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“All animals are equal, but some animals are more equal than others.” – George Orwell, Animal Farm


On Thursday afternoon this past week, I and a few other members of our DukeEngage group met Albie Sachs, a former judge on the Constitutional Court of South Africa and one of the writers of South Africa’s Constitution. I was excited for the opportunity to meet someone who had played such a crucial part in the country’s transition away from the apartheid regime. But I was also somewhat apprehensive about the prospect, given his reputation for being controversial on several occasions in terms of his positions in several judgements while a Constitutional Court judge.


As it turns out, my apprehensions were very much founded. The more I listened to Sachs talk, the more I began to wonder – nay, realise – how detached from reality this terribly accomplished man was. I have a lot of respect for him, don’t get me wrong, but some of the things he said were outright problematic and did not give way to the whole picture.


This presented itself most noticeably when the topic of same-sex marriage came up. Same-sex marriage is legal in South Africa, but there is a separate Act that governs it (the Civil Unions Act) to the Marriage Act, which governs marriages between heterosexual couples. On the surface, this all seems fine. But then you look a little deeper, specifically at Section 6 of the Civil Unions Act. Section 6 allow for marriage officers to ‘conscientiously object’ to marrying same-sex couples based upon their religion, conscience, or beliefs. Marriage officers cannot object to marrying a couple for any other reason. And here lies blatant discrimination. Surely this goes against the all-encompassing South African Constitution, which explicably, unequivocally, and undeniably provides for equality for all and protects against all forms of discrimination?


Yet Albie Sachs (the guy who wrote the Constitution, remember) did not see it that way. On discussing his suggestion to Parliament to allow for conscientious objection when the Civil Unions Act was to be written, he told us of the importance of respecting others’ beliefs, no matter how bigoted they might seem to you personally. Essentially, his justification for the potential for blatant discrimination against same-sex couples who wish to get married was that the right to religious freedom and personal beliefs trumped the right to not be discriminated against. To hear that come out of his mouth shocked me. How could someone who wrote a Constitution founded in the principles of equality and anti-discrimination at the end of apartheid continue to advocate for a policy that is not equal and discriminates?


What shocked me equally, if not more, was Sachs’ other justification for conscientious objection: that it would be wrong to allow someone who does not want to marry a same-sex couple to do so because marriage is supposed to be a special moment that everyone involved, including the marriage officer, should be excited about. What? I’m sure people would rather get married by someone reluctantly than not be able to get married at all, Albie.


What Sachs said after providing this justification shocked me equally, if not more, though for different reasons. Although I can’t remember his exact words, he basically said that Section 6 of the Civil Unions Act in practice does not actually have a detrimental effect on the ability of same-sex couples to get married. Because “at every local magistrate court, you can find at least one marriage officer who is willing to marry a same-sex couple.” This is problematic on so many levels. Firstly, it should not be okay for to accept that not every marriage officer be willing to marry – and therefore, choose not to marry – a same-sex couple. Secondly, the reality is that so few marriage officers are willing to marry same-sex couples that it can takes months, if not years, for these couples to get married. I attended a conference (through my workplace) discussing Section 6 of the Civil Unions Act earlier in the week and heard the experiences of several same-sex couples trying to get married. For them, actually being able to get married was a miracle – that’s how hard it is realistically to get married as a same-sex couple in South Africa, no matter what Sachs’ believes. It’s especially hard if you’re black. And even harder if you’re a black lesbian couple. Sachs seemed to completely disregard, or at least entirely overlook, this reality. Wow.


I came out of meeting Sachs honestly pretty disheartened. Yeah, it was cool to meet him and I can say that I met one of the original judges of the Constitutional Court and a writer of South Africa’s Constitution. But if he harbours these problematic beliefs, then how upstanding is the Constitution really? Are all the protections within it just for show? Does the Constitution continue to uphold inequality and injustice at all levels? I don’t know the answer, but I do know this: Albie Sachs really needs to take a hard look at what’s really around him.