Public Policy Liaison Unit
DOMESTIC PARTNERSHIPS

Submission to the South African Law Reform Commission in response to Discussion Paper 104 (Domestic Partnerships)

Summary

The Bible, the ministry of Christ and the moral and theological teachings of Christian churches all emphasise the importance of faithful, permanent, loving and covenantal partnerships as the most appropriate context for human sexual intimacy and the fundamental basis for family life. Human society - initially at a family level, but later at an institutional level - has traditionally celebrated and given legitimacy to such relationships through marriage, understood by most Christian denominations to be the lifelong partnership of one man and one woman to the exclusion of all others.

In contemporary society, however, fewer couples are opting for marriage. Cohabitation has become much more common, and there is a new awareness of same-sex couples who remain largely unable to secure legal recognition of their relationships. The growing gap between legislation and social practice has required the courts to take ever-larger interpretive leaps and has often left vulnerable partners with limited legal protection. Furthermore, the constitutional prohibition on unfair discrimination on the basis of marital status or sexual orientation invites further legal challenges to the existing Marriage Act.

The SACC contends that the state must respond to these changing circumstances in a manner that reaffirms the value of faithful and permanent relationships and promotes marriage as the most secure and desirable basis for family life. At the same time, it must take additional steps to protect the rights of vulnerable partners in domestic partnerships in a manner that does not unnecessarily undermine marriage as the preferred model for responsible human relationships. Finally, it must give same-sex partners equal access to the secular institution of marriage, whilst respecting the rights of faith communities to decide which relationships are eligible to be blessed through religious marriage ceremonies.

The Standing and Approach of the SACC

  1. The South African Council of Churches (SACC) is the facilitating body for a fellowship of 23 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.


  2. South African Law Reform Commission (SALRC) Discussion Paper 104 on Domestic Partnerships touches on emotive issues that continue to divide the SACC's members very deeply. In the past, the SACC has often refrained from adopting positions on public policy matters around which there is little consensus among our members. In this instance, however, we feel that we cannot remain silent for several reasons:
    • First, the SACC's members have consistently acknowledged the importance of engaging in public witness on matters of national debate. The SACC has a long tradition of wrestling with difficult moral and social problems and articulating prophetic responses, informed by our faith and our moral and theological beliefs. As champions of participatory democracy, we have a duty to model responsible civic behaviour.
    • Second, the SACC has a proud history of opposition to all forms of unfair discrimination. We have supported the transition to a democratic political dispensation and the adoption of a Constitution that recognises the human rights of all South Africans and affords them equal protection in law. We also expressed strong support for the adoption of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, which was intended to give effect to section 9 of the Constitution. As we wrote in our November 1999 submission to Parliament, "We believe that such legislation is essential both to the achievement of social and economic justice and to the promotion of reconciliation and unity. Further, we believe that the creation of equal opportunities is consistent with our theological understanding of the equal humanity and dignity of all human beings as children of a loving God, created in God's own image."
    • Third, the SACC is the most broadly representative confederation of Christians in the country. The 2001 census revealed that roughly 15 million South Africans consider themselves to be members or adherents of the SACC's 23 member denominations. If we are silent because we lack consensus on certain matters, we will leave a vacuum that will inevitably be filled by the voices of smaller, less diverse Christian bodies. We therefore believe that we have a moral obligation to identify some fundamental theological principles that should inform the policy debate. And if we are unable to reach any agreement on particular issues, we must acknowledge these areas of continued division, reject simplistic presentations of a "correct" Christian interpretation, and remain in prayerful dialogue with one another in a perpetual quest to discern the path to which we are called by God.


  3. This submission was prepared by the SACC Parliamentary Office in consultation with a reference group of theologians from a number of SACC member churches, including the Church of the Province of South Africa, the Methodist Church of Southern Africa, the Evangelical Lutheran Church of Southern Africa, and the African Methodist Episcopal Church. Like the SALRC Discussion Paper to which it responds, it does not purport to articulate a final position on the complex questions raised by domestic partnerships, nor should it be understood as a "manifesto" that carries the endorsement of the SACC's members. We understand it as a contribution, from a Christian perspective, to the continuing public debate about the most appropriate manner of reconciling statutory law with the constitutional principles. We recognise that there will be further opportunities for comment at the legislative stage. This submission is thus intended in part to clarify issues and stimulate further discussion amongst SACC members that can inform our subsequent submissions. SACC members and their respective structures and constituents naturally reserve the right to make independent submissions at any stage of this process.


