19 December 2003

Mr W Henegan
The Secretary
South African Law Reform Commission
Private bag X 668
PRETORIA
0001

Dear Mr Henegan

It would be appreciated if the accompanying submission relating to Discussion Paper 104,

Project 118, DOMESTIC PARTNERSHIPS, could be placed before the Commission.
We agree to the commission quoting from or referring to comments made and acknowledge
that the Commission may have to release information contained in the representation.

Yours faithfully

Malcolm St Clair
Chief Executive Officer
Focus on the Family
 PRESERVING MARRIAGE

A AN APPEAL FOR THE PRESERVATION OF THE

NATURAL DEFINITION OF MARRIAGE IN SOUTH
AFRICAN LAW

B AN APPEAL NOT TO BESTOW LEGAL

RECOGNITION ON REGISTERED AND
UNREGISTERED PARTNERSHIPS

SUBMISSION REGARDING
DOMESTIC PARTNERSHIPS:
PROPOSED LEGISLATION
TABLE OF CONTENTS

EXECUTIVE SUMMARY.........................................................................................................3

A. RATIONALE: AN APPEAL FOR THE PRESERVATION OF THE NATURAL

DEFINITION OF MARRIAGE...................................................................................................1

Introduction..........................................................................................................................................1

Who is Focus on the Family Southern Africa?..................................................................................1

The definition of marriage and its recognition as a human right....................................................1

Answering arguments supporting legal recognition of homosexual unions....................................2

Do the majority of South Africans want legal recognition of homosexuality?...............................3

Benefits of real marriage for bringing up children...........................................................................3

Recommendation..................................................................................................................................5

B. AN APPEAL NOT TO PROVIDE LEGAL RECOGNITION FOR REGISTERED AND

UNREGISTERED DOMESTIC PARTNERSHIPS....................................................................6

Alternative proposals of the SALRC for recognising cohabiting couples.......................................6

The negative social impact of cohabitation........................................................................................6

Recommendation..................................................................................................................................7

EXECUTIVE SUMMARY
The proposals of the Law Reform Commission

The South African Law Reform Commission (SALRC) proposes in discussion paper 104
on 'Domestic partnerships' several alternative means to legally recognise homosexual
relationships and cohabiting heterosexual couples. This submission is split into two parts,
to address these two separate, but related issues:

A. Same-sex Relationships
The SALRC report proposes that same-sex relationships be acknowledged by the law.
Recognition could be effected in one of the following ways: 'common-law marriage' or civil
marriage, both of which alternatives will require an amendment of the Marriage Act of
1961, or civil unions. We appeal to the South African Law Commission to preserve the
historical and natural definition of marriage and not to propose same-sex marriages.

B. Registered and Unregistered Partnerships

 4
The SALRC report proposes that registered and unregistered partnerships be given
legal recognition and consequences. We appeal to the South African Law Commission not
to bestow legal recognition on registered and unregistered partnerships

Analysis

Marriage in South Africa is currently defined as 'the legally recognized voluntary union of a
man and a woman for life to the exclusion of all others'. We believe this definition should
continue to be supported by the law. South Africans are almost unanimously opposed to
sexual relations between people of the same sex, and the government and courts should
not feel pressured to change the law in response to the demands of a tiny, but vocal
minority. Their manipulation of the political process, media and judiciary should be
opposed.

Research has demonstrated the benefits of monogamous heterosexual marriage for stable
healthy relationships and successful upbringing of children - over all other alternatives
such as same-sex parenting; single-parenting or co-habiting couples. It is therefore in the
best interests of society that the state promotes traditional marriage rather than the other
alternatives advanced in SALRC discussion paper 104. Alternative legal recognition of
conjugal relationships would have a negative social impact on the family as it would
encourage more people to chose these undesirable forms of relationship.

