-- PRESS STATEMENT --

Same Sex Marriage:
Judgement Fundamentally Flawed

The judgment of the Supreme Court of Appeal that authorizes the legalization of same-sex Marriage through the legal vehicle of the common law is fundamentally flawed and therefore cause for grave concern. It raises serious questions about the essential need for principled and legally persuasive judicial reasoning. It also, as correctly stated by the minority consenting judgment of Farlam JA, gives rise to concerns about the principle of separation of powers, and ultimately, the long-term stability of our democracy.

Simply put, the majority judgment of the court as written by Justice Cameron does not deal with the crucial issues that should have been addressed in a manner in keeping with legal integrity and principle. The judgment sets a new precedent and stands to change a venerable institution of society – in this instance the institution of marriage – yet vital questions were not explored. Questions such as: What is the essence of the nature of the institution of marriage? Is it an institution that originated prior to the state and is therefore ex post facto approved and legalized by the state, or was marriage given birth and form by the state? Who really should have capacity to marry and why? What legal principles and guidelines are to be used to determine this?

The constitutional arguments that were brought forward are, with all due respect, appallingly weak. At no point does the judgment really grapple with issues relating to equality and human dignity, nor does it attempt to assess these concepts in the context of understanding the institution of marriage itself. For example: Is the exclusive preservation of the institution for heterosexuals truly discrimination or is it differentiation? How should the interpretation of any of the stated grounds in S9 (3) be distinguished? Is there a difference between the stated grounds or should they all be subject to the same scrutiny? Is discrimination on the basis of race truly analogous to discrimination on the basis of sexual orientation? (As Cameron JA so poetically infers).

“I am deeply conscious of the fact that this Court, consisting as it does of unelected judges, should not do anything which prejudices or even possibly preempts the decision Parliament takes on the matter. Important and wide-ranging policy issues have to be considered . . . The policy issues are for Parliament, not for us. This is a result of the application of the doctrine of the separation of powers, which, as the Constitutional Court has recently reminded us, must be respected by the Courts….”

Farlam JA clearly is deeply conscious of the principles that should govern a democracy: The value that different institutions must place on each other’s role, sovereignty and interdependence and the need to remember that after all, a democracy is founded on the will of the people and that the people are to have a concrete voice through the legislative process in order to determine the kind of society that they would like to build and live in.

The HSRC 2003 Social Attitudes Survey, released October 8, 2004 determined that 78% of adult South Africans believe that sexual relations between two adults of the same gender are “always wrong”. In reaction to this finding the media felt itself ordained to judge them as, “narrow minded and conservative”. Why? Because the majority of South Africans, irrespective of race, social standing, age or political affiliation still believe that sexual relations between people of the same sex are taboo and consequently oppose the prospect of gay marriages being legalized in this country.

So what really is the state of our legal system and ultimately our democracy, ten years post-Apartheid?

The judgment shows that, similar to those who defended the tyranny of Apartheid, the courts of the New South Africa are willing to advance the cause of a minority group in total disregard of the fundamental principles of democracy and the core values embraced by the majority of South Africans. This has dire consequences. As the courts usurp jurisdiction in the name of ‘democracy’, they implicitly cause the majority of the population to lose confidence not only in the legal system, but also in the possibility of the people to become true citizens who are involved in the creation of the mores of their own society.

This is not sustainable democracy building. Any society constructed in this manner will certainly collapse. President Thabo Mbeki, quoting the Hon David K Malcolm at the official opening of the Constitutional Court earlier this year, warned of impending disaster should this become a precedent.

“In reality, a strong, independent judiciary forms the foundation of representative democracy . . . However, it is primarily the confidence of the community in the legal system which encourages observance of the law . . . if one accepts that the courts work through the voluntary acceptance of their authority by the community, the relationship between the courts and public must be reciprocal . . . for society to maintain its respect for the law, the law must bear relevance to the society to which it is applied . . . ultimately respect for the decisions taken by our Constitutional and other courts, must rest on whether our people are convinced that these decisions are consistent with what Judge Malcolm described as “basic values representative of community values”.

Clearly the judges of the Supreme Court of Appeal have, in this instance, not considered the values of the majority of South Africans. It is evident that the judgment does not reflect the legal principle that, development of the common law should be guided by the core values of the community at large, and it is therefore fundamentally flawed. For this reason it is imperative that the ANC government, through the office of the Minister of Home Affairs seeks leave to appeal against the judgment, and that the case be referred to the Constitutional Court. This, while the legislative process is pursued by the people as all sectors of society engage with government and other stakeholders in vigorous debate on the possibility of same-sex marriage being legalized in South Africa. It is not desirable that the judgment remain unchallenged, and that by this means a panel of five unelected judges use their office to legalize same-sex marriage – a prospect that is morally unacceptable to the majority of South Africans.

STATEMENT ISSUED BY:
Christian Lawyers Association of South Africa
Contact person: Denise Woods
National Director
Christian Lawyers Association of South Africa
P O Box 4665
PRETORIA 0001
183 Lynnwood Road, Hillcrest. Pretoria
Telephone: 012-362-0865
Facsimile: 012-362-0866