Struggle vs. apartheid brings LGBT rights
By Minnie Bruce Pratt
A South African lesbian couple seeking to marry received a
favorable ruling on Nov. 30 by that nation's Supreme Court of
Appeals. In response to an appeal brought by Marie Adriaana
Fourie and Cecelia Johanna Bonthuys, the court stated that "the
intended marriage between the appellants is capable of lawful
recognition as a legally valid marriage." The court ruled that
the South African Marriage Act, which only recognizes marriage
between a man and a woman, discriminates on the basis of sexual
orientation.
The post-apartheid South African Constitution, signed into
effect in 1994 by then-President Nelson Mandela, is unique in
the world in specifically banning such discrimination.
The court's ruling applies only to common-law marriage at
the moment. How ever, Evert Knoesen of the Lesbian and Gay
Equality Project predicted that same-sex couples will be
married in South Africa within the next year, and declared,
"The principle has been won." If the necessary changes are made
to its national Marriage Act, South Africa will join the
Netherlands and Belgium as the third county to grant fully
legal same-sex marriages.
The only political party to object to the court's decision
was the far-right African Christian Democratic Party (ACDP),
which has no seats in parliament. The platform of the ACDP
includes "Christian Principles, Freedom of Religion, An Open
Market Economy, and Family Values."
A referendum against the ruling is being organized by a
group of churches and other religious organizations, including
South African Christian Leadership Assem bly (SACLA), which has
ties to the Interna tional Christian Chamber of Commerce.
The African National Congress party, currently in office,
welcomed the ruling. The South African government emphasized
that the government "respects the right to dignity and equality
as enshrined in the Constitution of the country."
LGBT rights from the Struggle
The author of the court's decision, Judge Edward Cameron, is
the country's highest-ranking openly gay judge, and was a
leading opponent of the former racist apartheid regime. He
spoke out as a person living with AIDS during the Durban
international AIDS conference in 1999. He was appointed to his
judgeship by the African National Congress government.
In the introduction to his opinion, Cameron emphasized that
the court's decision had its roots in South Africa's long
struggle against racism and oppression. He notes that the
resulting Constitution was based in "a conception of our
nationhood that was both very wide and very inclusive." He
continued: "Having themselves experienced the indignity and
pain of legally regulated subordination, and the injustice of
exclusion and humiliation through law, the majority committed
this country to particularly generous constitutional
protections for all South Africans."
The constitutional protection of gay rights, which
recognizes that Black and white lesbian, gay, and bisexual
people parti cipated in the struggle against apartheid, has
already been enforced numerous times by the South African
courts. These rulings have overturned the nation's sodomy laws
and granted gay couples the right to adopt children--available
nationally elsewhere in the world only in Sweden, the
Netherlands and Belgium. (Afrol News)
Judge Cameron alluded to this judicial history by saying:
"[T]he focus in this case falls on the intrinsic nature of
marriage, and the question is whether any aspect of same-sex
relationships justifies excluding gays and lesbians from it.
What the Constitution asks in such a case is that we look
beyond the unavoidable specificities of our condition--such as
race, gender and sexual orientation--and consider our intrinsic
human capacities and what they render possible for all of us.
In this case, the question is whether the capacity for
commitment, and the ability to love and nurture and honor and
sustain, transcends the incidental fact of sexual orientation.
The answer suggested by the Constitution itself and by 10 years
of development under it is: yes." (Gay City News)
Sources: Gay City News, Afrol News, WorldHistory.com and
sacla.za.net.
Reprinted from the Dec. 23, 2004, issue of
Workers World newspaper
This article is copyright under a Creative
Commons License.
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