RECOMMENDATIONS

We therefore recommend that:

 All the alternative proposals to legally recognise homosexual relationships and
cohabiting unmarried couples through extension of the definition of marriage; civil
unions; registered or unregistered partnerships, as outlined in discussion paper 104
or elsewhere should all be rejected.
 The reference to 'sexual orientation' be removed from the South African Bill of
Rights and all other legislation.
 To address the social problems caused by 'co-habiting unmarried couples', these
people should be encouraged to get married or separate.
 Those struggling with homosexual temptation should seek help from Christian
organisations and churches.
 A. RATIONALE: AN APPEAL FOR THE PRESERVATION OF
THE NATURAL DEFINITION OF MARRIAGE

Introduction

The authors of Discussion Paper 104 (Project 118) by The South African Law Reform
Commission, have set out proposals for legal recognition of same-sex relationships,
registered partnerships, and unregistered partnerships. They cite as reasons the
prohibition on discrimination on grounds of 'sexual orientation' in section 9(3) of the
constitution1; various media reports2 and various lawsuits by homosexuals to try to gain
more recognition for their relationships.

This submission concentrates on the proposed legal recognition of same-sex

relationships, and the proposed options by which such recognition could be effected. Two
of these options, viz., Common-law marriage and Civil marriage, will entail an
amendment to the Marriage Act of 1961, making marriage, as it is currently known,
available to both same-and opposite -sex couples.

Who is Focus on the Family Southern Africa?

Focus on the Family Southern Africa, a non-profit, non-denominational organisation, was

established to minister to the needs of families in Southern Africa. It has no political or
denominational affiliations. However, its programmes and services are motivated and
based on Christian ethics.

Focus on the Family exists solely to strengthen families. Focus on the Family broadcasts
can be heard on over 40 radio stations in Southern Africa, while newsletters, magazines
and other resources are sent to over 40 000 people on our mailing list. Staff respond to
telephone calls and letters that include counselling and referral services to families in
need. Visit our web site at http://www.safamily.org.za/

The definition of marriage and its recognition as a human right

The definition of marriage in South African law is the western Judeo-Christian concept of
marriage which reads as follows:

'Marriage is the legally recognised voluntary union of a man and a woman

for life to the exclusion of all others'3.

From this definition it follows that the South African law presently regards marriage as an
opposite sex, monogamous institution. This view is in line with the tradition and
experience of the vast majority of the nation. What is needed is a clear legal-political
reaffirmation that marriage is a unique male-female community and social institution.

The United Nation’s Universal Declaration of Human Rights, the cornerstone of human
rights throughout the world, clearly establishes in Article 16 that:

Ref: N: [/var/www/apps/scribd/scribd/tmp/scratch6/9090812.doc] 17 October, 2008

 2
‘men and women of full age ……… have the right to marry and to found a
family….The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.’

Harvard law professor, Mary Ann Glendon, has stated that ‘…the Declaration is the
single most important reference point for international discussions of how to order our
future together in our increasingly conflict-ridden and interdependent world.’4.
Other fundamental international legal instruments also recognize the right of men and
women to marry and to found a family. For example, Article 23.2 of the International
Covenant on Civil and Political Rights reads as follows:

‘The right of men and women of marriageable age to marry and to found a family
shall be recognized.

Unfortunately, the human rights recognized by the Universal Declaration, the

International Covenant on Civil and Political Rights, and other international instruments
are under constant attack. Referring to the Universal Declaration of Human Rights,
Habib C Malik, son of one of the main authors of the Universal Declaration, wrote:

‘One disturbing phenomenon gaining ground today can best be described as the
systematic hijacking of human rights to serve special interests and promote
dubious agendas of a political and generally secular nature.’5
In examining the meaning of marriage and its relationship to democracy, individual rights
and constitution law, neutrality is impossible. For some, sexuality is the starting point.
Sexuality is essential for pleasure and intimacy. Marriage is, from this point of view, a
state mechanism to encourage committed and stable relationships for those who might
wish them. For persons who subscribe to this theory, the definition of marriage as it now
stands is a matter of simple discrimination against homosexuals and lesbians. For
others, marriage is the starting point. We exist as male or female, intended for
community with one another. From this viewpoint, marriage is primarily a shared, socially
beneficial way of life as male and female and a marriage recognition statute is a matter
of simple definition.6

