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Introduction
In Feminism and the Power of Law Carol Smart challenges both the marginalisation of feminist scholarship within legal discourse and the value of law reform itself. She argues that, while the law should certainly not go unchallenged by feminists, ‘we should not make the mistake that law can provide the solution to the oppression that it celebrates and sustains’ (1989, p. 49). Didi Herman (Reference Herman1994, p. 145) has also strongly cautioned against ‘rights’ claims in relation to lesbian and gay law reform, arguing that it is impossible to predict the consequences of these claims with any certainty. Yet, same-sex marriage advocates have argued that access to marriage is necessary to achieve equal recognition for same-sex relationships. In particular, the symbolic importance of the recognition by the state of same-sex relationships as marriage has emerged as a key argument in jurisdictions where same-sex couples already had access to many or all of the legal protections of marriage through a separate institution such as civil partnership.Footnote 1 For example, the California Supreme Court held that recognition was one of the ‘core substantive rights’ of marriage:
‘These core substantive rights include, most fundamentally, the opportunity of an individual to establish – with the person with whom the individual has chosen to share his or her life – an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.’ (In Re Marriage CasesFootnote 2 at p. 399, original emphasis)
This type of argument relies on two assumptions: first, that law can and will provide this symbolic recognition; and second, that law is the only or most effective source for this ‘gold standard’ recognition, as it was described by the claimants in Wilkinson v. Kitzinger.Footnote 3 In contrast, I argue that the South African example demonstrates that legally recognising a relationship through marriage will not automatically result in gold standard recognition, even with a strong constitutional commitment to equality as a ‘pre-eminent principle’ (Andrews, Reference Andrews2007, p. 1484), such as that found in the South African post-apartheid Constitution.Footnote 4 More generally, in the context of not only a rapidly growing number of jurisdictions that recognise same-sex marriage but also an increasing focus on legal recognition more broadly, this case-study provides an opportunity to (re)consider the role of law in progressive social reform and particularly in delivering ‘recognition’.
This case-study is important because, as the first country in the world to explicitly include legal protections for lesbians and gay men in its Constitution, South Africa is a world leader in equality. It is also the first nation in the global south and one of the first in the world to legally recognise same-sex marriages. However, South African marriage law casts doubt on the assumption of same-sex marriage advocates that marriage will result in equal recognition because all marriage is not equal under the law in South Africa. I will argue below that this situation is not exclusive to South Africa but the dual systems of law, combined with an (albeit imperfectly executed) commitment to substantive equality, means that South Africa is a good example of how symbolic recognition has not resulted in access to the gold standard despite more rigorous equality guarantees than those that exist in many nations, including the United Kingdom. Instead, the symbolism of marriage recognition in South Africa is ambiguous: whilst the intention of the legislature was quite clearly to accord equal respect to customary marriage in particular, both this and same-sex marriage have been introduced in a legal structure that simultaneously reinforces the primacy of heterosexual civil marriage. I demonstrate this in Section 2.
Following an in-depth case-study of marriage in South Africa, I broaden my discussion to consider the ways in which the issues identified there might provide an insight into the concept of ‘recognition’ and same-sex marriage advocacy in the global north. I conclude my analysis by turning to the recognition/redistribution debate between Nancy Fraser and Judith Butler to argue that symbolic recognition (through marriage) would always be an ‘affirmative remedy’Footnote 5 in that it upholds existing racialised, gendered and economic hierarchies. On this basis, I argue that it is necessary to reassess the value placed on achieving symbolic law reform and to more closely examine how the material effects of the particular law reform (in this case marriage) are distributed within the community.
Marriage in South Africa
Within the dual systems of family law in South Africa, marriage can be contracted as civil marriage, which is based on colonial (Christian) marriage, or as customary marriage, which has been legally recognised since the Recognition of Customary Marriages Act (RCMA) 1998. Though the RCMA recognises registered customary marriages for all purposes and is an improvement on the legal position of customary marriages before the 1998 Act came into force, in this section I demonstrate that they are still not (legally) equivalent to civil marriages. More significant for my argument, however, are claims that the form of recognition of customary marriage, through legislation that to some extent brings it into line with civil marriage, effectively abolishes the traditional institution by ‘replacing the values of customary law with those of civil law’ (Bonthuys, Reference Bonthuys2002, p. 55). I will argue that it therefore cannot be claimed that customary marriage shares the same status as civil marriage. This casts doubt on the symbolism of recognition, which I then return to in the context of same-sex marriage before considering the theoretical literature on the concept of recognition.
Customary marriage
The Recognition of Customary Marriages Act 1998 (RCMA), s.2(1) and (2) provides that, ‘A marriage which is a valid marriage at customary law … is for all purposes recognized as a marriage’. Those customary marriages that already existed prior to the RCMA are unconditionally valid, whereas subsequent customary marriages must comply with certain requirements set out in the Act. These requirements include provisions designed to resolve some gender equality issues to ensure compatibility with the Constitution. For example, prior to the Act, women in customary marriages were unable to enter contracts or own property and marriage was contracted with the consent of the parties' families but not necessarily the parties themselves (cf. Bekker, Reference Bekker2001a, p. 43). The Act also introduces additional protections in relation to child marriage by requiring a minimum age of eighteen (s.3), though it can be waived if the parents/guardians agree in conjunction with authorisation from the relevant minister (s.4).
The RCMA creates a judicial divorce process. This replaces customary dispute resolution, which was generally a process of negotiation and repeated attempts at reconciliation between the parties and their families (Whelpton and Vorster, Reference Whelpton and Vorster2001, p. 58), with legal processes. It also creates a default presumption of community of property, and protects the property interests of first wives in polygamous marriages when the husband takes subsequent wives, requiring also that the first wife be notified of subsequent marriages (Higgins, Fenrich and Tanzer, Reference Higgins, Fenrich and Tanzer2007, p. 1670). There is also a duty on the parties to register the marriage, though failure to register is not a bar to the validity and recognition of the marriage (s.4(1) and (9)). The Act does not prohibit lobola (dowry) but nor does it require it in order for the marriage to be valid. The existence of a lobola agreement will, however, be one factor to be considered in determining whether a marriage exists (Bekker, Reference Bekker2001a, p. 44).
