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[2005] ZACC 19
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Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 60/04
MINISTER OF HOME AFFAIRS First Applicant
DIRECTOR-GENERAL OF HOME
AFFAIRS Second Applicant
versus
MARIÉ ADRIAANA FOURIE
First Respondent
CECELIA JOHANNA BONTHUYS
Second Respondent
with
DOCTORS FOR LIFE INTERNATIONAL
First amicus curiae
JOHN JACKSON SMYTH
Second amicus curiae
THE MARRIAGE ALLIANCE OF SOUTH AFRICA
Third amicus curiae
Case CCT 10/05
LESBIAN AND GAY EQUALITY PROJECT
AND EIGHTEEN
OTHERS
Applicants
versus
MINISTER OF HOME AFFAIRS
First Respondent
DIRECTOR-GENERAL OF HOME AFFAIRS
Second Respondent
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
Third Respondent
Heard on : 17 May 2005
Decided on : 1
December 2005
JUDGMENT
SACHS J:
INTRODUCTION
[1]
Finding themselves strongly
attracted to each other, two people went out regularly and eventually decided to
set up home together.
After being acknowledged by their friends as a couple for
more than a decade, they decided that the time had come to get public
recognition and registration of their relationship, and formally to embrace the
rights and responsibilities they felt should flow
from and attach to it. Like
many persons in their situation, they wanted to get married. There was one
impediment. They are both
women.
[2]
Ms Marié Adriaana
Fourie and Ms Cecelia Johanna Bonthuys are the applicants in the first of two
cases
[1]
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. Far from enabling them to regularise their union, it shuts them
out, unfairly and unconstitutionally, they
claim.
[3]
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.”
[2]
The common law is
not self-enforcing, and in order for such a union to be formalised and have
legal effect, the provisions of the
Marriage
Act
[3]
have to be invoked. This, as
contended for in the second case,
[4]
is where the further level of exclusion operates. The Marriage Act provides
that a minister of religion who is designated as a marriage
officer may follow
the marriage formula usually observed by the religion
concerned.
[5]
In terms of section
30(1) other marriage officers must put to each of the parties the following
question:
“‘Do you, A.B., declare that as far as you know there is no lawful
impediment to your proposed marriage with C.D. here
present, and that you call
all here present to witness that you take C.D. as your lawful
wife
(
or
husband
)?’, and thereupon the parties shall give each
other the right hand and the marriage officer concerned shall declare the
marriage
solemnized in the following words: ‘I declare that A.B. and C.D.
here present have been lawfully married.’” (My
emphasis.)
The reference to wife (or husband) is said to
exclude same-sex couples. It was not disputed by any of the parties that
neither the
common law nor statute provide for any legal mechanism in terms of
which Ms Fourie and Ms Bonthuys and other same-sex couples could
marry.
[4]
In the pre-democratic era
same-sex unions were not only denied any form of legal protection, they were
regarded as immoral and their
consummation by men could attract
imprisonment.
[6]
Since the interim
Constitution came into force in 1994, however, the Bill of Rights has
dramatically altered the situation. Section
9(1) of the Constitution now
reads:
“Everyone is equal before the law and has the right to equal protection
and benefit of the law.”
Section 9(3) of the
Constitution expressly prohibits unfair discrimination on the grounds of sexual
orientation. It reads:
“The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender,
sex, pregnancy, marital
status, ethnic or social origin, colour,
sexual orientation
, age,
disability, religion, conscience, belief, culture, language and birth.”
(My emphasis.)
[5]
The matter before us
accordingly raises the question: does the fact that no provision is made for the
applicants, and all those in
like situation, to marry each other, amount to
denial of equal protection of the law and unfair discrimination by the state
against
them because of their sexual orientation? And if it does, what is the
appropriate remedy that this Court should
order?
I. HISTORY OF THE LITIGATION
The
first challenge: the common law definition of marriage (the Fourie case)
[6]
Pursuant to their desire to
marry and thereby acquire the status, benefits and responsibilities which
traditionally flow from marriage
between heterosexual couples, the applicants
went to the Pretoria High Court. They asked for an order declaring that the law
recognises
their right to marry, and a mandamus ordering the Minister of Home
Affairs and the Director-General to register their marriage in
terms of the
Marriage Act.
[7]
It will be noted
that they did not mount a challenge either to the common law definition of
marriage or to the constitutionality
of section 30(1) of the Marriage
Act.
[7]
Roux J in the High
Court
[8]
attempted to ‘wring
out’ of the parties a clear description of the constitutional issue in the
matter. The applicants
articulated the issue as
follows:
“Whether the common law has so developed that it can be amended so as to
recognise marriages of persons of the same sex as
legally valid marriages in
terms of the Marriage Act, 25 of 1961 provided that such marriages comply with
the formality requisites
set out in the Act.”
Roux J
concluded that the marriage formula in section 30(1) of the Marriage Act, which
contemplates marriage between a male and a
female and no other, is peremptory.
Consequently the applicants could not be married as required by the law. To
compel the Minister
of Home Affairs to register the “marriage”
between the applicants, he added, would constitute a request to do what is
unlawful. An omission to challenge the constitutionality of the provisions of
the Marriage Act accordingly constituted an obstacle
to granting the relief
sought. On this basis he dismissed the application.
[8]
The applicants then applied
to the Pretoria High Court for leave to appeal to this Court, alternatively, to
the Supreme Court of Appeal
(SCA) against his judgment. Roux J having in the
interim retired, the application was heard by Mynhardt J, who refused to grant
a
positive certificate, but
[9]
did grant
them leave to appeal to the SCA. The applicants then approached the
Constitutional Court for leave to appeal directly
to it against the judgment and
order of the High Court.
[9]
This Court refused the
application on the ground that the interests of justice required that the appeal
first be heard by the SCA.
Moseneke
J
[10]
said that in their papers the
applicants did not seek a declaration that any of the provisions of the
legislation dealing with solemnising
or recording of marriages was inconsistent
with the Constitution, or if any was, what the appropriate relief would be in
that regard.
The applicants also omitted to address all the consequences that
would flow from the recognition of such a union or how it should
be dissolved.
The appeal was likely to raise complex and important questions of the legal
conformity of our common law and statutory
rules of marriage in the light of our
Constitution and its resultant jurisprudence. Moseneke J pointed out
that
“[m]arriage and its legal consequences sit at the heart of the common law
of persons, family and succession and of the statutory
scheme of the Marriage
Act. Moreover marriage touches on many other aspects of law, including labour
law, insurance and tax. These
issues are of importance not only to the
applicants and the gay and lesbian community but also to society at
large.”
[11]
[10]
Although considerations of
saving costs and of an early and definitive decision of the disputed issues were
in themselves weighty,
they should not oust the important need for the common
law, read in the light of the applicable statutes, to develop coherently and
harmoniously within our constitutional context. The judgment emphasised that
the views of the SCA on the matters that arose were
of considerable importance.
The nature of the dispute raised by the appeal was, as the High Court had
correctly held in issuing
a negative rule 18(2) certificate, pre-eminently
suited to be considered first by the SCA. The application for leave to appeal
directly
to this Court was accordingly refused.
[11]
The result was that the
applicants pursued their appeal in the
SCA.