Answering arguments supporting legal recognition of homosexual unions

Professor Barbara Cox, from the California Western School of Law, in her 1996 article
claims that a statute which upholds heterosexual marriage only is unconstitutional
because its pupose is to discriminate against same-sex couples and the only reason to
support it is 'homophobia'. 7 In a paper in the Creighton Law Review (1998) 8 Coolidge
and Duncan put forward the view that in order to hold that a law supporting a
heterosexual view of marriage is unconstitutional, it must be concluded:
(a) that that law has a ‘homophobic’ purpose;
(b) that by limiting marriage according to the traditional definition, government
disables homosexuals in such a sweeping manner as to make them “strangers to
the law”;
(c) that none of the rationales offered in support of marriage have any reasonable
connection to this definition and
(d) that a law that views marriage as a unique male-female sexual community is
blatantly irrational and based on bigotry.
 3
The implication of this would be that the majority of citizens in South Africa who identify
with a heterosexual definition of marriage are 'anti-gay bigots'! Indeed, this implication
would extend to the great majority of people around the world who know, rationally or
intuitively, that marriage is the union between a man and a woman. The heterosexuality
of marriage is not the result of prejudice. Rather it is a global, historical and measurable
acknowledgment of the benefits married men and women bring to society by forming
families. What is now needed is a clear legal-political reaffirmation that marriage is a
unique male-female community and social institution.

We do not support the inclusion of the 'sexual orientation' in section 9(3) of the Bill of
Rights. This not an absolute right and may be limited in terms of section 36 of the
Constitution. It is argued that homosexuals are not being unfairly discriminated against
by not being allowed to marry, since real marriage can only be between a man and a
woman. Same-sex marriage is in fact an impossibility and the law should not recognise
something which is not real. Such recognition would simply degrade the value of the
recognition of real marriage.

Do the majority of South Africans want legal recognition of homosexuality?

The SALRC discussion paper argues that there is a trend in favour of recognition of
homosexual relationships in South Africa, citing various court cases and media reports.
The discussion paper argues that 'Constitutional protection was arguably the most
significant reason behind changed attitudes to gays and lesbians'9 Nevertheless, this
appears to be solely due to the persistence of a small minority of homosexual activitists,
against the will of the majority of the population. The latest (2003) and still unpublished
'Social attitude survey' conducted by the Human Sciences Research Council, found that
only one in every fifteen South Africans believed that it was 'not wrong' for two adults of
the same sex to have sexual relations10. Thus social attitudes haven't actually changed.

Why then should a small minority having liberal attitudes on homosexuality led by an
even smaller minority of homosexual activists be allowed to impose their views on
marriage on the rest of South African society? Evidence also tends to suggest that even
amongst this tiny minority, even fewer actually have any interest in getting married.
Rather, a few activists are through the law seeking social acknowledgement for their
unnatural relationships. But the vast majority of South Africans don't accept same-sex
relationships and don't want the government to do so either.

The fact that this tiny minority has managed to get public attention shows only their
capacity to manipulate the media, judiciary and political system rather than any
substantial support. The South African Law Reform Commission and government should
not waste effort on revising legislation to accommodate their demands.

Benefits of real marriage for bringing up children

Richard Duncan(1997)11 offers the following list of legitimate governmental interests that
justify a law that marriage requires a man and a woman:
(1) public morality;
(2) encouraging childbirth within marriage;
(3) the advantages of dual-gender parenting; and
(4) educative effects.
 4

A change in the definition of marriage is a risky social experiment that will have serious
implications for our society. Those who propose such a change ignore the fact that
marriage is a social institution, not merely a vehicle to promote individual self-interest.

Allowing such a change would send the message that marriage is a means to satisfy the
personal desires of adult individuals, rather than an institution that is primarily, though not
exclusively, about meeting the needs of children and the community.