As long as the parties are over the age of eighteen (or have parental consent) and both consent to the marriage, the RCMA does not provide for a specific process of entering into the marriage. Instead, it refers to unspecified customary traditions, simply requiring that, ‘the marriage must be negotiated and entered into or celebrated in accordance with customary law’ (s.3(1)(a) and (b)). It would have been impossible and counter-productive for the legislation to attempt to codify the requirements for a valid customary marriage; as Mamdani argues, ‘there was not a single customary law for all natives, but roughly as many sets of customary laws as there were said to be distinct tribes’ (1996, p. 110). The legal anthropologist Anne Griffiths also describes the difficulty in defining the elements that will lead to the recognition of a customary marriage, emphasising the central role of negotiation in what she terms the marriage process (Reference Griffiths1997, pp. 53–54, my emphasis):
‘It is important to recognize that a relationship is constantly evolving. At one moment the giving of gifts and other features may suggest a marriage or movement toward such a state, but at another, behavior may be such that this impression is undercut by subsequent events which undermine pervious actions. This means that status cannot be viewed simply in linear terms, based on the length of time that a relationship has lasted, for what has occurred in that period may be subject to different interpretations at different times.’ (1997, p. 56)
Although, when measured in terms of the legal consequences of marriage, the RCMA provides customary marriages with an equal level of legal recognition to civil marriages, the reason that it has a lesser status relates to the ways in which the civil law supersedes many customary practices. It was undoubtedly not the intent of either the legislation or the Constitution to replace customary marriage with civil marriage, both of them clearly seeking an equal respect for customary marriages. In fact, according to the Deputy Minister of Justice and Constitutional Development, the intent of the RCMA was to ‘bring to an end the tyranny of a dictatorial recognition of civil and other Eurocentric faith based marriages at the expense of marriages concluded in accordance with customary law’ (in Higgins et al., Reference Higgins, Fenrich and Tanzer2007, p. 1668). However, the RCMA introduces changes to customary marriage through recognition, which align it with civil marriage to the extent that all of the ‘elaborate consequences’ of civil marriages have been made applicable to customary marriages (Bekker, Reference Bekker2001b, p. 49, my emphasis). This, Bonthuys argues, means that ‘integration into mainstream civil law may have the same effect as abolition … The standard remains that of the civil law and those who conform reap the benefits’ (2002, p. 55). Thus, despite some significant attempts to recognise customary practices alongside gender equality, the yardstick of marriage arguably remains ‘a “civilized” legal system of European origin’ (Bekker, Reference Bekker2001b, p. 50), that centres the nuclear (rather than extended) family and turns to the court system to resolve disputes.
Another reason why it might be argued that customary marriage has a lower status than civil marriage is that, while a customary marriage can be ‘converted’ into a civil marriage, those in a civil marriage cannot subsequently enter a customary marriage (Bonthuys, Reference Bonthuys2007), arguably as means to protect civil marriage as monogamous (see also Stacey and Meadow, Reference Stacey and Meadow2009; Pieterse, Reference Pieterse2001). Marius Pieterse therefore argues that within the dual systems of law, historically the ‘common law has always been regarded as the “dominant” system and customary law as the “servient” system’ and the RCMA does little to change this status:
‘Since white people were regulated by the dominant system, whereas black people were largely confined to the servient system, the remains of legal dualism have become little more than additional evidence of the persisting inequalities between whites and blacks in South Africa.’ (2001, p. 372)
The issue of integrating customary marriage into the ‘civil(ised)’ legal system is also highlighted in relation to gender equality, as discussed next.
The RCMA sought to provide statutory recognition for customary marriages on an equivalent basis to civil marriage, but this does not mean that customary practices escaped the reach of the (colonial) law prior to this (see Mamdani, Reference Mamdani1996). Traditional leaders were given powers, under the Black Administration Act 1927, to enforce customary law as a separate indigenous body of law except where ‘it might be repugnant to the general principles of humanity recognized throughout the whole civilized world’ (see Peart, Reference Peart1982; Oppermann, Reference Oppermann2006). This, known as the ‘repugnancy clause’, was used to refuse to recognise polygamous customary and Muslim marriages (Pieterse, Reference Pieterse2001; Higgins et al., Reference Higgins, Fenrich and Tanzer2007). The colonial courts, therefore, had the final determination of whether customary law fell too far outside Western understandings of morality or, subsequently, natural justice and public policy (see Mamdani, Reference Mamdani1996).
While the repugnancy clause has been repealed and would be unacceptable under the new South African Constitution, it is nevertheless clear that customary marriage is only recognised to the extent that it complies with liberal (Western) values, particularly gender equality. For this reason, T. W. Bennett describes customary marriage as ‘fall[ing] under the shadow of … a gender equality clause’, which he analogises to a modern-day repugnancy clause (Reference Bennett1994, p. 123). This is an interpretation that is rooted in the historical context of colonialism and apartheid but perhaps does not give sufficient weight to the political process and negotiations leading up to the RCMA nor to the new Constitution as part of an attempt to depart from the racist colonial power that Mahmood Mamdani notes was enforced through the repugnancy clause (1996, p. 117). Furthermore, despite some criticisms, the Constitution has been widely commended for its commitment to substantive rather than merely formal equality, particularly when compared to what have been described as less sophisticated equality provisions in the United States Constitution, for example (see further, Andrews Reference Andrews2009, pp. 313–14; Wing, Reference Wing2008, p. 75; Higgins et al., Reference Higgins, Fenrich and Tanzer2007, p. 1654). Nevertheless, and though the Constitution requires that customary marriages be ‘accommodated not merely tolerated’ (Bhe and others v. Magistrate, Khayelitsha, & Others 2005;Footnote 6 Andrews, Reference Andrews2009),Footnote 7 customary marriage remains subject to constitutional requirements of gender equality and as a result has been significantly altered.
