Fourie and Another v Minister of Home Affairs and Others
Supreme Court of Appeal - 232/2003
Hearing date: 23 August 2004
Judgment date: 30 November 2004

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In a judgment delivered today, the Supreme Court of Appeal has granted two women appellants a declaration that under the Constitution the common law of marriage has been developed to include same-sex unions. The SCA held that the Constitution’s equality guarantee, which expressly prohibits discrimination on the ground of sexual orientation, together with several major decisions of the Constitutional and other Courts over the last ten years, meant that the Constitution required the development of the common law definition of marriage to embrace same-sex couples.

The SCA decision does not mean that gay and lesbian marriages can immediately take place. The appellants did not attack any statutory provisions that assume that marriage is confined to opposite-sex couples. They applied only for common law relief. In the Pretoria High Court, the judge dismissed their application because he thought that the Marriage Act of 1961 precluded any relief.

The SCA set this decision aside. The Court pointed out that the Marriage Act requires that a default formula be recited when a marriage takes place. That formula refers to a ‘husband (or wife)’. But this formula applies only to civil marriages (those conducted by a magistrate) and to religious ceremonies where the Minister of Home Affairs has not approved a different formula at the request of a religious organisation.

The SCA pointed out that the Minister is free to approve different marriage formulas for religious organisations that approve and wish to perform gay and lesbian marriages. This meant that the appellant couple were entitled to a declaration regarding the common law of marriage.

But until the Minister approves different religious formulas – or until the Constitutional Court sets aside the statutory default formula – no gay and lesbian marriages can take place.

The SCA emphasised in its judgment that neither its decision about the common law definition, nor the ministerial grant of a variant religious formula, in any way impinges on religious freedom. The extension of the common law definition of marriage does not compel any religious denomination or minister of religion to approve or perform same-sex marriages. The Marriage Act specifically provides that: ‘Nothing in this Act contained shall be construed so as to compel a marriage officer who is a minister of religion or a person holding a responsible position in a religious denomination or organisation to solemnize a marriage which would not conform to the rites, formularies, tenets, doctrines or discipline of his religious denomination or organisation’ (s 31).

The SCA was unanimous that the previous common law definition of marriage, which excluded same-sex unions, constituted unfair and unjustifiable discrimination under the Constitution.

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The South Africa Supreme Court of Appeal ruled 4-1 on Tuesday in favor of ending the exclusion of same-sex couples from marriage rights. The court's decision only affected common-law marriage, and did not legalize same-sex marriage outright, but it was hailed as a major step forward by gay activists.

"It's not possible for people of the same sex to be currently married due to the limitations in the current marriage formula and other regulations in the Marriage Act," said Evert Knoesen of the Lesbian and Gay Equality Project.

"We have to go ahead with legal action to fix up those somewhat more minor legal problems, and we foresee that within the next 12 months or so, same-sex couples will indeed be married. The principle has been won," he told South African radio.

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Originally posted by ShyViolet417:
HOORAY!!!!!!!!

now, if only the U.S. would follow suit...

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Originally posted by gula:

Good news indeed. I think you can forget about the latter for the next four years.

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As for Desmond Tutu, on the subject of marriage he's another John Kerry. "Everything but the name."

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Originally posted by RealityBites:
You can forget about it for a lot longer than four years. I think we're a good 20 years away from seeing equal marriage in the United States.

As for Desmond Tutu, on the subject of marriage he's another John Kerry. "Everything but the name."
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(Cape Town, South Africa) Seventy high schools throughout South Africa have been given until July to allow students to bring same-sex dates to proms or face court action.

The warning came from the Gay and Lesbian Alliance which says it has received complaints from students that they have been told they cannot bring their dates to school dances.

The GLA says this is a clear violation of South Africa's Constitution which guarantees the rights of gays and lesbians.

"The GLA decided to advise these schools that... any action against such pupils... boils down to violation of basic human rights," the organization said in a statement.

[...]

