Gays 'must have full rights'

2004-08-23 16:34

Bloemfontein - Homosexuals should be given their full right in terms of marriage, the Supreme Court of Appeal in Bloemfontein was told on Monday.

"Marriage is a mechanism through which heterosexuals automatically get certain rights and privileges," said senior council Pieter Oosthuizen.

He was appearing on behalf of Marie Fourie and Cecelia Bonthuys, who were challenging a decision by Pretoria High Court, which dismissed their application to have their marriage legally recognised.

"The one thing that keeps homosexuals from the same rights is a single line in the common law," said Oosthuizen.

The law defines marriage as a union of one man and one woman, which makes it impossible for same-sex couples to marry each other.

Oosthuizen told the court that wedlock now was not what it was traditionally.

"It's a institution with rights and privileges and has nothing to do with religion.

Change in status

"We also deal now with the realities of 2004 and not those of 1876."

He said the essence of any marriage was that it was a mere contract between two people that would change their status.

"It's this status change that gives them access to certain rights and privileges, which they normally would not have."

Oosthuizen submitted that common law gave heterosexuals a choice to exercise these rights, but homosexuals were not allowed to exercise this right.

He said that just in terms of the constitution, which says that all should be treated equal before the law, the appeal should be granted.

"... if this is a discrimination against their sexual orientation, it is unfair and more than enough reason for the appeal to be granted."

The court also heard a submission by the Lesbian and Gay Equality Project.

The department of home affairs is opposing the appeal.

- SAPA