act is available as Annexure A in Solemnization and Registration of Marriages in the Republic of South Africa: Manual for Marriage Officers [BI-81], issued by the Department of Home Affairs, pp. 11-17

[9]  We endorse the view of the Lesbian and Gay Equality Project (the “Equality Project”) that the Civil Union Bill appears, when weighed against the Constitutional Court judgments and Constitutional requirements for equality provision and status of marriage to opposite and same sex couples. In their submission they reject the option of the Civil Union Bill “ … because it is unconstitutional, failing to give effect to the Constitutional Court’s decision … in that .. it creates a separate marriage-like institution – a civil partnership – for same-sex couples alone, without any reasonable basis for the distinction. It groups civil partnerships and (registered and unregistered) domestic partnerships into a new separate institution known as a civil union, existing apart from – and having a lower status than that of – the Marriage Act.”

[10] We also concur in this regard with submissions by Pierre de Vos, The Triangle Project, and Centre Space.

[11] See The Marriage Act, section 31, in Solemnization and Registration of Marriages, op. cit., p.16

[12] The section uses extracts from the “Marriage Service” found in The Methodist Worship Book, p. 369 in order to illustrate the broadness of a Christian definition of marriage beyond gender specific references to procreation.

[13] ibid., p.369.

[14] ibid., p.369.

[15]  In a letter to Senator Marian Walsh of Boston, Stephen Schoessler, Professor of History at Boston College, wrestles with the issue of being Roman Catholic while at the same time living in gay and lesbian relationships. Some of his other rebuttals to the claim that marriage is an immutable institution include the arguments that traditional marriage is a community’s legal arrangement in order to pass on property. A male acquires a female for the sake of reproducing other males who will inherit property; The idea of marriage as “one man and one woman” is a true rupture and innovation in the tradition. The tradition in nearly every ancient culture has been polygyny: one male who owns several (or many) females; In Judaism, polygyny is found throughout the Old Testament until the inter-testamental times; St. Paul counselled his followers not to marry since he believed the second coming of Jesus was imminent. If, on the other hand, sexual desire meant facing the rapture in a state of sin, it would be better to fulfil sexual desire legitimately and avoid damnation; under Constantine, when Christianity became the emperor’s religion, former pacifists became officers in the Emperor’s army. Later, St. Augustine transformed Christianity into a religion that looked beyond a rapture to a future dispensation. He counselled sex as a remedy for concupiscence – satisfying male sexual desire in a non-sinful way; In both Roman and Medieval periods, marriage marked the passing of rights over a woman from her father to her husband; In the twelfth century, the idea of marriage as a “sacrament”, regulated by the Church - laws established along with priestly celibacy and primogeniture. 

[16] See, for example the case of institutional protection of marriage over against civil partnerships espoused by Ronald Dworkin in “Three Questions for America” (2006) New York Review of Books, amongst others.

[17]  Bishop David Russell, The Bible and Homosexuality: What is the Spirit saying to the Churches? 

[18] See Sachs judgment op.cit., pp. 71-72. “However strongly and sincerely-held the beliefs underlying the second proposition might be, these beliefs cannot through the medium of state-law be imposed upon the whole of society and in a way that denies the fundamental rights of those negatively affected. The express or implied assertion that bringing same-sex couples under the umbrella of marriage law would taint those already within its protection can only be based on a prejudgement, or prejudice against homosexuality. This is exactly what section 9 of the Constitution guards against. It might well be that negative presuppositions about homosexuality are still widely entertained in certain sectors of our society. The ubiquity of a prejudice cannot support its legitimacy.”

[19] Ibid., p. 71-72.

[20] Cf. SACC discussion paper on the SA Law Reform Commission consultations.

[21] op. cit., Sachs judgment, p.96. In mitigation of his remedy, Sachs further quotes the landmark case of Brown v Board of Education 347 US 483 (1954), the United States Supreme Court overturned the notorious separate but equal doctrine as affirmed in Plessy v Ferguson that had authorised segregated facilities for persons classified as Negroes. Chief Justice Warren stated: “We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though that physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe it does.” (At 493.)

[22] ibid., p.96.

[23] The SACC hereby supports and endorses the submission by the Dutch Reformed Church and any of its member churches and/or nine Provincial Councils of Churches that may seek to make submission generally in this regard.