Political Crossfire Forums

[F'losrix]

Surprised no one has started a thread on this yet?

South Africa's Constitutional Court has ruled that parliament must amend that nation's marriage laws within the next 12 months, or its ruling that it is unconstitutional to deny marriage to gay men and lesbians will become the law of the land.

For your reference:

News reports:

http://news.yahoo.com/s/ap/20051201/ap_on_re_af/south_africa_gay_marriage

http://www.abc.net.au/news/newsitems/200411/s1255113.htm

http://www.365gay.com/Newscon05/12/120105safMarr.htm

South African Constitution:

http://www.polity.org.za/html/govdocs/constitution/saconst.html?rebookmark=1

Being unfamiliar with how their laws work, I'm unclear as to whether or not that 12-month period means the legislature can actually come up with something to prevent the ruling from going into effect. My initial impression is that they may not be able to do much to stop it.

Answer this, if you please - is this a trend or aberration? Will more governments follow the examples set by the Netherlands, Spain and Canada? Or are these nations going to remain mostly unique in their approaches? What factors (such as the efforts to link human rights to economic cooperation) will play a part, and to what extent will they aid or hinder gay people in obtaining marriage recognition in other countries?

[F'losrix]

Seriously, no one is up for this debate? Fine, I'll see if I can jump start it, then.

I think other nations may follow, but it will be a slow, halting progress. I think you will see more efforts to tie human rights to economic cooperation and the place where this is likely to start is in the European Union.

That said, I don't expect the U.S.A. to pay any attention to what other countries are doing on this issue. If anything, the advance of gay rights in places like South Africa is more likely to just produce a greater backlash against them here.

Now - let's hear some arguments in support or contradicting what I've said, please?

[John Galt]

South Africa's Constitution was tailor made so that it could get around a Constitutional Court deeming things "unconstitutional" that no one would have wanted when it was signed. For example,

Bill of Rights, 15. (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

(2) Religious observances may be conducted at state or state-aided institutions, provided that ­

those observances follow rules made by the appropriate public authorities;
they are conducted on an equitable basis; and
attendance at them is free and voluntary.
(3)

This section does not prevent legislation recognising ­
marriages concluded under any tradition, or a system of religious, personal or family law; or
systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.
Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.




I actually pulled that one up because I was thinking about the religious exemptions so they can, you know, have a "Christmas Tree" instead of a "Holiday Tree" (why don't we call the hannukakah thing the "Holiday Candlestick"?!?!?!!?), but after I read it again I realized that it mentions marriage and is perhaps important here. As in a cursory reading tells me that if their legislature is not prevented from recongizing any marriage it means then that they are not mandated to recognize any marriage...................

[F'losrix]

John Galt wrote: South Africa's Constitution was tailor made so that it could get around a Constitutional Court deeming things "unconstitutional" that no one would have wanted when it was signed. For example,

Bill of Rights, 15. (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

(2) Religious observances may be conducted at state or state-aided institutions, provided that ­

those observances follow rules made by the appropriate public authorities;
they are conducted on an equitable basis; and
attendance at them is free and voluntary.
(3)

This section does not prevent legislation recognising ­
marriages concluded under any tradition, or a system of religious, personal or family law; or
systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.
Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.




I actually pulled that one up because I was thinking about the religious exemptions so they can, you know, have a "Christmas Tree" instead of a "Holiday Tree" (why don't we call the hannukakah thing the "Holiday Candlestick"?!?!?!!?), but after I read it again I realized that it mentions marriage and is perhaps important here. As in a cursory reading tells me that if their legislature is not prevented from recongizing any marriage it means then that they are not mandated to recognize any marriage...................
Have a look at this, though - especially the parts I've boldfaced below:

Quote: Constitutional Court

167. (1) The Constitutional Court consists of a President, a Deputy President and nine other judges.

(2) A matter before the Constitutional Court must be heard by at least eight judges.

(3) The Constitutional Court ­

is the highest court in all constitutional matters;
may decide only constitutional matters, and issues connected with decisions on constitutional matters; and
makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.
(4) Only the Constitutional Court may ­

decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state;
decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121;
decide applications envisaged in section 80 or 122;
decide on the constitutionality of any amendment to the Constitution;
decide that Parliament or the President has failed to fulfil a constitutional obligation; or
certify a provincial constitution in terms of section 144.

(5) The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force.

(6) National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court ­

to bring a matter directly to the Constitutional Court; or
to appeal directly to the Constitutional Court from any other court.
(7) A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution.


The court has told the parliament that it is unconsitutional to deny marriage to gay couples and directed them to fix the problem, given them a set time frame under which to accomplish it, and decreed that if they don't its ruling will have the force of written law on the matter.

Care to speculate as to how the parliament is going to get around that? By merely ignoring the court?

[John Galt]

Skeptical Mystic wrote: John Galt wrote: South Africa's Constitution was tailor made so that it could get around a Constitutional Court deeming things "unconstitutional" that no one would have wanted when it was signed. For example,

Bill of Rights, 15. (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

(2) Religious observances may be conducted at state or state-aided institutions, provided that ­

those observances follow rules made by the appropriate public authorities;
they are conducted on an equitable basis; and
attendance at them is free and voluntary.
(3)

This section does not prevent legislation recognising ­
marriages concluded under any tradition, or a system of religious, personal or family law; or
systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.
Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.




I actually pulled that one up because I was thinking about the religious exemptions so they can, you know, have a "Christmas Tree" instead of a "Holiday Tree" (why don't we call the hannukakah thing the "Holiday Candlestick"?!?!?!!?), but after I read it again I realized that it mentions marriage and is perhaps important here. As in a cursory reading tells me that if their legislature is not prevented from recongizing any marriage it means then that they are not mandated to recognize any marriage...................
Have a look at this, though - especially the parts I've boldfaced below:

Quote: Constitutional Court

167. (1) The Constitutional Court consists of a President, a Deputy President and nine other judges.