In noting this, I do not wish to suggest that I am opposed to gender equality. My objection is to the way in which customary marriage is posited as being in (uncivilised) opposition to the gender equality of civil marriage. There are plenty of examples of gender oppression within customary marriage but these were not created in isolation from colonial influence. As Penelope Andrews notes, ‘the colonial authorities wished to preserve indigenous custom as a means of control and co-option/co-operation from indigenous leaders’, particularly over women (2009, p. 311; see also Mamdani, Reference Mamdani1996; Pieterse, Reference Pieterse2001, p. 372; Posel, Reference Posel1995). This was the case in other parts of the African continent as well: Ambreena Manji argues that as migrancy increased and capitalism (and thus individual property ownership) expanded in rural areas of Northern Rhodesia and Kenya, the colonial authorities saw the family and kin group as integral to controlling the movements and behaviour of women (1999, pp. 444–45). In this context, ‘the construction of customary marriage law constituted an instance of co-operation between kinship and state authorities – the formation of a “patriarchal coalition” – as their different interests coalesced’ (Manji, Reference Manji1999. p. 446, citing Parpart, Reference Parpart, Sticher and Parpart1988).
Mamdani demonstrates that ‘custom’ is the (evolving) product of many conflicting claims, including those ‘reflecting tensions [that are] hardly customary’ (1996, p. 118), such as the introduction of market relations by colonial authorities. When customary law was codified by colonial law-makers, it was done so in a way that was, ‘often [inaccurate and] more male-centered than actual practice’ (Chambers, Reference Chambers2000, p. 107), and it occurred at a time when several of the oppressive elements identified were also present in civil marriage.Footnote 8 Kaganas and Murray also note the ‘patriarchal ideology of the colonists’ in furthering and entrenching women's subordinate status under customary law as it was subsequently ‘evolved by [white] South African courts’ (Reference Kaganas and Murray1991, p. 129). As T. W. Bennett argues:
‘The adjective “customary” implies that the rules were not fashioned by a professional class of lawyers. Over the past decade, however, it has become apparent that this understanding is a misconception and the inverted commas now regularly flanking the term “customary law” reveal a scepticism about its provenance. The alienation of customary law from its community origins began with the colonial policy of indirect rule when indigenous legal regimes were co-opted to the received systems of European law. Once incorporated into the formal system, customary law was forced to comply with the requirements of the dominant legal culture.’ (1991, p. 18; see also Luluaki, Reference Luluaki1997, p. 5)
This is not to suggest that customary laws are not patriarchal at all but instead to avoid the common tendency to posit African (polygamous) customs as inherently oppositional to gender equality, whilst (monogamous) civil law is tacitly assumed to embrace it. For example, Stacey and Meadow (Reference Stacey and Meadow2009, p. 169) describe the task of South Africa's post-apartheid constitution as being ‘to negotiate contradictions between protection for customary patriarchal prerogatives, on the one hand, and commitment to full gender and sexual equality, on the other’ (my emphasis; for further examples see Higgins et al., 2007p. 1663; Oppermann, Reference Oppermann2006). Elsje Bonthuys also problematises this tendency of some commentators to:
‘posit a dichotomy between “tradition” or “culture” and neutral modernity with customary law invariably associated with the former and civil law with the latter, as if civil law had no cultural content. The patriarchal nature of indigenous culture is either highlighted, or taken for granted on the premise that gender relations in African societies will naturally be retrogade. By contrast, civil law is the “enlightened” model for emulation.’ (2002, p. 54)
I argue, therefore, that civil law is not entirely innocent in the ‘customary patriarchal prerogatives’ and, of course, as Bekker (Reference Bekker2001b, p. 49) notes, it is only recently that the subordination of women has been formally rejected through ‘civil’ (Christian) marriage law. Civil marriage itself retains not only many vestiges of inequality but also numerous examples of current gendered practices of oppression within marriage (see further, Barker, Reference Barker2012). In the context of South Africa specifically, Bonthuys notes that ‘patriarchy is common to all of South Africa's systems of family law’ (2002, p. 54).
The preceding discussion demonstrates some of the ways in which customary marriage is measured against a ‘norm’ of civil marriage following legal recognition. This is something that critics of same-sex marriage from within the gay and lesbian communities have also been concerned about (see, for example, Warner, Reference Warner2000) and there is no reason to suspect that same-sex marriages would escape this. Indeed, without the strong substantive equality provisions and constitutional recognition of different forms of family that exists in South Africa, same-sex relationships in other jurisdictions are arguably more likely to be subsumed within a hetero-normative family structure.
On the basis of the material in this section, I argue that customary marriage, despite the good intentions of the legislature and the strong equality provision in the Constitution, cannot be said to occupy the same status as civil marriage. There is instead, as Bonthuys (Reference Bonthuys2007) argues, an identifiable hierarchy of marriage in South Africa with civil marriage at the top, followed by customary marriage, which is recognised subject to a certain degree of assimilation to civil marriage norms. At the bottom of the hierarchy and without significant legal recognition is Muslim marriage, which I have not discussed in detail because, unlike customary marriage, there is no question of it being recognised on the same or similar basis to civil marriage under the law as it currently stands. Muslim marriage has been recognised only for limited purposes under the common law (see further, Bonthuys, Reference Bonthuys2007).
In this context, of a flawed but supposedly equal plural system of marriage, it is important to consider, where, exactly, in this hierarchy of marriage recognition we would find same-sex marriages. This is discussed next. Thinking about the answer to this question also raises important questions about how race and gender intersect with a politics of ‘recognition’.
Same-sex marriage
‘The exclusion of same-sex couples from the benefits and responsibilities of marriage … represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society, and, as such, do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples.’ (Minister of Home Affairs and Another v. Fourie, per Sachs J)Footnote 9
The judgment in Fourie draws on a discourse of repairing the symbolic harm of exclusion through positive state recognition that is similar to those espoused in Canada, where LaForme J described the prohibition of same-sex marriage as ‘an offense to the dignity of lesbians and gays’,Footnote 10 and in California (see In Re Marriage Cases, above).Footnote 11 There is a strong emphasis on the need for recognition of same-sex relationships and the judgment demonstrates that the Court was as concerned with the symbolic aspects of (exclusion from) marriage as with the practical effect.
However, rather than ‘reading in’ same-sex couples to the marriage law, the Constitutional Court gave the legislature one year to remedy the defect via legislation (at para. 156). If Parliament failed to do so, the words ‘or spouse’ would automatically be read into the Marriage Act 1961 (at para. 161). This remedy prompted the only dissent in this case, with Justice O'Regan arguing that the court should both read the words ‘or spouse’ into the Marriage Act and develop the common law definition of marriage to include same-sex couples rather than waiting for the legislature (at para. 169).