[12]
They did so on the same
basis on which they had litigated in the Pretoria High Court, namely, that the
common law needed to be developed,
without linking this to a challenge to the
Marriage Act.
[12]
The SCA upheld the appeal
in part. Two separate judgments were delivered. All five judges held that the
exclusion of same-sex couples
from the common law definition of marriage
constituted unfair discrimination against them. The reasons for coming to this
conclusion
diverged in certain significant respects, however, resulting in
different approaches being taken as to the order to be
made.
[13]
Writing for the majority,
Cameron JA
[13]
held that the
Constitution grants powers to the Constitutional Court, the SCA and the High
Courts to develop the common law, taking
into account the interests of
justice.
[14]
The Bill of Rights
provides
[15]
that when applying a
provision of the Bill of Rights to a natural or juristic person a court, in
order to give effect to a right
in the Bill, “must apply, or if necessary
develop, the common law to the extent that legislation does not give effect to
that
right” though it may develop the rules of the common law to limit the
right in accordance with the limitations provision in
section 36(1). It also
provides that when developing the common law the Court must promote the spirit,
purport and objects of the
Bill of
Rights.
[16]
Taken together, these
provisions create an imperative normative setting that obliges courts to develop
the common law in accordance
with the spirit, purport and objects of the Bill of
Rights. Doing so is not a choice. Where the common law is deficient, the
courts
are under a general obligation to develop it appropriately. This
provided the background to the task in the
appeal.
[14]
Cameron JA went on to state
that developing the common law involves a creative and declaratory function in
which the court puts the
final touch on the process of incremental legal
development that the Constitution has already ordained. The task of applying
the
values in the Bill of Rights to the common law thus requires the courts to
put its faith in both the values themselves, as well as
in the people whose duly
elected representatives created a visionary and inclusive constitutional
structure that offered acceptance
and justice across diversity to all. He said
that South Africans and their elected representatives have for the greater part
accepted
the sometimes far-reaching decisions in regard to sexual orientation
and other constitutional rights over the past ten years. It
is not presumptuous
to believe that they will accept also the further incremental development of the
common law that the Constitution
requires in this
case.
[15]
Cameron JA pointed out that
our equality jurisprudence had taken great strides in respect of gays and
lesbians in the last decade.
The cases articulate far-reaching doctrines of
dignity, equality and inclusive moral citizenship. They establish that: gays
and
lesbians are a permanent minority in society who have suffered patterns of
disadvantage and are consequently exclusively reliant
on the Bill of Rights for
their protection; the impact of discrimination on them has been severe,
affecting their dignity, personhood
and identity at many levels; family as
contemplated by the Constitution can be constituted in different ways and legal
conceptions
of the family and what constitutes family life should change as
social practices and traditions change; permanent same-sex partners
are entitled
to found their relationships in a manner that accords with their sexual
orientation and such relationships should not
be subject to unfair
discrimination; and same-sex life partners are “as capable as heterosexual
spouses of expressing and sharing
love in its manifold form.” Cameron JA
continued:
“‘The sting of the past and continuing discrimination against both
gays and lesbians’ lies in the message it conveys,
namely, that viewed as
individuals or in their same-sex relationships, they ‘do not have the
inherent dignity and are not worthy
of the human respect possessed by and
accorded to heterosexuals and their relationships.’ This ‘denies to
gays and lesbians
that which is foundational to our Constitution and the
concepts of equality and dignity’ namely that ‘all persons have
the
same inherent worth and dignity’, whatever their other differences may
be.”
[17]
[16]
He added that the capacity
to choose to get married enhances the liberty, the autonomy and the dignity of a
couple committed for life
to each other. It offers them the option of entering
an honourable and profound estate that is adorned with legal and social
recognition,
rewarded with many privileges and secured by many automatic
obligations. It offers a social and legal shrine for love and commitment
and
for a future shared with another human being to the exclusion of all
others.
[17]
Legislative developments,
he continued, have ameliorated but not eliminated the disadvantages same-sex
couples suffer. More deeply,
the exclusionary definition of marriage injures
gays and lesbians because it implies a judgment on them. It suggests not only
that
their relationships and commitments and loving bonds are inferior, but that
they themselves can never be fully part of the community
of moral equals that
the Constitution promises to create for all. The applicants’ wish was not
to deprive others of any rights.
It was to gain access for themselves, without
limiting that enjoyed by
others.
[18]
[18]
The majority judgment went
on to state that the Marriage Act prescribes a verbal formula that must be
uttered if the legal consequences
of the lawful marriage are to follow. The
legislature prescribed this formula, and its words cannot be substituted by
‘updating’
interpretation.
[19]
If the Court,
and not Parliament, is to make a constitutionally necessary change to such a
formula, that must be done not by interpretation
but by the constitutional
remedy of ‘reading-in’. The applicants’ legal advisors,
however, had overlooked the
question of the Marriage
Act.
[19]
This did not, however,
constitute a complete obstacle to granting them some portion of the relief they
sought. The Marriage Act permits
the Minister to approve variant marriage
formulae for ministers of religion and others holding a ‘responsible
position’
within religious denominations. Cameron JA noted that there are
currently many religious societies that approve same-sex marriages.
Even
without amendment to the statute, the Minister is now at liberty to approve
religious formulae that encompass same-sex
marriages.
[20]
Cameron JA stated that it
is important to emphasise that neither the Court’s decision, nor the
ministerial grant of such a formula,
in any way impinges on religious freedom.
The extension of the common law definition of marriage does not compel any
religious denomination
or minister of religion to approve or perform same-sex
marriages.
[21]
Turning to the appropriate
remedy, he stated that once the court concludes that the Bill of Rights requires
the development of the
common law, it is not engaging in a legislative process.
Nor in fulfilling that function is the court intruding on the legislative
domain. In his view, successful litigants should be awarded relief; the order
of the SCA developing the common law trenched on no
statutory provision, and
deference to Parliament did not require that the order be suspended; and the
applicants should be awarded
the benefit of an order regarding the common law of
marriage that would take effect immediately. Cameron JA indicated that when
the
Minister approved appropriate religious formulae, the development of the common
law would take practical effect. Religious orders
whose use of such formulae
are approved, will at their option be able to perform gay and lesbian marriages.
But, he concluded, gay
and lesbian couples seeking to have a purely secular
marriage would have to await the outcome of proceedings which were launched
in
the Johannesburg High Court in July 2004, designed to secure comprehensive
relief challenging the provisions of the Marriage Act
and other
statutes.
[22]
Cameron JA accordingly
limited his order to declaring that in terms of sections 8(3), 39(2) and 173 of
the Constitution, the common
law concept of marriage is developed to embrace
same-sex partners as follows: “Marriage is the union between two persons
to
the exclusion of all others for life.”
[23]
In his minority judgment,
Farlam JA dealt broadly with the history of the institution of marriage in our
law. He emphasised that
during the classical Roman law period marriage was a
purely private institution which did not involve the state. No religious or
ecclesiastical rite was essential, even after Christianity became the official
religion of the Roman Empire in 313 AD. All that
was required for the existence
of a marriage was reciprocally expressed consent of parties. After the
disintegration of the Roman
Empire in the West, when the Church began to control
marriage, parties were encouraged to declare their consent before a priest and
to receive a blessing. Such marriages were regarded as “regular”
marriages. There were also so-called “irregular”
marriages which
were based on the consent of the parties alone. Parties to
“irregular” marriages were often subjected
to ecclesiastical and
secular penalties, but their marriages were nonetheless as valid as the
“regular” ones.
