南アフリカ共和国、同性婚合法化へ 最高裁判所が政府・議会に一年内の立法を命じる

南ア最高裁 同性婚認める判断 (NHK 2005/12/02)

南アフリカで、男性どうしや女性どうしの結婚を認めないのは憲法に違反するという裁判所の判断が示され、南アフリカはアフリカで初めて、いわゆる同性婚が法的に認められる国となる見通しです。

南アフリカの最高裁判所は、女性どうしのカップルが結婚を法的に認めるよう求めていた裁判で１日、「同性どうしのカップルに異性のカップルと同じように結婚の権利が与えられていないのは、法の下の平等を定めた憲法に違反する」という判断を示しました。そのうえで議会に対し、結婚を男女の間に限って認めている現行の法律を１年以内に改正し、同性どうしの結婚も認めるよう命じました。これによって南アフリカは、同性愛をタブー視する傾向が強いアフリカで、同性婚が法的に認められる初めての国となる見通しです。同性婚をめぐっては、ベルギーとオランダ、それにスペインとカナダの世界４か国ですでに法的に認められています。さらにイギリスでも、同性どうしのカップルに対し、遺産相続など異性の夫婦と同等の権利を認める法律が今月２１日から施行されることになっており、人気歌手のエルトン・ジョンさんやジョージ・マイケルさんが、それぞれ男性と結婚することを明らかにするなど話題を呼んでいます。


アフリカ初の同性婚容認へ (共同 2005/12/02)

　南アフリカ通信などによると、南アフリカの憲法裁判所は１日、同性愛カップルの結婚を認めない現行の法律は差別的で憲法違反として、議会に１年以内に法改正し同性間の結婚を認めるよう命じる判決を下した。

　これまでに同性婚を国家レベルで合法化しているのはオランダやスペイン、カナダなどで、南アで法改正が実施されて容認されれば、アフリカでは初となる。

　政府報道官は「内務省が法改正のために何が必要か調べ、内相に適切な提案を行うだろう」と述べ、判決を尊重する政府の立場を確認した。

　南アの現行法は結婚の定義を「男性と女性の結婚」と規定しているが、憲法裁判所は「２人の人間の結婚」に変更するよう命じた。

　１９９６年に採択された南アの憲法では世界で初めて同性愛者への差別を禁じている。（共同）


South Africa gays get equal marital status
By Michael Wines The New York Times
THURSDAY, DECEMBER 1, 2005

JOHANNESBURG South Africa's highest court ruled Thursday that same-sex marriages enjoyed 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 national 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 sex-neutral.

Few expect 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 that would overturn the legality of 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 decision expanded on a 2004 ruling 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 that marriage laws must be amended to include the words "or spouse" alongside provisions that now refer to husbands and wives.

The 12-justice decision was essentially unanimous, with one judge arguing that the ruling should take effect immediately rather than being stayed.

Some religious organizations and one political party dissented bitterly. 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 has driven some movements like American political conservatives.

South African gays have recently won a series of court rulings extending to homosexuals 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 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 African Christian Democratic Party, which wins one percent of the vote. And that's the group of people who feel that this justifies amending the constitution."

Among some homosexual groups, there was disappointment that the court imposed a one-year delay on its ruling. But South Africa's oldest gay and lesbian support 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 in a telephone interview at the delay in fully legalizing same-sex unions, but he said the ruling nevertheless was a striking victory for gays and lesbians, who had had few rights for most of South Africa's three centuries of colonial history.

"We still have to wait 12 months," she said, "but it's fine. We've already waited 300 years."

Parliament ordered to allow gay marriage
Johannesburg, South Africa
01 December 2005 10:51 - Sapa

It is unconstitutional to prevent gay people from enjoying the legal benefits of marriage, the Constitutional Court ruled on Thursday.

It gave Parliament one year to rework laws allowing same-sex unions. If Parliament does not do this in one year, the Marriage Act will be rewritten to include the words "or spouse" to allow these unions to take place.

Last year, the Supreme Court of Appeal ruled that two women, Marie Fourie and Cecilia Bonthuys, should be allowed to get married, but the couple later found they were unable to register their church wedding with the Department of Home Affairs.

The departments of justice and home affairs went to the Constitutional Court, seeking leave to appeal the decision on the grounds that only Parliament, not the courts, may amend legislation and that the court had given a ruling on something for which it had not been asked.

In a separate application, the court has been asked by the couple and by an alliance of gay and lesbian organisations for the marriage formula under the Marriage Act of 1961 to be changed to include the words "or spouse" instead of "husband" and "wife".

Same-sex couples may marry at present, but the marriage is not recognised in law.

