Yesterday Jaco Barnard and I attended the last day of the hearings conducted by the Home Affairs Profolio Committee on the Civil Union Bill and made a presentation. There was, of course, the usual parade of religious fanatics whose arguments often seemed so far-fetched that I thought it did our argument more good than bad to have them presented there. But I was shocked and surprised by the questions some of the Committee members posed to us and others who favoured equal marriage rights. I feel the Committee process was fundamentally flawed because it failed to take the Constitutional Court judgment in the Fourie case as the starting point of the discussion. The Chair of the Committee told me at one point that the Committee was just putting the question of Constitutionality "to one side for the moment" and was debating the "larger issues". I explained to him that they should not and could no place the Constitution to one side because they have a Constitutional duty to enforce and uphold the Constitution. If they pass a Bill that they know does not comply with the order of the Constitutional Court they will actually be in contempt of court.
Much of the discussion also centred around the question of whether same-sex couples could possibly succesfully raise children. Many of the Committee members showed a touching but belated concern for the well-being of the children raised in same-sex households. I had to point out to the Committee that its members were at least 4 and possibly 11 years behind the times because gay men and lesbians have been legally allowed to adopt children in South Africa since 1995 and same-sex couples have been allowed to adopt children jointly since the Du Toit judgment handed down by the Constitutional Court in 2002. In fact, that judgment made it clear that denying same sex couples the right to adopt and jointly raise children and constituted unfair discrimination. For the members of Parliament to still raise this issue therefore seem to suggest both an astonishing ignorance on their part and also a homophobic obsession with the parenting skills of same-sex couples. As the members threw out questions about children, I got the same feeling I had when I saw Justice Gerhardus Hattingh on the TV news calling for the re-introduction of the death penalty when he sentenced the three murderers of Makgabo Matlala (4), the granddaughetr of Judge President bernard Ngoepe. My then reaction (was I unfair and was I stereotyping him?) was: this judge is not steeped in the values of the new Constitution and should perhaps resign in the interest of transformation.