Nancy Polikoff

An Openly Gay Judge to Sit on South Africa's Highest Court

Filed By Nancy Polikoff | January 03, 2009 1:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Bill Clinton, Edwin Cameron, LGBT, South Africa, supreme court, united states

Congratulations to Justice Edwin Cameron, who has just been appointed a Judge on South Africa's Constitutional Court, the highest court in the country. President Kgalema Motlanthe announced the appointment earlier this week. Until this appointment, Justice Cameron sat on the country's Supreme Court of Appeal, which was the highest court for all non-constitutional matters.

South Africa's constitution includes a provision requiring equality on the basis of sexual orientation, which resulted in the Constitutional Court ruling in 2005 in the Fourie case that the ban on marriage for same-sex couples violated the country's constitution.

With this appointment, Justice Cameron becomes the first openly gay person ever appointed to a country's highest court. He also openly lives with HIV/AIDS. Justice Michael Kirby, an openly gay man, was appointed to Australia's Highest Court in 1996, but he was not out at the time. He came out in 1999, when he included the name of his life partner in his bio in Who's Who in Australia. Justice Kirby will retire on February 2, so for this month only the world has two openly gay highest court justices.

Edwin Cameron was an anti-apartheid lawyer. He was appointed to the High Court of Appeal by Nelson Mandela. He was a co-editor of Defiant Desire: Gay and Lesbian Lives in South Africa. In other words, he wasn't just a gay person, but a gay activist before Mandela appointed him as a judge.

Can you imagine such an appointment in the United States? Don't hold your breath. As far as I know there has only been one openly gay person appointed to any federal court judgeship, and that is Deborah Batts, appointed by Bill Clinton in 1994 when he still had a Democratic Congress. She sits on the United States District Court for the Southern District of New York. While we can hope that President Obama will give Judge Batts some openly gay company, I'm not counting on an openly gay justice of the US Supreme Court in my lifetime.

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I'm not going to hold my breathe for an LGBT Supreme Court nominee.


Marla R. Stevens Marla R. Stevens | January 4, 2009 8:01 PM

What a marvelous appointment to an already outstanding court! Justice Albie Sachs*, the Fourie decision's majority opinion's author, was already a gift for whom we should have all been thankfully rejoicing. The addition of Justice Cameron will add yet another rich dimension to an already brilliant set of jewels cleaved and polished by what it takes to survive great adversity and come out with even greater vision of the realities and possibilities of justice and peace. Thank you, Nancy, for letting us know the good news.

*Justice Sachs' Jail Diary and his remarkable post-bomb-maiming personal life-informed assessment of how to surpass hate and achieve restorative justice, Soft Vengeance of a Freedom Fighter, have long informed my thinking, superceding even Richard Mohr's analyses of queer polemics and truth-telling.

You are so right, Marla. Justice Sachs came to my school (American University Washington College of Law) two years ago for several days. He spoke to the whole school and he was a guest lecturer in my Sexuality and the Law seminar. It was an amazing experience for the students (and for me, but I had met him before). He is also the narrator of a film about the Constitutional Court building. It's amazing. They took great care in designing the court building as a place for the people. I highly recommend it if you get a chance to see it.

Marla R. Stevens Marla R. Stevens | January 5, 2009 8:06 PM

I'll keep my eyes open. I've thought often about the effect of public architecture in the U.S. on the accessibility of government to its citizens and, in relation to that, on participatory democracy. It seems that, in our well-intended admiration of Palladian neo-classicism and its symbolic connection to the Greco-Roman foundations of democratic and republican forms of government, we've overplayed the awesomeness, the power, and the permanence aspects in our public buildings to the point that they can literally intimidate people out of their use in direct contradiction to the intent of the very founders who chose their architecture in the first place.