The following media summary is provided to assist in reporting this case and is not binding on the Constitutional Court or any member of the Court.

Case 1: Minister of Home Affairs and Another v Fourie and Another, with Doctors For Life International (first amicus curiae), JohnJackson Smyth (second amicus curiae) and Marriage Alliance of South Africa (third amicus curiae)

Case CCT 60/04

Decided on 01 December 2005

Case 2: Lesbian and Gay Equality Project and Eighteen Others v Minister of Home Affairs and Others

Case CCT 10/04

Decided on 01 December 2005

Ms Marié Adriaana Fourie and Ms Cecelia Johanna Bonthuys, of Pretoria, are the applicants in the first of two cases (the Fourie case) that were set down for hearing on the same day in this Court. Their complaint has been that the law excludes them from publicly celebrating their love and commitment to each other in marriage. They contend that the exclusion comes from the common law definition which states that marriage in South Africa is a union of one man with one woman, to the exclusion, while it lasts, of all others. In the second case, (the Equality Project case) the Gay and Lesbian Equality Project challenge section 30(1) of the Marriage Act, which provides that marriage officers must put to each of the parties the following question: “Do you AB…call all here present to witness that you take CD as your lawful wife (or husband)?” The reference to wife (or husband), they contend, unconstitutionally excludes same-sex couples.

The two cases raised the question whether the fact that no provision is made for the applicants, and all those in like situation, to marry each other, amounts to denial of equal protection of the law and unfair discrimination by the state against them because of their sexual orientation, contrary to the provision of the Constitution guaranteeing the right to equality and dignity. And if it does, what is the appropriate remedy that this Court should order?

In the Fourie case the High Court held that the applicants were barred from getting an order allowing them to marry because they had not challenged the constitutionality of the Marriage Act. The majority in the Supreme Court of Appeal held that the right of same-sex couples to celebrate a secular marriage would have to await a challenge to the Marriage Act; in the meanwhile the common law definition of marriage should be developed so as to embrace same-sex couples. The minority judgment held both that the common law should be developed and that the Marriage Act could and should be read there and then in updated form so as to permit same-sex couples to pronounce the vows. It held further, however, that the development of the common law to bring it into line with the Constitution should be suspended to enable Parliament to enact appropriate legislation.

The Equality Project case in the meantime was brought as a challenge to the Marriage Act vow as well as to the common law definition. Originally due to be heard in the High Court in October this year, it was eventually set down for January next year. The Equality Project then applied for direct access to this Court to enable their case to be heard together with the appeal and the cross-appeal noted in the Fourie case.

The state contended that the Equality Project was incorrect in seeking an order from this Court declaring the common law definition of marriage and the prescribed marriage formula in section 30(1) of the Marriage Act to be unconstitutional. It argued further that if the Court ruled otherwise, any declaration of invalidity should be suspended to enable Parliament to correct the defect.

Doctors for Life and their legal representative Mr John Smyth, were admitted as amicus curiae, and made written and oral submissions to this Court, as did the Marriage Alliance of South Africa, supported on affidavit by Cardinal Wilfred Napier.

Writing for a Court that was unanimous on all matters except in relation to the remedy, Sachs J held that it was clearly in the interests of justice that the Fourie and the Equality Project matters be heard together. He observed that this Court had in five consecutive decisions highlighted that South Africa has a multitude of family formations that are evolving rapidly as our society develops, so that it is inappropriate to entrench any particular form as the only socially and legally acceptable one; there was an imperative constitutional need to acknowledge the long history in our country and abroad of marginalisation and persecution of gays and lesbians although a number of breakthroughs have been made in particular areas; there is no comprehensive legal regulation of the family law rights of gays and lesbians; and finally, our Constitution represents a radical rupture with the past based on intolerance and exclusion, and the movement forward to the acceptance of the need to develop a society based on equality and respect by all for all. He pointed out that at issue was the need to affirm the character of our society as one based on tolerance and mutual respect. The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomforting.

The exclusion of same-sex couples from the benefits and responsibilities of marriage was not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represented a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples. The intangible damage to same-sex couples is as severe as the material deprivation. They are not entitled to celebrate their commitment to each other in a joyous public event recognised by the law. They are obliged to live in a state of legal blankness in which their unions remain unmarked by the showering of presents and the commemoration of anniversaries so celebrated in our culture.

If heterosexual couples have the option of deciding whether to marry or not, the judgment continued, so should same-sex couples have the choice as to whether to seek to achieve a status and a set of entitlements and responsibilities on a par with those enjoyed by heterosexual couples. By both drawing on and reinforcing discriminatory social practices, the law has failed to secure for same-sex coupes the dignity, status, benefits and responsibilities that it accords to heterosexual couples. Although considerable progress has been made in specific cases through constitutional interpretation and by means of legislative intervention, the default position of gays and lesbians is still one of exclusion and marginalisation. Sachs J stated that Judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues which have caused deep schisms within religious bodies. In the open and democratic society contemplated by the Constitution there must be mutually respectful co-existence between the secular and the sacred. The function of the Court is to recognise the sphere which each inhabits, not to force the one into the sphere of the other. The objective of the Constitution is to allow different concepts about the nature of human existence to inhabit the same public realm, and to do so in a manner that is not mutually destructive and that at the same time enables government to function in a way that shows equal concern and respect for all.

Acknowledgement by the state of the right of sam

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