Alliance spokesperson David Baxer said that the GLA has been told by some students that they fear they will not receive their diplomas if they come out.

"We have grade 11 and 12 learners mention to us that they can't even reveal their sexual orientation by attending these farewells, otherwise they might even be expelled before they write their matric exams," he told the South African Broadcasting Corporation.

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A South African court is considering a case that is all too familiar to the surviving spouses of gay relationships in most parts of the world - who gets the estate when there is no will.

Mark Gory and Henry Brooks met in 2003 and soon began a relationship. The following year they purchased a house and moved in together. But, the house and most of the couple's other joint possessions were in Brooks' name.

They shared all expenses and soon after they purchased their home the couple exchanged informal vows and wedding bands at a celebration attended by Brooks' parents. 

Suddenly in 2005 Brooks died without leaving a will. Almost immediately Brooks' family began removing items from their home and eventually forced him to move out of the house.

[...]

The case may never have reached the court had Brooks died after December of this year. South Africa's Constitutional Court ruled last year that that it is unconstitutional to deny gay and lesbian couples the right to marry. 

The court ordered Parliament to amend marriage laws within 12 months. If it fails to act within that timeframe, the court said the ruling would automatically change the law to include same-sex unions.

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Anglicans are especially reactionary in Africa and Asia thanks to the influence of American fundie-fucktard missionaries.

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The Anglican Church in Nigeria is headed by an extreme right wing bishop (Akinola) who refuses to accept any semblance of gay rights. He is backed by the very strong AMiA (Anglican Mission in America) which is an Anglican breakaway group that was begun to protest the "liberalization" of the Anglican Church in the USA (ECUSA: Episcopal Church of the USA). The Anglican Church in South Africa, by contrast, was formerly headed by Archbishop Desmnd Tutu, who has long advocated full rights for gays in the church. The Anglican Church in Nigeria is very right and fundie, the Anglican Church in South Africa is liberal by contrast according to what I've heard, from Desmond Tutu and others.

Wikipedia on Anglican Mission in America (AMiA)

The Anglican Mission in America (AMiA) is a Christian missionary organization active in the United States. Established in 2000, it aims to be an alternative jurisdiction to the Episcopal Church of the USA, the long-established denomination for Anglican Communion members in the United States.

The AMiA was formed by conservative Episcopalians and Anglicans who see the Episcopal Church of the United Sates (ECUSA) as apostate. AMiA members criticize myriad actions, documents, policies and doctrine of the ECUSA as being in conflict with Holy Scripture. The most visible and public of these conflicts is ECUSA's acceptance and encouragement of homosexual members in both laity and clergy.

From: Ecumenical News International Daily News Service (2001)

Ignoring pleas by top Anglican leaders, two non-American bishops have ordained a group of four US Episcopal priests as missionary bishops of the conservative Anglican Mission in America (AMiA).

AMiA supporters are unhappy with an Episcopal Church they say has abandoned tradition on such issues as the ordination of women and openly gay and lesbian clergy.

They also decry the loss of membership in the past 30 years within the Episcopal Church and other US Protestant denominations and contrast that with what they call the "extraordinary" growth of Anglicanism and Christianity elsewhere in the world, including Africa and Asia.

"The United States, who once sent missionaries to Africa and Asia, is now becoming a mission field in the new millennium", the AMiA said in a statement. In an unusual strategy, the AMiA has enlisted the support of conservative bishops in the Third World who believe the Episcopal Church is the errant "liberal" member of the more conservative world-wide Anglican Communion. The AMiA strategy involves consecrating bishops as missionary representatives of their Anglican provinces.
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Relevance? It's awfully convoluted, and there's a lot of threads to connect, but if I can be very general, here goes: There are a few breakaway groups from ECUSA (Episcopal/Anglican Church of the USA) which broke away because they saw ECUSA as becoming both too liberal and too welcoming of gay rights. One of the many groups is the AMiA (Anglican Mission in America) which is heavily funded by Howard Ahmanson and other right wingers, and which also support the conservative Anglican churches in Africa. AMiA and others are claiming that ECUSA has been on a downhill slide since a gay bishop was consecrated, and even before. Louis Crew's website shows that ECUSA was in decline starting from the 1970's when, generally, ALL Christian churches were experiencing decline. However, Crew's graphs show ECUSA growing in the past few years. Louis Crew is the founder of Integrity, an organization of lesbigay Anglicans.

