Gays and lesbians now 'separate but equal'

Comment by Pierre de Vos

One of the most popular, and ridiculous, arguments put forward to justify apartheid, was that it provided "for separate but equal" opportunities and was therefore fair and just.

We know, of course, that this was never the case. Not only were opportunities and amenities unequal, but the policy was based on the assumption that black people were "inferior", "impure" or "dirty" and that segregation was necessary to "protect" whites from being "contaminated" by them.

So it is sad and surprising that an ANC Cabinet has approved legislative proposals providing for "civil unions" between same-sex partners that replicate this bankrupt logic. The Civil Unions Bill purports to give effect to a decision by the Constitutional Court ordering an extension of marriage to same-sex couples; in effect it denies them that right.

In The Minister of Home Affairs v Fourie, the court was asked to decide on the constitutionality of South Africa's marriage laws. In his judgement, Judge Albie Sachs refers to the 1960 case of the State v Pitje, where the appellant, a black candidate attorney, occupied a place at a table in court that was reserved for "European practitioners". The Appeal Court upheld Pitje's conviction for contempt of court as it was "… clear that a practitioner would in every way be as well seated at the one table as at the other, and that he could not possibly be hampered in the slightest in the conduct of his case by having to use a particular table". This approach, Sachs said, "is unthinkable in our constitutional democracy".

But it is exactly the approach Cabinet has endorsed.

The Bill creates a separate institution for same-sex couples -- a civil partnership -- which purports to bestow the same legal rights on same-sex civil partners as on heterosexual married couples. There are, however, three ways in which the civil partnership will differ from traditional marriage: it will not be called a marriage (except at the ceremony if the partners so choose); marriage officers will have the right to refuse to solemnise it; and it will only be open to same-sex couples.

Mindful of the prejudice that many voters feel against gay men and lesbians, the drafters of the Bill attempted to create a "separate but equal" marriage regime that would protect "real marriage" from "contamination" and "defilement" by homosexuals, while pretending to provide us with equal marriage rights. This move not only fails to respect the dignity of gay men and lesbians, it contradicts the instructions of the Constitutional Court.

In his judgement Sachs emphasised the fact that both tangible legal consequences and intangible benefits flow from the act of entering a marriage and confirmed that it would "not be sufficient for Parliament merely to deal with the practical consequences" of the exclusion of same-sex couples from marriage. Such a law, said Sachs "would also have to accord to same-sex couples a public and private status equal to that which heterosexual couples achieve from being married."

Separate but equal was not good enough because it "served as a threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to discrimination".

The Bill does not heed these words. By calling the union of same-sex couples a "civil partnership", the Bill creates a second-class form of legal recognition for these relationships. The concept of marriage has symbolic, emotional and political power in our culture that gives it a special status. By refusing same-sex couples the right to enter into an institution called "marriage", the Bill deprives them of the right to access the status associated with the term "marriage".

It is also problematic that civil partnerships are created exclusively for same-sex couples. This is insulting for those of us who might want to marry a member of our own sex. The Constitutional Court warned that creating a special institution for same-sex couples would send the signal that bringing same-sex couples under the umbrella of marriage law would taint those already within its protection. The Bill effectively endorses the view that homosexuals are somehow depraved, impure and tainted and that "pure" heterosexual marriage must be protected from this abomination.

Gay men and lesbians still experience tremendous oppression, marginalisation and vilification in our society. Some are still raped, assaulted or killed because of their sexual orientation. In this context, the creation of apartheid-style, separate civil partnerships for same-sex couples merely confirms that the state does not consider their relationships worthy of equal concern and respect. The ultimate test of this truth is to ask: if the Bill is passed how many heterosexual couples would jealously yearn to enter into civil partnerships rather than to get married?

In short, a doctrine of "separate but equal" was deeply humiliating and insulting when applied to black South Africans. It remains humiliating and insulting (and now also unconstitutional) when applied to homosexuals.

The draft Bill clearly fails to comply with the judgement and if Cabinet knew this, the decision to approve the Bill would constitute a blatant disregard for the highest court in the land. Was it misinformed about the actual requirements for new legislation as set out by the Constitutional Court?

If the Bill is not scrapped or amended by Parliament, its passing will constitute a direct challenge to the Constitutional Court. It will also send a signal that despite the provisions of the Constitution Parliament views homosexuals as less worthy of respect and dignity than other members of society. Hopefully, when Parliament is provided with the facts MPs will do the right thing and will refuse to pass this homophobic piece of legislation in its current form.

Pierre de Vos is professor of law at the University of the Western Cape. He writes in his personal capacity

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