Same-sex marriage, civil unions and domestic partnerships in South Africa : critical reflections on an ongoing saga

This article reflects critically on the various stages in the legal recognition of same-sex marriage in South Africa. The authors devote particular attention to a connection between the apartheid order's use of the 'separate but equal' slogan and the operationalization of this slogan (and its political history) by activists to counter the legislative attempt to enact a second-class civil partnership regime for same-sex life partnerships in South Africa. The authors argue that the Constitutional Court's decision in the Fourie matter left Parliament with a carefully delineated mandate fully to recognize same-sex life partnerships by way of marriage. They critically evaluate the proceedings of the Home Affairs portfolio committee during the public participation hearings. In conclusion the authors consider the legal consequences (and paradoxes) of the enactment of the Civil Union Act 17 of 2006, which they read as a concession to colonialism in the broadest sense of that word.