Home Affairs - Fourie - Amicus' Heads 222 Final

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO. CCT 60/2004 In the matter between: MINISTER OF HOME AFFAIRS

First Applicant

DIRECTOR-GENERAL HOME AFFAIRSSecond Applicant and MARIE ADRIAANA FOURIE CECILIA JOHANNA BONTHUYS

First Respondent Second Respondent

and MARRIAGE ALLIANCE OF SOUTH AFRICA curiae

Amicus

THE MARRIAGE ALLIANCE OF SA’s HEADS OF ARGUMENT

INTRODUCTION

1.

In the Supreme Court of Appeal (“SCA”) Cameron JA held that:

“The focus in this case falls on the intrinsic nature of marriage, and the question is whether any aspect of same-sex relationships justifies excluding gays and lesbians from it.”1 1

Fourie and Another v Minister of Home Affairs and Others (2005) 1

2.

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He deals with the

intrinsic

nature of marriage in paragraphs 14 and 19 of the judgment. In paragraph 14 he states:

“At issue is access to an institution that all agree is vital to society and central to social life and human relationships. More than this, marriage and the capacity to get married remain central to our self-definition as humans. As Madala J has pointed out, not everyone may choose to get married: but heterosexual couples have the choice2.

The capacity to

choose to get married enhances the liberty, the autonomy and the dignity of a couple committed for life to each other.

It

offers them the option of entering an honourable and profound estate that is adorned with legal and social recognition, rewarded with many privileges and secured by many automatic obligations.3

It offers a social and legal

shrine for love and commitment and for a future shared with another human being to the exclusion of all others.” 3.

In paragraph 19 he states :

“In this case, the question is whether the capacity for commitment, and the ability to love and nurture and honour and

sustain,

transcends

the

incidental

fact

of

sexual

orientation.” All SA 273 (SCA), paragraph 19 at 282H-283A 2

Satchwell v President of the Republic of South Africa 20021 (6) SA 1 (CC) para 12

3

Footnotes omitted

4.

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It is submitted that the SCA

did not have proper regard to the actual intrinsic nature of marriage.

Without expressly acknowledging it, the SCA

adapted, and endorsed, a model of marriage which radically differs from the traditional, common law model.

We refer to the traditional, common law model as the “conjugal” or “traditional model”.

We refer to the model

described in the SCA's judgment as the “close personal relationship” or “pure relationship” model.

5.

The

differences

between

the

models

of

marriage

are

illustrated by the following dicta in two cases:

5.1

“My colleague, Gonthier J. in Miron v Trudel has been at pains

to

discuss

the

fundamental

importance

of

marriage as a social institution, and I need not repeat his analysis at length or refer to the authorities he cites. Suffice

it

to

say

that

marriage

has

from

time

immemorial been firmly grounded in our legal tradition, one

that

is

itself

a

reflection

of

philosophical and religious traditions.

long-standing

But its ultimate

raison d'étre transcends all of these and is firmly anchored in the biological and social realities that heterosexual

couples

have

the

unique

ability

to

procreate, that most children are the product of these

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relationships, and that they are generally cared for and nurtured by those who live in that relationship.

In this

sense, marriage is by nature heterosexual. It would be possible

to

legally

define

marriage

to

include

homosexual couples, but this would not change the biological

and

social

realities

that

underlie

the

traditional marriage.”4 5.2

“Civil

marriage

is

at

once

a

deeply

personal

commitment to another human being and a highly public

celebration

of

the

ideals

of

mutuality,

companionship, intimacy, fidelity and family … Because it fulfils yearnings for security, safe haven, and a connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether a need to marry is among life’s momentous acts of self-definition”.5 6.

There is no evidential basis for the SCA's rejection of the traditional conjugal model (exemplified in the first quote) and its approval of the close relationship model (exemplified in the second qoute). This dramatic change inherent in rejecting the conjugal model is clearly demonstrated by what Cameron JA said in the inaugural lecture which he delivered on 27 October

4 5

La Forest J in Egan v Canada 124 DLR (4th) 609 para 21 Goodridge v Department of Public Health, 440 Mass 309, 798 NE2d 941 (2003) para. 25

19926. the

-5-

Under heading

“The Consequences of Constitutional Protection”, the following appears:

“Whatever the answers, adequate constitutional protection of persons discriminated against because of sexual orientation will entail … (a)

Decriminalization …

(b)

Legislative enforcement of non-discrimination …;

(c)

Right of free speech association and conduct …;

(d)

Permanent domestic partnerships.

More

controversially,

genuine

recognition

of

non-

discrimination on the ground of sexual orientation would entail granting some recognition to permanent domestic partnerships.

This need not take the form of extending

heterosexual “marriage” which both by name and tradition may well be unnecessary and inappropriate. “ The lecture was premised on the basis that the Constitution would contain specific protection for the rights of persons based on their sexual orientation. We submit that Cameron JA 6

“Sexual Orientation and the Constitution: A test case for human rights” (1993) 110 SALJ 450 at 470-471. (This is a revised version of the lecture)

-6-

correctly referred

to

marriage as a “heterosexual” institution7. evidence

that,

since

1992, this

There is simply no

institution changed so

dramatically that it was transformed to one based on close personal relationships.

WHAT IS THE INTRINSIC NATURE OF MARRIAGE?

7.

According to LAWSA8:

“Marriage may be defined as the legally recognised voluntary union for life of one man and one woman to the exclusion of all others while it lasts.

The definitions of marriage given by

some old writers go further, introducing references to the element of sexual intercourse between man and wife, and to that

of

the

procreation

of

children.

Whereas

sexual

intercourse appears to constitute one of the necessary purposes or causae finales of marriage in modern law in that impotence of one spouse existing at the time of the marriage and unknown to the other spouse renders the marriage voidable at the instance of the ignorant party, the modern view is that the procreation of children, although linked to the essential nature of marriage, is not a necessary purpose of it. Although marriage is undeniably the most important institution of family law, it is not only or even primarily a legal institution: 7

As did La Forest J in Egan

8

Volume 16, 1st re-issue, paragraph 12:

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it is based on human nature

and is necessary for the maintenance of society of which it forms an important foundation.” (Footnotes omitted)9 8.

