MEMBERS' BILL PROPOSING CONSTITUTIONAL AMENDMENT 21 OCTOBER 2006 STEVEN SWART
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?
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."
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;
" . . . (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.