Totalitarianism*, (Same-Sex) marriage and democratic politics in post-apartheid South Africa
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2007
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South African Journal on Human Rights
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Juta Law
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University of Cape Town
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Abstract
This article interrogates what it considers to be several totalitarian moments in the process that led to the legislation that authorised same-sex marriage in South Africa. The interrogation proceeds from three platforms which also form the basis of any believable theory of democratic politics, namely church / state separation, plurality and common (shared) citizenship. My argument is that Parliament - by introducing (and defending) the first draft of the Civil Union Bill (which deliberately failed to introduce a marriage regime for same-sex life partnerships) in response to the Fourie judgment - failed properly to consider all three of these fundamental aspects of democracy. This failure was complemented by more overt totalitarian moves on the part of several fundamentalist religious groups in South Africa that (ironically so) vehemently opposed the first draft of the Bill even though it did not provide for same-sex marriage. I conclude that democratic activism coupled with the strength of and commitment to the South African Constitution and to the decisions of the Constitutional Court ensured the successful evasion of these totalitarian moments while emphasising that the struggle against totalitarianism in South Africa is far from over.
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Barnard, J. (2007). Totalitarianism,(same-sex) marriage and democratic politics in post-apartheid South Africa. South African Journal on Human Rights: Sexuality and the Law: Special Issue 3, 23, 500-525.