Albie Sachs on the Struggle for Same-Sex Marriage Rights in South Africa

Meredith Heagney
Law School Office of Communications
April 30, 2013

Even a “human rights rock star” like Albie Sachs – that’s how Professor Tom Ginsburg and others have described him – experiences moments of weakness. Sachs, who wrote the 2005 Constitutional Court opinion that legalized same-sex marriage in South Africa, shared this story during an April 9 speech at the Law School: 

One day in November 1991, about three and half years after a bomb planted by the South African government took his right arm and the sight in one of his eyes, Sachs was driving to a gay pride march to show his support. On the way, he found himself having an uncomfortable thought.  

“I’m wondering why they can’t have a poster, ‘Straights for Gays,’” he said, so that people would know he was straight. “And then I’m ashamed of myself.”

A few minutes later, Sachs was immersed in the event, without self-consciousness. He recalled his emotions in the present tense: “I feel fantastic. I feel so proud of myself that I crossed over some barrier of awkwardness and embarrassment, and I’m marching with people who are claiming their rights.”

Fourteen years later, he penned the opinion that gave the right of marriage to same-sex couples in South Africa, a country very familiar with both human rights atrocities and triumphs. Sachs, who spent decades fighting apartheid as a lawyer and activist, is one of the most respected and recognizable faces of the human rights movement in his country and worldwide.

He was raised in a politically active, nonreligious family that advocated for workers, blacks, and women. As a young lawyer, Sachs defended persecuted minorities and their white allies.  He was repeatedly imprisoned for his work, subjected to solitary confinement and torture, and banned from speaking in public. Sachs moved to England in 1966 to escape the oppression and became prominent internationally as a face of the South African opposition. He returned to Africa in the 1970s, settling in Mozambique, where, in 1988, a bomb planted in his car by South African security services blew off his arm, blinded him in one eye, and killed a bystander.

Sachs finally returned to his homeland in 1990 and took an active role in helping South Africa transition to a democracy. He helped write the South African Constitution and insisted on a robust Bill of Rights; the Constitution is now considered one of the broadest human rights documents in existence. In 1994, President Nelson Mandela appointed him to the Constitutional Court, which is akin to the U.S. Supreme Court.

It was in that role in 2005 when Sachs and his fellow justices heard Home Affairs v. Fourie, which involved two women who wanted to be married but were restricted by South African law because they were of the same sex. Journalists, religious groups, and activists on both sides came from all over the world to pack the courtroom, Sachs said. Despite the international spotlight, the decision was easy to make, he said.

“It was hard for us to see how the institution of marriage could be undermined by broadening its meaning and scope,” he said. “Denying people access to marriage…it’s denying them the status and dignity of being ordinary citizens in society.”

The Constitutional Court chose not to change the law themselves, but to involve the nation in the acceptance of same-sex marriage, Sachs explained. To that end, the court referred the matter to Parliament, and instructed them to confer with their constituents and then pass a law legalizing same-sex marriage. The court gave Parliament one year to complete the process. The national debate brought out many different opinions, some of them homophobic, but it’s best that the conversation was had, Sachs said. “Better it comes out,” he said. “It’s getting society to reconsider, reconceive the hard classifications that were so exclusive, so brutal.”

Ginsburg said it was a wonderful opportunity for students to hear a human rights legend speak on such a timely topic. Sachs spoke about two weeks after the U.S. Supreme Court heard same-sex marriage arguments in two nationally-watched cases.  

“He brings to the judicial enterprise a unique combination of legal skill and deep humanity, recognizing the real issues at stake in each case,” Ginsburg said. Sachs has spoken at the University and the Law School several times, even serving as a Visiting Professor of Human Rights at the University in 2010.

One of the students in attendance, Becca Horwitz, ‘13, is president of OutLaw, which co-sponsored the event with the American Constitution Society, the Black Law Students Association, and the International Law Society. The event’s main sponsors were the Law School and the University of Chicago Human Rights Program.

Horwitz said she was struck by the way the Constitutional Court decided to involve the public in legalizing same-sex marriage. Unfortunately, she added, it probably wouldn’t work out well if we tried that in the United States, because our politics tend to work in extremes, not compromises.

“I was impressed at how open and inclusive it was,” she said of the South African process. “That’s really a lesson we could take in human rights.”

Sachs’ speech drew an audience from across campus, and for some, it was extremely personal. Michelle Thomas, an office administrator for Facilities Services at the University, said she and her partner, who is a woman, have a civil union in Illinois and celebrated a religious ceremony to honor their lifelong commitment. But they’re still waiting for legal recognition from the state that matches what heterosexual couples can attain.

“She is my wife, and I am hers, but like (Sachs) said, ‘it’s the M word,’” that is missing, Thomas said, and “it’s demoralizing.”

What was encouraging, though, was to take an afternoon to visit the Law School and listen to Sachs, she added. “To listen to such a prominent person, what he’s seen and done, where he’s lived…it was a moment for me.”

Faculty: 
Tom Ginsburg