Thursday, November 23, 2006

Same-sex marriage won't expunge unmarried couples' rights

Over the past ten years the Constitutional Court extended many of the rights enjoyed by married heterosexual couples to same-sex couples in life partnerships. Limiting these rights to heterosexual married couples were found to be discriminatory exactly because same-sex couples could not get married and were thus automatically excluded from enjoying these rights.

Given that the Civil Union Bill will extend marriage to same-sex couples, the million dollar question was what would happen to the rights of unmarried same-sex couples to adopt children, to enjoy immigration rights, pension benefits and the right to inherit from a same sex life partner.

Would a same-sex couple who did not marry on 1 December wake up the next day to find they had the same lack of rights as unmarried heterosexual couples?

Today in the case of Gory v Kolver and Others acting Constitutional Court Judge Belinda Van Heerden (is she destined to become the fourth woman judge on the CC?) confirmed that these hard-won rights would not automatically be amended merely because same-sex couples are now allowed to get married.

We will now have the strange situation where same sex couples will have more rights and more options than heterosexual couples. Even if same-sex couples do not get married they will have, for example, the right to inherent from their life partner – even where no will was left.

But, as the Court points out, Parliament will have the right to amend this kind of legislation to take away the rights of non-married same-sex couples so that they are treated the same as heterosexual couples.

In its haste to pass the Civil Union Bill, Parliament seem to have forgotten about such issues. As the Court pointed out today:

[Q]uestions like what status to accord pre-existing same-sex life partnerships after the expiry of the Fourie deadline, whether to provide a “transitional” period in which partners to pre-existing same-sex life partnerships will qualify for the benefits conferred by law on “spouses”, and if so, the length of such a transitional period are pre-eminently legislative decisions. This kind of decision ought to be taken by Parliament when it enacts the legislation contemplated in the Fourie case, and ought not to be anticipated by this Court.

The underlying issue, which so many so-called pro-marriage opponents of the Civil Union Bill fail to see because of their ingrained homophobia, is that the Civil Union Bill has the potential to strengthen the institution of marriage – not to weaken it.

Many people get married because they cannot easily access the rights attached to marriage in any other way. That is why the second part of the original Civil Union Bill which was dropped from the final version was far more threatening to the institution of marriage than the extension of marriage to same sex couples in the first part.

The second part of the Bill would have extended to non-married heterosexual or same-sex couples many of the rights and privileges associated with marriage without them having to conclude a marriage. The idea is that there is a need to protect the financially and socially weaker partner (usually the woman in a hereosexual relationship) from exploitation.

Such provisions, if adopted, will make marriage for all intense and purposes irrelevant in law.

Lets hope Parliament stick to its promise to reconsider these other aspects of the proposed Civil Unions Bill so that one day marriage will not be about rights and duties, but only about white dresses, giving presents and sharing one's relationship with close friends and family.


Michael Osborne said...


Belinda Van Heerden, potentially the 4th women judge on the CC?

How did I miss the third?

Anyway, I doubt Van Heerden could make it. That would only aggravate the already-existing over-representation of so-called Whites. (Although it would also, admittedly, mitigate the appalling under-representation of women).

That is, of course, if one thinks that the Court should indeed be "representative," as measured by melanin, or genitalia.


Pierre de Vos said...
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Pierre de Vos said...

Michael, the three existing female CC judges are Kate O'Regan, Yvonne Mokgoro and recently appointed Bes Nkabinde. I personally think the court should be more or less representative if only because that would enhance its legitimacy. It will muffle criticism of the court by the Youth League types when, say, they reject a Shaik or Zuma appeal if the amjority of judges are not white. On gender I somehow just trust woman more to make generous and caring decisions than men who are, despite their best efforts, often still embedded in the patriarchal culture. This is, of course, a gross generalisation not based on empricical evidence, but as you point out the women on the CC has often been on the progressive side of CC judgments - often in the minority.

Michael Osborne said...

Pierre, yes, of course, you are right. I had not counted Justice Nkabinde. My mistake.

As to whether women are likely to produce a more caring, generous jurisprudence, I agree that this is intuitively compelling supposition. (See Carol Gilligan, ‘In a Different Voice.’) But perhaps the intuition reflects the stereotypical image of women acting out their traditional maternal roles. Suppose we had grown up in a country ruled by Thatcher, Indira Gandhi or Golda Meyer. Would we have a different conception of women in power?

The only study of which I am aware as to whether female judges were more likely to administer a jurisprudence of care was one that showed, if I recall correctly, that female state judges in Texas in the 1990’s were in fact slightly more likely to impose/uphold capital punishment than their male counterparts. (But that is perhaps only because these particular females were those appointed by then-Governor Bush).