Same-Sex Marriage: Legislation, Loopholes and More

South Africa’s legal framework for LGBTI people is among the most progressive in the world – but activists in the country are showing that movements don’t end with marriage.

Few people would dispute that the legal framework for LGBTI people in South Africa is among the most progressive in the world. In 1996, the country made history when its post-apartheid Constitution was the first in the world to specifically forbid discrimination on the basis of sexual orientation. With that protection in place, the first decade of democracy saw a number of landmark victories – decriminalizing same-sex activity and recognizing the rights of same-sex partners to immigrate, receive medical, pension, and insurance benefits, and adopt children – that systematically toppled the pillars of legally-sanctioned homophobia. The agenda seemed to culminate with the Constitutional Court’s ruling in Fourie v. Home Affairs in 2005 and the subsequent passage of the Civil Union Bill in 2006. With that legislation, South Africa made history again as the fifth country in the world – and the first in the Global South – to legally marry same-sex couples.

While marriage is often touted as the final frontier of the LGBTI movement, the movement in South Africa vividly illustrates that the trip to the altar is only part of a much longer road to full equality.

While marriage is often touted as the final frontier of the LGBTI movement, the movement in South Africa vividly illustrates that the trip to the altar is only part of a much longer road to full equality. As the five year anniversary of Fourie approaches, activists are working tirelessly to respond to those issues that profoundly shape the lives of LGBTI South Africans – and that can’t be resolved with a marriage license.

The most prominent of these are the high levels of discrimination and violence – including sexual violence – that persists against LGBTI people. Openly identifying as LGBTI is a risky proposition in much of South Africa, particularly for black lesbians who face shockingly high levels of rape and have been repeatedly targeted in gruesome murders. To curb physical and sexual violence against LGBTI people, many groups have pressed for hate crimes legislation, which the South African government has been reluctant to introduce. A number of groups have joined together for the 777 Campaign to End Hate, an ongoing effort to document hate crimes, publicize their scope and severity, and ensure that cases are heard and perpetrators are brought to justice.

Many groups have gone beyond law and policy to focus on service provision and outreach to underserved populations, responding to poverty, homelessness, and HIV – as well as racism, sexism, and stark inequalities – in LGBTI communities. A number of groups regularly facilitate peer support groups, distribute safer-sex materials, have libraries and social programming, and offer testing and counseling for HIV and other sexually-transmitted infections. Others have focused on creating space for those whose needs have not been met by the larger movement, including women, people of faith, transgender people, and those in townships and rural areas. On a daily basis, they have tried to make equality a reality for all LGBTI people in South Africa.

If polls are any indication, the future of LGBTI rights in the country may depend on the impact of that long-term cultural work. The progressive laws of South Africa are largely thanks to the judiciary, and support among the general population remains profoundly weak. In 2003, the Human Sciences Research Council began asking South Africans whether “it is wrong or not wrong for two adults of the same sex to have sexual relations.” Over the next five years, researchers found a consistent pattern of opposition to homosexuality, with over 80% of respondents each year saying that homosexuality is “always wrong.” That antipathy remained fairly strong across ethnic, gender, age, educational, religious, and geographic lines – with few signs of improvement during the survey period.

The political support for LGBTI rights seems stronger, but there are signs that it, too, is more fragile than the progressive laws of the country might suggest. In 1996, the only party to staunchly oppose the inclusion of LGBTI rights in the Constitution was the African Christian Democratic Party, a small, right-wing party with negligible representation in Parliament. When the Civil Unions Bill was voted on, however, MPs from a number of parties vocally opposed it, including a small number of ANC MPs who defied strict instructions to support the legislation. Some ANC members have since expressed their desire to amend the Constitution to invalidate the same-sex marriage law.

While Presidents Nelson Mandela and Thabo Mbeki both explicitly affirmed LGBTI rights, President Jacob Zuma was elected to office after calling same-sex unions “a disgrace to the nation and to God.”