[24]
The present Marriage Act
consolidated the laws governing the formalities of marriage and the appointment
of marriage officers, and
repealed some 47 Union and pre-Union statutes from the
Marriage Order in Council of 7 September 1838 onwards. A study of the
provisions
of the Marriage Act makes it clear that it builds on the foundations
laid by the Council of Trent in 1563 and by the States of Holland
in 1580. It
is solely concerned with marriage as a secular institution. Many may see a
religious dimension to marriage, but this
is not something that the law is
concerned with.
[25]
Farlam JA then went on to
hold that
“[i]t will be recalled that s 9(1) of the Constitution provides that
everyone has the right to equal protection and benefit
of the law, while s 9(3)
lists among the proscribed grounds of discrimination sexual orientation.
Homosexual persons are not permitted
in terms of the common-law definition to
marry each other, however strong their yearning to establish a conjugal society
of the kind
described. As a result they are debarred from enjoying the
protection and benefit of the law on the ground of their sexual orientation.

This clearly constitutes discrimination within the meaning of s 9 of the
Constitution.”
[20]
[26]
He added that the effect of
the common law prohibition of same-sex marriages was clearly unfair because it
prevented parties to same-sex
permanent relationships, who are as capable as
heterosexual spouses of establishing a consortium omnis vitae, of constituting a
family
and of establishing, enjoying and benefiting from family life, from
entering into a legally protected relationship from which substantial
benefits
conferred and recognised by the law
flowed.
[21]
He went on to say that
the common law definition of marriage not only gave rise to an infringement of
the appellants’ constitutional
right not to be the victims of unfair
discrimination in terms of section 9 of the Constitution but also to their right
to human dignity
in terms of section
10.
[22]
[27]
Farlam JA was of the view
that the omission to challenge the marriage formula in the Marriage Act did not
constitute a basis for denying
the applicants relief. The finding by Roux J
that the parties cannot be married as required by the law was wrong. The
applicants’
true case was that they intended to enter into a marriage with
each other and that they sought a declaration that such marriage,
when entered
into in accordance with the formalities in the Marriage Act, would be valid and
registerable under the Marriage Act
and the Identification
Act.
[28]
The judgment observes that
counsel for the applicants had referred to the Discussion Paper 104 published by
the South African Law
Reform Commission (SALRC), which is devoted to the topic
of Domestic Partnerships. The Paper contains proposals prepared by the
SALRC
aimed at harmonising family law with the provisions of the Bill of Rights and
the constitutional values of equality and dignity.
The SALRC considers as
unconstitutional the fact that there is currently no legal recognition of
same-sex relationships. It proposes
that same-sex relationships should be
acknowledged by the law and identifies three alternative ways of effecting legal
recognition
to such relationships, viz (a) opening up the common law definition
of marriage to same-sex couples by inserting a definition to
that effect in the
Marriage Act; (b) separating the civil and religious elements of marriage, by
amending the Marriage Act to the
extent that it will only regulate the civil
aspect of marriage, namely the requirements and the consequences prescribed by
law and
by providing in it for civil marriage of both same- and opposite-sex
couples; and (c) providing what is called a ‘marriage-like
alternative’ according same-sex couples (and possibly opposite sex
couples) the opportunity of concluding civil unions with
the same legal
consequences as
marriage.
[23]
[29]
Farlam JA stated that only
the first option is available to the courts, but only if it can be regarded as
an incremental step. In
the year 2004, and in the present circumstances the
development of the common law cannot be regarded as a fundamental change. He
said that Parliament has over the years since 1994 enacted numerous provisions
giving recognition, in some cases expressly and in
others impliedly, to same-sex
partnerships. These enactments evidence an awareness on the part of Parliament
of the changing nature
of the concept of the family in our society. He added
that until recently the principle of legal equality between the spouses had
not
been enshrined in our law. The rules forming part of our matrimonial relations
which put the husband in a superior position
and the wife in an inferior one are
no longer part of our
law.
[24]
[30]
In respect of the
contention that applicants are debarred from seeking relief because they did not
challenge the constitutional validity
of section 30(1) of the Marriage Act, he
held that there is no section in the Marriage Act that expressly approves the
common law
definition of marriage. Section 30(1), according to Farlam JA,
cannot be regarded as placing what may be called a ‘legislative
imprimatur’ on that definition. What has happened is that the marriage
formula contained in the Act was framed on the assumption
that the common law
definition of marriage was correct, which it was in
1838
[25]
and in 1961. He found that
the formula can be changed by a process of innovative and ‘updating’
statutory interpretation
by reading “wife (or husband)” in this
provision as “spouse”.
[31]
Farlam JA therefore
supported an order declaring that the intended marriage between the applicants,
provided that it complies with
the formalities set out in the Marriage Act,
would be capable of being recognised as a legally valid marriage. He would
suspend
the declaration of invalidity of the common law for two years, however,
to enable Parliament to enact legislation to ensure the applicants’
rights
to equality and human dignity are not unjustifiably infringed. Furthermore, the
declaration would fall away only if such
legislation was timeously
enacted.
[32]
To summarise: both
judgments were in agreement that the SCA could and should rule that the common
law definition discriminated unfairly
against same-sex couples. The majority
judgment by Cameron JA held, however, that although the common law definition
should be developed
so as to embrace same-sex couples, the Marriage Act could
not be read in such a way as to include them. In the result, the only
way the
parties could marry would be under the auspices of a religious body that
recognised same-sex marriages, and whose marriage
formula was approved by the
Minister of Home Affairs. The right of same-sex couples to celebrate a secular
marriage would have to
await a challenge to the Marriage Act. The minority
judgment of Farlam JA, on the other hand, 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. In his
view, however, the development of the common law to bring it into line with the
Constitution should be
suspended to enable Parliament to enact appropriate
legislation. In support of an order of suspension he pointed out that the SALRC
had indicated that there were three possible legislative responses to the
unconstitutionality, and, in his view, it should be Parliament
and not the
judiciary that should
choose.
[26]
Appeal
and cross-appeal
[33]
None of the parties to the
litigation were satisfied with the outcome. The state noted an appeal on
several grounds, revolving mainly
around the proposition that it was not
appropriate for the judiciary to bring about what it regarded as a momentous
change to the
institution of marriage, something, it contended, that should be
left to Parliament. The applicants for their part were unhappy
because although
the newly developed definition of the common law included them in its terms,
they were still prevented from getting
married by the phrasing of the marriage
vows in the Marriage Act. The only possible route enabling them to marry under
the Act was
a tenuous one, namely, to find a sympathetic religious denomination
with an inclusive marriage vow that was approved by the Minister
of Home
Affairs. In their application to cross-appeal they accordingly supported the
reasoning of Farlam JA regarding updating the
Marriage Act, while objecting to
his suspension of the development of the common law. At the same time they
supported Cameron JA’s
finding that immediate relief should be granted to
them, but objected to his decision that the Marriage Act barred them from taking
the vows except in the limited circumstances to which he referred. The overall
result was that the state has sought leave to appeal
against the SCA’s
decision on the basis that it went too far, while the applicants have sought
leave to cross-appeal on the
grounds that it did not go far enough. It was
common cause that the application in the
Fourie
matter by the state for
leave to appeal and by the applicants for leave to cross-appeal, raise questions
of considerable constitutional
significance and social importance. It is in the
interests of justice that they both be
granted.
