Deputy Speaker, Parliament is doing something unique today by passing the Civil Union Bill. It is following an order by the Constitutional Court to create legislation to remedy a defect in the Constitution of our country, whereby same-sex couples are prohibited from enjoying the same status, entitlements and responsibilities accorded to heterosexual couples through marriage.
Normally, Parliament passes legislation in keeping with the Constitution. Today is different because we are amending an Act of Parliament, which is unconstitutional. We were given a whole year to effect this legislation, but with the deadline almost upon us, the Department of Home Affairs suddenly tabled the Civil Union Bill as a response to the Fourie judgment in the second week of September 2006.
The original Bill tabled allowed for the civil union between same-sex couples and, although there was a reference to the word "marriage" in clause 11(1), we were told by the justice department's legal team that this was a mere legal nicety. The portfolio committee embarked on a series of public hearings in all nine provinces and in Parliament to gauge public opinion and sentiment on the proposed legislation.
A wide spectrum of input was received. With the exception of the NG Kerk, all faith-based organisations represented were totally opposed to the proposed Bill. Their main objection was that marriage could only be concluded between a man and a woman.
Many Christians, if not all, maintain that the Bible was the first constitution. Many called for the Constitution to be amended to protect marriage as a sacred institution, and some even proposed a referendum to settle the debate. Several legal opinions put forward the concept that the Civil Union Bill was unconstitutional in that same-sex couples could only conduct a union and not a marriage, and that the separate-but-equal approach would not survive a Constitutional Court appeal.
The state law adviser, in fact, refused to certify the original Bill, and even Parliament's legal opinion was that the Bill was unconstitutional. Gay and lesbian groupings echoed the sentiment that by being allowed to have only civil unions, they were being treated as second-class citizens, and were clearly unhappy with this.
I think the Bill faced its fiercest opposition from the National House of Traditional Leaders and from Contralesa. The National House asserts that the Bill disregards the culture, customs and traditions of the majority of Africans, and thereby opposes this Bill. Contralesa regards Parliament's task, as ordered by the Constitutional Court, to be embarrassing and divisive, and calls on Parliament to reject the Bill in its entirety.
A significant observation that emerged during the hearings is the extraordinary high level of homophobia and homoprejudice that exists in our country. While much of it is rooted in sheer ignorance, some of the views expressed were just pure vitriol and malice.
On a personal note, during the public hearings I often had to sit on my hand and bite my tongue when outrageous and often provocative antigay comments were made. I would like to applaud the gay and lesbian groupings for standing their ground, often in the face of strong opposition, mockery and sarcasm.
Five thousand eight hundred petitions, 637 written submissions and countless hearings later, we are here to vote on an amended version of the Civil Union Bill. It is quite unfortunate that the ANC pulled the amended version of this Bill out of the bottom drawer merely a day before voting in the committee. It is my considered opinion that the portfolio committee has misled the public in the hearings, because the version before us now is not the one presented during the hearings. I wonder how Judge Sachs will view the public participation clause he so expressly set out in the judgment.
The Bill in front of us today is not purely a Civil Union Bill, but is in fact a second Marriage Act, merely couched in a different name in an effort to appease both sides and arrive at a middle-of-the-road solution. The essential difference is that the Marriage Act of 1961 allows for marriage between girls and boys. The Civil Union Bill of 2006 allows for the union or a marriage between boys and boys or girls and girls or girls and boys. To put it bluntly, the straight guys have two choices in respect of marriage, and the gay guys only have one option.
Yet another significant difference is that in the Marriage Act, one has to be 21 years of age to marry, while in the Civil Union Bill the age of consent is 18 years. One wonders what Judge Albie Sachs will make of the law we have come up with and whether, in his opinion, it will pass the equality test. The removal of all reference to gender, as proposed by the DA, is indeed most welcome. Also, the exclusion of domestic partnerships in this Bill is great, because it doesn't belong here.
It was quite interesting to note how much support there was by the ANC for the clause that refers to marriage officers who may apply to the Minister on grounds of conscience not to conduct unions or marriages for same-sex couples. This option creates space for further unnecessary discrimination, and causes offence to same-sex couples. It is quite ironic that the ANC will not allow its MPs to vote for the Bill on the grounds of conscience, and yet supports legislation to that effect.
I do have a great deal of sympathy for my colleagues in the ANC who will be forced to toe the line or face disciplinary action. Well done to those who choose to exercise their choice. Judge Sachs was indeed provocative to place a short timeframe on Parliament to enact legislation in this matter. The time we devoted to this Bill was too short, given its consequences, and adhering to a deadline is the wrong reason to pass legislation.
I was rather intrigued to read in the weekend papers a comment by the chairperson of the committee that this is an interim piece of legislation. I haven't heard the Minister concur with this. If this is the case, then my point about rushing legislation merely to meet a deadline is indeed well made.
Parliament would do well to ask the Constitutional Court for an extension of time, so as to do justice to the task at hand and to rewrite the Marriage Act in the light of our democratic dispensation. Nevertheless, the Bill is a starting point in the right direction, but in the wrong way. The ideal is to have one Marriage Act for everyone. It is the only way to truly recognise the equality of all our people.
As a nation, we have a long way to go to eradicate discrimination on the grounds of sexual orientation. Some members of the DA are opposed in principle to the Bill as they are of the opinion that the Bill fails in terms of the equality clause of the Bill of Rights. The DA will allow a conscience and free vote on this Bill. [Applause.]