International Journal of Law in Context

Articles

Ambiguous symbolisms: recognising customary marriage and same-sex marriage in South Africa*

Nicola Barkera1

a1 University of Reading

Abstract

In this article I draw on the South African legal context to critique the argument that same-sex marriage would provide ‘equal recognition’ for same-sex relationships. I highlight the ways in which, despite strong equality provisions in the South African Constitution and an apparent commitment to substantive rather than merely formal equality, both customary marriage and same-sex marriage continue to be subordinate to heterosexual civil marriage. I then broaden my analysis to consider the extent to which this would also be the case in other jurisdictions, particularly the UK. Drawing on the Butler/Fraser debate on recognition and redistribution, I argue that there is a connection between misrecognition and material disadvantage that goes unacknowledged in ‘symbolic recognition’ claims for same-sex marriage. The critiques of ‘marriage equality’ should sound a warning not only to same-sex marriage advocates but also more generally to those who would seek ‘equal recognition’ through law reform.

(Online publication November 11 2011)

Footnotes

* I would like to thank Susan B. Boyd, Davina Cooper, Marie Fox, Andrew Francis, Rosie Harding, Didi Herman and Ambreena Manji for their feedback on earlier drafts of this article. I would also like to thank the organisers and attendees at the ‘Families on the Faultlines’ conference at the University of California, Berkeley (April 2010), as well as the Centre for Feminist Legal Studies at the University of British Columbia, Vancouver, for giving me the opportunity to present some of the ideas in this article and for their thought-provoking questions and comments.