The second challenge: section 30(1)
of the Marriage Act as well as the common law definition (the Equality Project
case)
[34]
In the meantime, accepting
the need to challenge the Marriage Act as well as the common law, the Lesbian
and Gay Equality Project
(the Equality Project) and eighteen others had launched
an application in the Johannesburg High
Court
[27]
for the following
relief:
“1. Declaring that the common law definition of marriage and the
prescribed marriage formula in section 30(1) of the Marriage
Act 25 of 1961
(‘the Marriage Act’) are unconstitutional in that they violate the
rights of lesbian and gay people to:
1.1. equality in terms of section 9 of the Constitution of the Republic of South
Africa, 1996 (‘the Constitution’);
1.2. dignity in terms of section 10 of the Constitution; and
1.3. privacy in terms of section 14 of the
Constitution;
2. Declaring that the common law definition of marriage is henceforth to be read
as follows:
‘Marriage is the lawful and voluntary union of two persons to the
exclusion of all others while it
lasts’
;
3. Declaring that the words
‘or spouse’
are to be read into
the prescribed marriage formula in section 30(1) of the Marriage Act immediately
after the words
‘or husband’
;
4. Ordering those of the respondents who oppose this application to pay the
applicants’ costs of suit; and
5. Granting the applicants such further and/or alternative relief as this Court
deems appropriate in the circumstances.”
The case was
originally due to be heard in the High Court in October this year, but was
eventually set down for January next year.
The Equality Project then applied
for direct access to this Court to enable their challenge to the statute as well
as to the common
law definition of marriage to be heard together with the appeal
and the cross-appeal relating to the SCA judgment in the
Fourie
case.
[35]
The Minister of Home
Affairs, the Director-General of Home Affairs and the Minister of Justice and
Constitutional Development (I refer
to them collectively as the state), opposed
the application on the ground that direct access was not in the interests of
justice.
[28]
The state agreed with
the SCA that the primary issue was whether same-sex partners should be granted
access to the existing common
law institution of marriage, but disputed the
finding that same-sex couples were entitled to such access. The state submitted
that
the SCA had misdirected itself in concluding that the common law definition
of marriage violates the constitutional rights of lesbian
and gay people to
equality. Instead, it contended that it was the lack of legal recognition of
their same-sex family relationships
and the absence of legal consequences, which
violated their rights, and not the exclusion from the institution of
marriage.
[36]
The state accordingly
acknowledged that partners to same-sex relationships suffer discriminatory
effects and violations of dignity
and privacy and that such violations should be
removed. It contended, however, that granting same-sex couples access to common
law
marriage is not the answer, constitutionally or otherwise. Appropriate
relief from the discriminatory consequences, invasions of
privacy and dignity
involves
“an exercise of coherent, all embracing law making, which may have to
overtake and undo existing Constitutional Court decisions.
It may therefore be
counterproductive for the [Constitutional Court] to make far-reaching revision
of the common law by redefining
marriage in this
case.”
It followed, 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. Any
previous concession on
behalf of government that the exclusion of same-sex couples from marriage was
unconstitutional, was retracted.
Should the Court find, however, that the
exclusion was unconstitutional, the state argued in the alternative that any
order of invalidity
should be suspended to enable Parliament, after extensive
public debate, to deal with the matter through appropriate legislation.
The
relief sought, the state contended, went beyond the powers of the
Court.
Amici curiae
[37]
Prior to the hearing,
applications were made by Doctors For Life International and its legal
representative Mr John Smyth, to be admitted
as amici curiae. They sought to
lead further evidence and to make written submissions, while Mr Smyth in
addition requested leave
to make oral submissions. Their application to adduce
further evidence was refused, but they were granted leave to make written
submissions and Mr Smyth was authorised to address the Court
orally.
[38]
Application to be admitted
as amicus curiae was also made by the Marriage Alliance of South Africa,
supported on affidavit by Cardinal
Wilfred Napier. The application, which
included a request for the right to make both written and oral representations,
was granted.
The application for direct
access in the Equality Project matter
[39]
The application by the
Equality Project for direct access to this Court was resisted by the state, and
requires special consideration.
This Court has frequently stated that as a
general rule it should not act as a court of first and final instance in
relation to
constitutional matters that may be heard in other
courts.
[29]
In
Mkontwana
[30]
Yacoob J
emphasised that the importance and complexities of the issues raised in an
application for direct access would weigh heavily
against this Court being a
court of first and final
instance.
[31]
Not only is the
jurisprudence of this Court greatly enriched by being able to draw on the
considered opinion of another court.
Proper evidential foundations, where
appropriate, can be laid. Issues, both in relation to substantive law and
appropriate orders
to be made, are crystallised out for focused research and
attention. There is no doubt, therefore, that a judgment by the High Court
on
the application made to it by the Equality Project would be of great
assistance.
[40]
At the same time it has to
be borne in mind that the hearing in the High Court would only take place next
year. The broad question
of the right of same-sex couples to marry is already
before us in the
Fourie
matter. It was first considered in the High
Court and then in a comprehensive judgment of the SCA. Although the challenge
to section
30(1) of the Marriage Act as such was not before the SCA, the SCA
devoted considerable attention to interpreting its terms and evaluating
its
significance in relation to the common law. Furthermore, there has been no
suggestion that evidence of significance to the outcome
would or could have been
led in the High Court in the
Equality Project
matter. The issues are
matters of law which fall to be determined in a social context that has already
frequently been dealt with
by this Court.
[41]
In
Bhe
[32]
this Court was
confronted with a not dissimilar situation. When considering separate
applications for orders of constitutional invalidity
made by the Cape High Court
and the Pretoria High Court
respectively,
[33]
it was asked also
to consider an application by the South African Human Rights Commission and the
Women’s Legal Centre Trust
[34]
for direct access seeking relief that was wider than that granted in the Cape
and Pretoria High Courts. In granting direct access
Langa DCJ
said:
“The submissions sought to be made by the applicants relate to substantive
issues that were already before the Court. The
direct access application,
however, quite helpfully broadens the scope of the constitutional investigation,
given the need to deal
effectively with the unwelcome consequences of the Act in
the shortest possible time. The application further adds fresh insights
on
difficult issues, including the question of the appropriate remedy.
From the description of the two applicants, it is clear that they are both
eminently qualified to be part of the debate on the issues
before the Court. By
reason of the above considerations, this Court concluded that it was in the
interests of justice that the application
for direct access should be
granted.”
[35]
[42]
In the present matter, the
appeal from the SCA decision in the
Fourie
matter is already before us.
The direct access application fills a gap in the
Fourie
case referred to
by the High Court, this Court and the SCA. The common law in relation to
marriage has been overtaken by statute
in a great number of respects. To deal
with it as if the Marriage Act did not exist would be highly artificial and
abstract. The
overlap between the issues raised and their strong
interconnectedness requires them to be dealt with in an integrated and
comprehensive
fashion. There would be grave disadvantages to all concerned if
the issues raised were to be decided in a piecemeal
way.
