J. Lester Feder
J. Lester Feder

Fellowship Title:

South Africa’s Same-Sex Marriages Don’t Always Have A Happy Ending

J. Lester Feder
August 22, 2013

Fellowship Year

A view of Cape Town. Image by J. Lester Feder/Buzzfeed
A view of Cape Town. Image by J. Lester Feder/Buzzfeed

When the reigning Mr. Gay Namibia married his Botswanan partner in South Africa in April 2013, Zimbabwe’s ZimEye.org declared, “History [made] as Africa witnesses second gay wedding.” The first, said the website, happened a week earlier when two men married in a Zulu ceremony in the South African town of KwaDukuza.

Of course, these were neither the first nor second same-sex weddings in Africa. Many couples have married in South Africa since the country legalized same-sex marriage in 2006. But because South Africa has sizeable white and Asian minorities, its same-sex marriages are dismissed by many opponents of LGBTI rights as a foreign import on a continent where 38 governments still criminalize homosexuality. (In South Africa and many other parts of the world, the preferred acronym is LGBTI—Lesbian, Gay, Bisexual, Trans, and Intersex.) These weddings may take place in Africa, but they are not “African” weddings.

Mr. Gay Namibia, whose name is Ricardo Raymond Amunjera, and his husband, Marc Omphemetse Themba, have vivid memories of when South Africa passed its same-sex marriage law. So they were surprised when news of the private ceremony in a Johannesburg office of the Department of Home Affairs started making headlines around the globe.

“I’m proud that my union to Ricardo and … the wedding itself [have] actually made a bold statement … to the world out there that we are here, we are authentic, and we exist,” Themba said. “Homosexuality has never been ‘un-African.’”

Themba and Amunjera are lucky. Though homosexuality is illegal in both their countries, they have not been arrested. Nor have they been attacked or forced to leave their home, unlike other couples that have attempted to celebrate their unions on the continent. Both of their families even came to the wedding reception at the Hilton Hotel in the Namibian capital of Windhoek.

“Marc’s family accepted me; my family loves him. It was every gay man’s dream come true,” said Amunjera.

Even still, they are making plans to move to South Africa, which they speak of as a promised land where they can live together with full rights.

“As much as I love my country, I want to be able to live in a country where my marriage is legitimate,” Amunjera said.

Ricardo Raymond Amunjera, and his husband, Marc Omphemetse Themba. Image by Courtesy of Ricardo Raymond Amunjera

Ricardo Raymond Amunjera, and his husband, Marc Omphemetse Themba. Image by Courtesy of Ricardo Raymond Amunjera

Yet for those inside South Africa, the value of same-sex marriage legalization is far less clear. For some, it has transformed their lives in exactly the way Amunjera and Themba believe it will for them. But it hasn’t wholly transformed South Africa.

Same-sex marriage was made possible because South African leaders embraced a radical vision of equality to excise the scars of apartheid. But opposition to homosexuality remains deep despite what the law says. Eighty percent of citizens regard homosexuality as “always wrong,” according to a survey by the Human Sciences Research Council. This homophobia, along with the divisions created by apartheid, keep South Africa from living up to its promises to LGBTI citizens even seven years after same-sex marriages first became legal.

Black gays and lesbians in the township slums set up by the apartheid regime live under the constant threat of violence. Conservative Afrikaners, whose politicians criminalized same-sex relationships along with interracial ones, have left a legacy of ongoing homophobia for those families who once benefited from apartheid’s privileges. Gays and lesbians from the country’s longtime Asian communities and newly arrived immigrants alike are fighting not only to find a place in South Africa, but also confront strong homophobic currents from abroad. South Africa is a paradox. The radical commitment to equality following apartheid made possible marriage equality well before many countries in Europe or the Americas. But it is also shaped by the some of same homophobic currents that are so powerful in other parts of Africa. Depending on where you live, your race, and your income, it can be one of the best places to be a same-sex couple, or it can be uncomfortable and dangerous.

