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28 Law Context: A Socio-Legal J. 108 (2010)
The Right to Same-Sex Marriage in South Africa

handle is hein.journals/lwincntx28 and id is 120 raw text is: The Right to Same-Sex Marriage in South Africa Jacqueline Heaton In view of its conservative and oppressive history, it is surprising that South Africa counts among the few countries in the world that affords same-sex couples the right to marry. The enactment of a Bill of Rights which provided that no-one may be subject to unfair discrimination on the ground of sexual orientation played a pivotal role in obtaining the right to marry for same-sex couples. After the enactment of the Bill of Rights, the courts and legislature initially afforded recognition to same-sex life partnerships only for very specific and very limited pur- poses. However, at the end of 2005 the Constitutional Court declared the exclusion of same-sex couples from the status, benefits and responsi- bilities that marriage accorded to heterosexual couples unconsti- tutional. Parliament was allowed one year in which to correct this unconstitutionality. It responded by enacting the Civil Union Act 17 of 2006, which extended marriage rights to same-sex couples. However, as a vehicle for affording marriage rights to same-sex couples, the Act is not above criticism. Some commentators have even called for the repeal of the Act on the ground that it does not afford true equality to same- sex couples. However, it is unlikely that their call will be heeded. Introduction Given its conservative and oppressive history, it is surprising that South Africa counts among the few countries in the world that afford same-sex couples the right to marry. The introduction of a Bill of Rights into South African law played a pivotal role in the conferment of this right. In Minister of Home Affairs v Fourie (Doctors for Life International and Others, amici curiae), Lesbian and Gay Equality Project v Minister of Home Affairs (2006) (Fourie) the Constitutional Court held that the exclusion of same-sex couples from the status, benefits and respon- sibilities accorded to heterosexual couples violated several of the rights in the Bill of Rights. It declared the exclusion unconstitutional and order- ed parliament to correct the unconstitutionality. Parliament responded by enacting the Civil Union Act 2006, which extended marriage rights to same-sex couples, not by way of a civil marriage but by way of a marriage or civil partnership under this Act. In this article, the historical background to the Civil Union Act 2006 is first set out. Then the Act is discussed, with specific emphasis on provisions that do not adequately cater for same-sex couples and may violate their human rights. The position of same-sex couples that fall

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