[43]
In opposing direct access
the state did not contend that the High Court should first pronounce on the
matter, but rather fired the
first salvos of its new approach to the substantive
issues raised. Its contentions will be dealt with in the course of this
judgment,
and it will suffer no prejudice from having the two matters
consolidated. On the contrary, like all the parties it will gain from
having
the pieces of the puzzle placed together as would happen if the application for
direct access is granted.
[44]
In essence the enquiry into
the common law definition of marriage and the constitutional validity of section
30(1) of the Marriage
Act is the same. Are gay and lesbian people unfairly
discriminated against because they are prevented from achieving the status
and
benefits coupled with responsibilities which heterosexual couples acquire from
marriage? If they are, both the common law definition
as well as section 30(1)
must have the effect of limiting the rights contained in section 9 of the
Constitution. If not, both will
be good. It must be emphasised that it is not
possible for one of the two provisions concerning marriage that are under attack
in
this case to be consistent with the Constitution, and for the other to be
constitutionally invalid. In the circumstances, a refusal
to consider both
together would amount to no more than technical nicety. In the circumstances of
this case, therefore, it is clearly
in the interests of justice that the
application for direct access be granted and that the
Fourie
and the
Equality Project
matters be heard
together.
[36]
II.
THE ISSUES
[45]
At the hearing two broad
and interrelated questions were raised: The first was whether or not the failure
by the common law and the
Marriage Act to provide the means whereby same-sex
couples can marry, constitutes unfair discrimination against them. If the
answer
was that it does, the second question arose, namely, what the appropriate
remedy for the unconstitutionality should be. These are
the central issues in
this matter, and I will start with the
first.
Does the law deny equal protection to
and discriminate unfairly against same-sex couples by not including them in the
provisions of
the Marriage Act?
[46]
Counsel for the Minister of
Justice argued that the Constitution did not protect the right to marry. It
merely guaranteed to same-sex
couples the right to establish their own forms of
family life without interference from the state. This was a negative liberty,
not to be equated with a right to be assimilated into the institution of
marriage, which in terms of its historic genesis and evolution,
was heterosexual
by nature. International law recognised and protected marriage as so
understood. Same-sex couples accordingly
had no constitutional right to enter
into or manipulate that institution. If their form of family life suffered from
particular
disadvantages, then these should be dealt with by appropriate legal
remedies in response to each of the identified problems, not
by entry into the
global set of rights and entitlements established by marriage. Marriage law
appropriately confined itself to marriage,
it was contended, and not to all
forms of family relationship.
[47]
The initial proposition of
the state’s argument is undoubtedly correct inasmuch as the Bill of Rights
does not expressly include
a right to marry. It does not follow, however, that
the Constitution does nothing to protect that right, and with it, the
concomitant
right to be treated equally and with dignity in the exercise of that
right. Explaining why the right to marry had not been expressly
included in the
text of the Constitution as produced by the Constitutional Assembly, this Court
in the
First Certification
case
[37]
pointed out that families
are constituted, function and are dissolved in such a variety of ways, and the
possible outcomes of constitutionalising
family rights are so uncertain, that
Constitution-makers appear frequently to prefer not to regard the right to marry
or to pursue
family life as a fundamental right that is appropriate for
definition in constitutionalised
terms.
[38]
This avoids questions
that relate to the history, culture and special circumstances of each
society.
[39]
At the same time, the
provisions of the constitutional text would clearly prohibit any arbitrary state
interference with the right
to marry or to establish and raise a
family.
[40]
The text enshrined the
values of human dignity, equality and
freedom.
[41]
However these words
might come to be interpreted in the future, the judgment said, it was evident
that laws or executive action
resulting in enforced marriages, or oppressive
prohibitions on marriage or the choice of spouses, would not survive
constitutional
challenge.
[42]
[48]
The way the words dignity,
equality and privacy later came to be interpreted by this Court showed that they
in fact turned out to
be central to the way in which the exclusion of same-sex
couples from marriage came to be evaluated. In a long line of cases, most
of
which were concerned with persons unable to get married because of their sexual
orientation, this Court highlighted the significance
for our equality
jurisprudence of the concepts and values of human dignity, equality and freedom.
It is these cases that must serve
as the compass that guides analysis in the
present matter, rather than the references made in argument to North American
polemical
literature or to religious texts.
[49]
Although the
Sodomy
case, which was the first in the series, did not deal with access to marriage as
such, it highlighted the seriously negative impact
that societal discrimination
on the ground of sexual orientation has had, and continues to have, on gays and
same-sex partnerships.
It concluded that gay men are a permanent minority in
society and have suffered in the past from patterns of
disadvantage.
[43]
[50]
This Court stated later in
the
Home Affairs
case
[44]
dealing with same-sex immigrant partners that although the main focus of the
Sodomy
judgment was on the criminalisation of sodomy and on other
proscriptions of erotic expression between men, the conclusions regarding
the
minority status of gays and the patterns of discrimination to which they had
been and continued to be subjected were also applicable
to lesbians. The sting
of past and continuing discrimination against both gays and lesbians was the
clear message that it conveyed,
namely, that they, whether viewed as individuals
or in their same-sex relationships, did not have the inherent dignity and were
not
worthy of the human respect possessed by and accorded to heterosexuals and
their relationships. This discrimination occurred at
a deeply intimate level of
human existence and relationality. It denied to gays and lesbians that which
was foundational to our
Constitution and the concepts of equality and dignity,
which at that point were closely intertwined, namely that all persons have
the
same inherent worth and dignity as human beings, whatever their other
differences may be. The denial of equal dignity and worth
all too quickly and
insidiously degenerated into a denial of humanity and led to inhuman treatment
by the rest of society in many
other ways. This was deeply demeaning and
frequently had the cruel effect of undermining the confidence and sense of
self-worth
and self-respect of lesbians and gays. The Court went on to hold
that it had recognised that the more vulnerable the group adversely
affected by
the discrimination, the more likely the discrimination would be held to be
unfair.
[45]
Vulnerability in turn
depended to a very significant extent on past patterns of disadvantage,
stereotyping and the
like.
[46]
[51]
The issue in the
Home
Affairs
case was the discriminatory impact of a provision of immigration law
that gave special protection to foreigners married to South
Africans, while
ignoring same-sex life partners. The case accordingly has very direct relevance
to the present one. The pertinent
question was the impact on same-sex life
partners of being excluded from the relevant provisions. The judgment pointed
out that
under South African common law a marriage creates a physical, moral and
spiritual community of life, a consortium omnis vitae described
as
“. . . an abstraction comprising the totality of a number of rights,
duties and advantages accruing to spouses of a marriage.
. . . These embrace
intangibles, such as loyalty and sympathetic care and affection, concern . . .
as well as the more material needs
of life, such as physical care, financial
support, the rendering of services in the running of the common household or in
a support-generating
business. . .
.”
[47]
[52]
It was important to
emphasise, the Court continued, that over the past decades an accelerating
process of transformation had taken
place in family relationships, as well as in
societal and legal concepts regarding the family and what it comprises. The
Court cited
Sinclair and Heaton for the proposition
that
“. . . the current period of rapid change seems to ‘strike at the
most basic assumptions’ underlying marriage and
the family.