Patting his country on the back in an LA Times op-ed last Thursday, Albie Sachs, the former Constitutional Court justice who authored the 2005 opinion legalizing same-sex marriage wrote, “It seemed so simple, so obviously right that a couple who loved each other could marry…. Today, such unions are commonplace in South Africa.”

But the real experience of South African couples shows that there is nothing “commonplace” about same-sex marriage. Though the law makes it easy for same-sex couples to wed, many marriages are stories of struggling to turn an ideal of equality into a reality against a history of division and cultural hostility more powerful than law. And often, they don’t have a happy ending.

Justice Edwin CameronImage by Courtesy of Justice Edwin Cameron

                                            Justice Edwin Cameron. Image by Courtesy of Justice Edwin Cameron

Same-sex marriage became legal in South Africa in 2006 through legislation the government was forced to pass under a 2005 order from the Constitutional Court. It wasn’t the result of some groundswell of demand or years of building a grassroots movement; it was the product of a decade-long litigation strategy led by a handful of activists.

When their work began, in the years after the country’s first post-apartheid constitution was adopted in 1993, it wasn’t necessarily clear that marriage would be on the agenda. Even the man who wrote the blueprint for the strategy, Edwin Cameron, said he wasn’t too enthusiastic about the issue.

“It took me a long time to come around to marriage equality,” he said. He used to rationalize this ambivalence with the argument that marriage is a heteronormative and patriarchal institution. But now he thinks it came from something deeper.

“In brief and crude terms, I think that it was internalized homophobia,” he said. “I hadn’t fully internalized the entitlement” that same-sex relationships deserve the same legitimacy as heterosexual relationships.

Cameron is now a justice of the Constitutional Court, and the only out gay and the out HIV-positive person in national office. In 1994, he was a law professor and activist who proposed what became known as the “Shopping List,” a step-by-step litigation strategy to turn the constitution’s LGBTI rights protections into enforceable law. It began with decriminalization of sodomy—achieved in 1997—and moved on to items like winning nondiscrimination protections in the workplace. Marriage was the final item, “the cherry on the sundae,” in the words of another activist.

Cameron’s own ambivalence isn’t the only reason the Shopping List might not have included marriage. When he wrote it, marriage wasn’t the central part of the LGBTI rights agenda that it has become. It would be another six years before the Netherlands became the first country in the world to legalize same-sex marriage. The leading gay-rights groups in the United States did not even want to discuss the issue. They had just lost the battle over “Don’t Ask, Don’t Tell,” and were seeing the beginnings of the backlash against same-sex relationships that would lead to the passage of the Defense of Marriage Act in 1996, plus more than a decade of ballot initiatives enshrining marriage discrimination into state constitutions. Sodomy laws were still in place in many U.S. states with the full blessing of the Supreme Court—a decision not overturned until 2003.

Putting marriage on the Shopping List meant believing the principles in South Africa’s post-apartheid bill of rights—the first in the world to explicitly protect LGBTI rights—demanded a level of equality greater than any other country had achieved. And it was obvious to Cameron that this included marriage, even if he wasn’t comfortable with the institution.

“You can’t say, ‘I just want you to make marginal accommodations,’” Cameron said. “You’ve got to say in the end this is about complete normalization and equality.”

But LGBTI activists established same-sex partnership rights piecemeal. Led by the National Coalition for Gay and Lesbian Equality, they won a case guaranteeing immigration rights for the same-sex partners of South African citizens in 1999. They won a case requiring same-sex partners be included in employee benefit plans, and then another requiring insurance companies to allow gays and lesbians to collect on their partners’ insurance policies.

They were still waiting to challenge the marriage law directly when two women without ties to the inner circle of LGBTI legal activists beat them to it.