Changing the definition of marriage would deny the significance of the right of every child
to have a mother and a father, as well as the significance of the different roles mothers
and fathers play in the rearing of children. Social science evidence shows clearly that
men and women bring different but complementary skills and aptitudes to the critical
partnership known as parenting. There is a large and growing body of evidence that
indicates the benefit children gain from regular interaction with two parents of the
opposite sex - their father and mother.12 While homosexual activists hold up studies
that conclude that same-sex parents are no different than opposite-sex parents, a closer
examination of these studies reveals a number of statistical and methodological flaws
that put in doubt that assertion. In their review of 39 such studies, researchers Robert
Lerner and Althea K. Nagai concluded that

“these studies prove nothing. Therefore they should not be used in legal cases to
make any arguments about ‘homosexual v. heterosexual’ parenting. Their claims
have no basis.” 13

British researcher Patricia Morgan is even more blunt in her assessment of the research
supporting same-sex parenting:

“It is difficult to find such poor quality research as that which purports to show that
same-sex parenting is at least as good if not superior to parenting by married
couples. In many cases the word ‘research’ is a misnomer since often the only
evidence consists of collections of anecdotes. This is often advocacy parading as
research.” 14
The current British Foreign Secretary and then Home Secretary, The Right Honourable
Jack Straw, may have put it best:

“Children in my judgement, and I think it’s the judgement of almost everyone

including single parents, are best brought up where you have two natural parents
in a stable relationship. There’s no question about that. What we know from the
evidence is that, generally speaking, that stability is more likely to occur where the
parents are married than where they are not.” 15

The benefits of marriage result from the unique nature of the heterosexual bond. South
African families will experience negative repercussions from the redefinition of marriage.
In heterosexual marriage, husbands and wives benefit each other, resulting in better
physical and emotional health, and financial well-being.16 Furthermore, fathers and
mothers benefit their children in different yet complementary ways. Studies show that
mothers and fathers interact differently with children and that both types of interaction are
valuable and even necessary for healthy child development.17 For example, research
shows that a father who is involved in the life of his child contributes to higher
educational achievement, more pro-social behaviour, and higher self-esteem.18
 5

To the benefit of both marriage and parenting, a heterosexual union also:

 recognises and addresses the fact of sexual difference and opposite sex attraction
 affirms the significance of sexual complementarily, as well as the important place
of male-female bonding in human life;
 encourages the procreativity of heterosexual bonding;
 provides the unique atmosphere of heterosexual parenting which bonds children
to their parents; and
 explains the rich genealogical nature of heterosexual family ties.19

By their very nature, same-sex marriages cannot experience or provide the above
marriage and parenting benefits found within a heterosexual marriage. The re-definition
of marriage will result in a marked increase of same-sex unions and parenting.

Clearly, the research community has been able to adequately appraise and ascertain
whether one family lifestyle is healthier than another. The empirical evidence falls
overwhelmingly in favour of stable marriage and against all other alternative forms of
family life: cohabitation, divorce, and stepfamilies. What is striking is that even though
there is a very strong consensus on this issue in the academic research community,
many of the cultural institutions, the gatekeepers of popular opinions and ideas, are not
willing to make a considered and confirmed judgement on what is the best model for
family life. They continue to play the role of family relativists, trivializing marriage as an
institution and championing the idea that one form of the ‘family’ is just as good as
another.20

Should the proposal to amend the Marriage Act to include same-sex marriages be
enacted, our government will have chosen to abandon a long history of law recognizing
marriage as the union of a man and a woman. In writing this new legislation they will be
disregarding the basis for marriage that is so universal and so foundational to culture that
it far predates the Parliament of South Africa. Our Parliamentarians were elected to
represent the views of the entire nation. As Christians, who believe marriage to be a
sacred, biblical institution and a divinely established covenant, most of the citizens of our
nation would not be in favour of the proposed changes. Marriage is a concept that is
inseparable from its societal and religious meanings and origins and as such we should
not attempt to redefine it!

Recommendation

Same-sex relationships should not be legally recognised as 'civil unions', domestic

partnerships, as marriage or in any other form. To address legal pressures, the
reference to 'sexual orientation' should rather be removed from the constitution, the
Equality Act and all other legislation.

