From Heteronormativity to Full Sexual Citizenship?: Equality and Sexual Freedom in Laurie Ackermann’s Constitutional Jurisprudence

• Jurisdiction: South Africa
• Date: 15 August 2019
• Pages: 254-272
• Citation: 2008 Acta Juridica 254
• Published date: 15 August 2019
• Author: Pierre de Vos

From Heteronormativity to Full Sexual

Citizenship?: Equality and Sexual

Freedom in Laurie Ackermann’s

Constitutional Jurisprudence

PIERRE DE VOS*

University of the Western Cape

I INTRODUCTION

Reading the Constitutional Court’s judgment in the Fourie same-sex

marriage case, it is striking to note that it contains six pages of discussion

on the Court’s precedent regarding sexual-orientation discrimination.

1

It

is as if Justice Sachs is saying to the public and to his fellow judges that,

given the Constitutional Court’s precedent-setting jurisprudence on

sexual-orientation discrimination,

2

there is only one path open to the

Constitutional Court, namely to recognise that same-sex couples have a

constitutional right to have their monogamous life partnerships recogn-

ised in a way that would accord it the same rights and status as

heterosexual marriage. By the time the Constitutional Court had to

decide the same-sex marriage question, it had given such a ringing

endorsement of the rights of gay men, lesbians and other sexual

minorities, that it might well be that even judges who might have wished

to provide same-sex couples with partnership rights that fell short of full

marriage,

3

were roped in by the long list of precedent and were therefore

forced to go along with the Sachs J’s judgment in Fourie.

Of all the judgments on sexual-orientation discrimination handed

down by the Constitutional Court before Fourie, the f‌irst two, written by

* Professor of Constitutional Law, University of WesternCape. I would like to thank Virgil

Lawrence and Hishaam Jurgens, NRF-funded research assistants, for their valuable assistance

with the preparation of this article.

1

Fourie v Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC)

paras 46–58.

2

See National Coalition for Gay and Lesbian Equality v The Minister of Justice 1999 (1) SA 6

(CC); National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1

(CC); Satchwell v President of the Republic of South Africa 2002 (6) SA1 (CC); Du Toit v Minister of

Welfareand Population Development 2003 (2) SA 198 (CC); and J v Director-General, Department of

Home Affairs 2003 (5) SA 621 (CC).

3

There is no way of knowing whether some of the Constitutional Court judges who took

part in the Fourie case harboured doubts about the full extension of marriage rights to same-sex

couples. However, it is my contention that if there were such judges they would have been

boxed in by previous precedent.

254

2008 Acta Juridica 254

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Justice Ackermann

4

(along with a concurring judgment by Justice Sachs)

were obviously the most inf‌luential in this regard. These two judgments

–inNational Coalition for Lesbian and Gay Equality v Minister of Justice

5

(hereafter ‘f‌irst National Coalition case’) and National Coalition for Lesbian

and Gay Equality v Minister of Home Affairs

6

(hereafter ‘second National

Coalition case’) – analysed the nature of sexual-orientation discrimination

and the constitutional demand for sexual freedom

7

in interesting and

provocative ways and set the stage for the eventual decision in the

same-sex marriage issue in Fourie.

In this article, I argue that in the f‌irst of these two judgments, Justice

Ackermann (read with the concurring judgment by Justice Sachs) came

very close to a ‘queer’

8

understanding of sexual freedom rights,

questioning the very basis of the legal and social reality that have helped

to construct, and continues to perpetuate, a heteronormative view of

society, a view that (still) permeates every aspect of our world and takes

for granted the inherent normality of certain kinds of regulated

different-sex emotional and sexual desire, while accepting or endorsing

only certain kinds of same-sex emotional and sexual desire. The power of

this judgment, I thus argue, goes beyond the precedent-setting analysis of

sexual orientation discrimination in terms of s 9 of the Constitution, as it

seems to question – on my reading, at least – the very assumptions in

terms of which gay men and lesbians have been historically excluded

from full sexual citizenship in South Africa and elsewhere in the world. I

contend, further, however, that the promise inherent in the profoundly

progressive rhetoric of the f‌irst National Coalition judgment was not fully

realised in Ackermann’s second National Coalition judgment and ask what

this means for the future of sexual freedom in South Africa. I contend that

the second judgment failed to come to grips with the emancipatory

potential of the f‌irst judgment and reinforced the heteronormative

assumptions underlying the legal, cultural and economic marginalisation

of those individuals who experience same-sex emotional and sexual

desire but do not conform to the model of the ‘good’ homosexual.

4

I have joked before that Laurie Ackermann has a lot to answer for.If it was not for him, I

might never have become an academic, and legal scholars and students would have been saved

from my teaching and academic musings. When he resigned from the Bench in the dark days

of apartheid and joined the law faculty at the University of Stellenbosch as the Harold

Oppenheimer Chair in Human Rights, I was a law student at that faculty and was inspired by

his classes and his example eventually to further my studies in the f‌ield of human rights,

completing an LLM thesis under his supervision before embarking on an academic career. I

will forever be indebted to him for this.

5

Supra (n 2).

6

Supra (n 2).

7

See generally R Robson ‘Sexual democracy’ (2007) 23 SAJHR 409.

8

On the term ‘queer’, see generally M Warner ‘Introduction’ in MWarner (ed) Fear of a

Queer Planet: Queer Politics and Social Theory (1993) and A Jagose Queer Theory: An Introduction

(1996).

255FROM HETERONORMATIVITY TO FULL SEXUAL CITIZENSHIP?

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