‘I do’ or ‘we Won’T‘: Legalising Same-Sex Marriage in South Africa

Abstract

The question whether to extend marriage to same-sex couples is likely to be decided by the courts in the near future. The internationaltrends in this regard are inconsistent and often unprincipled because of the interaction between beliefs about marriage on the one hand, and attitudes towards homosexuality on the other. This article argues that, for reasons of principle, the constitutional guarantee of equality and dignity requires the legal recognition of same-sex marriage. A narrow conception of marriage as being limited to heterosexuals deprives lesbians and gays of material and nonmaterial benefits. It also prevents lesbians and gays from being accepted into mainstream society and thereby leading more enriched lives. Due to the recent developments in South African family law that emphasise the importance of cultural diversity, encourage tolerance, and begin to recognise notions of family which do not fit the Judeo-Christian model, there is reason to believe that the common law definition of marriage can be developed to include same-sex partners. Although domestic partnership regimes are often seen as a sufficient alternative to marriage, they deny same-sex partners spiritual and religious equality and as a result do not meet the transformative goals of the Constitution.