Civil Unions Bill - Angilan Mainstream Submission

6 October, 2006

CIVIL UNIONS BILL: SUBMISSION TO PARLIAMENT BY ANGLICAN MAINSTREAM SOUTHERN AFRICA Introduction Anglican Mainstream is a community of Anglican clergy and laity within the Anglican Communion internationally, teaching and preserving the Scriptural truths on which the Anglican Church was based, particularly in the context of the various social and moral issues that confront us. This submission outlines the message that Anglican Mainstream Southern Africa wishes to present orally to the Portfolio Committee in the Stakeholders Hearings to take place at Parliament on October 16 and 17, 2006. We wish to examine some aspects of the impact that legal recognition of same-sex marriages will have on marriage as a whole, to make observations about the content and logic of the Civil Unions Bill and to pose certain ideas relating to the decisions that need to be made concerning the Bill and beyond. It is most important to take a step back, and look at the situation holistically. We stand on the brink of the most radical social experiment in our history, and so we need to weigh up everything before we take the leap, as a nation. Taken in isolation, some perspectives may indeed seem compelling, and one does not take lightly a judgment of the Constitutional Court, but this matter goes to the heart of who we are as a nation, and what values will guide us into the future.

Consequences for Marriage and Family as a Whole It has been pointed out by many people that marriage is not in a good state as it is (and hence why should we be worrying about others who actually want to get married?). This is a sad reality, but it is worth examining a little the reasons for this before leaping into the unknown with a dramatic change to a foundational social institution. Although a full sociological treatise is not possible here, we can make two particular observations pertaining to the state of marriage in South Africa today. Factors Affecting the State of Marriage It is an understatement to say that the migrant labour system had (and continues to have) a serious negative effect on family life in South Africa. For so many children to grow up without regular interaction with their fathers or mothers, and for spouses to be separated for long periods of time must inevitably bring much personal and social instability. But the unseen effects relating to people’s perceptions about the nature of marriage and family may endure even longer. The home and the family centred around a husband and a wife is not the only, or even the dominant model.

Anglican Mainstream Southern Africa: Submission re Civil Unions Bill

In our own time, we see also the devastation of HIV/AIDS and the rise of child-headed households, or the gogo struggling to support a number of grandchildren. The problem with all of this is that the model of family life that is so important for children growing up is often absent or distorted. Another trend is the individualization of marital relationships, where marriage comes to be seen primarily for the benefit of the spouses, with children and the broader family being incidental. In this context, an essentially selfish view prevails. This view of marriage can be termed, the companionate view, where the desire for companionship overrides other considerations. Selfishness can never be a healthy foundation for society, or upon which nation-building can be undertaken successfully. At issue here is what is normative. Marriage is for the benefit of the couple marrying, but is also the most appropriate context in which children can be born and raised. The fact that some marriages are childless does not mean that the norm or standard should be altered. The many people who do not “measure up” to the norm should not be condemned, but neither should the norm be altered because so many are currently outside of it. If same-sex marriage is recognized in law, then this companionate view of marriage is receiving the “blessing” of the state. It is one thing for a trend to exist in society, but an entirely different thing for that to be made concrete in law. Trends can shift and alter, but law will have the effect of entrenching a pattern that can be viewed as unhealthy at best. Future Generations It has been argued that the marriage of a relatively small number of same-sex couples cannot affect the marriage relationships that opposite-sex couples enjoy today. This may or may not be true, but the fact is that we do not live only for now, or for ourselves. Will we be the society and the generation that is judged for forgetting both its history and its future? The people that will feel the greatest effects of this most fundamental shift will be our children, and then their children. It was correctly observed by the Court that the law is a good teacher, and we must not underestimate the power that this has to affect how succeeding generations will think and live. Legal recognition of marriage between same-sex couples will be a declaration by the State that these relationships are normal, and are equivalent to opposite-sex relationships. What started out as a protection for those choosing to live a different lifestyle is ending up Children learn by copying and modelling what they see around them. Children under the age of ten, in particular, need stable, clear-cut values and examples to live by. The legalisation of same-sex marriage would inevitably result in our five-, six- and seven-year old children being taught that marriage is any one of a number of combinations, chosen according to the wishes of the individual at the time. The only outcome of this can be confusion, and conflict with the values taught in most homes. Children of this age are not equipped to deal with this. We are contemplating this sweeping change on the basis of a currently fashionable interpretation of our Constitution, but it seems that we do not care about the implications for future generations. So long as we feel good about it, nothing else matters it seems. We have laws that require environmental impact studies before undertaking significant construction or mining projects, by why do we think that we can engage in this social engineering with no data? Page 2 of 6