In 2002, Marié Fourie and Cecelia Bonthuys sued for the right to marry. But their lawyer was unprepared for this kind of case, and it was tied up for years because of technical problems with their suit. In 2004, they won a favorable ruling from Cameron, who was then a judge of the Supreme Court of Appeal. The Constitutional Court then took up the question, and it agreed.

In his ruling, Chief Justice Albie Sachs argued that the principles that brought the country out of apartheid demanded equality for same-sex couples. He had powerful credibility when he spoke; he had been an anti-apartheid activist who lost an arm in a 1988 assassination attempt by the government’s security forces.

“The acknowledgement and acceptance of difference is particularly important in our country where for centuries group membership based on supposed biological characteristics such as skin colour has been the express basis of advantage and disadvantage,” Sachs wrote in the December 2005 decision. “At issue [in this case] is a need to affirm the very character of our society as one based on tolerance and mutual respect.”

But his ruling did not settle the issue. The Constitutional Court did not simply order that the language of the existing marriage law be made gender neutral. Instead, he gave the parliament one year to pass legislation to grant same-sex couples equal rights.

This opened a bitter fight and exposed deep homophobia and racial tensions. Opposition to legalizing same-sex marriage was led by the National House of Traditional Leaders, who held meetings around the country in which homosexuality was decried as “un-African,” displeasing to ancestors under traditional African beliefs, and a perversion of whites and Asians. Christian leaders also aggressively mobilized to try to block legalization.

The opposition was so fierce that the legislation first introduced in parliament would only have allowed civil partnerships, not marriage. But the leadership of the African National Congress shared Sachs’s view of what the constitution demanded. It enforced the strictest party discipline to pass legislation that would open “marriage” to same-sex couples, just weeks before the deadline set by the court passed.

The battle over this issue is not entirely over. The National House of Traditional Leaders is still fighting to put marriage equality to a referendum, and many LGBTI activists worry that the commitment to protecting marriage rights may atrophy as the generation of leaders who brought the country out of apartheid fade away.

But the most active front in the LGBTI movement is no longer in the courts and legislature. It is in the townships and other places where homophobia is most raw. Black lesbians, spurred largely by an epidemic of rape and other hate crimes, are making an especially visible case for giving teeth to the protections won on paper.

“For so long as we have constitutionalism and the rule of law, gay and lesbian equality will be part of the commitment,” Cameron said. “The visibility of black gays and lesbians makes the issue irreversible.”

Funeka Soldaat. Image by J. Lester Feder/Buzzfeed

Funeka Soldaat. Image by J. Lester Feder/Buzzfeed

Funeka Soldaat isn’t so sure how much the protections people like Cameron have worked for are worth.

“All things that are in the constitution, here they don’t mean anything, they don’t translate to our daily lives,” Soldaat said, standing on a dusty street between rows of wood and corrugated-metal shacks in the Cape Town township where she has been a lesbian activist for more than 20 years. “People are being killed.”

She was attending the funeral of a woman who was active in the group that she founded, Free Gender, as well as the HIV advocacy group, the Treatment Action Campaign. Soldaat, who has survived a stabbing and a gang rape, has buried many friends. Even now she was helping to organize a pride march in the nearby township of Nyanga—where at least two lesbians were murdered in the past year.

Just a couple weeks earlier in Khayelitsha, the township where she lives, a 23-year-old gay man was assaulted by a group of men as he walked home at 5:30 in the afternoon. They knocked him unconscious with an iron rod and pieces of bricks before stripping him to see if he had undergone the Xhosa community’s circumcision rites of initiation into manhood. When they saw that he had been initiated—which some believe should prevent a man from developing same-sex attraction—they shot him, taking off a piece of his ear.

Soldaat made her comment about the meaningless of the constitutional protections when asked her about her wedding ring.

Once marriage was important to her as an activist. She married for the first time in 1998, well before it was recognized under South African law, in what she described as a big “white wedding.”

“It was like the first time that it was happening in the township, it was full, everybody was … coming.” She said. “I think for me at that time it was also a little bit of activism, saying that this can happen” for African people.