Legal Recognition of Domestic Partnerships other than Marriage

  1. Currently, marriage is the only form of domestic partnership recognised in South African law. As the Commission notes, marriage is "regarded as the cornerstone of society - a fixed traditional structure essential for the raising of children and a healthy family" (para 1.2.1).


  2. Despite the supposedly immutable nature of marriage, the SARLC observes that social changes, particularly in the past fifty years, have altered the social and legal significance of marriage. There has been a general move away from the assignment of fault in the breakdown of marriages and towards recognition of "no fault" divorces, as well as fundamental changes in matrimonial property laws. At the same time, there has been a decline in social disapproval of cohabitation, with the result that the number of people living in domestic partnerships other than marriage has increased dramatically, both in South Africa and elsewhere. This has led many countries, particularly in the developed world, to give legal recognition to new forms of domestic partnership.


  3. The Commission reports that in South Africa, as elsewhere: "More and more legal problems associated with domestic partners and their families are coming to the attention of the courts and of lawyers generally. Partners are increasingly likely to bring disputes over such matters as property and custody before the courts." (para 1.2.8) The legal situation in South Africa is also complicated by the constitutional prohibition on unfair discrimination on the basis of marital status, one of the protected grounds listed in the equality clause of the Constitution (sec. 9). A growing number of High Court and Constitutional Court cases involve challenges in terms of this provision.


  4. The Commission therefore poses these questions:
    • Has the time come to provide legal recognition to people in domestic partnerships?
    • Should people in a domestic partnership have the same rights and obligations or some of the same rights and obligations as people who are married?
    • If so, how should these be regulated? (para 1.2.9)
    The Commission also considers, more briefly, whether non-conjugal domestic care relationships should attract specialised legal protection.


Covenantal and Civil Marriage: The Roles of Church and State

  1. The SACC's member denominations hold differing positions on many aspects of marriage. For example, the Roman Catholic Church believes that Christian marriage is a sacrament, whereas Lutheran and Reformed churches hold that marriage does not, in itself, confer grace. Our members also differ on divorce and remarriage. Indeed, the Church has sanctioned a variety of marital practices over the centuries, as the Law Commission points out.


  2. Despite these differences, there has been, for several centuries, a fairly stable consensus amongst Christian churches on a number of fundamental matters related to marriage. First and foremost, marriage is understood as a covenant, entered into by two people before both God and the wider human community. Marriage permits partners to declare and celebrate their mutual and unconditional commitment to each other. It is not simply a contract, which is conditional on the parties' adherence to its terms. It is a free union, based on fidelity, reciprocity and the equal dignity of both partners. It reflects the covenant between Christ and his church, which, in turn, harks back to God's covenant to Abraham in Genesis.


  3. Covenantal marriage recognises and celebrates a relationship between two people and their relationship with God. It also represents the public joining of two families, conferring on both the duty to nurture and sustain the relationship and to help the couple to resolve any difficulties that arise. Indeed, marriage in the Christian tradition was initially just a family matter. It was not until the 11th Century that the institutional Church began to regulate and validate marriage. Civil recognition of marriage only began to become important from the late 18th Century, with greater separation between church and state and the rise of modern nation-states.


  4. The civil and religious aspects of marriage are today so closely intertwined that people rarely make a distinction between them. Couples may be led by their religious beliefs (or, in some cases by family pressure or romantic ideals) to have a "church wedding", but when we encounter a married couple, we make no practical distinction between those whose marriage was performed by a minister or other religious official and those married by a public official. This imprecision has been encouraged by the widespread practice of the state empowering religious officials to perform the component of marriage. Thus, many marriages are simultaneously recognised by the state and blessed by the church.


  5. However, the civil component of marriage is effectively little more than a contract that mainly regulates with the material aspects of households. A secular state has no authority to recognise or regulate a covenantal relationship with God. It can only enforce the contractual aspects of the marriage and confer civil benefits on the couple. Today, civil recognition of a marriage is also as important (if not more important) than religious recognition of a marriage in terms of providing social legitimacy to a relationship.


