We should also condemn violence. Why don't you wait for me to finish? Then you can raise your issues. [Interjections.] Just be quiet, man!
We also condemn violence against same-sex couples, fuelled by hatred, as recently observed here at home and in other countries. This commitment to our Constitution and in particular the principles of human dignity, equality and freedom of religion informed the drafting and refinement of this Bill.
The opening clause of the Bill of Rights reaffirms this view for us, and I will quote again here:
This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
As far back as 1996, government itself recognised that the legal regime that regulates marriage in our country needs to be realigned with constitutional principles. It is for this reason that the Law Reform Commission started work on the review of the marriage legislation in the country. However, during that process, the definition of marriage in our current law faced a challenge within our courts. The Constitutional Court, in the matter of Minister of Home Affairs v Fourie, and Lesbian and Gay Equality Project and Others v Minister of Home Affairs, 2006, declared that the definition of marriage under common law and the marriage formula as set out in section 30(1) of the Marriage Act of 1961 were inconsistent with the Constitution, and invalid to the extent that they failed to provide the means whereby same-sex couples could enjoy the status and the benefits, coupled with the responsibilities, that marriage accorded to heterosexual couples.
The court ordered Parliament to correct these defects in the law by 1 December 2006, failing which section 30(1) of the Marriage Act will be read as including the words ``or spouse'' after the words ``or husband''. This current Bill was drafted in response to the court's judgment in the Fourie case.
The court, while noting that ``equal'' does not mean ``identical'', ruled that while it could not pronounce on the constitutionality of it, it would be helpful to point to certain guiding constitutional principles.
In terms of the first principle, the objectives of the new measure must be to promote, one, human dignity, the achievement of equality, and the advancement of human rights and freedoms. The second guiding principle states that, and I quote:
Parliament must 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 is calculated to reproduce new forms of marginalisation.
Whatever legislative remedy is chosen must be as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of intangibles as well as tangibles involved.
The Civil Union Bill presently before this House indeed provides such a remedy. The objects of the Civil Union Bill are to provide for the public solemnation and registration of civil union by way of either a marriage or civil partnership, and to provide for the legal consequences thereof.
As noted in the memorandum on the objects of the Bill, the Bill makes provision for opposite and same-sex couples of 18 years or older to solemnise and register a voluntary union by way of either a marriage or a civil partnership. Care has been taken to ensure that a distinction is drawn between the responsibilities of the state and the church, as section 15(3) of the Constitution is indicative of sensitivity in favour of acknowledging diversity in matters of marriage. The Bill provides for same- sex couples to be married by civil marriage officers and such religious marriage officers who consider such marriages not to fall outside the tenets of their religion.
In order to give effect to the Constitutional Court ruling, same-sex couples have to be allowed to marry so that they can enjoy the status, obligations and entitlements enjoyed at the moment by opposite-sex couples.
The Bill allows for both same-sex and opposite-sex couples to choose the option of having their unions solemnised and registered as a civil partnership by a state-employed marriage officer.
We've decided to reject the calls to amend the Constitution. Whilst we understand that the Constitution can be amended from time to time to deal with practical arrangements, we are cautious of an amendment to the Bill of Rights, as it is the bedrock on which our Constitution and our democracy is based.
We also do not share the current view amongst others in our society that in order to recognise one of the rights in our Constitution, you need to take away another. Our Constitution clearly makes room for the right of people to be treated equally without a hierarchy including, as it is in this case, a situation where those rights are for a minority in our country.
The consultation process in the public has been extensive, with the Portfolio Committee on Home Affairs conducting public hearings in all nine provinces and in Parliament. The Constitutional Court itself also noted that the process of the Law Reform Commission has also ensured extensive consultation.
This process of law reform, particularly with regard to the changing concept of family law in our society, remains an issue for further engagement. We will be considering the recognition of religious marriages, revision of the Marriage Act of 1961, and of course, the regulation of domestic partnerships.
I must thank all members of the portfolio committee, its chairperson, Comrade Hlomane Chauke and the different study groups of the different parties represented in the committee for all the hard work they put in finalising this Bill.
I am aware that you have spent a lot of time away from your families as a result of this work. You've engaged extensively with the public. You've listened carefully to many, many divergent views, and you've presented this House with a Bill that is consistent with the principles of our Constitution, and the guidelines set out by the Constitutional Court almost a year ago. If you did not engage as robustly as you did in representing these views, you would have failed in your duties as public representatives.
It is very important for members to appreciate that within the three spheres of government, Parliament should continue to be the one bearing the responsibility to pass legislation and not have the consequences of the judiciary performing this function on behalf of the legislature.
The principle of separation of powers therefore needs to be protected, and it is for this reason that we have chosen to adhere to the directive of the Constitutional Court, and not allow the Court itself to amend a piece of legislation.
The dynamic interface and respect for the different roles of the three spheres of governance will be a reflection of a healthy democracy.
Hon members, I present to you for your consideration the Civil Union Bill of 2006. Thank you very much. [Applause.]