She married for the second time three years ago. This time, they married in a bureaucrat’s office. The symbolism was not important to her. Soldaat just wanted to make sure that her wife had a claim on their house in case she dies. Otherwise, Soldaat feared, her family would throw her wife out.

And she didn’t want to put her wife in danger by making a statement with their wedding.

“I don’t want [her to] be exposed too much to what I’m doing,” Soldaat said. “I know if people can hurt me they may hurt her.”

For her wife, who asked to be referred to only as Thando, the wedding had greater meaning as a symbol of their commitment to one another. But she has her own reasons for keeping their marriage quiet. Her seven-year-old son lives with Thando’s parents, and she was afraid her parents would cut her out of his life if she is too public about her relationship with a woman.

“If I go ahead with telling them [I’m married]… They will say, ‘No, you can’t raise a child in that environment because a child needs a mother and a father.’” Thando said. “They will turn him against me.”

Judith Kotzé. Image by J. Lester Feder/Buzzfeed

Judith Kotzé. Image by J. Lester Feder/Buzzfeed

Anti-gay attitudes within the African community generally get the most attention. But it persists among those who benefited from apartheid, too. The Dutch Reform Church—a denomination so closely aligned with the apartheid regime that it was once famously referred to as “the National Party at prayer”—still does not recognize same-sex marriages despite South Africa’s legal evolution.

Judith Kotzé didn’t feel “oppressed” by apartheid. In fact, she remembers the year she and her sister spent in the South African army in 1988—when “the country was burning” beneath the uprising against apartheid—as “the year of our lives.”

They lived “in a bubble,” Judith said while driving to her office in a beat-up white pickup. Their family had Afrikaner ancestors who’d arrived in the country in 1680, many of whom were Dutch Reform ministers. That was what Judith and her sister, Hanti, wanted to be, too, though the church barred women from the pulpit.

Their “bubble” began to crack in 1990, when they were finally able to enter seminary at Stellenbosch. That year, the church opened for women. Its leaders had broken away from their support of apartheid. And the sisters started to become aware of their sexuality, which could dash their chances to be ministers just as it had become possible.

Judith’s sister, Hanti, came out first. She had gone to the Netherlands to study feminist theology, and there met the women who would later become her wife. When she told their parents she was in a relationship with a woman in 1998, their mother curled up into a fetal position and moaned in Afrikaans, “Why must the devil take the cream?”

“It gave me such a fright,” Judith said. Hanti was always the one who was more aware of their inner emotions. If Hanti was a lesbian, Judith thought, there was a good chance she would discover the same about herself.

Her fear was compounded by her father’s reaction to Hanti’s coming out. Though he remained far calmer than her mother, his words cut deeper.

“The moment you bring sexuality into [relationships with women], you draw a line through your credibility and authority as a spiritual leader,” he had said.

It took Judith several more years to figure out she was also a lesbian and work through its implications. She wrote her thesis on Christian lesbians, not because she thought she was one, but because she said she wanted to find “the most silent voice I can think of [in the Dutch Reformed Church]…. and let that voice speak” through her work.

After she finished her degree and was credentialed as a Dutch Reformed minister, she continued this work as an employee of Inclusive and Affirming Ministries, an organization founded by another Dutch Reformed minister in 1995 to make South African’s Christian churches more gay-friendly. She never did work as a Dutch Reform minister, but she has found her calling at IAM, which she now heads. She is also qualified to perform same-sex marriages through the Metropolitan Community Church.

The legalization of same-sex marriage in 2006 came as a “miracle,” she said. Not because the legal recognition was so earth-shaking, but because the rituals around her wedding gave the opportunity to heal the wounds within her family.

Her parents had stayed home when Hanti married her wife in the Netherlands in 2002. And though they at first said they would stay home when Judith married her longtime partner, Surita, in 2007, they thawed as the planning progressed.