. . .
Itself a country where considerable political and socio-economic movement has
been and is taking place, South Africa occupies a distinctive
position in the
context of developments in the legal relationship between family members and
between the State and the family. Its
heterogeneous society is ‘fissured
by differences of language, religion, race, cultural habit, historical
experience and self-definition’
and, consequently, reflects widely varying
expectations about marriage, family life and the position of women in
society.”
[48]
(Footnotes
omitted.)
The impact of the exclusion of lesbians and gays by
the provision in question was to reinforce harmful and hurtful
stereotypes.
[49]
Underlying these
stereotypes, the Court continued, lay misconceptions derived from the fact that
the sexual orientation of lesbians
and gays was such that they had an erotic and
emotional affinity for persons of the same
sex.
[50]
This resulted in
classifying lesbians and gays as exclusively sexual beings, reduced to
one-dimensional creatures “defined
by their sex and
sexuality.”
[51]
[53]
The judgment sums up what
it calls the facts concerning gays and lesbians as
follows:
“(i) Gays and lesbians have a constitutionally entrenched right to dignity
and equality;
(ii) sexual orientation is a ground expressly listed in s 9(3) of the
Constitution and under s 9(5) discrimination on it is unfair
unless the contrary
is established;
(iii) prior criminal proscription of private and consensual sexual expression
between gays, arising from their sexual orientation
and which had been directed
at gay men, has been struck down as unconstitutional;
(iv) gays and lesbians in same-sex life partnerships are as capable as
heterosexual spouses of expressing and sharing love in its
manifold forms,
including affection, friendship, eros and charity;
(v) they are likewise as capable of forming intimate, permanent, committed,
monogamous, loyal and enduring relationships; of furnishing
emotional and
spiritual support; and of providing physical care, financial support and
assistance in running the common household;
(vi) they are individually able to adopt children and in the case of lesbians to
bear them;
(vii) in short, they have the same ability to establish a
consortium omnis
vitae
;
(viii) finally, . . . they are capable of constituting a family, whether nuclear
or extended, and of establishing, enjoying and benefiting
from family life which
is not distinguishable in any significant respect from that of heterosexual
spouses.”
[52]
[54]
The provision in question
stated in effect that persons in same-sex relationships were not entitled to the
benefit extended to married
spouses in order to protect their family and family
life. This was so notwithstanding that the family and family life were in all
significant respects indistinguishable from those of spouses and in human terms
as important to gay and lesbian same-sex partners
as they were to
spouses.
“The message and impact are clear. Section 10 of the Constitution
recognises and guarantees that everyone has inherent dignity
and the right to
have their dignity respected and protected. The message is that gays and
lesbians lack the inherent humanity to
have their families and family lives in
such same-sex relationships respected or protected. It serves in addition to
perpetuate
and reinforce existing prejudices and stereotypes. The impact
constitutes a crass, blunt, cruel and serious invasion of their dignity.
The
discrimination, based on sexual orientation, is severe because no concern, let
alone anything approaching equal concern, is
shown for the particular sexual
orientation of gays and
lesbians.”
[53]
The
judgment adds that protecting the traditional institution of marriage as
recognised by law may not be done in a way which unjustifiably
limits the
constitutional rights of partners in a permanent same-sex life
partnership.
[54]
[55]
Having pronounced
unambiguously on the issues before it, the judgment goes on to say that it
expressly leaves open two questions,
the first relating to the position of
unmarried partners in permanent heterosexual relationships, and the second
“whether,
or to what extent, the law ought to give formal institutional
recognition to same-sex
partnerships”.
[55]
In other
words, it stopped short of considering whether some form of global or umbrella
institutional recognition should be given
to same-sex partnerships, an issue
which had not been raised in that matter and was not before it, but which is
before us.
[56]
In
Satchwell
,
[56]
the issue was
whether the non-inclusion of same-sex partners in a statute providing pension
rights to the surviving spouses of Judges
was discriminatory. Madala J pointed
out that marriage was a matter of profound importance to the parties, and indeed
to their families,
and was of great social value and
significance.
[57]
Historically,
however, our law had only recognised marriages between heterosexual spouses, and
this narrowness of focus had excluded
many relationships which created similar
obligations and had a similar social
value.
[58]
Inasmuch as the
provisions in question afforded benefits to spouses but not to same-sex partners
who had established a permanent
life relationship similar in other respects to
marriage, including accepting the duty to support one another, such provisions,
he
held, constituted unfair
discrimination.
[59]
[57]
In
Du
Toit
,
[60]
the issue flowed from
a provision in child care legislation which confined the right to adopt children
jointly to married couples.
Holding that the exclusion of same-sex life
partners conflicted both with the best interests of the child and the right to
dignity
of same-sex couples, Skweyiya AJ emphasised that family life as
contemplated by the Constitution could be provided in different ways,
and that
legal conceptions of the family and what constituted family life should change
as social practices and traditions
changed.
[61]
He pointed out further
that it was a matter of our history, and that of many countries, that same-sex
relationships had been the
subject of unfair discrimination in the
past.
[62]
The Constitution required
that unfairly discriminatory treatment cease. It was significant that there had
been a number of recent
cases, statutes and government consultation documents in
South Africa which broadened the scopes of ‘family’,
‘spouse’
and ‘domestic relationship’ to include same-sex
life partners.
[63]
These
legislative and jurisprudential developments indicated the growing recognition
afforded to same-sex
relationships.
[64]
[58]
Similar reasoning was
followed in
J
,
[65]
which
concerned the parental rights of permanent same-sex life partners in cases where
one of the partners was artificially inseminated.
Confirming an order to read
in the words “permanent same-sex life partner” after the word
“husband” wherever
it appeared in the relevant section, Goldstone J
made the following observation which is relevant to the present
matter:
“Comprehensive legislation regularising relationships between gay and
lesbian persons is necessary. It is unsatisfactory for
the Courts to grant
piecemeal relief to members of the gay and lesbian community as and when aspects
of their relationships are found
to be prejudiced by unconstitutional
legislation.”
[66]
The
right to be different
[59]
This Court has thus in five
consecutive decisions highlighted at least four unambiguous features of the
context in which the prohibition
against unfair discrimination on grounds of
sexual orientation must be analysed. The first is 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.
[67]
The second is the
existence of an imperative constitutional need to acknowledge the long history
in our country and abroad of marginalisation
and persecution of gays and
lesbians, that is, of persons who had the same general characteristics as the
rest of the population,
save for the fact that their sexual orientation was such
that they expressed erotic desire and affinity for individuals of their
own sex,
and were socially defined as homosexual. The third is that 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. Finally, our
Constitution represents
a radical rupture with a 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. Small gestures in favour
of equality, however meaningful, are not enough.
In the memorable words of
Mahomed J:
“In some countries, the Constitution only formalises, in a legal
instrument, a historical consensus of values and aspirations
evolved
incrementally from a stable and unbroken past to accommodate the needs of the
future. The South African Constitution is
different: it retains from the past
only what is defensible and represents a decisive break from, and a ringing
rejection of, that
part of the past which is disgracefully racist,
authoritarian, insular, and repressive, and a vigorous identification of and
commitment
to a democratic, universalistic, caring and aspirationally
egalitarian ethos expressly articulated in the Constitution. The contrast
between the past which it repudiates and the future to which it seeks to commit
the nation is stark and
dramatic.”
