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South Africa's High Court Rules in Favor of Gay Marriage


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South Africa's High Court Rules in Favor of Gay Marriage


New York Times: December 1, 2005

JOHANNESBURG, Dec. 1 - South Africa's highest court ruled today that same-sex marriages enjoy the same legal status as those between men and women, effectively making the nation one of just five worldwide that have removed legal barriers to gay and lesbian unions.

But the Constitutional Court, as the high court is known, effectively stayed its ruling for one year to give the Parliament time to amend a 1961 marriage law to reflect its decision. Should the legislature balk, the court said, the law will be automatically changed to make its provisions gender-neutral.

Few expect the Parliament to resist, even though African nations are generally intolerant of gay relationships and many South Africans are conservative on social issues. Among political factions here, only the tiny African Christian Democratic Party, whose positions carry a strong religious undercurrent, called for a constitutional amendment to bar gay marriages.

The African National Congress, which controls the presidency and more than two-thirds of parliament's seats, was silent on the court's decision.

The Constitutional Court's ruling expanded on a 2004 decision by the national Supreme Court of Appeal that affirmed the marriage of a lesbian couple, who were nonetheless unable to register their union with the government's Home Affairs department. The government had appealed the ruling, arguing that the Supreme Court had encroached on Parliament's authority to make laws.

But the Constitutional Court said that the refusal to give legal status to gay marriages, though grounded in common law, violated the constitution's guarantee of equal rights. The justices said marriage laws must be amended to include the words "or spouse" alongside provisions that now refer to husbands and wives.

The decision was essentially unanimous, with one of the court's 12 judges arguing that the ruling should take effect immediately rather than being stayed.

The African Christian Democratic Party said through a spokesman that Parliament should amend the constitution to overturn the court's decision, arguing that "studies of previous civilizations reveal than when a society strays from the sexual ethic of marriage, it deteriorates and eventually disintegrates."

But homosexuality here is not the sort of burning social issue that it is on the American political right. South African gay men and lesbians have recently won a series of court rulings extending to them the rights and protections afforded other citizens. The government-sponsored tourism board this week announced an advertising blitz in Britain aimed at attracting gay couples to Cape Town "for the honeymoon of their dreams in 2006."

"It's not one of our political fault lines," said Steven E. Friedman, a top political analyst at Johannesburg's Center for Political Studies, a nonprofit research center. "The major issue in this society is race. That's why people join political parties. The party of social conservatism is the African Christian Democratic Party, which wins 1 percent of the vote. And that's the group of people who feel that this justifies amending the constitution."

Among some gay rights groups, there was disappointment over the one-year delay. But South Africa's oldest gay and lesbian group, the Cape Town-based Triangle Project, hailed the decision as a victory over discrimination not simply against homosexuals, but against all minorities.

"To grant equality to gay and lesbian people, I would think, is a significant step in democratic reform in this country," Dawn Betteridge, the organization's director, said in a telephone interview.

"And I would hope that all South Africans would be celebrating that." One of the winning attorneys in the lawsuit, Keketso Meama, expressed disappointment at the delay in fully legalizing same-sex unions. But she said the ruling nevertheless was a striking victory for gay men and lesbians, who had few rights throughout most of South Africa's colonial history.

"We still have to wait 12 months," Ms. Meama said in a telephone interview, "but it's fine. We've already waited 300 years."

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