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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