Despite this strong unanimous decision in the Constitutional Court, there was an organised, though ultimately unsuccessful, opposition lobbying for a constitutional amendment which, echoing similar proposals from the United States two years previously (see Baird and Rosenbaum, Reference Baird and Rosenbaum2004), would have read: ‘The constitution shall be interpreted to mean that a marriage is the voluntary union between a man and a woman only’ (Constitutional Marriage Amendment Campaign, 2006). Although the Court had very strongly directed the legislature that a separate provision would not suffice, analogising this to the unacceptability of racial apartheid, the first option that the legislature considered was a civil partnership provision. Same-sex marriage activists then used the Fourie judgment and drew on the history of apartheid and the symbolism of marriage to oppose this, in part drawing on the idea of a ‘right to access the status associated with the term “marriage”’ (de Vos, Reference De Vos2007, p. 459).
However, while the end result is called ‘marriage’ rather than ‘civil partnership’, same-sex marriage is administered under the new Civil Union Act 2006 rather than the Marriage Act 1961, which remains heterosexual. The language of ‘civil union’ in particular recalls not only the so-called ‘separate but equal’ marriage-like provision of the same name in the United States but also the language of ‘customary union’ that was preferred by the South African apartheid state. This raises questions of how far a legislatively separate provision that is nevertheless called ‘marriage’ may be successful in satisfying symbolic recognition demands, particularly when the language invoked in that legislation has these negative connotations.
The provisions of the Civil Union Act differ from those of the Marriage Act in two ways: first, it gives couples the option of whether they wish their union to be called a marriage or a civil partnership (de Vos, 2007, p. 461); and second, the Civil Union Act allows officers to refuse to marry same-sex couples on grounds of belief (de Vos, 2007, p. 462).Footnote 12 While only different-sex couples may be married under the Marriage Act, the language of the Civil Union Act, which has been criticised for its poor drafting (see Smith and Robinson, Reference Smith and Robinson2008, p. 380), is ambiguous as to whether it is open to different-sex couples as well as same-sex couples.
Writing for the unanimous Court in Fourie, Justice Sachs referred to the evolving family forms in South African society and the inappropriateness of entrenching ‘any particular form as the only socially and legally acceptable one’ (para. 59). This comment is made with South Africa's history clearly in mind. Noting the long history of ‘marginalisation and persecution’ of lesbians and gay men and the exclusion of same-sex couples from any comprehensive family law regulation, Justice Sachs states:
‘our Constitution represents a radical rupture with a past based on intolerance and exclusion, and the movement forward to the acceptance of the need to develop a society based on equality and respect by all for all. Small gestures in favour of equality, however meaningful, are not enough.’ (para. 59)
However, I argue that, as with the preceding discussion of the Recognition of Customary Marriages Act, the Civil Union Act raises serious questions about the extent to which difference has been recognised. The separate Civil Union Act resulted in criticism from some marriage proponents due to the symbolic separation of same-sex marriage from heterosexual civil marriage (see, for example, de Vos, 2007). In this sense, and because registrars are permitted to refuse to perform same-sex marriages under this legislation, it has a status that is arguably just short of heterosexual civil marriage, as performed under the Marriage Act. Moreover, despite Justice Sachs's strongly worded remarks against this, another aspect of the Civil Union Act has served to further entrench one form of family as the preferred family form: the Act explicitly prohibits the recognition of customary and Muslim same-sex marriages (s.13(2)). As Elsje Bonthuys argues, recognising same-sex marriage exclusively through civil marriage reaffirms the ‘paramount status’ of civil marriage:
‘It implies that, in order for family law to meet constitutional demands, it must follow the model of civil marriage, while customary and Muslim family law systems should be left to disappear quietly over time.’ (2007, p. 533)
Accessing this paramount status is not explicitly dependent on race, religion or sexual orientation because anyone can contract a civil marriage, but it is dependent on assimilating to a norm that is Christian, monogamous and middle class. Through inclusion only within civil marriage, same-sex marriage is tagged as implicitly superior to (and mutually exclusive from) customary and Muslim marriage. As noted earlier, such a hierarchy was undoubtedly not intended, given the strong equality provisions in the Constitution. It is likely that Parliament sought to avoid imposing same-sex marriage on African customary and Muslim marriage celebrants following opposition to same-sex marriage from the National House of Traditional Leaders (NHTL) and the Congress of Traditional Leaders of South Africa (Contralesa) during the legislative process, as well as from Muslim and Christian clergy (Mkhize, Reference Mkhize, Judge, Manion and de Waal2008, p. 102).Footnote 13 To the extent that the exclusion of same-sex customary and Muslim unions and the ‘conscientious objection clause’, allowing officials with religious or moral objections to same-sex marriage to opt out of performing them, were intended to pre-empt further grounds for opposing same-sex marriage, they raise parallels with the prohibition on civil partnerships taking place on religious premises in the United Kingdom, which anticipated objections to ‘gay marriage’ from the Church of England (Civil Partnership Act 2004, s.6(1)(b) as repealed by the Equality Act 2010, s.202 [not yet in force]). However, the failure to recognise customary and Muslim same-sex marriages, while Christian marriages are embedded within the civil law system, also highlight continuing assumptions that:
‘customary and Muslim family norms are static, inflexible and incapable of accommodating change … [And] that African and Muslim communities will not tolerate radical change or radical ideas, thus obscuring from view the fact that white and African Christians were united with Muslim clergy and African traditional leaders in opposing same-sex marriages.’ (Bonthuys, Reference Bonthuys2007, pp. 532–33)
In the United Kingdom, the actual objection that came from the Bishop of Oxford was concerned with the parliamentary interference with Church autonomy rather than the introduction of civil partnerships (see Stychin, Reference Stychin2006, p. 83). Likewise, the South African Civil Union Act has been criticised for its failure ‘to acknowledge and engage with existing same-sex practices within African communities’ (Bonthuys, Reference Bonthuys2007, p. 541).Footnote 14
It is evident from this discussion that same-sex marriage in South Africa has both contributed to the position of civil marriage at the top of the marriage hierarchy, and yet also remains symbolically separated from the ‘ideal’ civil marriage. Therefore, I would argue that same-sex marriage in South Africa has not eliminated second-class status but rather it has merely shifted its boundaries: same-sex relationships now share virtually the same privileged position as heterosexual relationships to the extent that they share other privileged characteristics, particularly those that assimilate with a Christian, monogamous, urban and/or middle-class ‘civil’ marriage.