  6. Even the Church has come to place the civil aspects of marriage above the religious aspects of marriage in the sense that we accept that no one, other than the state, has the right to identify a relationship as a marriage. This is not to say that civil recognition of marriage is not important. It is simply to point out that civil recognition of marriage is necessarily limited in certain respects. It is up to the Church (or, indeed, any community of faith) to reassert the religious significance of marriage.


  7. The distinction between religious and civil marriage is important because the Law Commission is competent only to address the question of civil marriage - or, more accurately, the manner and extent to which the state gives sanction and protection to the legal and contractual aspects of domestic relationships.


  8. With respect to the civil aspects of marriage, the Church's interest should be to ensure that civil marriage laws:
    1. Uphold - or, at a minimum, do not diminish - the sanctity of covenantal marriage;
    2. Promote faithful relationships and healthy family life;
    3. Respect the equal dignity of all human beings as individuals created in the image of God; and
    4. Afford the greatest possible protection to the most vulnerable household members.


Registered Partnerships

  1. The Law Commission notes that a growing number of South Africans are living in relationships other than marriage - more then 1.2 million adults in all age groups at the time of the 1996 census. People in this situation are unable to invoke any of the protective mechanisms available to spouses if disputes arise. Instead, they must rely on common law remedies, such as those dealing with property, contracts, unjustified enrichment, and estoppel. As communal property of such a partnership is often held in the man's name, these mechanisms typically afford women inadequate protection.


  2. This leads the SALRC to inquire whether the public interest would be better served by developing additional options, other than marriage, for domestic relationships. Not only would this enable couples to select an arrangement that better "fits" with their actual circumstances, but it would also allow the courts to apply more precise rules, appropriate to different types of relationships.


  3. In particular, the Commission consider the possibility of permitting the "registered partnerships". A registered partnership would differ from a marriage in that there would not be a presumption of communal property and there would be a more limited right to maintenance between former partners if the partnership was dissolved. However, the duty of mutual support would be recognized, as would the right of intestate succession.


  4. The idea is that this would help to clarify the rights of partners and result in more consistent application of law across different cases. In theory, it could also help to protect the rights of vulnerable members of the household - particularly children, but also female partners. The argument is that, even though vulnerable household members might enjoy less protection than they would in a marriage, their rights would at least be clear at the outset and they would be better off than they would be in the absence of any legal arrangement governing the relationship.


  5. Whilst we accept the need to deal practically with social realities and to protect vulnerable household members, we believe that the introduction of registered partnership would not effectively achieve these goals. Social institutions should be more than mere reflections of social realities; they also embody the values of a society. Covenantal marriage remains the soundest foundation for family life because of the depth of commitment it requires of partners. Civil marriage, which flows from covenantal marriage (but which may also be entered into separately), similarly offers the greatest legal protection to all members of a household.


  6. From a Christian perspective, an alternative form of partnership that imposes fewer responsibilities on the partners could only be justified if it is likely to promote the cause of justice by affording greater protection to vulnerable partners. However, there is little reason to believe that registered partnership (and the additional protection it could offer) would be significantly more accessible to vulnerable partners than marriage. Where partners have differing attitudes to marriage - and, in particular, the level of commitment that marriage involves - the availability of a less rigorous option would not necessarily resolve those differences. Indeed, we fear that the opposite will occur: that couples considering marriage would be tempted to opt for this easier, less restrictive alternative, especially if one partner is uncertain about committing to marriage.


  7. Research conducted for the Law Commission found that cohabitation was often a function of poverty. It has also been argued that the introduction of registered partnerships would enable couples to formalise their relationships without the expense of lobola or elaborate celebrations. Thus, registered partnerships could be of particular benefit to poorer households, decreasing the cost of gaining access to legal recognition of the relationship and the protections that such recognition affords.


  8. We are not persuaded, however, that registered partnerships would be an effective way of addressing this problem, either. It is most commonly women who are forced by poverty to cohabit, often to gain access to food and other resources necessary to take care of themselves and their dependents. But women's dependence on men also tends to diminish their power. Consequently, a woman whose partner is reluctant to wed is likely to be equally reluctant to register a partnership.