Certain realities regarding marriage are uncontroversial.

No

credible examiner of marriage seriously disputes them, and no law respecting marriage should be formulated without due consideration thereof.

8.1

First

and

foremost

institution10.

is

that

marriage

is

a

social

As such, marriage shares with all other

social institutions certain salient features.

Stated

slightly differently, what can be said accurately about all social

institutions

institution

of

can

marriage.

be

said

accurately

Social

of

the

institutions

are

constituted in large measure by shared public meanings. It is constituted “by a complex web of social meaning”11.

9

See also Lee and Honore: “Family, Things and Succession”, 2nd Ed., paras

21-27 10

Du Toit and Another v Minister for Welfare and Population Development and Others 2002 (10) BCLR 1006 (CC), para 19

“The

institutions of marriage and family are important social pillars that provide for security, support and companionship between members of our society and play a pivotal role in the rearing of children.”; Satchwell v President of the RSA and Another 2002 (9) BCLR 986 (CC), para 13 11

Monte Stewart: “Judicial Redefinition of Marriage” 21 Canadian Journal of Family Law 11 (2004) (hereinafter “Judicial Redefinition”) at 75

8.2

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The shared

meanings (especially the core meanings) that constitute a social institution interact and are inter-dependent. Each core meaning affects and is dependent on all the others.

8.3

Social institutions shape and guide individuals’ identity, perceptions, aspirations and conduct.

“(T)he marriage institution, like all social institutions, is constituted by a complex web of meanings that supplies to the people who participate in it what they should aim for, dictates what is acceptable or effective for them to do, and teaches how they must relate to other members of the institution and to those on the outside, in other words,

that

profoundly

shapes

what

those

who

participate in the institution think of themselves and of one another, what they believe to be important and what they strive to achieve.”12 8.4

Inasmuch

as

societies

create

and

sustain

social

institutions, society can change its social institutions. Because social institutions are constituted by shared public meanings, they are necessarily changed when those 12

meanings

Judicial Redefinition at 111

are

changed

and/or

no

longer

-9-

sufficiently shared.

8.5

Social institutions can be entirely dismantled:

“The secret of understanding the continued existence of institutional facts is simply that the individuals directly involved and a sufficient number of members of the relevant community must continue to recognise and accept the existence of such facts…. The moment, for example, that all or most of the members of the society refuse to acknowledge (the social institution of) property rights, as in a revolution or other upheaval, property rights cease to exist in that society.” 13 8.6

To alter a social institution by altering the shared public meanings that constitute it, (whether by use of the law or otherwise) is to alter – if not immediately then certainly soon– the individual identity, perceptions, aspirations and conduct formed by reference to the old

13

Searle: “The construction of social reality” (1996) at 117. Searle also uses the example of money: “We can say, for example, in order that the concept “money” applied to the stuff in my pocket, it has to be the sort of thing that people think is money … [I]n order that a type of thing should satisfy the definition, in order that it should fall under the concept of money, it must believed to be, or used as, or regarded as etc. satisfying the definition.

And what goes for money goes for elections, private

property, wars, voting, promises, marriage, buying and selling, political offices and so on.”

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institution.

The greater the alteration to the institution,

the greater the changes in the individual.

Likewise, the

more influential the social institution being changed, the greater the changes in the individual.

8.7

It bears repeating that these realities regarding social institutions in general and the social institution of marriage in particular, are uncontroversial.

No law

respecting marriage can be formulated responsibly and properly without giving these realities their due.

8.8

Although

these

fundamental

realities

are

uncontroversial, consensus ends when one enters the realm of the highly charged and controversial debate about the redefinition of marriage.

9.

The virtually universally shared public and core meaning constituting the vital social institution of marriage is that the marriage is the union of a man and a woman.14

14

Apart from the various common law recognitions, see also Halpern v Canada (Attorney General) 225 DLR (4th) 529 at para 37; Egale Canada Inc v Canada (Attorney General) 225 DLR (4th) 472 paras 50-56; Cere and Farrow: “Divorcing Marriage: Unveiling the Dangers in Canada’s New Social Experiment” (McGill-Queen’s University Press 2004) at 45-48 (hereinafter “Divorcing Marriage”).

10.

This

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core

meaning

has

been, and continues to be, influential in forming individual identity, perceptions, aspirations and conduct.

Thus, the

institution turns a male into a husband and often into a husband / father.

In many important ways, a husband acts

differently towards a wife than a male acts towards a female and a husband / father acts differently towards his child than a male acts towards his biological offspring.15

Cere comments

on the two models as follows16:

“Comparative cultural analysis alerts us to the great diversity of forms taken by the marital institution, but is also shows us that

marriage

invariably

displays

certain

features.

Summarizing this historical and cross-cultural evidence, Margo Wilson

and

Martin

Daly,

evolutionary

psychologists

at

McMaster University, conclude that marriage is an institution that interacts with the unique social-sexual ecology in human life. It bridges the male-female divide. It negotiates a stable partnership of life and property.

It seeks to manage the

procreative process and to establish parental obligations to

15

Coolidge: “Same-sex marriage? Baehr v Miike and the Meaning of Marriage”, South Texas Law Review, Vol. 38:1 (1997) pp1-119 puts forward three contending models of marriage, namely the traditional model of marriage: complementarity; the liberal model: choice and the post modern model of marriage: commitment. traditional model defines marriage in America.

16

Divorcing Marriage pp 11-13

His conclusion is that the

offspring. supports

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It the

birthright of children to be connected to their mothers and fathers17 Canadian Law and public policy have long recognised this. In Egan v Canada, Justice La Forest summed up the legal tradition when he stated that marriage is “firmly anchored in the biological and social realities” that men and women “have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship”.

However, by the time of Egan a revolt

against those realities was already well under way.

