Same-Sex Marriage in South Africa: A Constitutional Possibility

The South African Constitution is unlike any other in the world in terms of its inclusion of sexual orientation. The Constitutional Court has taken a clear position in interpreting the Bill of Rights and implementing its goal of protecting individuals and groups from discrimination. The Sodomy, Immigration, and Spousal Benefits Cases demonstrate that the Constitutional Court recognizes that homosexuals have a Constitutional right to equality, human dignity, and privacy, and that the Court is willing to protect gays and lesbians from discrimination and social prejudice.Section I of this Note will discuss some of the key provisions of the South African Bill of Rights that will effect the Court’s consideration of same-sex marriage. Gays and lesbians in South Africa have strong textual arguments for the recognition of same-sex marriage based on the explicit language in the Constitution protecting sexual orientation. Section II will review the development of the Constitutional Court’s Bill of Rights jurisprudence. The Constitutional Court has addressed sodomy, immigration, spousal benefits, and adoption under the sexual orientation provision and has outlined a clear analytical framework under the right to equality. Section III will consider same-sex marriage within the framework of the South African Constitution and the jurisprudence of the Constitutional Court to determine how the Court should resolve the issue of whether same-sex marriage should be recognized as a constitutional right. This section will consider the textual and precedential arguments for same-sex marriage, as well as some of the social arguments against recognizing full marriage rights for gays and lesbians. This Note concludes that denying homosexual couples the right to marry is unconstitutional under the South African Constitution