Indeed, there are signs that the rise of populist politics and the fracturing of the ANC may eventually threaten controversial rights – particularly LGBTI rights, reproductive rights, and the abolition of the death penalty. While Presidents Nelson Mandela and Thabo Mbeki both explicitly affirmed LGBTI rights, President Jacob Zuma was elected to office after calling same-sex unions “a disgrace to the nation and to God,” famously stating that “when I was growing up, unqingili [homosexuals] could not stand in front of me.” Zuma’s government has consistently failed to support pro-LGBTI gestures in regional and international forums, and has been reluctant to press other governments in the region to address human rights violations against LGBTI persons. Most recently, activists vocally protested the appointment of South Africa’s ambassador to Uganda, Jon Qwelane – who, as a newspaper columnist, called for South Africa to amend the constitution and re-criminalize homosexuality – just as Uganda’s Parliament was considering the passage of the draconian Anti-Homosexuality Bill of 2009. Although Zuma criticized Malawi this year for imprisoning a couple on charges of homosexuality, he refrained from pressuring the country to repeal the law, and has remained largely silent on LGBTI issues as president.

With all these uncertainties, what does seem clear in South Africa is that plenty of work remains to be done after a country says “I do” to same-sex marriage. While marriage can be a powerful victory – both symbolically and politically – it doesn’t address all of the needs of a large and diverse LGBTI community, nor does it singlehandedly solidify the support of the wider society for LGBTI rights. For that to happen, movements need to take a cue from South Africa and continue their work – in sickness and in health, for richer and for poorer – until everyone can enjoy full and meaningful equality.

On December 1st 1995 I arrived in South Africa on the day the Constitutional Court directed the Parliament to legalize same-sex marriage. This was a markedly different South Africa than the one I had left in 1980. I thought, “If South Africa can manage such a shift then it is possible anywhere.”

Archbishop Desmond Tutu arranged for my leaving South Africa as an exile in order to avoid imprisonment for refusing to serve in the South African military which enforced apartheid. The misguided Calvinism of the apartheid government claimed Divine justification for those abhorrent policies and overlaid the personal and cultural oppressiveness of that country. I was sent to the United States when the foreign policy of the USA was guided by human rights concerns. I began a new life in a country that was refreshingly more liberal than the oppressiveness of South Africa.

South Africans now live under one of the most progressive constitutions in the world.

The intervening years have reversed these contrasts. South Africans now live under one of the most progressive constitutions in the world. Conservative Calvinist mores are no longer the framework for the social contract but one of a multiplicity of viewpoints. The United States Constitution guaranteeing equal protections under the law are cast aside in favor of an often religiously driven refusal to grant Federal approval of marriage to same gender couples. The victories won in a handful of US states which have legalized same-sex marriage do not grant couples the same legal protections and benefits enjoyed by our married heterosexual couples. Human rights and equal protection under the law is trumped by the demagoguery of many religious leaders.

In South Africa opposition to the apartheid served as a common meeting ground for affirming the full humanity and human rights of every person. It was a rallying cry uniting divergent voices. By contrast, divergent religious views of same-gender marriage in the USA are a topic dividing religious groups with those opposed claiming to speak for God.

When I began to officiate at “commitment ceremonies” for same gender couples in the 1990’s it was often under a veil of secrecy even in the moderate Episcopal Church. Now a small number of clergy and congregations are given permission by ecclesiastical authorities to officiate at same-gender marriages in those states permitting them.

In the nineteen nineties I asked Desmond Tutu when his voice would be publicly heard on issues related to human sexuality. He said that as soon as apartheid was defeated. He has been true to that word.

As much as apartheid was a human rights issue and a religious question of whether each person reflects the Divine presence, so is the question of whether gay and lesbian couples have the human right to enjoy the privileges and protections of marriage offered by a nation.

College student around the world joined with political and religious leaders to overthrow apartheid. In many countries, including the USA, support for same gender marriage is supported by majorities of young people. A similar global coalition can ignite a movement to end the love exile status of lesbian and gay couples.

In the nineteen nineties I asked Desmond Tutu when his voice would be publicly heard on issues related to human sexuality. He said that as soon as apartheid was defeated. He has been true to that word, becoming an advocate for the human rights of LGBT people throughout the world.

The shift in the global conversation on this issue of human rights is underway. Young people, faith communities and politicians have the opportunity to unite their voices with those of others, as they did in the fight to end apartheid, creating marriage equality for all. There should be no “love exiles” within the human family.