America is on the verge of deciding on two key issues relating to same-sex marriage. Firstly, whether legislation prohibiting same-sex marriage is lawful, and secondly, whether it is lawful to withhold certain Federal State benefits on the basis of same-sex marriage. Put in a different way, America is deciding whether gay couples should be treated the same as heterosexual couples.
By way of example, in Missouri the law allows an employer to fire an employee if he or she says they are gay. There are 29 States in America where it is lawful to fire someone for being gay. Surely, in the 21st century this should not be permitted – as a global society we must learn to be tolerant and acutely aware of diversity. US politicians, for the most part, appear to be in favour of Lesbian/gay/bisexual/transgender (LGBT) equality with current US president Barack Obama publicly backing same-sex marriage. Indications are that the US Supreme Court will rule in favour of equality rights extending to all persons, regardless of sexual orientation.
To give some further context, in the United States, gay married couples are precluded from certain tax benefits and benefits relating to death and retirement. Conversely, in many other parts of the developed world, equality on the basis of same-sex marriage is recognized. South Africa, for example, is at the forefront of global legislation relating to equality rights. The Constitution of South Africa 1996 contains an equality clause which poignantly notes: “everyone is equal before the law and has the right to equal protection and benefit of the law”.
Rewind four decades and America was leading the way in social equality law making. The seminal case relating to a mothers right to abortion, Roe v Wade, set an example that many countries followed; a mothers right to abortion is limited to the circumstances of each case and the trimester within which the abortion is requested to take place, it is however permissible, under certain circumstances, for a mother to make her own choice regarding abortion.
At the risk of verging into academics, the foundation of South Africa’s legal system is Roman-Dutch and English. As in all other developed areas, at that time, the law was written and interpreted in a way that never included current social dynamics and was largely patriarchal in nature. Same-sex marriage. Male rape. Same sex adoption; these issues had never been considered in a judicial sense.
In the matter of Masiya v Director of Public Prosecutions Pretoria the Constitutional Court grappled with the common law definition of rape, which was, at that time, the unlawful penetration of a woman’s vagina with a man’s penis. The wording was problematic in that it did not include male rape nor did it include rape with external, foreign objects nor did it include anal rape. Simply, it was gender specific and did not reflect the changing values and norms of our society.
The result was that a rapist, who elected to rape men and boys, was charged with the far lesser offence of indecent assault. The resulting sentence was clearly far lower. The Constitutional Court in South Africa recognized the problem and ordered the development of “the common-law definition of rape to include the non-consensual sexual penetration of the male penis into the vagina or anus of another person”. The resulting definitional change of rape as, “an act of Sexual Penetration of a victim, without their consent” is far more appropriate.
Insofar as gay marriage is concerned, in South Africa the 2005 matter of Minister of Home Affairs v Fourie dealt with same-sex marriage. Marriage, at that time, was defined as a union of one man with one woman . All nine judges unanimously agreed that gay marriage should be permitted, particularly in light of section 9 (equality clause) of South Africa’s constitution, and the 2006 Civil Unions Act was the final result. This Act provides for same-sex marriage and, from 30 November 2006 same-sex marriage has been permitted in South Africa.