  9. Furthermore, registered partnerships are unlikely to be equally accessible to everyone. More affluent couples in urban areas - who enjoy better access to information and who may be under less pressure to conform to family expectations or cultural norms - are likely to be better placed to consider this option. But the Law Commission found that domestic partnership is less common in settled communities with formal housing than in areas with informal housing. Women in such situations will inevitably need to rely on other legal protections.


  10. We submit that a more desirable and appropriate way of addressing this problem would be to ensure that other legislation takes account of changing relationship patterns, where relevant. The 1998 Prevention of Domestic Violence Act, for example, defines "parties to a marriage" to include cohabiting couples, thereby giving unmarried domestic partners access to the legal protections contained in the Act. Legislation enacted since the adoption of the new Constitution typically extends the protections and benefits previously offered only to married couples to domestic partners as well.


  11. This necessitates the identification of criteria to assess whether two people are partners. One way of achieving this would be to allow them to register their partnership voluntarily. We feel that this is a potentially detrimental approach, for the reasons cited above. The other option is to allow the courts to decide this in the event of a dispute.


Unregistered partnerships

  1. The Law Commission concedes that registered partnerships may do little to protect the rights and interests of those most likely to be subject to injustice. How, then, can the state extend such protection to vulnerable household members in domestic relationships other than marriage?


  2. To achieve this, the Commission proposes to award civil status to a relationship in terms of legislation, even if the partners have not taken any formal steps to effect such recognition. The Discussion Paper examines two possible forms: de facto relationships and ex post facto relationships. In the first, the parties receive their ascribed status automatically, as soon as they meet certain criteria. In the second, the status only becomes relevant once the relationship has ended, whether through dissolution or death.


  3. Since the ex post facto model only becomes applicable following the termination of a relationship, it cannot offer protection to partners in a continuing relationship. If the objective of allowing for unregistered partnerships is to advance the cause of justice by maximising the protection afforded to vulnerable partners, the ex post facto model would be most effective where the partners have the option of obtaining protection by voluntarily registering their partnership. As we have argued against the introduction of registered partnerships, we consider here only the de facto model.


  4. A de facto relationship would be deemed to exist once the partners met certain criteria, which would need to be defined in enabling legislation. Potential criteria proposed by the Commission include the duration of the relationship, the nature and extent of common residence, the existence of a sexual relationship, the extent of financial dependence or interdependence, the ownership of joint property, the degree of mutual commitment to a shared life, offspring, the performance of household duties, and the public character of the relationship.


  5. Granting legal status to such relationships would establish rules for the distribution of property on the dissolution of the relationship and would better enable the partners to exercise their rights in terms of legislation governing matters such as mental health, bail, guardianship, etc.


  6. This approach would help to prevent the weaker partner in a relationship from being exploited by a financially or emotionally stronger partner who resists formalising the relationship through marriage. It would also afford protection to those who “drift” into relationships and simply avoid or postpone decisions about marriage. In the event that the relationship comes to an end, it would help to protect the interests of any children of the partnership. If one partner dies intestate, acknowledgement of a de facto relationship would strengthen the surviving partner’s inheritance claims.


  7. An opt-out clause could be provided for couples who wish to reject the default protection. This would require positive action on the part of both partners, though, so inaction would not compromise the rights and interests of vulnerable partners.


  8. The legal recognition of unregistered partnerships inevitably involves some risk that it will act as a disincentive to marriage. However, the risk is probably less than with registered partnerships which could fulfil the desire for some form of formal recognition of a relationship without incurring the full responsibility of marriage. More importantly, provision for unregistered partnerships would automatically extend default protection to vulnerable partners. As a result, we believe that its potential to advance the cause of justice outweighs the possible moral hazards.


  9. In summary, we see four potential configurations for legal recognition of the rights and duties associated with domestic partnerships:
    1. Marriage + Registered Partnerships + Ex Post Facto Unregistered Partnerships
    2. Marriage + De Facto Unregistered Partnerships
    3. Marriage + Ex Post Facto Unregistered Partnerships
    4. Marriage only.
    The SACC believes that South African law must reaffirm marriage as the most desirable basis for domestic relations and family life whilst simultaneously protecting vulnerable partners in domestic partnerships other than marriage. The first of these options undermines marriage by suggesting that another option (registered partnership) is equally acceptable. The last option provides no specialised protection, apart from imperfect common law remedies, for unmarried partners. The third option provides specialised legal protection only for those in a marriage or those who leave (or survive) any other form of domestic partnership. Whilst this could be interpreted as an emphatic expression of disapproval of any form of domestic partnership other than marriage, it fails to take into account the fact that vulnerable partners, usually women, are often so dependent on their partners that it is not realistic for them to leave the relationship. Consequently, the SACC sees the third option as the one that most effectively satisfies these dual imperatives.