Those who struggle with homosexual temptations should be encouraged to seek help
from Christian organisations and churches.
 6

B. AN APPEAL NOT TO PROVIDE LEGAL RECOGNITION

FOR REGISTERED AND UNREGISTERED DOMESTIC
PARTNERSHIPS

Alternative proposals of the SALRC for recognising cohabiting couples

While this submission concentrates on the proposed amendment of the Marriage Act, our
concern extends to the proposed registered and unregistered partnerships legislation
that will provide for the following options:

1. The civil union model, whereby legal protection can be accorded to couples in
unmarried relationships, and which aims at providing for a status parallel to
marriage, but within a separate institution. Civil unions would be available to both
same and opposite-sex couples.

2. The registered partnership model will allow unmarried partners of the same or
opposite sex who do not wish to get married or to obtain all the legal
consequences of marriage, but still desire some protection, to register their
mutually dependent domestic relationship in order to gain official state and
societal recognition.

3. The unregistered partnership model will allow unmarried and unregistered

partners
of the same or opposite sex to be awarded a civil status as if they have formally
committed to the relationship, without their having taken any steps to effect such
recognition.

The negative social impact of cohabitation

Given that the above options would be less damaging than the option of extending the
definition of marriage, they nevertheless would have negative consequences if
implemented. The law is a powerful tool. It clearly shapes our behaviour. While it is
acknowledged that we are moving from a marriage culture to a ‘living together’ culture,
evidenced by the fact that non-marital cohabitation has increased dramatically as an
alternative form of family life, providing legal recognition for such relationships will result
in explosive growth in the number of such relationships. Even more alarming will be the
growth in the number of children being raised by parents in a cohabiting relationship.
Alarming because research indicates that starting conjugal life in a cohabiting
relationship, as opposed to marriage, sharply increases the probability of this first union
ending in separation.21 This will have negative effects on children born from this
relationship. More serious is the finding reported in a special issue of the Journal of
Comparative Family Studies that “children living with caretakers other than two biological
parents are at greater risk for child maltreatment”. 22
In Canada, the increased legal recognition of cohabitation has had a clear impact on
Canadian society. Through the 1980s the federal and provincial governments of Canada
have increasingly treated cohabitation as equivalent to marriage. Statistics Canada tells
 7
us that the majority of young people today are entering their first conjugal union through
cohabitation.

Sociologist Zheng Wu suggests that:

“the experience of cohabiting itself affects the attitudes of individuals towards

marriage and decreases their propensity to marry.” 23

Other researchers have found that marriages preceded by cohabitation are twice as
likely to end in divorce than marriages not preceded by cohabitation, even after factoring
for other potential causes.24 This trend is especially troubling when the well-being of
children is considered. In her analysis of data for Statistics Canada’s national
Longitudinal Study on Children and Youth (NLSC), Nicole Marcil-Grafton indicates that
children born to parents living in a cohabitational relationship are nearly five times more
likely to see their parents separate by the age of 10 compared to children whose parents
are legally married and have never cohabitated. Even if a child’s parents subsequently
marry (either before or after the child was born), parents who have cohabitated are still
twice as likely to separate than married parents who have never cohabitated. 25

Statistics Canada researchers have further found that men and women in cohabitational
relationships are four times more likely to report spousal abuse than those in legally
married relationships.26 When it came to fatal domestic violence, “the rate of spousal
homicide for women in common-law marriages was….more than 8 times higher than
married couples.” 27
The Canadian research findings are upheld by research findings conducted in several
Western countries including New Zealand, Sweden, Australia and the United States.
The Canadian experience provides valid evidence that the increased legal recognition of
cohabitational relationships has not led to positive results. Is there any reason to think
that the legal recognition of ‘registered and unregistered partnerships’ is somehow going
to be positive for South African society?

Despite massive romanticising of immorality in the media, the recent social attitude
survey by the Human Sciences Research Council found that the majority of South
Africans believe that it is wrong for a man and a woman to have sexual relations before
marriage28.

Recommendation

Conjugal relationships outside of marriage should not be legally supported by the state in
any form, either with civil unions, registered partnerships or unregistered partnerships.

Heterosexual couples living in sin should be encouraged to get married or separate.

