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Abstract from

The Right to Same-Sex Marriage in South Africa

Jacqueline Heaton is a Professor of Law at the University of South Africa.

In view of its conservative and oppressive history, it is surprising that South Africa counts among the few countries in the world that affords same-sex couples the right to marry. The enactment of a Bill of Rights which provided that no-one may be subject to unfair discrimination on the ground of sexual orientation played a pivotal role in obtaining the right to marry for same-sex couples. After the enactment of the Bill of Rights, the courts and legislature initially afforded recognition to same-sex life partnerships only for very specific and very limited purposes. However, at the end of 2005 the Constitutional Court declared the exclusion of same-sex couples from the status, benefits and responsibilities that marriage accorded to heterosexual couples unconstitutional. Parliament was allowed one year in which to correct this unconstitutionality. It responded by enacting the Civil Union Act 17 of 2006, which extended marriage rights to same-sex couples. However, as a vehicle for affording marriage rights to same-sex couples, the Act is not above criticism. Some commentators have even called for the repeal of the Act on the ground that it does not afford true equality to same sex couples. However, it is unlikely that their call will be heeded.

(2010) 28 No 1 Law in Context 108

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