(2) A matter before the Constitutional Court must be heard by at least eight judges.

(3) The Constitutional Court ­

is the highest court in all constitutional matters;
may decide only constitutional matters, and issues connected with decisions on constitutional matters; and
makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.
(4) Only the Constitutional Court may ­

decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state;
decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121;
decide applications envisaged in section 80 or 122;
decide on the constitutionality of any amendment to the Constitution;
decide that Parliament or the President has failed to fulfil a constitutional obligation; or
certify a provincial constitution in terms of section 144.

(5) The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force.

(6) National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court ­

to bring a matter directly to the Constitutional Court; or
to appeal directly to the Constitutional Court from any other court.
(7) A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution.


The court has told the parliament that it is unconsitutional to deny marriage to gay couples and directed them to fix the problem, given them a set time frame under which to accomplish it, and decreed that if they don't its ruling will have the force of written law on the matter.

Care to speculate as to how the parliament is going to get around that? By merely ignoring the court?

The lawyers definetly wrote that Constitution! Oh boy. I'd rather be black and in the arparthied then have that clause in there.

There is no way out then, because even if the Court decides wrongly, it is written that whatever they say is final.

[Pimpkie_69]

Wow. South Africa has the world's highest murder rate, the world's highest number of AIDS victims, a huge crime epidemic, genocide going on against the Boer farmers, and widespread poverty and joblessness, and this is a big issue over there?? It seems like all the government cares about is things like gay marriage, renaming cities with "African" names, supporting dictators like Mugabe, and other stuff like that.

I'm not against gay marriage being legal, but I wish that South Africa could sort out its priorities better. Honestly, first worry about the HUGE problems that this nation faces, then worry about less relevant things like gay marriage.

[F'losrix]

Pimpkie_69 wrote: Wow. South Africa has the world's highest murder rate, the world's highest number of AIDS victims, a huge crime epidemic, genocide going on against the Boer farmers, and widespread poverty and joblessness, and this is a big issue over there?? It seems like all the government cares about is things like gay marriage, renaming cities with "African" names, supporting dictators like Mugabe, and other stuff like that.

I'm not against gay marriage being legal, but I wish that South Africa could sort out its priorities better. Honestly, first worry about the HUGE problems that this nation faces, then worry about less relevant things like gay marriage.
Of course, you're ignoring the fact that this is a court decision in response to a suit brought challenging the question of constitutionality of marriage bans. Are you saying the court should just ignore the suits brought before it?

It's not an issue of government's priorities - it's a matter of the court performing the function for which it was created.

[Pimpkie_69]

Skeptical Mystic wrote: Pimpkie_69 wrote: Wow. South Africa has the world's highest murder rate, the world's highest number of AIDS victims, a huge crime epidemic, genocide going on against the Boer farmers, and widespread poverty and joblessness, and this is a big issue over there?? It seems like all the government cares about is things like gay marriage, renaming cities with "African" names, supporting dictators like Mugabe, and other stuff like that.

I'm not against gay marriage being legal, but I wish that South Africa could sort out its priorities better. Honestly, first worry about the HUGE problems that this nation faces, then worry about less relevant things like gay marriage.
Of course, you're ignoring the fact that this is a court decision in response to a suit brought challenging the question of constitutionality of marriage bans. Are you saying the court should just ignore the suits brought before it?

It's not an issue of government's priorities - it's a matter of the court performing the function for which it was created.

Another function of the court is to make sure that murderers, rapists, thieves etc. are punished as they should be. In South Africa, the majority of murderers, and committers of other serious crimes, get away scot free.

If the courts can't even put away more than 10% of the murderers, which is how it is there, they really should NOT be focusing their energy on an issue like gay marriage.

[F'losrix]

Pimpkie_69 wrote: Skeptical Mystic wrote: Pimpkie_69 wrote: Wow. South Africa has the world's highest murder rate, the world's highest number of AIDS victims, a huge crime epidemic, genocide going on against the Boer farmers, and widespread poverty and joblessness, and this is a big issue over there?? It seems like all the government cares about is things like gay marriage, renaming cities with "African" names, supporting dictators like Mugabe, and other stuff like that.

I'm not against gay marriage being legal, but I wish that South Africa could sort out its priorities better. Honestly, first worry about the HUGE problems that this nation faces, then worry about less relevant things like gay marriage.
Of course, you're ignoring the fact that this is a court decision in response to a suit brought challenging the question of constitutionality of marriage bans. Are you saying the court should just ignore the suits brought before it?

It's not an issue of government's priorities - it's a matter of the court performing the function for which it was created.

Another function of the court is to make sure that murderers, rapists, thieves etc. are punished as they should be. In South Africa, the majority of murderers, and committers of other serious crimes, get away scot free.
Proof?

Quote: If the courts can't even put away more than 10% of the murderers, which is how it is there, they really should NOT be focusing their energy on an issue like gay marriage.
The Constitutional Court doesn't handle criminal cases. It only deals with matters related to the Constitution itself. I renew my assertion that you're ignoring the realities of that court's designated function in order to distract us with an unrelated issue.

[Robin Hood]

It's amazing that a country in Africa took such a step, immense prejudice against homosexuals supposedly exists over there. Still if any country would lead the way it'd be S. Africa. I don't think it'll get done however, people like Mbeki are of the 'homosexuality is a white man's disease brought here to destroy us' school.

[Rico]

South Africa legalized gay marriage? Wow, I'm really ashamed that America hasn't legalized it yet. I never thought I'd live to see the day when South Africa became more tolerant than the United States. This is the country that still practiced racial segregation ten years ago...We are so very far behind.