New bid to allow gay marriages

2004-07-09 17:56

Johannesburg - Gay and lesbian organisations took the last legal step in their 10-year journey towards equal rights on Thursday when they filed a court application to have same-sex marriages recognised.

Evert Knoesen, director of the Lesbian and Gay Equality Project, said on Friday: "Recognition of (same-sex) marriages will eradicate unfair legal restrictions against lesbian and gay people and help in removing the stigma associated with the community."

The application was filed by the Equality Project and 18 other applicants in Johannesburg High Court.

It argues that the Marriage Act of 1961, which expressly prohibits same-sex couples from entering into the institution of civil marriage, is unconstitutional.

The Constitution of South Africa prohibits discrimination on the basis of sexual orientation and enshrines the rights of lesbian and gay people.

Knoesen said there were numerous rights afforded married couples - such as the ability to make decisions on each other's behalf, to visit partners in hospital, and to inherit if their partner died without a will - from which same-sex partners were excluded.

He said all of these common-law rights would be automatically bestowed on gay and lesbian couples if their marriages were recognised.

"We are not even sure whether the government will oppose the application. We hope that they do not.

"Our struggle is not against the government, but against an inherited legal system."

Wendy Isaack, from the legal advice centre of the Equality Project, said there should be no need for debate on the issue. "Such acknowledgement is long overdue".

The application is the latest in a string of court cases which have slowly chipped away at a legal framework developed when homosexuality was illegal in South Africa, activists argue.

In 1998 the Constitutional Court ruled to strike down the common-law offence of sodomy found in the Sexual Offences Act and the Criminal Procedure Act.

It also, in 1999, allowed foreign same-sex partners of South Africans to become permanent residents, said Isaack.

Knoesen said this final application was the culmination of a 10-year strategy on the part of the Equality Project and its predecessor, the National Coalition for Gay and Lesbian Equality:

'The religious right' expected to fight

"Prior to 1994 there was no concept of rights for lesbian and gay people in the law. We could not assume the courts would necessarily support us in the progressive manner that they did."

He said that even if this final application did not succeed, gays would still have the other rights for which they had fought.

The only groups who might object to the application would be "the religious right," said Knoesen.

He said the application did not seek to allow gay and lesbian people to be married in religious institutions, only access to the common-law institution of marriage.

- SAPA