South African High Court Says Yes to Gay Marriage

By Ross von Metzke • December 3, 2005 - 0:00

African nations are generally intolerant of gay relationships

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The high court of South Africa ruled on Thursday that same-sex marriages will enjoy the same legal status as those between men and women, making the nation one of just five worldwide that have removed legal barriers to gay and lesbian unions.

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

Few expect Parliament to resist, though African nations are generally intolerant of gay relationships and many South Africans are conservative on social issues.

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.

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

Homosexuality in South Africa is not the burning social issue it is on the American political right, according to political analysts from the region.

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 announced an advertising blitz in Britain aimed at attracting gay couples to Cape Town this week. The campaign is geared around the slogan, "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."

Last week, South African born actress Charlize Theron told US television program Extra she and fiancée Stuart Townsend would get married when gay relationships were legalized in the United States.

No word yet if the legalization in her homeland qualified for an engagement.

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