Why wait 12 months?

Gay and lesbian groups were disappointed on Thursday that they will have to wait a year before they can get married.

"Why wait 12 months?," asked Thuli Madi, from the lesbian and gay rights group Behind the Mask.

"If Parliament does not do anything in 12 months, we can marry anyway, so why not make it effective now?"

Fikile Vilakazi, of the Forum for the Empowerment of Women, said: "We are not happy... because for a year we don't have equality."

'The wonderful context'

The right-of-centre African Christian Democratic Party (ACDP) expressed its disappointment at the judgement, saying the Constitution should be changed to underpin the traditional concept of marriage.

ACDP member of Parliament Steve Swart said their view was that "no state or court should seek to alter the traditional, and, from time immemorial, universal understanding of God-given marriage as heterosexual, and of course in terms of Christian understanding, also monogamous.

"We affirm that the traditional understanding of marriage is correct, that it is the God-given context for male/female bonding, mutual care, sexual intimacy and inter-dependent support.

"Then it is the God-given place for the procreation of children and the production of the next generation in the world ... it is the proper, best, safest and most wonderful context and shelter for the nurturing and raising of children." -- Sapa



Last Updated: Thursday, 1 December 2005, 10:40 GMT
South Africa to have gay weddings - BBC

South Africa's highest court has ruled in favour of same-sex marriages, which are banned under current legislation.

The Constitutional Court ordered that parliament amend marriage laws to allow gay weddings within a year.

The constitution outlaws discrimination against gays and lesbians, but social attitudes remain more conservative.

The court ordered that the definition of marriage be changed from a "union between a man and a woman" to a "union between two persons".

Last year, the Supreme Court of Appeal had ruled in a case brought by a lesbian couple that the current law discriminated against homosexuals.

But the home affairs department went to the Constitutional Court, arguing that only parliament could change the law.

"The common law definition of marriage is declared to be inconsistent with the constitution and invalid to the extent that it does not permit same-sex couples to enjoy the status and benefits it accords heterosexual couples," said Justice Albie Sachs in his ruling, AFP reports.

After the Supreme Court of Appeal ruled last November that Marie Fourie and Cecilia Bonthuys should be allowed to wed, they later found they were unable to register for a church wedding at the Department of Home Affairs.

'Disappointing'

Keketso Maema, a lawyer for the Lesbian and Gay Equality project, said he was disappointed that the Constitutional Court did not order the immediate legalisation of gay marriages.

"It's a bit disappointing. It feels like it's one step forward and still another one step backwards," he told Reuters news agency.

Church groups in South Africa have argued that the issue should be put to a referendum, and say that most South Africans would oppose the legalisation of gay marriages.

South Africa's constitution - introduced in 1996 - was the first in the world specifically to outlaw discrimination on the grounds of sexual preference.



South Africa to legalise gay marriage
Ben Townley, GAY.COM
Thursday 1 December, 2005 11:16

The South African government has been told its bar on gay marriage is unconstitutional by the country’s highest court.

It must now give same-sex couples access within the next 12 months, the Constitutional Court said.

The ruling, the latest in a string of decisions on gay marriage across the globe, follows a ruling by the South African Supreme Court of Appeal that said the government must give a lesbian couple the right to marry.

It had been eagerly awaited by gay campaigners in the country, who warned that the existing block on lesbian and gay couples goes against the country’s ground-breaking constitution.

After the fall of apartheid, South Africa became the first country in the world to introduce legal protection against discrimination for lesbian and gay people in its new constitution.

In his ruling, Justice Albie Sachs said this existing legislation meant a ban on gay marriage was “invalid”.

"The common law definition of marriage is declared to be inconsistent with the constitution and invalid to the extent that it does not permit same-sex couples to enjoy the status and benefits it accords heterosexual couples," the ruling read, according to news reports.

South Africa is now set to become the fifth country to legalise full marriage access for same-sex couples.

The court said that even if parliament does object to the decision and makes no move, the law would be changed regardless.

Marriage will now be open as a “union between two persons”.

The Netherlands, Belgium, Spain and Canada currently allow full gay marriage, as well as the US state of Massachusetts.

South Africa is the first to do so on the African continent, but it has long stood at odds with other conservative countries on the continent when it comes to sexual diversity.

As well as protecting lesbians and gays under its post-apartheid legislation, it has also targeted itself at lesbian and gay tourists as a premier destination.

The country’s government is yet to respond to the ruling.

Court sets South Africa on course for gay marriage
Thu Dec 1, 2005 4:42 AM ET

JOHANNESBURG (Reuters) - 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."