A new

body of academic and legal opinion was busily draining marriage of its core conjugal characteristics: permanence, procreativity and child-centredness.

The move to divest

marriage even of its sex-bridging essence prepared.

was being

Conjugal marriage would be discharged in favour

of something else, something built on “pure relationships” or on what scholars sometimes call “close relationship theory”. The British social theorist Anthony Giddens argues that contemporary culture is in the midst of a shift from a culture of marriage to a culture of pure relationships.

A pure

relationship is one that has been denuded of any goal or end beyond the intrinsic, emotional, psychological or sexual 17

Margo Wilson and Martin Daly, “Marital Co-operation and Conflict” in Evolutionary Psychology, Public Policy and Personal Decision, Charles Crawford and Katherine Salmon Eds (Mahwah, NJ: Lawrence Erlbaum Associates, 2004) p203

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satisfaction that

the

relationship brings to the adults involved. Pure relationships, unlike marriages, are the ever-changing product of private negotiation. In so far as marriage itself is drawn into this new culture of intimacy, it is placed on a level playing field with all other “long-term” sexual partnerships.

Severed from its

historic roots in sex difference, permanence, and children, it becomes nothing other or more than a form of intimacy between consenting adults. It is made more pliable, open to constant

renegotiation,

easily

contracted

and

easily

dissolved. The close-relationship paradigm has not yet been subjected to sustained critical evaluation.

Our legal establishment,

however, appears very anxious to enthrone it in law. Closerelationship theory provides the framework for the recent recommendations of the Law Commission of Canada in its 2001 report: Beyond Conjugality: Recognising and Supporting Close Personal Adult Relationships.

Its influence is also

evident in recent Court judgments on marriage. Consider, for example, the language of the Halpern appeal: “Marriage is, without dispute, one of the most significant forms of personal relationships. … Through the institution of marriage, individuals can publicly express their love and commitment to each other.

Through this institution, society publicly recognises

expressions of love and commitment between individuals, granting them respect and legitimacy as a couple. This public recognition and sanction of marital relationships reflects society’s approbation of the personal hopes, desires and aspirations that underlie loving, committed conjugal relationships.

This can only enhance an

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individual’s sense of selfworth and dignity”.

What is seldom acknowledged is that this paradigm shift from the conjugal to the close relationship represents a fundamental reinterpretation of the core social purposes of marriage.”

11.

In his comprehensive article “Judicial Redefinition of Marriage”, Monte Stewart refers to the “deep logic of marriage”18. This phrase encompasses the complex of purposes and values that the literature suggests inheres in the social institution of marriage

as

societies.19

experienced

in

Canadian

and

American

A relevant component of this complex is the

procreation argument.

It is a response to two essential

realities of man/woman intercourse: its procreative power and its passion.

The component’s purpose is understood as the

provision of adequate private welfare to children. The phrase “private welfare” includes not just the provision of physical needs such as food, clothing and shelter; it encompasses opportunities such as education, play, work and discipline and intangibles such as love, respect and security. He concludes that the fundamental and originated purpose of marriage is to confine procreative passion to a setting, a social institution

18

Judicial Redefinition, p44-46

19

And, we submit, South Africa.

that

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will

ensure, to the largest

practical

extent,

that

passion’s

consequences

(children) begin and continue life with adequate private welfare. In this regard he refers to the dissenting judgment of Cordy J in Goodridge20

“Paramount

among

its

many

important

functions,

the

institution of marriage has systematically provided for the regulation of heterosexual behaviour, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated and socialised. … (A)n orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism. The institution of marriage provides the important legal and normative

link

between

heterosexual

intercourse

and

procreation on the one hand, and family responsibilities on the other. … (A)side from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents of a particular child. The institution of marriage fills this void while formally binding the husband/father to his wife and child, and imposing on him the responsibilities of fatherhood. The alternative, society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.” 20

At 381-383:

12.

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Katherine Young21 states the following:22

“Comparative research on the worldviews of both small-scale societies and those of world religions, both Western and Eastern, reveals a pattern:

Marriage has universal, nearly

universal and variable features. Its universal features include the fact that marriage is (a) supported by authoritiy and incentives; (b) recognizes the interdependence of men and women; (c) has a public or communal, dimension; (d) defines eligible partners; (e) encourages procreation under specific conditions; and (f) provides mutual support not only between men and women but also between them and children. Its nearly universal features are (a) an emphasis on durable relationships between parents; (b) mutual affection and companionship; (c) family (or political) alliances and (d) reciprocity between young and old.

Most large-scale

societies have encouraged durable relationships between biological parents and children at least until the latter reach maturity.

That is because of the long time it takes infants to

mature; cooperation is necessary to ensure their survival. Most societies have recognised that these are fragile bonds and therefore preferred arranged marriages (although they usually encourage affection and companionship as well). 21 22

Divorcing Marriage, p45-46 With minor changes, this section of the chapter is based on her affidavit in the Halpern case.

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These universal and

nearly universal features rely on the distinctive (but not necessary innate) contributions of both sections, allow the transmission of knowledge from one generation to another, and create not only “vertical” links between the generations but

also

“horizontal”

ones

between

allied

families

or

communities. As for the many variable features of marriage these include endogamy (marrying within a group) or exogamy (marrying outside it); monogamy or polygamy (and, if the latter, polygyny or polyandry); marrying up in status or marrying down; arranged marriage or chosen; dowry (from the bride’s family) or bride price (goods given or services performed by the groom); sexual equality or hierarchy; many children or few; extended family or nuclear; residence with the bride’s family; with the groom’s, or neither; divorce allowed or prohibited; and so on.

Alternatives to marriage are

celebrated in some societies (as in the case of celibate monks for instance of shamans) and tolerated in others (such as single people or gay couples), but only when the larger society is in no danger of failing to reproduce itself.” 13.

We respectfully submit that the common law recognition of marriage is prior to the State and law. Throughout history, and across racial, cultural and religious lines it is recognised as an inherently heterosexual institution, as Cameron JA did in his inaugural lecture.