Customary and same-sex marriage: equal recognition?
The introduction of same-sex marriage through the Civil Union Act 2006 complicates the presumption of equal recognition in two ways. First, though it is marriage, the same-sex marriage provision was introduced under separate legislation rather than an amendment to the Marriage Act 1961 or a new Marriage Act, as in the case of the RCMA. The language of ‘union’ rather than marriage is historically (and contemporaneously) significant, as noted above, and suggests that same-sex marriage does not share the same status as heterosexual civil marriage. Second, the provisions of the Civil Union Act differ from those of the Marriage Act in ways that indicate a lesser status. This is not to suggest that in order to convey symbolic recognition they must be the same; in fact the ways in which customary marriage has been brought into line with civil marriage are the source of criticism of the RCMA, as noted above. Instead, my argument is that the particular ways in which the Civil Union Act differs from the Marriage Act are problematic. These issues, I suggest, demonstrate a problem with the assumption that all legal marriage provides equal recognition; despite the name ‘marriage’ attaching to both relationships, customary marriage and same-sex marriage remain subordinate to heterosexual civil marriage in significant ways. This is not merely an issue of an imperfect formal equality, which, if perfected, would address the criticism. Instead, my argument is that the symbolism of recognising customary and same-sex marriages is ambiguous in the context of a hierarchy of marriage. This is exacerbated in the case of same-sex marriage by an absence of formal equality in some respects. However, in the case of customary marriage, it is the attempt to bring customary marriage traditions into line with civil marriage that is at the source of doubts as to the veracity of ‘recognition’ given to customary provisions.
In the next section, I consider the ways in which this discussion of South Africa might parallel some criticisms of marriage recognition in other jurisdictions, before broadening my analysis further by turning to a theoretical understanding of recognition as it intersects with a politics of redistribution.
A comparative critique of marriage ‘recognition’
These inequalities of marriage are not unique to South Africa, nor are they limited to the arena of legal recognition. Even within a single legal framework rather than the plural legal systems of South Africa, I suggest that there would nevertheless remain inequalities of recognition within this institution. These are not only homophobic but also racist, gendered and economic inequalities, as is now well established in the critical literatures on marriage (see, for example, Barker, Reference Barker2012; Boyd, Reference Boyd1999; Kandaswamy, Reference Kandaswamy2008; Young and Boyd, Reference Young and Boyd2006). Therefore, by highlighting the complexities of marriage recognition in South Africa, my intention is not to suggest that all marriage recognition is equal elsewhere. Whether it is spouses on welfare, a non-monogamous marriage or those who deviate in countless ways from the idealised white, middle-class couple with 2.4 well-behaved children,Footnote 15 there are many ways in which some marriages are not as equal as others in the United Kingdom and elsewhere in the global north.
In the United Kingdom, a hierarchy of recognition is an explicit feature of the ‘civil’ marriage system, which sits alongside a clearly secondary status for civil partnerships, a very limited recognition for cohabitants whose relationships are ‘recognisable’ to a marriage norm,Footnote 16 and no legal recognition for polygamous marriages contracted in the United Kingdom (Matrimonial Causes Act 1973, s.11(d)). In many jurisdictions there are also different levels of legal recognition for separate but marriage-like relationships, usually (though not always) reserved exclusively for same-sex couples in the absence of same-sex marriage. These include: the registered partnership in Denmark; the pacte civil de solidarité in France; the de facto relationship in Australia; and the domestic partnership in parts of the United States (see further, Barker, Reference Barker2012). However, the focus of this section is the ways in which recognition through marriage, as opposed to separate parallel provisions, would not only result in continuing hierarchies of recognition but also supports other oppressions, which are posited as external to the LGBT (lesbian, gay, bisexual, transgender) communities. In particular, I focus on the example of racism; though this also intersects with gender and poverty there is not enough space for a thorough analysis of these, which I explore elsewhere (see Barker, Reference Barker2012). I argue that the examples of racism discussed in relation to South Africa are not specific only to that context. Rather, in the global north as well, same-sex marriage is advocated in terms that display similar racist assumptions.
As Elsje Bonthuys's work, discussed above, convincingly demonstrates, in South Africa recognising same-sex couples exclusively though civil marriage has served some inaccurate, and harmful, stereotypes and assumptions that resonate with a colonial representation of ‘pre-modern’ and ‘uncivilised’ cultures that are incapable of adapting to contemporary values of equality, despite the evidence to the contrary:
‘Although these same-sex marriages are not widespread or numerous in African communities, and although many of the woman-to-woman marriages may not have involved sex, they nevertheless demonstrate that the customary concept of marriage was flexible enough to accept and accommodate different family formations long before the Civil Union Act – at a time when civil law marriage required monogamy and sex specificity. In fact, upon closer inspection it becomes clear that it is not African marriage which is the more conservative, less adaptable institution, but civil marriage.’ (Bonthuys, Reference Bonthuys2007, p. 534; see also Mkhize, Reference Mkhize, Judge, Manion and de Waal2008; Morgan and Wieringa, Reference Morgan and Wieringa2005)
Similar racist assumptions that homophobia is linked to ethnicity have been evident in same-sex marriage discourses and gay rights advocacy more generally in the United Kingdom, Canada and the United States. For example, the perceived link between African American ethnicity and homophobia, and the presumed mutual exclusivity of race on the one hand and sexual orientation on the other, were an instrumental part of the post-Proposition 8 recriminations in California, where African Americans turning out in increased numbers to vote for Barack Obama were blamed for the passage of the anti-gay marriage ballot initiative (see McKinley, Reference McKinley2008; Moore, Reference Moore2008).
