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December 1, 2005
South Africa’s Highest Court Orders Equal Marriage
Court compares civil unions to racial segregation
Ottawa—Today a nine-judge panel of the Constitutional Court of South Africa ruled that excluding same-sex couples from civil marriage is unconstitutional and that the definition of marriage in South Africa must be changed to include same-sex couples. The Court gave the government 12 months to change the law, or else the Court’s definition will automatically be effective. In any case, same-sex couples in South Africa will be able to marry within a year.
“This decision shows that Canada is on the right path,” said Gilles Marchildon, Executive Director of Egale. “Few countries in the world have more experience with prejudice and oppression than South Africa, and today we saw all 9 judges of South Africa’s highest court agree that excluding same-sex couples from civil marriage is wrong and unconstitutional.”
“The Court made a clear link between the oppression of apartheid and the injustice of any separate civil union scheme,” said Laurie Arron, Director of Advocacy of Egale. “The Court said a separate civil union scheme, like the one Stephen Harper wants to re-visit, is ‘a threadbare cloak for covering distaste.’ It said that proponents of both racial segregation and of separate civil unions ‘justify the apartness as being a reflection of a natural or divinely ordered state of affairs’ and ‘vehemently deny any intention to cause insult.’” (see excerpt below)
“I hope Mr. Harper reads this judgment carefully,” added Mr. Arron. “I hope it finally sinks in that separate is not equal, and that Mr. Harper should scrap his plans to re-open this divisive debate.”
A survey released November 29 by CBC and Environics found that two-thirds of Canadians say the issue of same-sex marriage is settled and should not be addressed again.
Egale Canada advances equality and justice for LGBT people, and their families, across Canada. Founded in 1986, Egale’s work includes political action, legal interventions and public education and awareness.
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Excerpt from the judgment of the Constitutional Court of South Africa, at paragraph 150:
 “The second guiding consideration is that Parliament be sensitive to the need to avoid a remedy that on the face of it would provide equal protection, but would do so in a manner that in its context and application would be calculated to reproduce new forms of marginalisation. Historically the concept of ‘separate but equal’ served as a threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to segregation. The very notion that integration would lead to miscegenation, mongrelisation or contamination, was offensive in concept and wounding in practice. Yet, just as is frequently the case when proposals are made for recognising same-sex unions in desiccated and marginalised forms, proponents of segregation would vehemently deny any intention to cause insult. On the contrary, they would justify the apartness as being a reflection of a natural or divinely ordained state of affairs. Alternatively they would assert that the separation was neutral if the facilities provided by the law were substantially the same for both groups.”
The full judgment is available at:
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