Her mother gave tips on what music they should play and how to arrange the flowers. When they learned that Surita’s parents were going be there, they decided they would come as well. When the ceremony began, Judith’s mother was playing “Jesus, Joy of Man’s Desires” on the organ. Her father witnessed the union with his signature.

The fact that the wedding—a real, legal wedding—helped her family come “through the other side,” Judith said, showed that God was at work.
“Something more happened than just what the eye could see,” she said.

Muhsin Hendricks. Image by Courtesy the office of Muhsin Hendricks

Muhsin Hendricks. Image by Courtesy the office of Muhsin Hendricks

Muhsin Hendricks was making wedding dresses in Johannesburg when he developed a crush on a waiter in an Indian restaurant near where he went to buy fabric.

After he did his shopping, Hendricks said, “If I had some change left I would spoil myself at this restaurant where he was working—just to go and watch him.”

Hendricks hadn’t trained in fashion. He had followed in the footsteps of his grandfather, leader of the Lansdowne mosque in Cape Town, and studied at a madrassa in Pakistan. He moved to Johannesburg after coming out, leaving behind teaching positions at several mosques as well as a wife and three children. While supporting himself with wedding dresses, he was raising money to start an organization for gay and lesbian Muslims.

Hendricks had known since he was five that he was gay, but he had hidden “behind religiosity,” fearing that he was going to hell. His pious life was driven by the desire to figure out “what does the Quran say about me,” he said.

“I couldn’t believe that the very merciful God that you hear about in the Quran would create me like this … and then send me to hell,” he said.

He was in his late twenties when his struggle brought him to the point of crisis. He sequestered himself for three months on a friend’s farm, fasting while living in a room next to the stables. By the end, he had resolved “to use my own conviction and my own understanding of the scripture” to help other gay and lesbian Muslims.

That project would lead to the creation of The Inner Circle, which describes itself as an organization for “sexually diverse Muslims to reconcile Islam with their sexuality.” And as he prepared to launch it, he kept up an 8-month vigil at the Indian restaurant without ever working up the courage to speak to the waiter.

Finally, the waiter broke the silence when he needed to vent about another customer.

The waiter, who asked to be referred to only as Sam, is the son of a Hindu pandit, and he had left India for South Africa just a year before he met Hendricks. He said he left because his native Punjab was too hot. Knowing next to nothing about South Africa except that it was cooler than where he was born, he bought a ticket to Johannesburg with a friend. They arrived without knowing where they would stay or where they would go. His friend burst into tears at the airport, overwhelmed by the large and dangerous metropolis, and ultimately went back home. But Sam found his way to an Indian neighborhood, got the job at the restaurant, and stayed.

He hadn’t seen a movie in that time because he didn’t have a car, and Johannesburg is a dangerous place to get around without one. Sam said he would buy tickets for a Bollywood movie if Hendricks would drive.

When they were sitting in the car on the way there, Hendricks told Sam he was gay.

Sam asked if he had a boyfriend. Hendricks said no.

“Ok, I’ll be your boyfriend,” Sam remembered responding, though he said he hadn’t ever thought of himself as gay up to that point.

The money for The Inner Circle came through a month later, which required Hendricks to return to Cape Town. Sam surprised him by asking if he could go with him.

They married after settling in Cape Town in a ceremony that Hendricks describes as “very Bollywood” because of its elaborate mix of Muslim and Hindu elements. But it couldn’t have happened in India nor Pakistan nor elsewhere in Africa. South Africa’s laws made it possible, and Hendricks felt its global resonance.

He wanted to show that his faith did not have to be patriarchal or homophobic as it is taught in much of the Muslim world. To underscore this point, the couple was married by a woman imam who came all the way from Indonesia.

The Inner Circle now spends much of its time using its relatively safe location in South Africa to support LGBTI Muslims in more embattled parts of the world, “arguing for human rights through theology.”

