Next week, for the first time in its 200-year history, the US Supreme Court will hear argument on same-sex marriage.
Predictions are that the two cases concerning the constitutionality of restrictions on the rights of same-sex couples may become the court’s most controversial social decision since Roe vs Wade, which protected the rights of women to have abortions.
In the first case, the court will decide whether it is constitutional for a state to ban same-sex marriage. It pertains to a referendum in California where voters approved a constitutional amendment that specifically disallows same-sex marriage.
In the second case, the court will determine whether it is constitutionally permissible for the federal government to withhold financial benefits given to people in heterosexual marriages from those in a same-sex marriage.
At present, only nine states and Washington DC allow for same-sex marriage.
Although the outcomes of these cases are difficult to predict, several legal commentators have suggested the court will come out, at least to some extent, in favour of gay marriage.
The court’s willingness to entertain the question of gay marriage is a result of growing public support of the lesbian, gay, bisexual and transgendered (LGBT) community in the US. Polls over the past two years indicate that more than half of Americans support gay marriage, in contrast to a decade ago when only a third did so.
Barack Obama became the first sitting president to support same-sex marriage publicly.
In South Africa, the LGBT story has been somewhat different from that of the US, particularly in relation to the role of the law. Whereas LGBT laws in the US are being reviewed to give effect to a shift in public opinion, laws in South Africa were enacted to render the laws in conformity with our constitution. In doing so, the laws in South Africa appeared to be in advance of public opinion and sought, ultimately, to transform discriminatory attitudes.
The South African constitution was the first in the world to expressly prohibit unfair discrimination on the grounds of sexual orientation.
This led the courts to decriminalise consensual sodomy, provide gay couples with the same financial benefits granted to heterosexual couples, allow gay couples to adopt children and ultimately require the state to recognise same-sex unions.
It also bears mentioning that the South African government has been a frontrunner on gay rights in the international community. In 2011, South Africa was the main sponsor of a United Nations Human Rights Council resolution that, for the first time in the UN’s history, recognised the human rights of gay people worldwide and called for the end of sexual violence and discrimination against LGBT people.
Unfortunately, however, South Africa’s strong LGBT legal framework often contradicts public support for LGBT people.
Although support for LGBT people faces opposition from several sectors of society, this opposition is perhaps most notable in nonurban areas. Last year, the National House of Traditional Leaders asked Parliament to remove sexual orientation from the list of categories protected by the equality clause in the constitution.
Anti-gay views and homophobia have led to brutal incidents of assault and sexual violence — the largest blemish yet on South Africa’s record of gay rights.
In particular, South Africa has seen a rise in so-called "corrective" rape where lesbians are raped by men in their community supposedly to punish and "cure" them of their gay sexual orientation. Studies indicate that about 500 women are subjected to this form of rape every year in South Africa and that black lesbians in the lower socioeconomic tiers are overwhelmingly the most at risk.
Patriarchal views, along with beliefs that homosexuality is an abnormality, a choice and a Western import, have all been linked to the underlying causes of corrective rape.
The challenge facing South Africa is how to reduce acts of homophobia and shift the opinions of a significant number of South Africans to be more cohesive with the constitutional value of equality.
There can be little argument that the law in South Africa has been an effective teaching tool in promoting and gaining social acceptance. Our anti-discrimination laws, which are progressive in comparison with those of most other countries, establish a moral framework for the values we expect citizens to hold.
However, the law alone cannot force people to change their opinions in the direction of tolerance and acceptance of LGBT people. Dialogue and understanding is required. Only through engagement will critics of LGBT rights understand the impact of their views and come to appreciate that equality won’t materially affect their own rights and interests.
Given the lack of public support for LGBT people, perhaps then our government’s biggest failure has been its inability to provide effective forums for these discussions.
The state’s obligation to educate its citizens on LGBT rights and promote a more cohesive society is both an ethical and a constitutional duty. The constitution expressly requires the government to take active measures in promoting all rights, including the right not to be discriminated against and persecuted on the grounds of sexual orientation.
The extent to which the state has been successful in fulfilling this constitutional mandate must be queried as all indications to date suggest that little has been done.
In September 2011, in response to the public outcry against corrective rape, the minister of justice and constitutional development formally established a national task team on gender-based and sexual violence against LGBT persons. The task team consists of both government officials and members of civil society representing LGBT groups. Although the team is mainly concerned with legal reform, it is also mandated to ensure that public awareness is raised concerning the rights of LGBT persons in society.
The task team has unfortunately been slow to get off the ground. Since being conceptualised in May 2011, it seems that the team has not yet even finalised its terms of reference. The last official meeting took place in June 2012 and little has happened since then.
Given South Africa’s history of inequality and the undignified treatment of people that were categorised as "different", it is simply unacceptable that the government has failed to promote the social acceptance of the LGBT community.
The government must take more active and effective steps in curing the divide between public opinion and our constitutional values.
• Dafel is a legal researcher at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, a centre of the University of Johannesburg.