 8

ENDNOTES
1
South African Law Reform Commission. Discussion Paper 104, Project 118, Domestic Partnerships
Volume 1 p vi.
2
South African Law Reform Commission. Discussion Paper 104, Project 118, Domestic Partnerships
Volume 1 p 1.
3
South African Law Reform Commission. Discussion Paper 104, Project 118, Domestic Partnerships
Volume 1 p 159.
4
Mary Ann Glendon:A World Made New (New York: Random House, 2001) pp xvi- xvii.
5
Eds:Teresa Wagner, Leslie Carbone, Fifty Years After the Declaration, (Lanham, New York, Oxford:
University Press of America, 2001), p xvii.
6
Robert P George & Gerard V Bradley, Marriage and the Liberal Imagination, 84 Geo. L.J. 301 (1995).
7
Cox B: Nat’l J. Sexual Orientation 1996.
8
David Orgon Coolidge, William C Duncan: Definition or Discrimination? State Marriage Recognition
Statutes in the “Same-sex Marriage” Debate. Creighton University 1998
9
South African Law Reform Commission. Discussion Paper 104, Project 118, Domestic Partnerships
Volume 1 p 47.
10
Human Sciences Research Council: South African Social Attitudes Survey. Unpublished 2003 study.
Personal communication with Dr Stephen Rule.
11
Richard F Duncan: The Narrow and Shallow Bite of Romer and the Eminent Rationality of Dual-
Gender marriage: A Response to Professor Koppelman,6 Wn & Mary Bill Rts. J. 147, 158-65 (1997)
12
Glenn T Stanton : Why Marriage matters: Reasons to Believe in Marriage in Post-modern Society
(Colorado Springs: Pinon, 1997)
13
Lerner Robert & Althea K Nagai, No Basis: What the Studies Don’t Tell Us About Same-sex
Parenting. Washington D.C., Marriage Law Project, January 2001
14
The Christian Institute, News Release: Same-sex Parenting is Bad for Kids. February 6, 2002
15
Straw The Rt. Hon. Jack MP, on the Today programme, 4 November 1998
16
Linda J Waite & Maggie Gallagher, The Case for Marriage (New York: Broadway, 2000)
17
Kerig, P K & Cowan, P A: Marital Quality and Gender Differences in Parent-child Interaction,
Developmental Psychology 29,6 (1993): 931-939
18
Horn W: Father Facts, editions 3 and 4, National Fatherhood Initiative, Gaithersburg, MD
19
List provided by Dr Dan Cere, head of The Canadian Institute for Marriage and
Family and professor at McGill University, Montreal.
20
Glenn T Stanton: Only a Piece of Paper? Public Policy Division, Focus on the Family,
Colorado Springs,1995
21
Le Bourdais Celine, Ghyslaine Neil & Pierre Turcotte: “The changing face of conjugal
relationships” Canadian Social Trends. Spring 2000, Statistics Canada, Cat. No. 11-008 p15
22
Malkin, Catherine and Michael lamb (1994): Child maltrreatment: A test of sociobiological
Theory”, Journal of Comparative Family Studies, 25: 121-133
23
Zheng Wu, “Premarital Cohabitation and the Timing of First Marriage.” Canadian Review of
Sociology and Anthropology, 1999, Vol. 36, No. 1, p. 109 –126
24
Hall D R & J Z Zhu, “Cohabitation and Divorce in Canada: Testing the selectivity
hypothesis.” Journal of Marriage and Family, 1995, Vol. 57, p 421 - 427
25
Marcil-Gratton Nicole, “Growing Up with Mom and Dad? The intricate family life course of
Canadian Children,” July 1998, Ottawa, Statistics Canada Cat. 89-566- XIE
26
Bunge Valerie Pottie and Andrea Levett: “Family Violence in Canada: A Statistical Profile
2000, Statistics Canada, July 2000 p. 15
27
Bunge Valerie Pottie and Andrea Levett, ”Family Violence in Canada: A Statistical Profile
1998. Statistics Canada , May 1998, p. 29
Human Sciences Research Council: South African Social Attitudes Survey. Unpublished 2003 study.
28

Personal communication with Dr Stephen Rule.