- 18 DOES THE COMMON LAW DEFINITION OF MARRIAGE HOMOSEXUAL PERSONS? 14.

DISCRIMINATE

AGAINST

In Halpern v Canada (Attorney-General)23 the respondents argued that the “unique opposite sex nature of marriage does not

imply

that

the

human

dignity

of

those

in

other

relationships is diminished”. The “definitional boundaries” of marriage “do not violate the constitutional rights of the quality of those whose unions have an essential difference”.

15.

Blair R S J held that, if this understanding of marriage forms the starting point of the constitutional analysis, the argument that s15(1) of the Canadian Charter of Rights and Freedoms (“Charter”) is violated is harder to make24:

“Viewed from this standpoint, same-sex couples are not excluded

from

the

institution

because

of

their

sexual

orientation; rather, they are simply ineligible because they fall outside of the “definitional boundaries of marriage”. They are incapacitated from entering the institution, not precluded from doing so on the basis of their personal characteristics.” 16.

Later in the judgment he returned to this argument:25

23

215 DRL 223 para 63

24

para 64

25

Para 80, p272

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“Whether one

approaches ‘marriage’ from the classical perspective based upon the narrow basis that heterosexual procreation is its fundamental underpinning and what makes it ‘unique in its essence, that is, its opposite sex nature’, or whether one approaches it from a different perspective, is pivotal to the s.15 analysis, however, if one accepts the former view as the starting premise, there is little debate, it seems to me. The institution

of

marriage

is

inherently

and

uniquely

heterosexual in nature. Therefore, same-sex couples are not excluded from it on the basis of a personal characteristic giving

rise

to

differential

stereotypical difference.

treatment

founded

upon

a

Same-sex couples are simply

incapable of marriage, because they cannot procreate through heterosexual intercourse.

Thus it is a distinction

created by the nature of the institution itself which precludes homosexuals from access to marriage, not a personal characteristic

or

stereotypic

prejudice.

The

equality

provisions of s.15 are not violated, and even if they were, the same analysis would justify the law in preserving the institution for heterosexual couples and therefore save the classic definition of ‘marriage’ on a s.1 analysis.” 17.

Blair R S J rejected the argument that marriage is inherently and uniquely heterosexual in nature on the basis that heterosexual procreation is no longer viewed as the central characteristic of marriage.

He accordingly found that there

was indeed a violation of s.15(1) of the Charter.

18.

We submit, on

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the analysis in the previous section, that marriage, as defined in the common law, is indeed a heterosexual institution (“has inherently heterosexual uniqueness”) or, as Cameron JA stated, it is “heterosexual ‘marriage’”, and that it is “unnecessary and inappropriate” to extend it to include homosexual persons. If this is the case, we submit that there is no discrimination against, or infringement of any rights of, homosexual and lesbian persons26. They are excluded from the institution, not because of their sexual orientation, but because the institution is, by its nature and definition, heterosexual.

19.

The common law does not prescribe what marriage is. It recognises the institution of marriage as understood and given content by society.

20.

The desire for equality is not a hope for the elimination of all differences.27 There is nothing discriminatory in preserving an institution which, over centuries and worldwide, has been regarded as a vital social institution.

26

Our reference to”homosexual persons” includes lesbian persons.

27

National Coalition for Gay and Lesbian Equality v Minister of Justice and Others 1998 (12) BCLR 1517 (CC) at para 22

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IF THE COMMON LAW DEFINITION DOES DISCRIMINATE AGAINST HOMOSEXUAL PERSONS, IS THE DISCRIMINATION UNFAIR? 21.

If the Court finds that marriage, as defined in the common law, is not an inherently heterosexual institution, and that it constitutes discrimination against homosexual persons, the discrimination will be due to their sexual orientation. As such it is presumed to be unfair28.

22.

According to the Harksen judgment, the test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.

On this

analysis homosexual persons are excluded from what is regarded as a pivotal social institution.

The arguments why

any

unfair”)

discrimination

is

justified

(“not

are

more

appropriately made under the limitation clause.

THE LIMITATION ANALYSIS

23.

It is submitted that any limitation of homosexual persons’ right to marry is reasonable and justifiable in an open and

28

Sections 9(3) read with 9(5)

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democratic society based on human dignity, equality and freedom.

The nature of the

rights infringed, equality and dignity, are important.

24.

The purpose of the limitation is fundamental. It is necessary to protect an institution which is universally regarded as vitally important to society.

25.

The SCA found that Ms Fourie and Bonthuys did not seek to limit procreative heterosexual marriage in any way, but merely wished to be admitted to its advantages29. what they said in their affidavits.

That is

It will, however, not be the

effect of the redefinition of marriage.

26.

The act of redefinition will radically transform (not all at once but over time and probably quickly) the old institution of marriage and make it into a profoundly different institution, one whose meanings, value and vitality are speculative. Redefinition also affects already married opposite sex couples. Redefinition, without an act of their own, removes them from the institution which they voluntarily entered (man/woman marriage) into a markedly different one.

29

Para 18.

27.

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To the extent that

institutions are constituted by social meaning, and to the extent that the law dictates the social meaning of civil marriage, to redefine marriage as the union of any two persons is not to pull gay men and lesbians into marriage as our societies now know it, but to pull married man/woman couples

into

what

Monte

Stewart

calls

“genderless

marriage”.30

28.

Cere31 describes the redefinition as a “paradigm shift”. According to him:

“We cannot tinker with the fundamentals of an institution like marriage

without

expecting

significant

consequences.

Suppose the rules of chess were changed in order to standardize the moves of each of the pieces – what we would be left with would not be chess at all but a curious-looking game of checkers.

Marriage, likewise, is not improved by

becoming all things to all people. Rather, its capacity to carry its social meaning, and to serve its own distinctive goals, is cast into doubt.

