Same-Sex Marriage affecting Other-Sex Marriage

An interesting comment in the previous thread looking at these issues from the experience of South Africa which has had a unified marriage law for quite a few years.

First our context. Gay marriage was legalised in South Africa through the Civil Union Act 2006, which was passed by Parliament in response to a Constitutional Court ruling the previous year that denying gay couples access to marriage was unconstitutional under our clause outlawing discrimination on grounds of sexual orientation. If you want some more background then, in this case, the Wikipedia article here is quite accurate: http://en.wikipedia.org/wiki/S…

The Civil Union Act is effectively what the Equal Marriage Campaign wants for the UK. Both same- and opposite-sex couples can contract either a marriage or a civil partnership. The text of the act itself is here http://www.info.gov.za/view/Do… if you’re interested. The Act updates all mention of marriage in other laws to be same- or opposite-sex neutral, with the important exception of the two already existing marriage laws which I’ll cover below.

But first, it’s important for Christians to note that there are two important religious safeguards in the Civil Union Act:

1. Religious organisations that want to register civil partnerships or marriages under the Civil Union Act have to register with the government before any individual minister can then also register to do the same. This effectively means that the denomination has to approve of same-sex marriage before any minister in the denomination can do the same.
2. Individual marriage registration officers, civil or religious, can ‘object on the ground of conscience, religion and belief to solemnising a civil union between persons of the same sex, whereupon that marriage ofricer shall not he compelled to solemnise such civil union’. This provision has been used by state marriage registrars in my own province of the Eastern Cape which you can read about here: http://www.dispatch.co.za/news…. Lillian Ladele would have been completely protected in South Africa.

Gay activists have objected to both of these provisions but my reading of it is that in highly religious South Africa they simply would not have got the Civil Union Act through Parliament without these rights of conscience.

Now to the marriage legislation. We now have three marriage acts as follows:

1. The Marriage Act 1970 as amended which is opposite-sex only. It unsurprisingly seems to be similar to existing marriage law in the UK.
2. The Customary Marriages Act 1998 which provides for mariage, monogamous or polygamous, under customary law. Many African countries have two parallel systems of law, customary and codified. Customary law applies to people living in areas under tribal authorities, effectively meaning that it applies to black Africans living in many parts of rural South Africa.
3. The Civil Union Act 2006 provides for same- and opposite-sex couples to get married or register a civil partnership.

There’s now the interesting situation where a straight couple now has two or three different (depending on their race) legal mechanisms for marriage. You can however only get married under one of the Acts – effectively you’ve got to choose which one.

This has caused problems for Nelson Mandela’s grandson, Mandla Mandela, a tribal chief and MP. His first marriage was under the Marriage Act which does not allow for polygamous marriage. Since then he has gone ahead and conducted two further marriages under the Customary Marriages Act which are illegal as he has not yet come to a divorce with his first wife. He may (or may not) now have an arrest warrant for bigamy out on him! If you’re interested, you can read a bit about this mess here: http://www.dispatch.co.za/news…

But back to same-sex marriage and the Civil Union Act. Pierre de Vos, a constitutional lawyer and gay rights activist, has criticised the rights of conscience provisions. In an interesting article here http://www.utrechtlawreview.or… he recognises that the Civil Union Act has ‘unnecessarily complicated South Africa’s family law regime by providing heterosexual couples with a choice to marry under the old or the new Act while providing same-sex couples only with the option of entering into a marriage or a civil partnership under the Civil Union Act. Moreover the new Act is silent on some difficult legal issues that necessarily flow from the fact that same-sex marriages are not gendered in nature’.

One of the more obvious failings of the Civil Union Act was that it did not cover divorce! There was a test case last year that effectively extended all the divorce provisions of the Divorce Act 1970 to same-sex couples. There’s an article on the case here http://imod.co.za/2011/06/15/c…

But this is now problematic. The Divorce Act provides for divorce on the grounds of irretrievable breakdown (one year separation, adultery, imprisonment) or mental illness or unconsciousness. What is adultery in the case of a same-sex marriage or civil union? According to this article http://divorcelawyer.iblog.co…. on divorce law in South Africa, ‘adultery may be defined as voluntary sexual intercourse between a married person and someone other than his or her spouse’. As Peter has noted for the UK, the South African definition of sexual intercourse is ‘vaginal penetration’ in a large body of case law.

De Vos recognises that marriage is a wide ranging institution captured by the phrase ‘consortium omnis vitae between the spouses. This turn of phrase is supposed to capture in the abstract the ‘totality of a number of rights, duties and advantages accruing to the spouses in a marriage’. As Cronjé and Heaton points out this includes, inter alia, companionship, love, affection, comfort, mutual services and sexual intercourse’. But what is sexual intercourse in a gay marriage? At present it is undefined.

Robinson and Swanepoel (here http://www.ajol.info/index.php… have argued persuasively from this concept of ‘consortium omnis vitae’ that marriage is heterosexual:

‘Companionship, love, affection, comfort, mutual services, sexual intercourse – all belong to the married state. Taken together, they make up the consortium; but I cannot think that the loss of one element, however, grievous it may be, … can be regarded as the loss of the consortium … Still less could any impairment of one of the elements be so regarded. Consortium, I think, is one and indivisible.

It is clear that the explanation of the concept of consortium in both T v T and Grobbelaar v Havenga relates closely to the exposition of marriage as a social entity. The eros corresponds with the foundational function of marriage in that there are sexual differences between male and female, which make possible sexual intercourse and guarantee the unity of marriage qua social entity. On the other hand, philia and agapé relate to the concept of companionship, love, affection, comfort and mutual services as explained in Best v Samuel Fox. These concepts, it is suggested, are indicative of the leading function of marriage as set out above.

From the exposition given above, it is clear that sexual differences between male and female play the all-important role of guaranteeing the unity of the marriage relationship’.It seems that there is a large body of case law that will need to be changed in South Africa due to the legalisation of same-sex marriage that will change the definition of opposite-sex marriage. Due to the similarities between South African and UK codified law, I’d suggest that the UK will face the same problems if it legalises same-sex marriage.

Let me summarise the issues involved from South Africa:

  1. There were problems responding to requests for divorce and in particular divorce on the grounds of adultery. This was connected to issues around defining sexual practice and consummation in a manner that covers all combinations of two people (male/male, male/female, female/female), particularly given that the previous definition had been based around coitus (vaginal penetration).
  2. Government employees received better protection for conscience on these matters then employees in the UK have under the Civil Partnership Act.
  3. Denominations as a whole were permitted to opt out of solemnizing same-sex unions. This is what has been offered here in England and Wales, but how that would interact with a State Church whose very liturgy defines the legal understanding of marriage?
Let me add one more area of concern not covered by Philip but relevant to the debate in this area. Once same-sex marriage is approved, what will be the legal position of any employee (government or otherwise) who wishes to express the opinion that two people of the same sex should not be married?

Thoughts (and thanks to Philip for this)?

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