[ 18 March 2006: Message edited by: Boom Boom ]

It's no secret that the Episcopal Church and the Anglican Communion are engaged in a bitter internal struggle over the role of gay and lesbian people within the church. But despite this struggle, the leaders of our global communion of 77 million members have consistently reiterated their pastoral concern for gays and lesbians. Meeting last February, the primates who lead our 38 member provinces issued a unanimous statement that said in part: "The victimization or diminishment of human beings whose affections happen to be ordered towards people of the same sex is anathema to us."

We now have reason to doubt those words.

Archbishop Peter J. Akinola, primate of the Church of Nigeria and leader of the conservative wing of the communion, recently threw his prestige and resources behind a new law that criminalizes same-sex marriage in his country and denies gay citizens the freedoms to assemble and petition their government. The law also infringes upon press and religious freedom by authorizing Nigeria's government to prosecute newspapers that publicize same-sex associations and religious organizations that permit same-sex unions.

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Because the conflict over homosexuality is not unique to Anglicanism, civil libertarians in this country, and other people as well, should also be aware of the archbishop and his movement. Gifts from such wealthy donors as Howard Ahmanson Jr. and the Bradley, Coors and Scaife families, or their foundations, allow the Washington-based Institute on Religion and Democracy to sponsor so-called "renewal" movements that fight the inclusion of gays and lesbians within the Episcopal, Methodist, Presbyterian and Lutheran churches and in the United Church of Christ.
Should the institute succeed in "renewing" these churches, what we see in Nigeria today may well be on the agenda of the Christian right tomorrow.

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Surprisingly, few voices -- Anglican or otherwise -- have been raised in opposition to the archbishop (Akinola). When I compare this silence with the cacophony that followed the Episcopal Church's decision to consecrate the Rt. Rev. Gene Robinson, a gay man who lives openly with his partner, as the bishop of New Hampshire, I am compelled to ask whether the global Christian community has lost not only its backbone but its moral bearings. Have we become so cowed by the periodic eruptions about the decadent West that Archbishop Akinola and his allies issue that we are no longer willing to name an injustice when we see one?

I also feel compelled to ask the archbishop's many high-profile supporters in this country why they have not publicly dissociated themselves from his attack on the human rights of a vulnerable population. Is it because they support this sort of legislation, or because the rights of gay men and women are not worth the risk of tangling with an important alliance?

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South Africa affirms partner estate rights
(Cape Town, South Africa) In what is being hailed as a landmark decision a South African court has ruled that a man whose partner died without leaving a will is entitled to the estate in the same way as a legally married spouse would be.

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South Africa's leading HIV/AIDS organization says the government has barred it from attending a United Nations Special Session on AIDS.

Dozens of AIDS advocacy groups from around the world are expected to attend the Special Session of the General Assembly to be held from May 31 to June 2 in New York. 

The Treatment Action Campaign (TAC) with not be among them, however. TAC says the government's refusal to allow it to participate is "unconscionable".

The organization, which was nominated for a Nobel Prize in 2004, has been a constant thorn in the side of the South African government.

Last July the group participated in a protest march over the lack of progress on access to antiretroviral treatment for HIV/AIDS in Queenstown in the Eastern Cape. Police fired rubber bullets into the crowd.

In May South Africa's health minister insisted that good nutrition was just as important as anti-retroviral medicines and said her government would not be pressured into meeting U.N. treatment targets.

Manto Tshabalala-Msimang said far too little was known about the side-effects of the drugs.

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[ 03 April 2006: Message edited by: Hephaestion ]