Changing the public meaning of an

institution changes the social reality. 30

Judicial Redefinition, p84-85

31

Divorcing Marriage, pp 15,

It transforms the

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understandings, practices and goods supported by that institution. In this case it alters even the “conjugal self”.”

29.

This reality is appreciated by gay and lesbian theorists. Ladelle McWhorter points out that:

“… (Heterosexuals) are right, for example, that if same-sex couples get legally married, the institution of marriage will change, and since marriage is one of the institutions that support

heterosexuality

and

heterosexual

identities,

heterosexuality and heterosexuals will change as well.”32

30.

In this regard Lorraine Wolhuter33 says the following:

“It will be argued that, given the degree to which South African and foreign jurisprudence is informed by heterosexist ideology, those interested in gay unions must reformulate the concept of marriage, excise the heterosexist symbolism that is attached to it, and construct a new understanding of the institution of marriage that meets the needs of gay couples.” 31

In a recent article, following Canadian jurisprudence throughout, but framing itself within a South African context, De Vos, referred to as an authority by the Law Reform

32

Divorcing Marriage, p14

33

“Equality and the concepts of difference: same-sex marriages in the light of the final Constitution” (1997) 114 SALJ 389

- 25 Commission (see: Discussion Paper 104, Domestic Partnerships, December 2003: ISBN: 0-621-34421-4), shows the illiberal direction of certain main-stream analysis in how he speaks of the need to “attack” the concept of “family” and “marriage”: “If everyone has the right to be different and if we must move away from the idea that heterosexuality forms the normative basis for policy formulation, then the very institutions which valorise a certain manifestation of heterosexuality in our society must be under attack. A prime candidate for re-invention or reconstruction must surely be the institutions of "marriage" and the "family', the very institutions which have been deployed to regulate and police intimate relations in our society. These institutions have traditionally been associated with the validation and valorisation of certain kinds of heterosexual relationships and have thus contributed to the marginalisation of those whose sexuality do (sic) not conform to the idealised heterosexual norm. If we were to engage with the [South African] Constitutional Court's equality rhetoric around sexual orientation in a serious manner, it would throw into doubt the constitutional tenability of the continued use of these concepts in their present form or perhaps in any form.34 The language of simple “inclusion” into the pre-existing recognized category of male/female marriage is not a simple inclusion. As De Vos’ article shows, the goal is the “attack” on marriage and the family. The legal challenges claim simple inclusion but their reason for the inclusion is not benign, it is designed to obliterate the preexisting institutions as “heteronormative.” 34

Pierre De Vos "Same-Sex Sexual Desire and the Re-Imagining of the South African Volume 20 Part 2

Family" South African Journal of Human Rights (2004) 179 at 187

31.

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De Vos35 also states

the

following:

“One must, however, acknowledge the strong likelihood of constitutional challenge to same-sex marriage from same-sex couples in South Africa in the new future. The best way to deal with this situation, I believe, is to pursue both short term and long term strategies regarding marriage.

In the short

term, we must acknowledge that marriage, as it is presently structured, holds many advantages for gay men and lesbians. … However, over the long-term it will be necessary to challenge the legally privileged position itself that is afforded married people by contrast with unmarried people. and

short-term

strategies

need

not

be

Long-

regarded

as

antithetical to one another, but rather as stages in a process.”

32.

Professor Robert Wintemute is an influential and vocal proponent of same-sex marriages. The counsel for the Lesbian and Gay Equality Procject referred to one of his articles in footnote 109 of their written argument. His agenda is clear. In 2002 he said the following :

“As sex, sexual orientation, and gender identity discrimination 35

“Same-sex marriage, the right to equality and the SA Constitution” (1996) 11 SAPR/PL, p355 at 359-60

in

- 27 -

religious

institutions wither away, the need for religious exemption in the religious private sphere will disappear. Although it is unlikely to appear witin my lifetime, I look forward to the day when, for example, the first lesbian Pope issues her apology for the sins of the Roman Catholic Church against LGBT (lesbian, gay, bisexual and transgendered) persons around the world. And I am sure that Bertha Wilson (former Supreme Court of Canada Judge) will welcome that day too”36

33.

In the final analysis, there will be only one, not two institutions of marriage in our society.

The redefinition of marriage

reshapes the social institution of marriage into nothing more than a “shrine for love and commitment” where adult choice is not only necessary but sufficient to constitute a marriage. This fundamentally conflicts with the current institution and its role in fostering the private welfare of children.

34.

Marriage is the foundation on which families are built and the primary way in which couples and families organise their lives. The State has a legitimate and important purpose in

36

“Religion vs Sexual Orientation?: A clash of Human Rights?” Vol 1, No

2

Law and Equality, Fall 2002, 126-153 at 153

Journal

of

- 28 -

supporting marriage.

It

further has a legitimate role in protecting the diverse religious interests of various communities in South Africa.

35.

The State further has a compelling interest in fostering the private welfare of children.

36.

There is a rational, indeed compelling, relation between the limitation and its purpose.

The limitation is designed to

protect and ensure the continued existence and vitality of an important, if not vital, social institution.

37.

The common law rule limits the rights. The question whether there are less restrictive means to achieve the purpose of the common law rule in reality forms part of the question how, and to what extent, the common law must be developed.

SHOULD THE COMMON LAW BE DEVELOPED BY REDEFINING MARRIAGE?

38.

Where the common law deviates from the spirit, purport and objects of the Bill of Rights, it should be developed if it is

possible

and

- 29 -

appropriate37.

39.

The development must be incremental.

40.

For the reasons set out above, the redefinition of marriage will not be an incremental step. It is a dramatic change which will have many and, at this stage, unquantifiable consequences. In this regard Spina J, in his dissenting judgment in the Goodridge case, said: “such a dramatic change in social institutions must remain at the behest of the people through the democratic process”

41.

Sosman J stated that the change “affects not just a loadbearing wall of our social structure but the very cornerstone of that structure.”

42.

In Egale38 Prowse JA held that such a redefinition was not a mere incremental change in the law. According to her such a redefinition would constitute a profound change to the meaning of “marriage” and would be viewed as such by a significant portion of the Canadian public, whether or not it supported the change39.