[68]
[60]
A democratic,
universalistic, caring and aspirationally egalitarian society embraces everyone
and accepts people for who they are.
To penalise people for being who and what
they are is profoundly disrespectful of the human personality and violatory of
equality.
[69]
Equality means equal
concern and respect across difference. It does not presuppose the elimination
or suppression of difference.
Respect for human rights requires the affirmation
of self, not the denial of self. Equality therefore does not imply a levelling
or homogenisation of behaviour or extolling one form as supreme, and another as
inferior, but an acknowledgement and acceptance of
difference. At the very
least, it affirms that difference should not be the basis for exclusion,
marginalisation and stigma. At
best, it celebrates the vitality that difference
brings to any society.
[70]
The
issue goes well beyond assumptions of heterosexual exclusivity, a source of
contention in the present case. The acknowledgement
and acceptance of
difference is particularly important in our country where for centuries group
membership based on supposed biological
characteristics such as skin colour has
been the express basis of advantage and disadvantage. South Africans come in
all shapes
and sizes. The development of an active rather than a purely formal
sense of enjoying a common citizenship depends on recognising
and accepting
people with all their differences, as they
are.
[71]
The Constitution thus
acknowledges the variability of human beings (genetic and socio-cultural),
affirms the right to be different,
and celebrates the diversity of the
nation.
[72]
Accordingly, what is at
stake is not simply a question of removing an injustice experienced by a
particular section of the community.
At issue is a need to affirm the very
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
discomfiting.
[61]
As was said by this Court
in
Christian Education
[73]
there are a number of constitutional provisions that underline the
constitutional value of acknowledging diversity and pluralism
in our society,
and give a particular texture to the broadly phrased right to freedom of
association contained in section 18. Taken
together, they affirm the right of
people to self-expression without being forced to subordinate themselves to the
cultural and religious
norms of others, and highlight the importance of
individuals and communities being able to enjoy what has been called the
“right
to be
different”.
[74]
In each case,
space has been found for members of communities to depart from a majoritarian
norm. The point was made in
Christian Education
that these provisions
collectively and separately acknowledge the rich tapestry constituted by civil
society, indicating in particular
that language, culture and religion constitute
a strong weave in the overall pattern. For present purposes it needs to be
added
that acknowledgement of the diversity that flows from different forms of
sexual orientation will provide an extra and distinctive
thread to the national
tapestry. The strength of the nation envisaged by the Constitution comes from
its capacity to embrace all
its members with dignity and respect. In the words
of the Preamble, South Africa belongs to all who live in it, united in
diversity.
What is at stake in this case, then, is how to respond to legal
arrangements of great social significance under which same-sex couples
are made
to feel like outsiders who do not fully belong in the universe of
equals.
[62]
These may seem purely
abstract statements. Yet the impact of the legal void in which same-sex couples
are compelled to live is real,
intense and extensive. To appreciate this it is
necessary to look precisely at what it is that the law offers to heterosexual
couples,
and, conversely, at what it denies to same-sex couples. Such scrutiny
establishes that the consequences of the total exclusion of
same-sex couples
from the solemnities and consequences of marriage are far from academic, as the
following section shows.
The significance of
marriage and the impact of exclusion from it
[63]
It is true that marriage,
as presently constructed under common law, constitutes a highly personal and
private contract between a
man and a woman in which the parties undertake to
live together, and to support one another. Yet the words ‘I do’
bring
the most intense private and voluntary commitment into the most public,
law-governed and state-regulated
domain.
[75]
[64]
Though freely entered into
by the parties, marriage must be undertaken in a public and formal way and once
concluded it must be registered.
Formalities for the celebration of a marriage
are strictly set out in the Marriage Act. A marriage must be conducted by a
marriage
officer, to whom objections may be directed. If objections to the
marriage are lodged, the marriage officer must satisfy herself
or himself that
there are no legal obstacles to the marriage. Those wishing to get married must
produce copies of their identity
documents, or alternatively make affidavits in
the prescribed form. Marriages must take place in a church or other religious
building,
or in a public office or home, and the doors must be open. Both
parties must be present as well as at least two competent witnesses.
A
particular formula for the ceremony is provided in the Marriage Act, but other
formulae, such as religious rites, may be approved
by the Minister. Once the
marriage has been solemnised, both spouses, at least two competent witnesses,
and the marriage officer
must sign the marriage register. A copy of the
register must then be transmitted to the Department of Home Affairs to be
officially
recorded. These formalities make certain that it is known to the
broader community precisely who gets married and when they get
married.
Certainty is important for the broader community in the light of the wide range
of legal implications that marriage creates.
Marriage is thus taken seriously
not only by the parties, their families and society, but by the
state.
[65]
One of the most important
invariable consequences of marriage is the reciprocal duty of support. It is an
integral part of the marriage
contract and has immense value not only to the
partners themselves but to their families and also to the broader community.
The
duty of support gives rise to the special rule that spouses, even those
married out of community of property, can bind one another
to third parties in
relation to the provision of household necessaries which include food, clothing,
and medical services. The law
sees the spouses as life partners and jointly and
severally responsible for the maintenance of their common home. This obligation
may not be excluded by antenuptial contract. Another invariable legal
consequence of the marriage is the right of both parties to
occupy the joint
matrimonial home. This obligation is clearly based on the premise that spouses
will live together. The party who
owns the home may not exclude or evict the
other party from the home. Limited exceptions to this rule have been created
under the
Domestic Violence
Act.
[76]
[66]
The way in which the
marriage affects the property regime of the parties to the marriage is variable
at common law. The ordinary
common law regime is one of community of property
including profit and loss in terms of which the parties to a marriage share one
joint estate which they manage jointly. Historically, of course, our common law
provided that the power to manage the estate (‘the
marital power’)
vested in the husband. This rule was altered by statutory intervention in 1984.
Major transactions affecting
the joint estate must now be carried out with the
concurrence of both
parties.
[77]
[67]
Marriage also produces
certain invariable consequences in relation to children. Children born during a
marriage are presumed to be
children of the husband. Both parents have an
ineluctable duty to support their children (and children have a reciprocal duty
to
support their parents). The duty to support children arises whether the
children are born of parents who are married or
not.
[68]
The law also attaches a
range of other consequences to marriage – for example, insolvency law
provides that where one spouse
is sequestrated, the estate of the other spouse
also vests in the Master in certain circumstances, the law of evidence creates
certain
rules relating to evidence by spouses against or for one
another,
[78]
and the law of delict
recognises damages claims based on the duty of
support.
[69]
It should be added that
formalisation of marriages provides for valuable public documentation. The
parties are identified, the dates
of celebration and dissolution are stipulated,
and all the multifarious and socially important steps which the public
administration
is required to make in connection with children and forward
planning, are facilitated. Furthermore, the commitment of the parties
to fulfil
their responsibilities is solemnly and publicly undertaken. This is
particularly important in imposing clear legal duties
on the party who is in the
stronger position economically. Marriage stabilises relationships by protecting
the vulnerable partner
and introducing equity and security into the
relationship.
