Court Sets South
Africa on Course
for Gay Marriage
By REUTERS, from the
NYTimes on the Web, December 1, 2005
JOHANNESBURG -- South Africa's
high court on Thursday said it was unconstitutional to deny gay people the right
to marry and instructed parliament to amend marriage laws to include same-sex
unions within the year.
The Constitutional Court ruling put South Africa on course to become at least
the world's fifth country to permit same-sex marriage and the first in Africa,
where homosexuality remains largely taboo.
The court, ruling on a government appeal against a lower court order which
opened the door to gay marriage, said parliament would have one year to change
the current definition of marriage which holds that it is between a husband and
wife.
Gay activists have argued that the official law should be changed to read
"spouse" in order to include same-sex partners.
"The current definition of marriage is considered to be inconsistent with the
constitution ... the declaration of validity (of the marriage definition) is
extended for 12 months after this judgment to remedy the defect," the ruling
said.
The court said that if parliament did not act the legal definition of marriage
would be automatically changed to include same-sex unions. That would put
South Africa alongside Belgium, the Netherlands, Spain and Canada in allowing
gay marriages.
Only one of the court's 11 judges dissented from the ruling, arguing the court
should have legalized gay marriage with immediate effect.
Post-apartheid South Africa has one of the most progressive constitutions in the
world and the only one to specifically enshrine equal rights for gays and
lesbians.
But the government has resisted efforts to broaden the official definition of
marriage in the courts, arguing that only parliament should have the right to
make the change.
Leading churches have argued against the move, saying it flouted public opinion
in the mainly Christian country, and called for a referendum on the divisive
issue.
Lawyers for gay rights groups said they were disappointed that the court did not
act to make gay marriages legal immediately.
"It's a bit disappointing. It feels like it's one step forward and still
another one step backwards," said Keketso Maema, a lawyer for the Lesbian and
Gay Equality project.
"The good thing about this judgment is if parliament doesn't do anything in 12
months the word 'spouse' would be read into the marriage act. That gets us
somewhere," she said.
The ruling puts South Africa out of step with much of Africa, where many
countries outlaw homosexuality and publicly condemned it as "un-African."
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