37

Carmichele v Minister of Safety and Security and Another 2001 (4) SA 938 (CC) at para 39.

38

225 DLR 4th, 472, para 77 and 78

39

See Judicial Redefinition, pp77-78

43.

- 30 -

The traditional,

shared recognition of marriage, uniquely bonds together all ethnic, cultural and religious groups in South Africa. The addition of same-sex relationships into this category is not simply an addition, it is an obliteration of the prior category.

44.

Almost 80% of South Africa’s population follows the Christian faith40. In view of the fact that the common law definition does not apply to African customary, Muslim and Hindu marriages, and that the Constitution expressly provides for separate legislation in respect of such marriages,41 it is inappropriate to develop the common law.

The Legislature should attend to

any definitional change.

45.

In this regard, the dissenting judgment of Sosman J in the Goodridge case is relevant. He said42:

“Based on our own philosophy of child rearing, and on our observations of the children being raised by same-sex couples to whom we are personally close, we may be of the view that what matters to children is not the gender, or sexual orientation, or even the number of the adults who raise them, 40

South Africa Yearbook 2003/04 pp 5-7. The figure is based on the 2001

census 41

Section 15(3)

42

para 87, 88 and 91

but

- 31 -

rather

whether those adults provide the children with the nurturing, stable, safe, consistent and supportive environment in which to mature. Same-sex couples can provide their children with the requisite nurturing, stable, safe, consistent and supportive environment in which to mature, just as opposite-sex couples do.

It is

therefore understandable that the court might view the traditional

definition

of

marriage

as

an

unnecessary

anachronism, rooted in historical prejudices that modern society has in a large measure rejected and biological limitation that modern science has overcome. It

is

not,

however,

our

assessment

that

matters.

Conspicuously absent from the court’s opinion today is any acknowledgement that attempts at scientific study of the ramifications

of

raising

children

in

same-sex

couple

households are themselves in their infancy and have so far produced

inconclusive

and

conflicting

results.

Notwithstanding our belief that gender and sexual orientation of parents should not matter to the success of the childrearing venture, studies to date reveal that there are still some observable differences between children raised by opposite-sex

couples

and

children

raised

by

same-sex

couples. … Our belief that children raised by same-sex couples should fare the same as children raised in traditional families is just that: a passionately held but utterly untested belief. The Legislature is not required to share that belief but may, as the creator of the institution of civil marriage, wish to see the proof before making a fundamental alteration to that institution. … Before making a fundamental alteration to that

- 32 -

cornerstone, it is

eminently

rational for the Legislature to require a high degree of certainty as to the precise consequences of that alteration, to make sure that it can be done safely, without either temporary or lasting damage to the structural integrity of the entire edifice. The court today blithely assumes that there are no such dangers and that it is safe to proceed. … an assumption that is not supported by anything more than the court’s blind faith that it is so”. 46.

Separate but equal means that two entities are inherently the same but are nonetheless treated differently.

That is

discrimination. Different but equal means that two entities are not inherently the same but are treated equally.

That is the antithesis of

discrimination.43 47.

In the context of a separate institution for same sex couples in a committed relationship, Margaret Somerville says the following44:

“Same-sex marriage advocates claim that an approach based on two separate-but–equal institutions is discriminatory in its essence. If so, it would be unacceptable. To decide we must look

first

at

the

context

in

which

43

Margaret Somerville: Divorcing Marriage, p72

44

Divorcing Marriage pp 75-6

separate-but–equal

institutions

- 33 -

are proposed; second, at whether there is a relevant difference between them; and third, at the reasons for adopting that approach. .. (T)he judgment of … Brown v The Board of Education45 … concluded that

‘In the field of public education, ‘separate but equal’ has no place. Separate educational facilities (on the basis of race) are inherently unequal’

But that is not necessarily true of establishing separate institutions in other areas on other grounds.

In particular, it is not necessarily true of institutions for the public recognition of committed adult relationships when, as is true for marriage and civil unions, they encompass different realities and carry different symbolism. Indeed it is not even true of all separate educational institutions. Separate schools for girls and boys – separate, that is on the basis of sex and not race… - can be equal and are not seen as discriminatory by most people, even though sex, like race, is normally a prohibited ground of discrimination….

45

(1954) 347 US 483

Take example

- 34 -

the of

allocating shared hospital rooms. Allocating shared rooms on the basis of race would be discrimination, but doing so on the basis of sex is not.

Indeed, failure to do the latter can be a

breach of a person’s human rights and dignity.”

48.

The fact that, in most countries, the legislature adopted legislation providing for such separate institutions proves the correctness of Somerville’s views.

49.

The argument that homosexual partners do not seek to limit procreative heterosexual marriage in any way, but only gain access for themselves, is generally referred to as the “no downside argument”.

50.

It can be said, at least for purposes of argument, that this argument concedes that man/woman marriage serves good and even optimal, important governmental interests relative to procreation.

It then asserts, however, that opening

marriage to same-sex couples will visit no harms upon the institution of marriage. The rate of man/woman marriage will not decline and married men and women will continue at an undiminished rate to have and rear children.

At the same

time,

- 35 -

the

argument asserts, such opening will result in valuable goods, namely an increase in same-sex couples’ sense of dignity, and equality and greater security for their children.

The argument’s

conclusion is that it is irrational not to “open” marriage to same-sex couples where there is no-downside and such a substantial upside.

51.

In short, the argument says that the State’s interest in marriage will not be adversely affected if same-sex couples are allowed to marry.

Married same-sex couples will

strengthen and enhance the importance of marriage in South African society.

52.

To date there is no conclusive research in this area because same-sex marriage is a recent phenomenon.

There is,

however, research that appears to contradict this argument. The

institution

of

marriage

links

heterosexual

bonding,

procreativity and natural parent-child connectedness for the benefit of children and society at large. Defining marriage as the “union of any two persons” necessarily destroys this linkage.

