South Africa’s Highest Court Strikes Down Sodomy Law
By Arthur S. Leonard
The Constitutional Court of South Africa unanimously declared that both the common law
crime of male homosexual sodomy and several statutes incorporating that crime for various
purposes violate the new constitution of South Africa. The unanimous ruling of the
nine-member court was announced on October 9. The decision affirmed a ruling by the
Witwatersrand High Court that had been issued on May 8. The court held that all
convictions of consensual sodomy dating back to the adoption of the interim constitution
in 1993 are subject to invalidation.
South Africa’s common law crime of sodomy was derived from English common law,
dating from the reign of Henry VIII, when Parliament passed a sodomy statute to replace
the church law that was terminated when the Catholic Church was disestablished by the
English Reformation. Although the English common law crime of sodomy prohibited all anal
intercourse regardless of the identity of the parties, South Africa had redefined the
common law offense to apply only to anal or oral sex between men, regardless whether it
occurred in public or private or whether it was consensual or non-consensual. Various
statutes were passed incorporating the common law crime of sodomy in different situations.
In addition, a 1957 statute made it a crime for men to engage in any sort of erotic
contact in situations where more than two people were present.
The interim constitution of 1993 and the permanent new South African Constitution of
1996 both provide in a Bill of Rights that "everyone is equal before the law"
and prohibit "unfair" discrimination on the basis of sex and sexual orientation,
as well as a large list of other characteristics. The constitution also explicitly
protects the right to privacy, and also states that rights enumerated in the Bill of
Rights may only be limited in a manner that is "reasonable and justifiable in an open
democratic society based on human dignity, equality and freedom." In their decisions
interpreting these constitutional rights, the South African courts have looked at how
other democratic governments treat particular rights in order to decide whether South
African laws that restrict those rights are reasonable.
The Witwatersrand High Court decided in May that the sodomy law violates equality
rights by prohibiting men from engaging in conduct that was allowed to sexually-mixed
couples and women. In his opinion for the Constitutional Court, Mr. Justice Lori Ackermann
went beyond the rationale of the High Court and found that the sodomy law violated the
right of privacy, the right of dignity, and the right to equal protection.
Thus, the decision was premised not just on the explicit prohibition on sexual
orientation discrimination, but more broadly on the notion that individual choice in the
selection of sexual partners (provided there is no coercion or exploitation of minors) is
not a proper concern of the government. Ackermann noted the decriminalization of
consensual sodomy in England and most other British Commonwealth nations, as well as the
widespread repeal of sodomy laws in Europe (in some cases pursuant to rulings of the
European Court of Human Rights), as supporting the South Africa court’s decision.
Ackermann’s opinion puts to shame the United States Supreme Court, which ruled in
1986 in Bowers v. Hardwick that the state of
Georgia did not violate the right of privacy by subjecting "homosexual sodomy"
to a penalty of up to 20 years in prison. In contrast to U.S. Justice Byron White’s
abstractly legalistic opinion, Ackermann’s writing reveals an acute sensitivity to
the effect of sodomy laws on the lives of gay people. Ackermann noted the Hardwick
decision as an exception to the trend among western democracies, but also noted that the
U.S. Constitution lacks many of the express protections contained in South Africa’s
new constitution.
In discussing the right of dignity, Ackermann wrote that the sodomy law "punishes
a form of sexual conduct which is identified by our broader society with homosexuals. Its
symbolic effect is to state that in the eyes of our legal system all gay men are
criminals. The stigma thus attached to a significant proportion of our population is
manifest. But the harm imposed by the criminal law is far more than symbolic. As a result
of the criminal offence, gay men are at risk of arrest, prosecution and conviction of the
offence of sodomy simply because they seek to engage in sexual conduct which is part of
their experience of being human. Just as apartheid legislation rendered the lives of
couples of different racial groups perpetually at risk, the sodomy offence builds
insecurity and vulnerability into the daily lives of gay men. There can be no doubt that
the existence of a law which punishes a form of sexual expression for gay men degrades and
devalues gay men in our broader society. As such it is a palpable invasion of their
dignity and a breach of section 10 of the Constitution."
Ackermann’s lengthy opinion is replete with similar statements in discussing
equality and privacy concerns. In addition, Mr. Justice Albie Sachs wrote a concurring
opinion filled with rhetoric about individual liberty and personal rights that makes U.S.
Justice Harry Blackmun’s impassioned dissenting opinion in Bowers v. Hardwick,
eloquent as it was, seem tame by comparison.
Selecting brief quotes to illustrate the extraordinary sensitivity Justice Sachs
exhibited is difficult, but perhaps his closing comments on the importance of this
decision will suffice:
"The invalidation of anti-sodomy laws will mark an important moment in the
maturing of an open democracy based on dignity, freedom and equality. As I have said, our
future as a nation depends in large measure on how we manage difference. In the past
difference has been experienced as a curse, today it can be seen as a source of
interactive vitality. The Constitution acknowledges the variability of human beings
(genetic and socio-cultural), affirms the right to be different, and celebrates the
diversity of the nation."
Sachs also commented on the notion that the state has an interest in enforcing
morality, which had been cited by Justice White in Hardwick as a justification for
the Georgia sodomy law. "The Constitution certainly does not debar the state from
enforcing morality. Indeed, the Bill of Rights is nothing if not a document founded on
deep political morality. What is central to the character and functioning of the state,
however, is that the dictates of the morality which it enforces, and the limits to which
it may go, are to be found in the text and spirit of the Constitution itself.
"The fact that the state may not impose orthodoxies of belief systems on the whole
of society has two consequences. The first is that gays and lesbians cannot be forced to
conform to heterosexual norms; they can now break out of their invisibility and live as
full and free citizens of South Africa. The second is that those persons who for reasons
of religious or other belief disagree with or condemn homosexual conduct are free to hold
and articulate such beliefs. Yet, while the Constitution protects the right of people to
continue with such beliefs, it does not allow the state to turn these beliefs — even
in moderate or gentle versions — into dogma imposed on the whole of society."
The opinion is a major accomplishment for the National Coalition for Gay and Lesbian
Equality, which initiated the lawsuit, and for South Africa’s openly gay High Court
judge, Edwin Cameron, whose seminal 1993 South African law journal article titled
"Sexual Orientation and the Constitution" is cited and quoted by Justice
Ackermann throughout his opinion for the court.
The decision leaves the United States as one of the only major Western democracies
where laws against consensual sodomy remain on the books.
The South Africa Constitutional Court has an Internet archive of decisions maintained
by the Witswatersrand law school, so those who are interested may obtain access to the
full text at http://www.law.wits.ac.za.
Arthur S. Leonard, Professor, New York Law School
ALeonard@nyls.edu or ASLeonard@aol.com
212-431-2156
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