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Same-Sex Marriage in the South African Constitutional Court: Former Justice Albie Sachs Delivers Lecture on the Landmark Decision Ithaca, NEW YORK, September 13, 2013

In 2005, South Africa’s Constitutional Court ruled that denying same-sex couples the right to marry was unconstitutional. “But that’s not the end of the decision; that’s the beginning of the decision,” recounted Albie Sachs as he delivered the year’s first Berger Lecture at the Law School on September 4. Sachs was appointed to a six-year term as an A.D. White Professor-at-Large in 2012. This was his first official visit to Cornell.

A renowned lawyer, judge, activist, scholar, and author, Sachs worked at the forefront of the struggle for justice and freedom in South Africa during apartheid, surviving imprisonment, exile, and a car bomb explosion. As a member of the national executive committee of the African National Congress, he took part in the negotiations that made South Africa a constitutional democracy. From 1994 to 2009, he sat on the Constitutional Court, and he was the author of its decision on Minister of Home Affairs v. Fourie, the same-sex marriage case.

“I think our court is unique in the world in the extent to which it workshops,” said Sachs during the lecture. After months of discussion, the justices ruled unanimously that the common law definition of marriage and section 35(1) of the Marriage Act of 1961 constituted unfair discrimination against same-sex couples. The most difficult task in writing the decision, Sachs recalled, was recognizing the deep religious beliefs held by the majority of the country’s citizens, which made it imperative to present the ruling not as a victory for any particular position but as a victory for a constitutional vision encompassing different, co-existing belief systems.

After issuing its judgment, the Court gave Parliament one year to correct the defect in the law, an option that Sachs described as “extremely valuable” for national debate. In 2006, the Civil Union Act came into force, making South Africa the fifth country in the world to recognize same-sex marriage.

“We still have homophobia in South Africa,” said Sachs, noting the persistence of horrific beatings and “corrective rape” in some areas. “But by and large, same-sex marriage has been accepted. In the last country in the world, in the last continent in the world maybe that you would expect it to be, it’s just accepted: That’s the way people are and the way some people express their love for each other. And we as South Africans are better people—all of us, straight and gay—because we accept that.”

Sachs' Berger Lecture ended a nearly two-week visit to the Cornell Ithaca campus. During his stay, he delivered a university-wide public lecture on August 29 on the theme, "Liberating the Mind and Liberating the Heart: South African Experience in Dealing with Terrorism and Torture" and spent time with students and faculty at the Law School, participating in two classes led by Professors Muna Ndulo and Laura Underkuffler.

--Owen Lubozynski