Anglican Mainstream Southern Africa: Submission re Civil Unions Bill

The Bill Itself There are various technical issues relating to the Bill, but two fundamental observations stand out: Domestic Partnerships are not Required by the Constitutional Court Decision The introduction of Domestic Partnerships creates a second-class form of marriage. Added to the fact of same-sex marriage being a distinct category, we have here the recipe for much confusion. The extent to which the law should explicitly make provision to “tidy up” after people who have made unwise or (socially) unhealthy personal decisions is questionable. However, instead of making sense of muddled circumstances, the introduction of Domestic Partnerships may prove to create an even greater breakdown of marriage and family life in society. Instead of having this single, unambiguous social institution called marriage, we have three different “choices”. As I have said, the most likely result is confusion, and a lack of social and moral cohesion... Marriage could end up being destroyed, rather than bolstered. But perhaps the most confusing fact about this provision is that it is not required in any sense by the Constitutional Court. Although it may seem to make sense to put all such “partnerships” under one roof, so to speak, and it is true that the subject was discussed a few years ago, the fact remains that discussion of Domestic Partnerships is naturally overshadowed by the marriage question, and so this will not have enjoyed the attention it deserves. The Civil Unions Bill Does Create Same-Sex Marriage By the term “marriage”, do we mean a name, or do we mean the social institution that the name refers to? Clearly, marriage is an institution, and not merely a name. The Civil Unions Bill therefore does create same-sex marriage, but it then calls it a “civil partnership”. As William Shakespeare observed, “A rose is a rose by any other name”. Calling it something else does not change what it is. Sections 11 and 13 make it abundantly clear that there is no difference in fact between a marriage and a civil partnership, as defined. Any distinction that exists is semantic in nature (although it seems clear that many same-sex couples are not satisfied with even this differentiation). What this means is that what many may refer to as the “sanctity” of marriage has not been retained! It cannot be said with any shred of honesty that marriage has been kept as marriage, while same-sex couples have some other legal arrangement. Any attempt to portray this Bill, therefore, as satisfying both the requirements of the Constitutional Court and the concerns of those that wish to preserve the distinctiveness of marriage must therefore be doomed to failure from the start. Only those that wish to be deceived would be persuaded by this argument. And self-deception is hard the basis upon which to grow a healthy society.

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Anglican Mainstream Southern Africa: Submission re Civil Unions Bill

The Decision that Lies before Us I say “us” in referring to this decision in that Parliament is exercising its power and its duty on behalf of all of the people of South Africa. If ever there was a decision that affected every person in an intimate manner, then this is it. It is therefore appropriate and gratifying that Parliament is offering the people this opportunity to put forward their views, albeit that there have been time and administrative constraints. •

Withdrawing or defeating the Bill is merely delaying the fundamental decision. We all know that the Marriage Act will simply be altered if Parliament does not directly address the Court’s view that traditional marriage stands in Contradiction to our Constitution. It is also so that a Constitutional Amendment has been tabled to define marriage as being between a man and a woman, the effect of which would remove the stated contradiction. Therefore, the actual effect of withdrawing or failing to pass the Civil Unions Bill is that the decision as to whether same-sex marriage should be recognized in law is deferred to consideration of the proposed Constitutional Amendment. At that point, parliament will still have the capacity to decide whether same-sex marriage should be passed into South African law or not. To state the obvious, passing that Amendment would preserve the traditional view of marriage, while failing to pass it would amount to an acceptance of same-sex marriage. Passing the Civil Unions Bill makes that decision now. But if it is so that both the proponents and the opponents of same-sex marriage do not find the Civil Unions Bill to be palatable, then we submit that deferring this decision (and allowing more time for debate), is both logical and sensible.

