Same-sex Marriage In South Africa Research Articles

Where is the queer critique of same-sex marriage in South Africa?

ABSTRACTThis article argues for the necessity of a queer anti-homophobic critique of same-sex marriage in the South African context. The literature on same-sex marriage in South Africa before and after the passing of the Civil Union Act 2006, while acknowledging queer critique, resolves such critique in favour of the ‘right’ to marry. From a queer point of view, same-sex marriage is problematic because it renews the distinctions between moral and immoral, it is antithetical to the politics of the gay and lesbian movement, it ‘undoes’ a long history of feminist research where it is argued that marriage is patriarchal and oppressive and finally, it cannot transform the exclusionary nature of marriage. I use Jane Bennett’s ‘“Solemnis(ing) beginnings”: Theories of same-sex marriage in the USA and South Africa’ (2015) as evidence of the most recent example of this point of view. In the course of my critique of Bennett’s article, I will also refer to all of the published literature on the same-sex marriage debate in South Africa. I argue that the opportunity to incorporate queer critiques of same-sex marriage might have been lost 12 years ago but there is no reason why we cannot have these conversations now. The aim of this article is to ignite such a conversation.

Same-sex marriage in South Africa: The road ahead

In hierdie bydrae word die problematiek oor "huwelike" tussen persone van dieselfde geslag aan die orde gestel. 'n Oorsig word gebied oor die verskillende fasette van die debat en die argumente wat tipies daarin aangevoer word. Op grond van 'n teoretiese verantwoording oor die aard van die huwelik word standpunt oor hierdie kwessie ingeneem. Nadat moontlike modelle oorweeg is word daar met inagneming van grondwetlike oorwegings 'n aanbeveling oor hierdie aangeleentheid gedoen.

A critical engagement? Analysing same-sex marriage discourses in To Have and to Hold: The Making of Same-Sex Marriage in South Africa (2008) – A queer perspective

The legalisation of same-sex marriage in South Africa in November 2006 made the country the exemplar for gay and lesbian rights in Africa. The advocacy of, struggle for, and finally winning the right to marry was a euphoric victory for numerous gay and lesbian people. The various steps that had to be negotiated in order to pass the Civil Union Act are documented in To Have and to Hold : The Making of Same-Sex Marriage in South Africa (2008, hereafter To Have and to Hold ). The blurb at the back of To Have and to Hold describes the book as “invaluable for understanding [the same-sex marriage] journey and its legal, social, cultural and religious ramifications”. The editors of the volume, Judge, Manion and de Waal, add that the various stakeholders that supported same-sex marriage “adequately interrogated the role and function of marriage” (Judge et al. 2008: 12). In this article, I put this claim to the test by interrogating the legal, social, cultural and religious reasons put forward in favour of same-sex marriage in To Have and to Hold . From a queer point of view, same-sex marriage is problematic because it ignores the regulatory power of the state, the fact that marriage is a public tradition, the argument that the supposed “respectability” bestowed by marriage is a farce, and the contention that legal benefits should be given to people regardless of their marital status. I use queer linguistic tools to deconstruct the claim by the editors that the text represents a “critical engagement” with same-sex marriage (Judge et al. 2008: 1). I conclude the article by showing how, rather than opening a space for the “recognition of diverse sexualities and relationship forms” (Judge et al. 2008: 12), the Civil Union Act is limited to those people who self-identify as gay or lesbian.

Conscientious Objection to Performing Same-Sex Marriage in South Africa

This article considers whether public servants should be exempt from South Africa’s equality provisions and anti-discrimination legislation in solemnizing same-sex marriages. In order to deal with this question, the article analyses the treatment of freedom of conscience and conscientious objection by comparing the solemnization of same-sex marriage by public servants, with another public service: that of terminations of pregnancy. While each situation will inevitably turn on the particular circumstances of the case, I argue that there should be a content-neutral guiding principle (as well as consistency) in dealing with these situations. The issue in each situation is narrowed to whether a civil servant’s personal convictions can override the state’s secular obligations in providing a service, and whether there is room for a qualified right to conscientious objection. By analysing the matter in this way, it is clear that the unqualified statutory exemption clause in South Africa’s Civil Union Act is constitutionally objectionable.

Equals before the Law? Public Religion and Queer Activism in the Age of Judicial Politics in South Africa

Abstract On a global scale, the politics around the recognition of same-sex relationships has turned into legal controversies while opposition to it is often framed in religious terms. This article takes the case of Christian mobilization around the legal recognition of same-sex marriage in South Africa to investigate the intertwinement of religious and sexual rights struggles. Linking the anthropology of law, the sociolegal literature on judicialization, and studies of public religion, it argues that both same-sex activism and religious mobilization should be understood in terms of judicial politics. The article analyses religious responses to lesbian and gay judicial activism and presents a typology that reveals the structured diversity of these responses in terms of public discourse, political strategy, and legal argument. Two dimensions are key to conceptualizing these responses: religious communities’ ontological concepts of the world, including ideas about human agency and God, and their relationships to the world, construed in terms of political habitus.

Ambiguous symbolisms: recognising customary marriage and same-sex marriage in South Africa

AbstractIn this article I draw on the South African legal context to critique the argument that same-sex marriage would provide ‘equal recognition’ for same-sex relationships. I highlight the ways in which, despite strong equality provisions in the South African Constitution and an apparent commitment to substantive rather than merely formal equality, both customary marriage and same-sex marriage continue to be subordinate to heterosexual civil marriage. I then broaden my analysis to consider the extent to which this would also be the case in other jurisdictions, particularly the UK. Drawing on the Butler/Fraser debate on recognition and redistribution, I argue that there is a connection between misrecognition and material disadvantage that goes unacknowledged in ‘symbolic recognition’ claims for same-sex marriage. The critiques of ‘marriage equality’ should sound a warning not only to same-sex marriage advocates but also more generally to those who would seek ‘equal recognition’ through law reform.