“Homosexuality is [regarded as] as ‘un-Islamic’ as it is ‘un-African’,” Hendricks said. “The fact that our work is currently largely international shows that it’s not just a thing we can solve over here.”

A township street in South Africa. J. Lester Feder

A township street in South Africa.

Charlie’s desire to marry brought him to South Africa in 2008. But not because he was going there to get married. He was fleeing the mob that almost burned down his house in Kenya because he and his boyfriend, Rob, were planning a marriage ceremony. The mob had also beaten Rob nearly to death. Charlie last saw him while he was recovering from his injuries in a Nairobi hospital. These are not their real names; the two men still worry about their safety.

The people who attacked their home weren’t strangers. They were friends and neighbors, people who had shared meals with the couple in their house. With the exception of the occasional name-calling in the street, Charlie and his boyfriend hadn’t had any problems in their neighborhood.

But that all changed when they decided to formalize their union with a wedding. That was a step too far even for friends who were willing to tolerate the fact that they were gay.

The mob came to their house two weeks before the ceremony.

“They were attacking us at night,” Charlie recounted. “They were throwing stones and calling names, like, ‘Gay! We kill you people!’”

As they cowered inside the wooden house, they could see that the mob was lighting fires in the street. Some were holding crude bombs fashioned out of bottles filled with petrol and paraffin.

The mob likely would have killed them if a woman who lived nearby had not slipped into their backyard. The couple jumped out a window and followed her to her house. She wouldn’t hide them inside for fear the mob would look for them there. So she put them in the hutch where she kept her chickens. The birds squawked so loudly they feared they would give them away.

Charlie snuck out of the chicken coop around 5:00 the next morning, the usual time he left for work. Their attackers must have been asleep, because he made it there safely.

But they were waiting for Rob when he left a couple hours later. They beat and stabbed him, and probably would have killed him if the police hadn’t intervened.

Charlie learned of the attack from the neighbor who’d saved their lives before. After work he went to the hospital, though this was risky. If the police were still there, they could have arrested him for violating Kenya’s law against homosexuality. And the neighbors who attacked them could have been lurking around the hospital waiting for him to visit.

After visiting Rob, Charlie went immediately to his mother’s village outside Nairobi and made plans to leave the country. He had heard that South Africa’s laws meant that he could get asylum because he was gay; he already had one friend who had relocated to Cape Town. He called this friend, who connected him with a lawyer who arranged for him to fly to South Africa on a tourist visa. He would apply for refugee status once he arrived.

Charlie returned to Nairobi just to say goodbye to Rob, who was still in the hospital.

Charlie got lucky when he arrived in Cape Town. He had no problem getting refugee status based on what happened to him. Many other LGBT refugees are not so fortunate; even though South African law should guarantee them asylum rights, they often encounter resistance from homophobic immigration officials, as a recent report by the group People Against Suffering, Oppression, and Poverty documents.

But South Africa was no promised land. Charlie was rail-thin as he spoke in PASSOP’s offices in Cape Town’s Southern Suburbs in March of 2013, having been out of work for many months. He lost his composure while explaining how he was days away from being evicted from his home in the township because he couldn’t come up with the $30 to pay the rent. And while he says he hasn’t been harassed for being gay, he is constantly abused for being a foreigner—sometimes, local shop owners won’t sell him bread because he can’t speak the predominant local language, Xhosa.

His instability was part of the reason that Rob never joined him as they’d planned. Once he’d recovered from his injuries, Rob had first gone to another country bordering Kenya. There he found a boyfriend with a good job and decided to stay.

“I regret everything all the time,” Charlie said.

But South Africa did save his life. And even as Charlie is struggling to survive, South Africa represents the hope that human rights are possible for gays and lesbians even in Kenya and other African countries that are even more hostile.

Marriage “is something to be talked about, and it’s very important to me,” he said. But, it’s not just about marriage, or even the laws themselves. It’s also about living their lives. “They should allow these people to have their own rights—the equality of all.”

A version of this report appeared in Buzzfeed.