Same-sex partnerships

  1. The most sensitive issue raised by the Discussion Paper is the matter of state recognition of same-sex relationships. Our Constitution prohibits unfair discrimination on the grounds of sexual orientation. This principle has led the Constitutional Court to state repeatedly that the law must provide equal protection to same-sex couples in permanent relationships and, on several occasions, to declare unconstitutional laws that discriminate unfairly on grounds listed in section 9(3) of the Constitution. It seems likely that the Marriage Act of 1961 is vulnerable to such a challenge. The SALRC has therefore been asked to propose alternative legal strategies that would be consistent with the Constitution.


  2. It is important to note, however, that the Constitutional right to equal protection, like the other rights recognised by the Constitution, is not unequivocal. All rights have certain limitations. The Constitution contains a general limitations clause in section 36, which states that the rights in Chapter 2 may be limited “only in terms of a law of general application” and then only “to the extent that the limitation is reasonable and justifiable in and open and democratic society based on human dignity, equality and freedom.” More importantly (in this case) section 9(3) contains its own internal limitation in that it prohibits unfair discrimination. We must therefore begin by asking: Is it fair to for the state to withhold from people in permanent same-sex relationships the same recognition and protection that it gives to permanent opposite-sex relationships?


  3. The Constitution presumes that all discrimination based on the prohibited grounds is unfair unless it is shown to be fair. The primary justification for Discrimination against a particular person or group of people on one or more grounds enumerated in section 9(3) of the Constitution might be considered fair if failing to discriminate would cause actual and greater harm to other people or to the society at large. For example, it would be fair to discriminate against a blind person who applied for a job as a bus driver; the person’s disability renders her incapable of driving a bus safely, so to hire her would be to place her passengers at real risk of actual harm.


  4. Some Christians contend that extending state recognition to same-sex relationships would indeed cause actual and significant harm to South African society. For some, these views are grounded on little more than prejudice or misinformation - such as the belief that homosexual people are sexual predators, bent on “recruiting” or harassing others, particularly young people. However, the majority base their objections on what they see as scriptural imperatives. They argue that the Bible condemns all homosexual behaviour as sinful and harmful and that to give legal protection to same-sex relationships would be to violate God’s law, thereby undermining public morality.


Biblical perspectives on homosexual behaviour

  1. Those who hold this view typically cite a handful of scriptural passages to support their position. Some of the most commonly quoted texts are, however, irrelevant either because the gender of the people involved is incidental to a more central message about sexual violence and assertion of power (Gen. 19:1-29 and Judges 19-21) or because of translations faults (Deut. 23:17f). Others (1 Cor. 6:9 and 1 Tim. 1:10) are ambiguous, but appear to have little relevance to loving, consensual and faithful same-sex relationships.


  2. Yet there are other passages that unequivocally condemn homosexual practice, though not necessarily for reasons that are seen as valid today. For example, two frequently cited passages (Lev. 18:22 and 20:13) that term homosexual acts as “abominations”, form part of the Hebrew Holiness Code, which was primarily concerned with maintaining the purity and separateness of the Israelites. The Holiness Code also rejects practices considered acceptable by Christians today: eating shellfish and certain other animals, planting multiple crops in a field, cross-breeding animals, wearing garments made of mixed fibres, and having sexual intercourse during menstruation. Same-sex contact was seen not only as unnatural, but as un-Jewish - an adoption of foreign practices associated with paganism and idolatry. In a patriarchal culture, lying “with a man as with a woman” compromised male dignity. And in a minority tribe struggling to populate a nation, expending semen (which was then believed to contain the whole of nascent life) for any non-procreative purpose was anathema. Whilst we must be careful not to dismiss the Holiness Code as exclusively concerned with Jewish religious purity, we must also recognise its historical context and acknowledge that not all of its tenets are considered equally or universally relevant to contemporary society.


