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Justice Albie Sachs on gay marriage in South Africa
by Micki Leventhal

This article shared 6311 times since Wed Feb 10, 2010
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South African Constitutional Court Justice Albie Sachs spoke on The Secular and The Sacred: The Right of Same Sex Couples to Marry at The University of Chicago Feb. 3. It was the culminating talk in a public lecture series based on his new book, Reason and Passion: The Strange Alchemy of Life and Law ( Oxford University Press USA, 2009 ) . Sachs is teaching at the university as the first Richard & Ann Silver Pozen Visiting Professor in Human Rights.

Sachs is one of the most revered and respected crusaders for human rights and dignity in the world. After more than 30 years as an anti-apartheid activist, he served as a member of South Africa's post-apartheid Constitutional Committee that crafted the country's bill of rights to include prohibition of discrimination based on sexual orientation.

As constitutional court justice, he authored the 2005 ruling that declared as unconstitutional common law definition of marriage as being "between one man and one woman." The ruling stated that the exclusion of same-sex marriages in South Africa law "represented a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples." The finding, in response to a suite brought by a lesbian couple, mandated that the legislature had one year to rewrite the law.

The year-long struggle that ensued between South African marriage equality advocates and proponents of a traditional religious definition of marriage resulted in the landmark civil-union bill that states, in part: "Civil Union means the voluntary union of two persons who are both 18 years of age or older…."

While believing that "the antiquity of a prejudice is no reason for its survival," Sachs nonetheless maintained that the Constitutional Court "is a court for the whole nation, the gay pride marchers and the Christians" who believe in the heteronormative definition of marriage. He stated that it was incumbent upon the court and legislature to "take belief seriously" and "convey that in the judgment."

As is the case in the United States today, there was a sizable contingent that expressed support for civil union for gays and lesbians, but could not abide having the word "marriage" applied to such unions. The South African court however, maintained that separate was not equal because such separation negates human dignity.

As the law is now written, "civil union" applies to all persons under South African law, with each couple having the option to choose the designation of civil union or marriage, civil partner, husband, wife or spouse. This choice also allows for heterosexual couples who have a philosophical concern with the institution of marriage to opt for civil union and enjoy the legal benefits and obligations of such a contract.

The Civil Union Act also allows for Marriage Officers, civil and clerical, to opt out individually from performing same sex civil unions or marriages, based on personal religious beliefs or convictions.

While the presentation, attended by numerous law students and professors as well as LGBT activists, was compelling and educational and it was thrilling to be in the presence of such a remarkable person, the tactical take-away for U.S. marriage equality activists was necessarily limited, due to basic differences in constitutional law.

During the Q&A, this reported asked Sachs to offer compare-and-contrast thoughts on two points: the fact that the US Constitution does not include protections against discrimination on the basis of sexual orientation and our country's constitutional and political disconnect between human rights and states' rights. Understandably, Sachs demurred, saying that he would not like an American judge to come to his country and advise him on South African constitutional law.

Despite this, Sachs added that if South Africa was able to find a way in law to "include people who were rendered invisible" and create a more just society, our courts surely can find a way.

"I thought it was a masterful explanation of how the case developed, the issues he needed to balance as a judge, and how South Africa came to be one of the few countries in the world to treat LGBT people with complete equality in terms of marriage rights," said Douglas M. Foster, associate professor of journalism at Medill at Northwestern University and author of the forthcoming book At the End of the Rainbow: South Africa's New Struggle for Freedom ( W.W. Norton, 2011 ) . "The decision he authored on behalf of the Constitutional Court pressed Parliament to do the right thing, and so the result was shared, in a sense, between the judiciary and the legislative branches.

"I suppose the steps the advocates took serve as a reminder, for us, that this battle, like every struggle for equality, needs reinforcing pressure in the courts, in the Congress, on the president—but also family-to-family, door-to-door, and in the streets," concluded Foster.

Albie Sachs was born in 1935 in Johannesburg to Lithuanian Jewish immigrant parents and raised in an atmosphere of conscience and activism. He started his own trajectory in social justice in 1952 when he took part in the Defiance of Unjust Laws Campaign, an involvement that marked his first arrest. At 21 Sachs began practicing law in Cape Town, dedicating his practice to clients charged under racist statutes and repressive security laws.

In 1960 the new Republic of South Africa institutionalized apartheid and outlawed the African National Congress ( ANC ) . Sachs endured several arrests and in1963 he was put under a "banning order": he could not publish his writings, speak publically or meet socially with more than one person at a time. In 1966 he married fellow activist Stephanie King and the couple went into exile in England where Sachs completed his doctoral studies at the University of Sussex and published several books. After 11 years and the birth of two sons, the marriage dissolved and Sachs resettled in the new nation of Mozambique, working with other South African activists-in-exile to bring an end to apartheid. In 1988 Sachs survived a car-bomb assassination attempt in which he lost his right arm and the sight in one eye.

The apartheid government of South Africa succumbed to international pressure in 1990, releasing Nelson Mandela from jail and recognizing the ANC. Sachs returned to South Africa, was appointed to the Constitutional Committee and then the Constitutional Court, serving for fifteen years to help guide his country into a new era of legal equality and justice. Sachs now teaches and lectures internationally on the law and human rights.

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