A judicial revolution?&lt;br&gt; The court-led achievement of same-sex marriage in South Africa

Pierre De Vos

doi:10.18352/ulr.72

Abstract

This article maps the legal developments that led to the adoption of the Civil Union Act, which extended full marriage rights to same-sex couples in South Africa. It points out that this extension of marriage to same-sex couples would not have been possible if it was not for the groundbreaking decisions on sexual orientation discrimination handed down by the South African Constitutional Court over the past ten years. It al so describes the complex legal regime now in place which allows different sex couples to enter into marriage in terms of a traditional Marriage Act or the new Civil Union Act but restricts same-sex couples to entering into marriage in terms of the latter Act. The article concludes that while this extension of marriage rights can be viewed as a legal revolution, some problems remain with the legal regulation of same-sex relationships in South Africa.

Highlights

At the end of 2006 South Africa became the first country in Africa to extend full marriage rights to same-sex couples
After a successful Constitutional Court challenge[1] to the exclusion of samesex couples from the common law definition of marriage and the failure of the Marriage Act[2] to provide for same-sex marriage, the South African Parliament reluctantly passed the Civil Union Act[3] to extend marriage rights to same-sex couples who were until denied the right to marry. This would not have been possible if the South African Constitution[4] did not explicitly prohibit discrimination on the basis of sexual orientation[5] and if the Constitutional Court had not ruled in several cases[6] that this meant that same-sex relationships deserve equal protection and respect and that same-sex couples are capable of forming caring long-term relationships and of raising children in a loving and caring environment
By the time that applicants challenged the exclusion of same-sex couples from the right to get married, the Constitutional Court had confirmed on several occasions that the prohibition on unfair discrimination on the basis of sexual orientation meant that the state had to respect and protect the human dignity of gay men, lesbians and other sexual minorities in South Africa

Summary

Introduction

At the end of 2006 South Africa became the first country in Africa to extend full marriage rights to same-sex couples. After a successful Constitutional Court challenge[1] to the exclusion of samesex couples from the common law definition of marriage and the failure of the Marriage Act[2] to provide for same-sex marriage, the South African Parliament reluctantly passed the Civil Union Act[3] to extend marriage rights to same-sex couples who were until denied the right to marry. A judicial revolution? – The court-led achievement of same-sex marriage in South Africa

Overview of the Constitutional Court jurisprudence

First draft of the Civil Union Bill

The amended Civil Union Act

Rights of non-married same-sex couples

Conclusion