  3. More challenging is Paul’s attack on those who turned from God, who “did not see fit to acknowledge God” but worshiped idols instead. “For this reason God gave them up to degrading passions. Their women exchanged natural intercourse for unnatural and in the same way also the men, giving up natural intercourse with women, were consumed with passion for one another.” (Rom. 1:26-27)


  4. Although Paul clearly condemns homosexual acts, it is important to note that he presents these acts as symptoms, the penalty for idolatry. Indeed, as with the Hebrew Holiness Code, homosexuality is a problem primarily because it is a sign of adherence to pagan practices. Moreover, Paul speaks about “unnatural” intercourse. It is unclear whether he is using this term in the sense of a violation of natural law or of customary practice.1 In any event, it is unlikely that Paul conceived that homosexual activity might be “natural” for some people. However, recent research suggests that this might be the case.


Modern Research

  1. The condemnation of homosexuality in Paul’s letter to the church at Rome, like other biblical texts that are relevant to the issue, is based on a fundamental presupposition that all those who are sexually attracted to people of the same sex perversely and sinfully choose to be that way. But the medical and scientific evidence on the origins and causes of homosexuality - as well as the lived experience of most lesbian and gay people - does not support this view. Science has documented homosexual behaviour among animals, which are not thought to possess freedom of thought or the ability to choose. Moreover, a growing number of studies have identified genetic and hormonal factors that seem strongly to influence (if not determine) sexuality and sexual orientation.2 At the same time, few experts categorically dismiss the possibility that environmental factors may play a role in determining an individual’s sexuality.


  2. However, there is broad agreement among the professional medical, scientific, psychological and psychiatric communities on a number of key points:
    • Regardless of whether sexuality is shaped primarily by genetic, hormonal or environmental factors or some combination thereof, one’s sexual orientation is, in the overwhelming majority of cases, fixed very early in childhood. Thus, most people, heterosexual or homosexual, do not perceive their sexuality as a choice but rather as an innate aspect of their identity.
    • Homosexuality is not a mental illness, a disease or a disorder. It is a naturally occurring variant of sexual expression. To the extent that gay men and lesbians experience emotional disturbance, this is generally not a direct result of their sexual identity, but rather of the discrimination and hostility that they encounter in societies that reject and stigmatise homosexuality.
    • Attempts to alter sexual orientation are at best ineffective and at worst harmful. There is no convincing evidence in peer-reviewed scientific journals that so-called “reparative therapies” have effected lasting and replicable changes in sexual identity. Most such programmes measure “success” by observing changes in sexual behaviour; this is not, however, a reliable indicator of sexual orientation. Sexual identity can be repressed, but such repression often produces psychological problems.


A Theological Dilemma

  1. If we accept that same-sex attraction is a natural, albeit minority, occurrence and not a product of sinful choice or willful disobedience to God, we are faced with a dilemma. If we believe that all people are created in the image of God and therefore worthy of equal respect, could it be fair to discriminate against people on the basis of their sexual orientation? What are we to say to our lesbian sisters and gay brothers about moral relation­ships? We could counsel them to abstain from any expression of their sexuality, but this would be asking them to suppress an integral part of their identity and to reject God’s gift of sexuality. Some homosexual people see this as a viable option, just as some heterosexual people do, but could it be just to impose this “one-size-fits-all” prescription on an entire category of people? And if they fail to remain celibate, can we automatically categorise them as sinners, remembering that Jesus and Paul warned that only those “to whom it is given” should choose celibacy over faithful partnership in marriage (Matt.19:10-12 cf. I Cor.7:2,7-9,17, I Tim.4:1-3)?


  2. The most consistent option for us is to urge them to express their sexuality in loving, com­mitted and faithful relationships, rather than in promiscuity - just as we expect heterosexual people to do. But this implies that we must be prepared to acknowledge and sanction such relationships on an equal basis, through covenantal marriage. However, the majority of Christians, including most SACC member churches, perceive marriage as an institution ordained by God for one man and one woman to the exclusion of all others for the duration of their lives. This view is most commonly based on Gen. 2:24 - the text that Jesus himself cited when the Pharisees asked him to comment on the lawfulness of divorce (Matt. 19:3-6).3 Could an alternative view be consistent with Christian scriptures and moral teachings?