Focusing on same-sex marriage discourse in Canada, Suzanne Lenon explicitly connects the politics of marriage equality with a politics of race, demonstrating how ‘struggles for sexual justice can also be a site of dominance’ (2005, p. 409). Lenon argues that the use of the race analogy in same-sex marriage claims, through the invocation of both anti-miscegenation arguments and ‘separate but equal’ arguments, inscribes gayness as outside of race and posits racism as a matter of history (p. 419).Footnote 17 Drawing on Sara Ahmed's work, she suggests that it allows the ‘silent and presumptive elevation of whiteness as the dominant racial norm in Canada’, whilst invoking the ‘past’ wrongs of racism allows ‘the white nation to be celebrated in the present’ without actually doing anything about white dominance and racism in Canada (2008, p. 27). In short:
‘The discursive tactics employed … to advance the right to marry fortify an already existing racial hierarchy in white-dominant society, one that privileges whiteness as the norm and cultural mainstream.’ (Lenon, Reference Lenon2005, p. 420)
Though Lenon focuses her critique on the more conservative and liberal discourses adopted by same-sex marriage advocates, I argue that it is not limited to a particular discursive stance. Instead, I would suggest that it points to a much broader and more deep-seated problem with the politics and institution of marriage itself, in addition to the arguments deployed to gain access to marriage. Same-sex marriage will inevitably exacerbate the position of those who are already most marginal, in Cathy Cohen's terms, the ‘punks, bulldaggers and welfare queens’ (Reference Cohen1997, p. 438). This includes not only the sexual outsiders identified by Paula Ettelbrick (Reference Ettelbrick and Sullivan1989/1997) in her famous response to the pro-marriage arguments of conservative white gay men, but also those whose poverty and/or racialised ‘otherness’ prevents access to the privileged status of the (white, middle-class) marriage norm. Marriage serves material economic and racial hierarchies as well as those of symbolic recognition.
I have argued elsewhere that in the UK context same-sex marriage serves the neoliberal state in terms of providing support for the (gendered) privatization of care and dependency within the family, and provides economic benefits that fall almost exclusively on wealthy couples – such as the inheritance tax exemption – whilst economic burdens fall disproportionately on lower-income couples, particularly welfare claimants (Barker, Reference Barker2012, see also Conaghan and Grabham, Reference Conaghan and Grabham2007; Boyd, Reference Boyd1999). In the United States context, Priya Kandaswamy also points to the location of same-sex marriage campaigns within a broader conservative project of cutbacks in social welfare programmes and marriage incentives. Examining the social rights of marriage, such as social security benefits and spousal health insurance, alongside the property rights and parental rights, she argues convincingly that the privileges of marriage are ‘the privileges of a racially stratified welfare state’:
‘In a social and political context in which state austerity, packaged as marriage promotion, threatens the survival of many women, it is essential that we challenge, rather than embrace, the normalization of marriage as a marker for national belonging and a vehicle toward rights. For while same-sex marriage may hold out a very pragmatic possibility of some rights for some people, the trade-off appears to be a constant deferral of a more critical analysis and of more meaningful social change.’ (2008, p. 722)
There is also an explicit link between the discourses of marriage equality and the false dichotomy of gender equality and ‘patriarchal’ customary marriage, discussed above, in terms of the ways in which, as Suzanne Lenon (Reference Lenon2008) notes, same-sex marriage arguments draw on racialised and racist discourses of [Canadian] civility: those supporting same-sex marriage see this issue as an opportunity for Canadian leadership in human rights, thus providing a parallel with the colonial discourses of the (implicitly) ‘less civilised’ nations and cultures of the global south.
These issues represent more general problems with racism in queerFootnote 18 as well as straight communities and a politics of ‘gay rights’ that draws on a race analogy whilst simultaneously ignoring (and in some instances worsening) the position of queers of colour. For example, Haritaworn et al. have highlighted examples of people of colour existing in most UK gay media and activism ‘only as perpetrators of homophobia’ or as victims who must be rescued from homophobic (usually Islamic) cultures (Reference Haritaworn, Kuntsman and Miyake2008, p. 74). In line with the arguments made above in relation to South Africa, they suggest that:
‘The amnesia at the basis of the sudden assertion of European “tradition” of anti-homophobic and anti-sexist “core values” is less a reflection of progressive gender relations than of regressive race relations.’ (2008, p. 72)
These examples highlight some of the ways in which this call for recognition through marriage is deeply implicated in perpetuation of both a ‘cultural devaluation’, in Fraser's terms (Reference Fraser1997a, p. 18), of non-Christian and non-European cultures, particularly as measured against a liberal (sexual) equality model, and of racial and gendered economic privilege.
(Mis)recognition and redistribution
Recognition, as Nancy Fraser argues, is not inherently conservative or radical. Instead, it may be affirmative, in that it upholds existing structures and allows an outsider group access to them; or it may be transformative, in that it challenges existing structures through the recognition of outsiders (1997a, p.23). Marriage recognition, as I have demonstrated above, is affirmative in that it upholds the existing hierarchies of marriage despite (and even through) the symbolism of recognising the ‘outsider’ groups. In this section, I draw on the recognition/redistribution debate to argue that in the absence of an accompanying transformative politics of redistribution, including but not limited to one that takes account of the privatisation of care within the family (see Boyd, Reference Boyd1999; discussed further in Barker, Reference Barker2012), symbolic recognition through marriage can only ever be affirmative, not transformative. In seeking symbolic recognition through marriage, a more radical transformative and redistributive form of recognition is precluded whilst existing (racial, gendered and economic) hierarchies are supported.
Recognition is, according to Nancy Fraser, a question of social status and thus misrecognition should be situated within a larger social framework that ‘cannot be understood in isolation from economic arrangements’ (2003). This is not to imply that Fraser views recognition as the key to remedying social injustice. In fact she disagrees with Axel Honneth on this point when he argues that a claim for redistribution is a subvariety of recognition claim (Fraser and Honneth, Reference Fraser and Honneth2003). Instead, she maintains that a politics of recognition must exist alongside one of redistribution; one without the other (more specifically, recognition without redistribution) is an incomplete strategy. In her earlier work on the issue, Fraser distinguishes recognition claims from redistributive claims. Although she argues that both are linked and mutually reinforcing, she contends that they must be distinguished analytically and that they have different kinds of remedy (1997a, p. 15). Fraser's concept of recognition is perhaps more clearly defined through non-recognition or misrecognition: ‘being rendered invisible by means of the authoritative representational, communicative, and interpretative practices of one's culture’ (p. 14). Fraser argues that this is a form of cultural injustice as distinct from socio-economic injustice. The remedy for cultural injustice, Fraser argues, is symbolic change:
‘This could involve upwardly revaluing disrespected identities and the cultural products of maligned groups. It could also involve recognising and positively valorising cultural diversity. More radically still, it could involve the wholesale transformation of societal patterns of representation, interpretation, and communication in ways that would change everybody's sense of self.’ (1997a, p. 15)
Fraser is arguing that some types of injustice are distributive (economic), others are rooted in misrecognition (cultural), while some are both. For Fraser, the oppression of lesbians and gay men lies in heterosexism (‘the authoritative construction of norms that privilege heterosexuality’) and homophobia (‘the cultural devaluation of homosexuality’), and as such is rooted in ‘an unjust cultural-valuation structure’ rather than the economic structure (1997a, p. 18).
