Same Sex Marriage: Culture, Law and Advocacy on Three Continents
Resource type: News
Gara LaMarche |
Achieving full legal equality for gay men and lesbians has never been easy, in any part of the world. Yet in an increasingly globalised media, legal and economic environment, what happens in one country can provide valuable lessons for another. We get an unusual opportunity to see that international perspective through Atlantic’s grantmaking on three continents – some of which supports organisations dedicated to securing better protection of rights and access to services for the lesbian, gay, bisexual and transgendered (LGBT) community.
So as California braces for a vote in November that could void its historic Supreme Court ruling recognising marriage equality, the example of South Africa is worth a closer look.
I spent a week there recently with Atlantic staff and a number of our grantees, less than two years after it became the fifth country in the world – after the Netherlands, Belgium, Spain and Canada – to legalize same-sex marriage. While I was in South Africa a remarkable event took place at Johannesburg’s Apartheid Museum – the launch of To Have and To Hold, a book of essays and interviews on South Africa’s gay marriage struggle, with a keynote address by the country’s Chief Justice, Pius Langa – an embrace at the highest levels of the judiciary that would be unthinkable in other countries.
When South Africa made the transition from human rights pariah to human rights beacon at the end of the apartheid era, one key factor was the adoption of an extremely progressive constitution, with an equality clause explicitly recognising gay and lesbian rights. But marriage was not specifically protected, and it took a court challenge by Marie Fourie and Cecelia Bonthuys, a lesbian couple, to bring that about. Writing for the Constitutional Court majority in their case in December 2005, Justice Albie Sachs held: “The exclusion of same-sex couples from the benefits and responsibilities of marriage…is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents 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…”
South Africa is not yet a haven of acceptance and protection for gay couples. There remains much work to be done, much of it being spearheaded by the Joint Working Group, an alliance of some 17 LGBT organizations, many of whom are Atlantic grantees. And, a disturbing wave of violent attacks on lesbians and effeminate-seeming gay men has made it clear that legal protection, even at the highest level, is not sufficient. As with the end of officially-sanctioned segregation in the United States, it takes some time for the culture to follow. But the full recognition of humanness by the state is a powerful message.
In Ireland, the 25th Dublin Pride Festival took place last month under the theme “Always the Bridesmaid, Never the Bride,” Atlantic grantees are advocating for full equality and civil marriage, mobilising support forwhat is known as the KAL case, in which Katherine Zappone and Ann Louise Gilligan are challenging the state’s failure to recognise their Canadian marriage. The case is slowly making its way through the courts, while the government is developing Civil Partnership legislation.
Here in the U.S. where the culture has run ahead of the law, the lesbian and gay community girds up for yet another attempt to snatch back a hard-won victory for full inclusion in the community. South Africa’s example provides one beacon, but another is even closer to home.
Mildred Loving, an African-American woman who lent her last name to a landmark U.S. Supreme Court decision, died not long ago in Virginia – the state she sued over its miscegenation laws, which made it a crime to marry a person of another race. Mrs. Loving was 18 years old and just married in 1958 when a Virginia county sheriff and his deputies burst into the home she shared with her husband Richard, who was white, and arrested them despite the fact that their marriage license was hung on the wall over their bed. She wrote to Attorney General Robert F. Kennedy, who referred her to the American Civil Liberties Union, which took her case and won it, after nearly a decade in the courts.
No one talks much about miscegenation laws any more, but Barack Obama recently answered a question about gay marriage by remarking that at the time of his birth in 1961, not long after the Lovings’ arrest and six years before the Supreme Court in Loving v. Virginia struck down the laws, his parents’ interracial marriage was a crime in a number of states. Despite the race talk that roiled the U.S. Presidential campaign, which demonstrates in so many ways how much the United States still has to overcome, that the son of a union like that of the so-appropriately-named Lovings can, a generation later, stand as a leading candidate for President is powerful evidence of change. Yet Obama himself, like his rival John McCain, is not yet willing to recognise the rights of gay men and lesbians to marry. With every poll showing that younger people favor gay marriage by large majorities, it is clear that the fierce resistance to it will before long be seen as the last gasps of a dying order, as dated and unacceptable as resistance to interracial marriage was not so long ago.
Mildred Loving saw this clearly. In her final public statement last year, she urged an end to the laws barring gay men and lesbians from marrying. California will soon have the opportunity to guarantee that her legacy is extended to everyone.
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