It destroys the unique social-sexual ecology in

human life that marriage represents. It removes the symbolic

- 36 -

importance of procreation to

the detriment of society and future generations and it separates parenthood from marriage..

53.

The latter phenomenon is documented and researched in family life in Scandinavian countries that have legalised samesex marriages.

In two articles, “The end of marriage in

Scandinavia: the “conservative case” for same sex-marriages collapses”46 and “Going Dutch?: Lessons of the same-sex marriage debate in the Netherlands”47 a research fellow at the Hoover Institution, Stanley Kurtz, concluded that the de facto, and at times de jure, recognition of same-sex marriage in European

countries

such

as

the

Netherlands,

Sweden,

Denmark and Norway was both an effect and a reinforcing cause of the separation of marriage and parenthood.

Kurtz

argues that instead of leading to an increase in the marriage relationship of these countries, recognition of same-sex marriage drove home the message that “Marriage itself is outdated, and that virtually every family form, including out of wedlock parenthood, is acceptable.”

His findings do not

attribute these results solely to the recognition of same-sex

46

The Weekly Standard, February 2, 2004, (The February 2004 article)

47

The Weekly Standard, May 31, 2004, (The May 2004 article)

- 37 -

marriage (because

there was already a trend towards separation of marriage and parenthood) but emphasise that recognition of same-sex marriage has further undermined the institution of marriage by widening the separation.

54.

A further State interest in the protection of the heterosexual institution of marriage is the need of the upholding of the coherence, and the “civic glue” of civil society. The traditional male and female heterosexual idea of marriage is shared by the majority of South Africans, immaterial of race, religion and ethnic grouping.

This forms part of the larger concept of

ubuntu. Ubuntu places the individual and his or her rigths in the larger context of the community, which has shared perceptions and practices to ensure social well-being. If, as a so-called act of “inclusion”, same sex-marriage is established as a norm, the vast majority of cultures and religions in South Africa

will

find

themselves

excluded

from

the

“new”

mainstream by virtue of their opposition to same sexmarriage.

If

same-sex

relationships

are

recognised

as

marriages, the “civic glue” of shared male/female marriage recognition will be dissolved by forced judicial inclusion of same-sex relationship recognition into the marriage category.

55.

The

- 38 -

change

that would be achieved by a redefinition is not simply an addition of gay and lesbian couples to the traditional institution of marriage. It is a destruction of the institution and the creation of a new one. It

is argued that what is being sought is "civil marriage" and that this will not effect religious conceptions of marriage. Underlying this is a view that society divides neatly into two compartments: one labelled "civil" and the other "religious."

This argument is inaccurate and dangerous

since is would skew analysis in a direction that favours the beliefs (or worldview) of atheists and agnostics as against religious believers.

The Supreme Court of

Canada rejected the idea that there can be a "bright line" between civil and religious when it held that the term "secular" must be interpreted so as to include religious beliefs rather than exclude them.48

The majority judgment of McLachlin C.J.C. referred to the meaning of “secular” with approval to the dissenting judgment of Justices Gonthier and Bastarache which held:

48

Chamberlain v Surrey School District No. 36[2002} 4.S.C.R 710

- 39 -

136 The discussion above is consistent with the proper understanding of "secular" and "non-sectarian", terms referred to in s. 76 of the School Act, which provides general direction as to how all schools are to be conducted. A proper understanding of these concepts was well elaborated by the Court of Appeal below and has been discussed in the reasons of the Chief Justice. 49 137 In my view, Saunders J. below erred in her assumption that "secular" effectively meant "non-religious". This is incorrect since nothing in the Charter, political or democratic theory, or a proper understanding of pluralism demands that atheistically based moral positions trump religiously based moral positions on matters of public policy. I note that the preamble to the Charter itself establishes that "... Canada is founded upon principles that recognize the supremacy of God and the rule of law". According to the reasoning espoused by Saunders J., if one's moral view manifests from a religiously grounded faith, it is not to be heard in the public square, but if it does not, then it is publicly acceptable. The problem with this approach is that everyone has "belief" or "faith" in something, be it atheistic, agnostic or religious. To construe the "secular" as the realm of the "unbelief" is therefore erroneous. Given this, why, then, should the religiously informed conscience be placed at a public disadvantage or disqualification? To do so would be to distort liberal principles in an illiberal fashion and would provide only a feeble notion of pluralism. The key is that people will disagree about important issues, and such disagreement, where it does not imperil community living, must be capable of being accommodated at the core of a modern pluralism. The "civil" is not, therefore, to be viewed as a "religiously free" realm but one that includes all citizens whether they are religious or not. The court, therefore, should avoid any analysis that defines the "civil" as exclusive of religion or in ways that covertly or tacitly partake of the anti-religious ideology of "secularism" for to do so would use legal interpretation in aid of an ideology that is itself exclusionary and unfair50..

49

Iain

T

Benson

:

“Notes

“Secular””(2000),33 U.B.C.L. Rev 50

Towards

a

(Re)Definition

of

the

519

Iain T Benson: “considering Secularism” inDouglas Farrow, ed “Recognizing Religion in a Secular Society ( Montreal: McGill/Queens, 2004) 83-98

56.

For all these reasons

- 40 -

the

Court should not develop the common law as requested, but leave any changes to the law to the legislature.

- 41 -

INTERNATIONAL LAW

57.

The United Nations does not recognise a right to same-sex marriages.

In the summer of 2002, the United Nations

Human Rights Committee held that a New Zealand law denying marriage licences to same-sex couples does not violate the international covenant on civil and political rights51. The Committee stated:

“The treaty obligation of States … is to recognise as marriage only the union between a man and a woman wishing to be married to each other. “ 58.