Butler critiques Fraser's approach to the recognition/redistribution dichotomy, arguing that they cannot be distinguished from each other and that to try to do so risks positing misrecognition as ‘merely cultural’ rather than central to the way that resources are distributed through the family, and as such has the potential to ‘ameliorate the political force of queer struggles’ (Butler, Reference Butler1997, p. 44). She argues that sexualities are produced through the capitalist mode of production just as genders are:
‘It would be a mistake to understand such productions as “merely cultural” if they are essential to the functioning of the sexual order of political economy, that is, constituting a threat to its very workability. The economic, tied to the reproductive, is necessarily linked to the reproduction of heterosexuality. It is not that non-heterosexual forms of sexuality are simply left out, but that their suppression is essential to the operation of that prior normativity. This is not simply a question of some people suffering a lack of cultural recognition by others, but rather, a specific mode of sexual production and exchange that works to maintain the stability of gender, the heterosexuality of desire, and the naturalization of the family.’ (1997, p. 42; my emphasis)
This is a particularly important point in relation to same-sex marriage claims, which, while using the discourse of recognition, is also centrally concerned with access to legal provisions and economic resources that are distributed through the family.
Fraser responds that her distinction is not intended to ‘derogate’ recognition to the merely cultural but to ‘conceptualize two equally primary, serious, and real kinds of harm that any morally defensible social order must eradicate’ (Reference Fraser1997b, p. 280). Although Fraser argues that ‘misrecognition constitutes a fundamental injustice, whether accompanied by maldistribution or not’ (p. 281), the way that she applies the distinction to sexual orientation (a recognition issue) as distinct from gender (a ‘bivalent’ issue, that is one requiring both recognition and redistribution) is problematic. Leaving aside the issue of whether gender and sexuality (including sexual orientation) can be distinguished as analytical and political categories, the oppression of lesbians and gay men is rooted in the economic structure as much as the cultural-valuation structure (see Butler, Reference Butler1997). This is particularly evident in the discourses surrounding same-sex marriage claims, which are based on access to economic structures as much as they are on recognition of same-sex relationships (unless such access is already granted through a parallel provision such as civil partnership). I therefore disagree with Fraser's categorisation of ‘the despised sexuality’ as being at one of the extremes of her spectrum (see also Butler, Reference Butler1997, p. 39). Instead, I suggest, in agreement with Butler, that law uses recognition and non-recognition to control access to economic justice. Through marriage, law defines family and sets up a system whereby exploitation is (re)produced and rewarded; for example, it provides some tax breaks in recognition of privatised caretaking that takes place within the family. In response to Butler's criticism on this point, Fraser does argue that misrecognition may be material in the same way as injustices of distribution; she is not claiming that recognition has no material consequences (p. 282). My concern here though is that, in the context of marriage, the distribution issue is integral to the recognition issue, rather than consequential. The ‘despised sexualities’ should be categorised as one of Fraser's ‘bivalent collectivities’; that is, one that suffers ‘injustices that are traceable to both political economy and culture simultaneously’ (1997a, p. 19). She argues that bivalent collectivities, ‘may suffer both socioeconomic maldistribution and cultural misrecognition in forms where neither of these injustices is an indirect effect of the other, but where both are primary and co-original’ (p. 19). (Mis)recognition is the primary way in which inclusion and exclusion from the legal framework is determined and, through offering cultural and economic recognition, the law regulates sexual behaviour through setting the parameters of respectability, responsibility and normality. In other words, in this context I agree with Butler's (1997, p. 41) argument that it is impossible to separate social or cultural recognition from economic redistribution, and also from regulation, because the construction of the legal family is central to all of these models.
Fraser later refined her theory of recognition, arguing that recognition strategies based on identity politics are problematic because they contribute to the displacement of struggles for economic justice by those of recognition (Reference Fraser and Hobson2003a, p. 24), reify group identities leading to the exclusion of those who do not conform, and replicate wider power hierarchies (p. 26). Nevertheless, she rejects the idea that these problems mean that recognition claims must be abandoned. Instead, Fraser argues that recognition can be reformulated in a way which incorporates redistributive claims (p. 27). Fraser's claim is that recognition must be treated as ‘a question of social status’ (p. 27; emphasis in original) rather than group identity. The status model situates recognition within larger society so it acknowledges that society has economic as well as cultural ordering, though ‘neither is wholly reducible to the other’ (p. 30). The economic and the cultural remain, for Fraser, analytically distinct; recognition (an issue of status) referring to ‘different actors’ capacities for social participation’ whereas distribution (an issue of economic class) is about the ‘systemic effects of economic structures on the relative economic position of social actors, which also affects their capacities for participation’ (p. 30). Therefore, the status model of recognition, which focuses on individuals rather than groups (as opposed to an identity model), ‘works against tendencies to displace struggles for redistribution’ (p. 31):
‘Unlike the identity model, then, the status model views misrecognition in the context of a broader understanding of contemporary society. From this perspective, status subordination cannot be understood in isolation from economic arrangements. Nor can the recognition dimension of justice be viewed in abstraction from distribution. On the contrary, only by considering both dimensions together can one determine what is impeding participatory parity in any case.’ (2003a, p. 31)
Fraser uses the issue of same-sex marriage to illustrate her argument: misrecognition requires changing social institutions to enable or foster participation. For Fraser, this could be achieved either through legalising same-sex marriage or deinstitutionalising heterosexual marriage. There may be, she suggests, other good reasons for choosing one of these over the other, but in terms of recognition either would provide a remedy. Despite her move away from identity politics and its associated problems, then, this revised form of recognition is not necessarily any more radical than an identity politics model, nor is it intended to be. The remedy for the misrecognition of same-sex marriage may be either transformative or affirmative and which is chosen does not necessarily, for Fraser, affect the ‘quality’ of the recognition.