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The human rights perspective. There is not time here to develop this argument, but it has been put forward that the “rights” of same-sex couples, and their struggle for ‘equality” are akin to the struggle against apartheid. This is a convenient means to brush aside all dissenting views because nobody wants to be seen to speak against human rights. Thus, a large body of people who probably do not concur with the notion of recognizing same-sex marriage is silenced. But, this position is based on an unsubstantiated assumption or comparison. Homosexuality is not something recognized at birth, or at some predictable point in a person’s life, and so it is a little disingenuous to equate it with attributes such as race, gender or age. It is something, but it is not these things. In attempting to raise the “status” of the quest of same-sex couples to marry to be equivalent to the struggle against apartheid, it could be that this position is actually reducing the status of that struggle that defines so much of our history.

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Anglican Mainstream Southern Africa: Submission re Civil Unions Bill

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The validity of hearing the Christian viewpoint. There are some that dismiss a Christian, or biblically-based perspective on social issues, or law, on the grounds that, “you can’t impose your religion on me”. This is a fallacy or misnomer in that an important distinction is ignored. There is a fundamental logical difference between the practice or observance of a religion on one hand, and the use of principles and values in social debate on the other. It is perfectly true that nobody can or should impose a personal observance of religion on another. However, there can be nothing wrong with conducting a debate where one’s ideas and philosophy are drawn from a biblical perspective, for example. These ideas are put forward on merit. And while it is true that those speaking from a religious perspective may be advancing a particular worldview, the fact is that all of us approach these matters from a particular perspective. And in the matter at hand, there can be no denying that most of human history, and most religions stand in agreement with the Bible’s view on marriage. This cannot be lightly brushed aside as just one perspective among many.

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Parliament really does have a choice. The Constitutional Court judgment did not leave much room for manoeuvre. Although Parliament was given the task of removing the inconsistency, it is not clear what actual choice the Court intended to give to Parliament. Even the Bill, as it stands, has been questioned in terms of its compliance with the Court ruling, despite according full legal status to same-sex marriages. We submit that the Court is focusing on a narrow, individualistic perspective of rights, and has not properly considered the collective view of society, or of future consequences. And while we are not here to thrash out the Constitutional arguments, we can observe that this is probably not what Parliament intended when it passed the Constitution ten years ago. The choice open to Parliament, therefore, is what many have pointed out. In being required to resolve the seeming conflict between the Constitution and our definition of marriage, the obvious option remains of accepting what we might term the “Marriage Amendment” to the Constitution. This is a valid and logical course of action for a Parliament representing the sovereign will of the people, and in no way conflicts with the constitutional order. This does not even represent any substantive deviation or change, but is rather a clarification of the original intent of this same body ten years on. That there should be these debates and questions can be seen as a healthy sign of a maturing democracy, but it is equally so that not every suggestion or interpretation, just because it is made, must be slavishly followed.

Conclusion We therefore request either the withdrawal of the Civil Unions Bill or, failing that, a decision by Parliament to reject the Bill. Further to this, we request that the proposed Constitutional Amendment Bill defining marriage as, “a voluntary union of a man and a woman” be duly addressed and voted on by Parliament, and that Page 5 of 6

Anglican Mainstream Southern Africa: Submission re Civil Unions Bill

honourable Members support this in sufficient numbers to protect the traditional definition of marriage.

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