Same-sex marriage in South Africa: The road ahead

n hierdie bydrae word die problematiek oor "huwelike" tussen persone van dieselfde geslag aan die orde gestel. 'n Oorsig word gebied oor die verskillende fasette van die debat en die argumente wat tipies daarin aangevoer word. Op grond van 'n teoretiese verantwoording oor die aard van die huwelik word standpunt oor hierdie kwessie ingeneem. Nadat moontlike modelle oorweeg is word daar met inagneming van grondwetlike oorwegings 'n aanbeveling oor hierdie aangeleentheid gedoen.

The South African Civil Union Act 2006: Progressive Legislation With Regressive Implications?

A ground-breaking judgment handed down by the Constitutional Court on 1 December 2005 gave parliament 1 year within which to promulgate legislation that facilitated same-sex marriage in South Africa. In response, the Civil Union Act 17 of 2006 came into operation on 30 November 2006. This Act provides for the solemnization and registration of a civil union in the form of either a marriage or a civil partnership. While it can be accepted that the Act allows persons of the same sex to conclude a civil union, the position of heterosexual persons appears to be less certain – a situation which requires urgent attention due to the lack of legal protection currently afforded to cohabitants who have not formalized their relationships. This problem is exacerbated by a number of anomalies created by judicial intervention (prior to the promulgation of the Act), in terms of which certain benefits of civil marriages were extended to same-sex unmarried couples while their heterosexual counterparts were left out in the cold. After elucidating the interpretative difficulties caused by the Act, attempting to shed some light on a number of the anomalies alluded to above and briefly analysing the comparable marriage and marriage-like relationships encountered in Dutch law, this contribution concludes that the Civil Union Act is a badly-drafted piece of legislation that has only served to further fragment an already disjointed legal landscape.

A judicial revolution?<br> The court-led achievement of same-sex marriage in South Africa

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.

Producing Homonormativity in Neoliberal South Africa: Recognition, Redistribution, and the Equality Project

Producing Homonormativity in Neoliberal South Africa: Recognition, Redistribution, and the Equality Project

Totalitarianism, (Same-Sex) Marriage and Democratic Politics in Post-Apartheid South Africa

This article interrogates what it considers to be several totalitarian moments in the process that led to the legislation that authorised same-sex marriage in South Africa. The interrogation proceeds from three platforms which also form the basis of any believable theory of democratic politics, namely church/state separation, plurality and common (shared) citizenship. My argument is that Parliament — by introducing (and defending) the first draft of the Civil Union Bill (which deliberately failed to introduce a marriage regime for same-sex life partnerships) in response to the Fourie judgment — failed properly to consider all three of these fundamental aspects of democracy. This failure was complemented by more overt totalitarian moves on the part of several fundamentalist religious groups in South Africa that (ironically so) vehemently opposed the first draft of the Bill even though it did not provide for same-sex marriage. I conclude that democratic activism coupled with the strength of and commitment to the South African Constitution and to the decisions of the Constitutional Court ensured the successful evasion of these totalitarian moments while emphasising that the struggle against totalitarianism in South Africa is far from over.

The ‘Inevitability’ of Same-Sex Marriage in South Africa’s Post-Apartheid State

This article argues that the adoption of the Civil Union Act, extending marriage rights to same-sex couples, does not represent the inevitable and triumphant victory of a long legal and political struggle for the emancipation of gay men and lesbians in South Africa. A combination of luck, wise strategic leadership and fortitude eventually led to the adoption of full marriage rights for same-sex couples. The article traces the roots of this legal and political victory back to the debates about the inclusion of the sexual orientation clause in the South African Constitution and points to the importance of the distinct (conservative) legal strategy employed by the National Coalition for Gay and Lesbian Equality in achieving full partnership rights for all. The initial jurisprudence developed by the Constitutional Court created the basis for later legal victories and brought along judges who might have had some misgivings about the extension of marriage rights to same-sex couples had the issue arisen earlier on. The Constitutional Court’s judgment in Fourie left very little room for Parliament to manoeuvre because it emphasised the symbolic value of marriage and confirmed that a ‘separate but equal’ partnership law for same-sex couples would not pass constitutional muster. However, this important legal victory will not have any direct and immediate bearing on the lives of many gay men and lesbians in South Africa as they face social, cultural and economic hardship in ways that cannot be easily addressed through the legal reform of partnership laws. The improvement of the lives of ordinary gay men and lesbians will go hand in hand with changes in societal attitudes towards minority sexualities, which to a large extent will be dependent on grassroots activism and organisation. Because the battle for full marriage rights was a well directed, elite-based legal battle, it failed to build a sustainable, vibrant, grassroots movement to take on this task but the symbolic space created by the same-sex marriage reform may well begin to allow for the fostering of such a movement and thus for true emancipation of gay men and lesbians.

Case note: Same-sex Marriage in South Africa –the constitutional Court's Judgment

Late last year the Constitutional Court of South Africa decided that the exclusion of same-sex couples from the common law definition of marriage and the statutory marriage formula was unconstitutional as it violated the rights of such couples to equality. The Court suspended the declaration of invalidity for one year to allow Parliament to enact new legislation to correct the defects, failing which certain words would be read into the legislation to accommodate same-sex marriage. A single judge dissented on the issue of remedy, finding that the Court should have developed the common law to include same-sex couples within the definition of marriage and read the necessary wording into the legislation with immediate effect. The decision is the culmination of a legal struggle by gays and lesbians for recognition of their relationships and the protection of their rights. While the scope of the right to marry may have been extended, the rights of domestic partners lag behind, often to the detriment of women in these relationships.

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

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.