However, this leaves aside two important issues: the role of redistributive justice in the context of same-sex marriage; and how that relates to Fraser's earlier distinction between affirmative and transformative remedies. As I argued above, sexuality is a ‘bivalent collectivity’ requiring recognition and redistribution remedies and cannot be considered in isolation from racism, poverty or the (gendered) privatisation of care within the family. Therefore, a broader transformative redistribution must be integral to queer recognition claims if the latter are to be truly transformative rather than merely supporting existing oppressions. However, affirmative redistribution in terms of access to legal and economic benefits and burdens of marriage is one of the key arguments for same-sex marriage; and access to marriage is an inherently affirmative remedy in terms of economic redistribution.
Through the arguments I have made throughout this article I have sought to problematise the claim that same-sex marriage may bring a transformative (as opposed to affirmative) recognition. However, even assuming that the recognition could be transformative, I would question whether transformative recognition combined with affirmative redistribution could really overcome the issues of racism and racialisedFootnote 19 hierarchies of recognition identified earlier in this article. In the absence of transformative redistribution, recognition cannot be any more than partially transformative and the radical impact of recognition would be limited.
Conclusion: ambiguous symbolisms
Tim Trengove-Jones describes what the openly gay South African Court of Appeal judge, Justice Cameron, calls ‘a crucial paradox’ of South Africa's legal history and present:
‘Under apartheid the law had been used as an instrument of oppression. But, in the new order, this (il)legal supremacy might be made to mean that the “law itself could be used to curb the excesses of domination and oppression”.’ (2008, p. 184)
There is little doubt that law that is equal, even where this equality is flawed, is an improvement on law that contains what Justice Cameron refers to as the ‘excesses of domination and oppression’. However, it is important not to overlook the caution that Smart (Reference Smart1989) and Herman (Reference Herman1994) have argued convincingly is necessary. The resort to law and the assumption that law reform, particularly access to legal marriage, is necessary to overcome the oppression of lesbians and gay men has been almost universal. In order to receive legal recognition, the couples in same-sex marriage cases needed to present themselves in the (legally) recognisable terminology of marriage, such as that of ‘a stable and monogamous’ relationship.Footnote 20 The law would not be able to recognise a same-sex relationship that was not analogised to a heterosexual relationship, nor, presumably, would it recognise a ‘non-traditional’ heterosexual relationship that was not analogous to (Christian) marriage. The difficulties in relation to the recognition of polygamous marriages in South Africa (as well as in the UK), discussed above, provide examples of this.
This means that alternative discourses about ways of being intimate, or having relationships, or being single, have no place in the legal arena and are effectively silenced in legal and policy debates.Footnote 21 As Didi Herman (Reference Herman1994) argues, the engagement with law inevitably makes it necessary to demand and defend ‘gay rights’ and ‘equality’ against homophobic opposition, excluding the possibility of articulating arguments for more radical alternatives.Footnote 22 In South Africa, it also involved juxtaposing the ‘new South Africa’ of the equality provisions in the post-apartheid Constitution with the ‘traditional South Africa’, which is racially coded and implicitly homophobic and unenlightened. The heavy emphasis on legal equality in the ‘new South Africa’ obscures both the continuing (racial) de facto inequalities (see Stacey and Meadow, Reference Stacey and Meadow2009)Footnote 23 and the continuing secondary legal status that traditional African marriage has through customary law compared to the colonial and Christianity-based civil marriage.
This is not to suggest that law is the sole cause of the exclusion and silencing of feminist, class-based and anti-racist critiques of marriage, but presenting oneself as analogous, as what Ruthann Robson (Reference Robson, Herman and Stychin1995, p. 181) calls ‘but for’ perfect lesbians – those who but for our sexualities would be part of the dominant majority and not discriminated against – is a necessary part of resorting to law reform. Law cannot recognise that which is too different, which is too far from the analogy.
In the South African context of a ‘separate but same’ civil union/marriage provision and a hierarchy of status between civil, customary and Muslim marriages the symbolism of recognising same-sex marriages is more ambiguous than the arguments made by same-sex marriage advocates would suggest. Marriage itself can take different forms and within that status some forms of marriage will be more privileged than others. Whilst the UK context differs in significant ways from that of South Africa, similar themes can be identified in same-sex marriage advocacy and resulting provisions. Generally, the only references to race in the discourses in the United Kingdom, Canada and the United States were to draw on civil rights analogies, particularly ‘separate but equal’ but also (primarily in the United States) anti-miscegenation analogies; and class differences were noted only to support fiscally conservative arguments for same-sex marriage, such as saving the taxpayer money on welfare payments to unrecognised same-sex couples (see, for example, Stonewall, Reference Stonewall2004) or encouraging the interdependence and responsibility of marriage, particularly for low-income couples and ‘uncivilised’ (sexually promiscuous) gay men (Eskridge, Reference Eskridge1996). Sexism and gender were almost entirely overlooked (see also, Auchmuty, Reference Auchmuty2004; Reference Auchmuty, Munro and Stychin2007; Young and Boyd, Reference Young and Boyd2006).
The argument that same-sex couples should have equal recognition precludes the question not only of whether legal recognition is, in itself, a good but also of whether law can provide ‘the solution’ to misrecognition. I have argued throughout this article, drawing on examples from different contexts, that the symbolism of recognition through marriage is, at best, ambiguous. There is a tendency amongst marriage advocates to assume that accessing legal rights will result only in positive benefit for both the couple and the broader community. For example, ‘Marriage strengthens couples and families, who in turn help strengthen their communities, one at a time – leading ultimately to a stronger, more robust nation’ (Human Rights Campaign, 2009). This resort to conservative ‘family values’ rhetoric is problematic. Much more attention must be paid to the racialised and gendered misrecognition of queer family forms and the impact of poverty as well as (and as they intersect with) homophobia. Seeking the symbolism of ‘equal marriage’ not only overlooks but arguably also exacerbates both misrecognition and material disadvantage.