The Word of God and Scripture

  1. The debate about same-sex relationships and marriage necessarily engages us in a larger debate about the authority of scripture and how we use and interpret the Bible. Christians of good faith disagree about what it means to recognise the authority of the Bible. Some regard the Bible as the authoritative Word of God in a simple and absolute sense. Others, who remain orthodox Christians, do not. Whilst they agree that the Word of God itself is (by definition) inerrant, they do not extend that claim to Biblical texts. They acknowledge that there are inaccuracies and inconsistencies in scripture, and that some passages reflect the writers’ assumptions about the workings of the natural world, beliefs that are at odds with modern scholarship. They point out that certain passages of the Bible seem to condone - or at least accept - practices, such as slavery, concubinage and genocide, that contemporary society condemns as morally reprehensible. Consequently, they do not see the Bible as authoritative in every matter; it is not an encyclopaedia containing accurate information about all aspects of human existence.


  2. Rather, they hold that the Bible is inspired by the Holy Spirit to be the suffi­cient and uniquely authori­tative witness to Jesus Christ (Jn.5:39 etc.) and is as such and in its general content the Word of God. Thus they identify the Word of God itself with Jesus Christ, as God’s living Word or revelation (Jn.1:1). They agree with the Reformers, particularly Martin Luther, that the Word of God is to be identi­fied with was Christum treibt (‘what propagates Christ’) in the Bible.


  3. From this latter point of view, then, scripture does not exhaust or limit what Christians need to know in seeking the most faithful course of action on matters of confession or practice. The Bible is not a fixed set of rules, but a living document whose message must be interpreted in the light of contemporary insights and the lived experience of Christ’s followers. Thus, no biblical text should be simply lifted from its context and quoted as “the Word of God”. One has to examine each specific text and consider what it says in the light of the person, ministry and teaching of Jesus. Indeed if one does not do this, one ends up by putting the witness and teaching of Jesus by on the same level as other, ethically inferior teaching in the Bible, thereby compromising it.


  4. Moreover, it is a fundamental principle that every ethical question must be evaluated in the light of Christ and his ministry. This obliges us to apply the two commandments that Christ held up as the supreme expression of God’s will: to love God and our neighbours. The gospel’s imperative is to love, care for and be identified with the sufferings of all people, including gays. All texts are to be judged by whe­ther they are in line with this, and any text or its interpretation that sets love for God in oppo­sition to love for a fellow human being is to be rejected. Any text, or under­standing of it, that leads to, or supports, contempt for any group of persons either within or outside of the church is incompatible with this fundamental principle and must be rejected.


  5. For instance, there are texts in both the Old Testament and the New Testament that treat slavery as normal and take it for granted. Nowhere does the Bible cate­gori­cally condemn it. Thus 150 years ago, when the debate on slavery was raging, the Bible seemed clearly on the slave-holders’ side. Indeed part of the heritage of slavery was the sexual use of female slaves (often daughters bought from impoverished families and captured women) by their male owners. Called concubines, such women were used as sexual toys or breeding machines. Several scriptural passages seem to condone this practice (Ex.21:7ff., Num.31:18 and Jdg.19:16ff.). Many Ameri­can slave owners indulged in a similar practice 150 years ago, cit­ing such scriptural passages in justification. In the light of the revelation in Jesus Christ, however, we must rule out this use of Scripture.


  6. More recently, as we have allowed women’s voices and experiences to inform and enrich our interpretation of the Bible, we have begun to recognise the patriarchalism and sexism that pervade Scripture - not only in the Old Testament, which regards women as the property or chattels of their husbands, but also in places in the New Testament. Our response should not be to try to deny patriarchalism or sexism - or, worse still, to uphold it - but to understand that Scripture is there to point us to the revelation of God in Jesus. What Jesus gives us is a love ethic and a critique of domination in all its forms - including patriarchalism, sexism, racism, slavery and homophobia. For us, God is a God of both justice and compassion, One who calls us to stand with the most vulnerable, powerless, and marginalised members of human society.