Other U.N documents that reaffirm heterosexual institution of marriage and the family are:

57.1 The African Charter of Human Peoples’ Rights, 1981 (Article 18(1)); The International Covenant on Civil and Political Rights, 1966 (Article 23(4));

57.2The International Covenant on economic, social and cultural rights 1966 (Article 10);

57.3The International Convention on the Elimination of all 51

Joslin v New Zealand (Communication No 902/1999) (17 July 2002) UN Doc CCPR/C/75/D/902/1999 (2002).

forms

- 42 -

of

racial discrimination, 1965 (Article 5);

57.4The Convention on the Elimination of all forms of discrimination against women (Articles 9 and 16);

57.5The American Convention on Human Rights (Article 17).

59.

The European Union does not recognise a right to same-sex marriages.

The European Convention on Human Rights

states:

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. The European Court of Human Rights has repeatedly held that: (1) The “right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex” and (2) “The exercise of this right shall be subject to the national laws of the contracting States”52. 60.

Most free and democratic societies, committed to human dignity, equality and freedom, continue to define marriage as the union of husband and wife.

52

As of March 1 2005, Belgium

Rees v United Kingdom 9 EHRR 56 (1987) at para 49; See also Cossey v United Kingdom 13 EHRR 622 (1991) at para 43; Sheffield and Horsham v United Kingdom, 27 EHRR 163 (1999) at para 66.

and

- 43 -

the

Netherlands remained the only nations in the world to recognise same-sex couples as married under national law.

Courts in seven (of

ten) provinces of Canada have declared a right to same-sex marriage (and the Canadian Parliament is debating national legislation).

In

the

United

States,

one

State

Court

(Massachusetts) out of fifty states currently affirms the right to same-sex marriage.

While there has been some modest

movement in favour of same-sex marriage, the vast majority of democratic nations committed to human dignity, equality and freedom continue to reserve marriage to opposite sex couples.

For example, since November 2003 when the

Goodridge decision was handed down in Massachusetts, Courts in Arizona, Indiana, New Jersey, New York and West Virginia, as well as two US Federal Courts, have declared that marriage

laws

do

not

violate

the

principles

of

equal

protection53. 53

Standhardt v Superior Court, 77 P.3d 451 (Ariz. App Div 1, 2003) (review denied May 26 2004); Morrison v Sadler 821 N.E 2d 15 (Ind. App. 2005); Lewis v Harris case no. MER-L-15-03 (N.J. Super. Ct.) Nov 5 2003); Link v King (W.Va

2004) (mandamus action dismissed April 1, 2004);

Seymour v Holcomb Case no. 2004-0458; 2005 NY Misc Lexis 313 (Feb 23 2005); Shields v Madigan, case no. 1458/04, 783 NYS 2d 270 (Supr. Ct. NY. 2004); In re: Kandu, 315 B.R. 123 (Bankr. W.D.Wash. 2004) Wilson v Ake, F Supp. 2d 1298 (M.D. Fla. 2005)

61.

- 44 -

Over the past decade

40

American states and two Native American Tribes have adopted legislation affirming the definition of marriage as the union of husband and wife. In the past year alone 14 American states have, through constitutional referendum, amended their State Constitutions to affirm marriage as the union of husband and wife.

62.

In August 2004 a broad majority of the Australian Parliament passed new legislation affirming marriage as the union of husband and wife54.

63.

In adopting civil union legislation in 2004, New Zealand also rejected same-sex marriage, maintaining a definition of marriage as the union of husband and wife.55

FURTHER EVIDENCE TO BE ADDUCED

64.

If allowed, the amicus will

introduce the evidence of the

following expert witnesses which it submits are relevant in determining a case of this fundamental importance, especially 54

Marriage Amendment Act, 2004 No. 126 (Australia) (“Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”)

55

Civil Union Act, 2004, No. 102

since

- 45 -

the

record contains no evidence about the intrinsic nature of marriage, any changes thereto and the possible societal consequences of a redefinition :

63.1Daniel Cere, the Director for the Institute of Study of Marriage, Law and Culture, Montreal.

A copy of an

affidavit which sets out the nature of his evidence is attached.

As appears from the affidavit, his evidence is

given from a Roman Catholic perspective.

He also deals

with the theories underlying many of the debates over same-sex marriage, namely social constructionism and its variants poststructuralism and deconstructionism.

63.2Katherine K Young, James McGill, Professor and Professor of Religious Studies, McGill University.

A copy of an

affidavit which sets out the nature of her evidence is attached.

It

inter

alia

deals

constitutes marriage and why.

with

what

universally

It is similar to the affidavit

which was filed in the Halpern case.

She incorporated

much of that affidavit in the chapter which Paul Nathanson and she wrote as part of Divorcing Marriage.

63.3In

the

- 46 -

absence of comparable research in South Africa, affidavit(s) referring to social research in America that affirm that children do best when they are born into and reared by a family composed of their two natural parents bound in marriage. This research shows that children raised by the married natural parents are more likely to be healthy in mind and body and to succeed in school, work and in life. They are less likely to be physically, sexually or mentally abused, to use illegal drugs, to be involved in the juvenile justice system, to become wards of the State or to attempt suicide. Social research also indicates that the reduction of marriage to a pliable close personal relationship regime means more unstable and less child-centred marriages.

63.4Affidavit(s) confirming Stanley Kurz’s articles referred to in paragraph 52.

CONCLUSION

65.

Cameron was correct when he described marriage as a heterosexual institution and that it is unnecessary and

- 47 -

inappropriate that same-sex

couples be allowed to marry. Their exclusion from the institution is not discriminatory.

66.

In the alternative, if it is regarded as being discriminatory, the discrimination is not unfair and is furthermore a justifiable limitation of the rights of same-sex couples.

67.

In view of the fundamental change that a redefinition will bring

about,

the

importance

of

the

institution,

the

international trend to legislate for separate institutions and the fact that there is already legislative recognition of African customary

marriages

which

are,

in

certain

respects,

incompatible with the common law definition, the Court should leave it to the Legislature to effect whatever changes are required in the law.

G

C

PRETORIUS

SC D M ACHTZEHN P G SELEKA

- 48 -

J R BAUER Amicus Curiae’s Counsel Sandton Chambers 6 May 2005.