Chairperson, hon members, ladies and gentlemen, when I was growing up in a Christian home I was taught that God is love. I was told that religion is about tolerance, inclusivity and love.
Today I feel ashamed to be a South African, having seen the intolerance that people had to experience during the passing of this Bill, and about some of the things that were said in this House. If God is the God of love and you want to come and profess that God to us, then show us his loving face. That is what you should be doing. [Applause.]
Jammer, ek het nie vir jou gewys nie. [Sorry, I didn't point at you.]
I think the second issue is that the ANC has very clearly stated its position on this matter from the outset. The Constitution is very clear; we are not doing any favours to gay people here. We are not giving them little pieces of goodwill. We are dealing here with what we decided upon at least 12 years ago when the equality clause was passed, which provided that we should not discriminate on the basis of sex, sexual orientation or marital status. That is what your Constitution says.
Today some of the people who helped pass that Constitution are sitting here with wide eyes, saying: But we could never have meant that. What on earth do you think you meant? [Laughter.] If you said you are not going to discriminate on the basis of marital status and on the basis of sexual orientation?
So the ANC position, which derives from long before the Constitution passed and which has been entrenched in the Constitution, is that these are rights that a group that has always been marginalised in our society is entitled to and all that we are doing now is making sure that we bring about that realignment. Some people have said here that all this happened just the other day. However, I would remind you that when the Fourie judgment was given, the ANC already made a statement on this matter. On 1 December 2005 already, the ANC had the following to say about the Fourie judgment:
The ANC reaffirms its view that citizens should not be discriminated against on the basis of sexual orientation and that the Constitution's legal system and institutions of state have a responsibility to uphold that basic human right.
Today's ruling, like others before it, is an important step forward in aligning the laws of the country with the rights and freedoms contained in the South African Constitution.
So the issue is not whether we should give rights. The issue is how we should do that, and I will get back to that in a minute.
Regarding the second issue, of which we have some luminaries here, with the hon Kalyan being one and the hon Greyling another, who tell us that it is definitely going to be unconstitutional to allow people not to solemnise marriages on the basis of their conscience. Now, I see there is a law adviser who also said this in the newspapers. I find this astounding, because all you had to do is to go and read the judgment, which deals with this issue.
So, it shows me that those members and the legal adviser did not read the judgment. Let me remind you what Judge Sachs said on dealing with this issue about conscience. It says in paragraph 159:
The principle of reasonable accommodation could be applied by the state to ensure that civil marriage officers who had sincere religious objections to officiating at same-sex marriages would not themselves be obliged to do so if this resulted in the violation of their conscience.
It goes on to quote the Christian education case, where it ends off by saying:
At the same time the state should wherever reasonably possible seek to avoid putting believers to extremely painful and intensely burdensome choices of being either true to their faith or else respectful to the law.
Therefore the judgment dealt with this issue. It says:
Do not allow such people to be forced to do anyagainst their conscience or religion.
Now, we are also told that the Constitutional Court will find this Bill to be unconstitutional on other grounds. I think the issue here is simply this. The Constitutional Court in its court order found two aspects of the substance of marriages, which needs to be dealt with. Firstly, in the common law, the definition of marriage is to be dealt with and in the Act the formula for marriage is to be dealt with. The rest of the Marriage Act deals only with the procedures and processes to be followed. Therefore, only the two substantive issues the court found to be unconstitutional, namely both the definition of marriage and the formula to marriage, need to be dealt with.
Now, the issue for us in government was not whether we would allow this or not, but it was how best to do it. The problem with amending the Marriage Act is that we all know the Marriage Act really catered for Christian marriages of a certain kind. By amending that Act there were certain unforeseen circumstances that we are very worried about. For example, the Act, as it stands today, allows girls between 15 and 21 to marry. It allows girls under the age of 15 to marry if they have the permission of the Minister to do so. So if we were to amend the Marriage Act, the consequence would be that we would have had the problem of children at very young and tender ages getting involved in gay marriages or trying to do so and creating further controversy in society.
There were two other unforeseen circumstances. I do not have time to deal with them, but we will do so at a later occasion. Thank you very much. [Time expired.][Applause.]