  7. Having evaluated the relevant biblical texts in the light of the above considerations, we do not see them as a condemnation of faithful and committed same-sex relationships. To the contrary, we believe that the central message of the Gospel is that Christ died for all - male and female, black and white, gay and straight - that they might be cleansed of sin, reconciled to God, and free to enjoy life abundant. This includes God’s gift of sexuality, as expressed responsibly in the context of loving, faithful and consensual relationships.


Distinguishing between Religious and Civil Policy

  1. This understanding does not imply that churches must bless same-sex unions. This question must remain a matter for each church to decide, in the light of prayer, discussion and further consideration of scripture. However, given our shared understanding of the Gospel’s overriding message of love and compassion, we conclude that there is insufficient reason to believe that civil recognition of same-sex relationships would constitute such a great moral hazard that it would cause real and imminent harm to society. Consequently, it cannot, as a general principle, be fair for the state to withhold recognition of same-sex relationships that manifest, in other respects, the levels of commitment and mutual support that we expect of married couples.


  2. Even if many Christians continue to believe that all homosexual practice is morally and ethically wrong, this belief is not sufficient ground to deny the people in committed and faithful same-sex relationships the same civil recognition and legal protection enjoyed by their heterosexual counterparts. Similarly, Christian ethical opposition to divorce or polygamy is not sufficient reason to justify a state prohibition on these practices, particularly in a multi-faith, multi-cultural society where people of different traditions are expected to adhere to a common set of laws.


Form of recognition

  1. If we agree that fairness and constitutional law compel the state to provide for the recognition of same-sex relationships, we must still decide how such relationships are to be acknowledged. The Law Commission proposed three possible models for legal reform to bring statutory law into compliance with the Bill of Rights and the Consti­tution and balance the competing interests and beliefs of South Africa’s diverse popula­tion. These are:
    1. Extending the common law definition of marriage to include same-sex couples;
    2. Separating civil and religious marriage;
    3. Creating a new institution called a ‘civil union’.

  2. The third option is presented in two variants: one reserved just for same-sex couples, and the other open to both same-sex and opposite-sex couples. The objection to ‘civil unions’, especially if limited to same-sex couples, is that separate institutions are rarely, if ever, equal. ‘Civil unions’ are likely to acquire second-class status that would render them unable to withstand constitutional scrutiny. If they were open to all couples, they would seem too similar to the registered partnership arrangement that both the majority and minority submis­sions oppose.


  3. Separating civil and religious marriage, as is the practice in several European countries, would have the advantage of disentangling the differing functions of the two institutions. It would allow churches and other faith communities to remain firmly in control of decisions about which relationships they recognise and bless. However, there is a major drawback in that it would require those couples who wish to seek religious blessing to undergo two different ceremonies. Not only is this unnecessarily costly and complicated, it also creates the risk that religious marriage would be seen as a quaint and secondary ritual, an adjunct to the “real” marriage performed by civil authorities.


  4. The extension of the possibility of legal marriage to homosexuals appears to be the simplest and most equitable way of providing for state recognition of same-sex unions. We recognize that the use of the term ‘marriage’ to characterize same-sex unions will offend many people of faith, but ministers of religion who are also marriage officers would be free to refuse to perform marriages that are inconsistent with their beliefs. On the other hand it would not be right to abridge some people’s civil rights in order to spare others from offence.


  5. In summary, then, we would reject the creation of a new institution of “civil union” in parallel with marriage. If open to everyone, it would compete with marriage as a valid model for domestic relationships; if available only to same-sex couples, it is unlikely to meet the constitutional test of equality. We believe that either of the other two options would be more appropriate ways of extending civil and legal recognition to same-sex relationships, though both have potential drawbacks. Regardless of the method selected, faith communities must continue to reserve the right to decide which unions they will bless and which they will not.


    6. 5 December 2003

    1See further Cor. 11:14-15 where Paul argues that “nature” teaches that women should wear their hair long and men should wear theirs short.

    2Most recently, research published in the October 2003 edition of Molecular Brain Research strongly suggests that sexual identity may be genetically determined.

    3“Therefore a man leaves his father and mother and clings to his wife, and they become one flesh.” Although this passage is widely cited as an authoritative statement of God’s will with respect to the sacredness of marriage and the limitation of marriage to heterosexual couples, it is almost never seen as an unambiguous call to matrilocal marriage.

 
 
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