[70]
Marriage law thus goes well
beyond its earlier purpose in the common law of legitimising sexual relations
and securing succession
of legitimate heirs to family property. And it is much
more than a mere piece of paper.
[79]
As the SALRC Paper comments, the rights and obligations associated with marriage
are vast. Besides other important purposes served
by marriage, as an
institution it was (at the time the SALRC Paper was produced) the only source of
socio-economic benefits such
as the right to inheritance, medical insurance
coverage, adoption, access to wrongful death claims, spousal benefits,
bereavement
leave, tax advantages and post-divorce
rights.
[80]
[71]
The exclusion of same-sex
couples from the benefits and responsibilities of marriage, accordingly, is not
a small and tangential inconvenience
resulting from a few surviving relics of
societal prejudice destined to evaporate like the morning dew. It represents 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 reinforces
the wounding notion that they are to
be treated as biological oddities, as
failed or lapsed human beings who do not fit into normal society, and, as such,
do not qualify
for the full moral concern and respect that our Constitution
seeks to secure for everyone. It signifies that their capacity for
love,
commitment and accepting responsibility is by definition less worthy of regard
than that of heterosexual couples.
[72]
It should be noted that the
intangible damage to same-sex couples is as severe as the material deprivation.
To begin with, 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.
It may be that, as the literature
suggests,
[81]
many same-sex couples
would abjure mimicking or subordinating themselves to heterosexual norms.
Others might wish to avoid what
they consider the routinisation and
commercialisation of their most intimate and personal relationships, and
accordingly not seek
marriage or its
equivalence.
[82]
Yet what is in
issue is not the decision to be taken, but the choice that is available. If
heterosexual couples have the option
of deciding whether to marry or not, so
should same-sex couples have the choice as whether to seek to achieve a status
and a set
of entitlements and responsibilities on a par with those enjoyed by
heterosexual couples. It follows that, given the centrality
attributed to
marriage and its consequences in our culture, to deny same-sex couples a choice
in this respect is to negate their
right to self-definition in a most profound
way.
[83]
[73]
Equally important as far as
family law is concerned, is the right of same-sex couples to fall back upon
state regulation when things
go wrong in their relationship. Bipolar by its
very nature, the law of marriage is invoked both at moments of blissful creation
and at times of sad cessation. There is nothing to suggest that same-sex
couples are any less affected than are heterosexual ones
by the emotional and
material consequences of a rupture of their union. The need for comprehensive
judicial regulation of their
separation or divorce, or of devolution of
property, or rights to maintenance or continuation of tenancy after death, is no
different.
Again, what requires legal attention concerns both status and
practical regulation.
[74]
The law should not turn its
back on any persons requiring legal support in times of family breakdown. It
should certainly not do
so on a discriminatory basis; the antiquity of a
prejudice is no reason for its survival. Slavery lasted for a century and a
half
in this country, colonialism for twice as long, the prohibition of
interracial marriages for even longer, and overt male domination
for millennia.
All were based on apparently self-evident biological and social facts; all were
once sanctioned by religion and imposed
by law; the first two are today regarded
with total disdain, and the third with varying degrees of denial, shame or
embarrassment.
Similarly, the fact that the law today embodies conventional
majoritarian views in no way mitigates its discriminatory impact.
It is
precisely those groups that cannot count on popular support and strong
representation in the legislature that have a claim
to vindicate their
fundamental rights through application of the Bill of
Rights.
Equal protection and unfair
discrimination
[75]
It is convenient at this
stage to restate the relevant provisions of the Constitution. Section 9(1)
provides:
“Everyone is equal before the law and has the right to equal protection
and benefit of the law.”
It is clear that the exclusion
of same-sex couples from the status, entitlements and responsibilities accorded
to heterosexual couples
through marriage, constitutes a denial to them of their
right to equal protection and benefit of the law.
[76]
It is equally evident that
same-sex couples are not afforded equal protection not because of oversight, but
because of the legacy
of severe historic prejudice against them. Their omission
from the benefits of marriage law is a direct consequence of prolonged
discrimination based on the fact that their sexual orientation is different from
the norm. This result is in direct conflict with
section 9(3) of the
Constitution, which states:
“The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender,
sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief,
culture, language and
birth.”
[77]
Some minorities are
visible, and suffer discrimination on the basis of presumed characteristics of
the group with which they are identified.
Other minorities are rendered
invisible inasmuch as the law refuses them the right to express themselves as a
group with characteristics
different from the
norm.
[84]
In the present matter,
the unfair discrimination against same-sex couples does not flow from any
express exclusion in the Marriage
Act. The problem is that the Marriage Act
simply makes no provision for them to have their unions recognised and protected
in the
same way as it does for those of heterosexual couples. It is as if they
did not exist as far as the law is concerned. They are
implicitly defined out
of contemplation as subjects of the law.
[78]
Sections 9(1) and 9(3)
cannot be read as merely protecting same-sex couples from punishment or
stigmatisation. They also go beyond
simply preserving a private space in which
gay and lesbian couples may live together without interference from the state.
Indeed,
what the applicants in this matter seek is not the right to be left
alone, but the right to be acknowledged as equals and to be embraced
with
dignity by the law. Their love that was once forced to be clandestine, may now
dare openly to speak its name. The world in
which they live and in which the
Constitution functions, has evolved from repudiating expressions of their desire
to accepting the
reality of their presence, and the integrity, in its own terms,
of their intimate life. Accordingly, taking account of the decisions
of this
Court, and bearing in mind the symbolic and practical impact that exclusion from
marriage has on same-sex couples, there
can only be one answer to the question
as to whether or not such couples are denied equal protection and subjected to
unfair discrimination.
Clearly, they are, and in no small degree. The effect
has been wounding and the scars are evident in our society to this day.
By both
drawing on and reinforcing discriminatory social practices, the law in the past
failed to secure for same-sex couples 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, as will be seen, by means of legislative intervention, the default
position
of gays and lesbians is still one of exclusion and marginalisation. The common
law and section 30(1) of the Marriage Act
continue to deny to same-sex couples
equal protection and benefit of the law, in conflict with section 9(1) of the
Constitution,
and taken together result in same-sex couples being subjected to
unfair discrimination by the state in conflict with section 9(3)
of the
Constitution.
[79]
At the very least, then,
the applicants in both matters are entitled to a declaration to the effect that
same-sex couples are denied
equal protection of the law under section 9(1), and
subjected to unfair discrimination under section 9(3) of the Constitution, to
the extent that the law makes no provision for them to achieve the dignity,
status, benefits and responsibilities available to heterosexual
couples through
marriage. The question that then has been posed is whether the traditional law
of marriage is itself constitutionally
defective, or whether the solution must
necessarily be found outside of it.
Marriage
and recognition of same-sex unions
[80]
I will now deal with the
contention that respect for the traditional institution of marriage requires
that any recognition of same-sex
unions must be accomplished outside of the law
of marriage. The applicants submitted that as a matter of simple logic flowing
from
the above analysis, the Marriage Act is inconsistent with the Constitution
and must be declared to be invalid to the extent that
it makes no provision for
same-sex couples to enjoy the status, entitlements and responsibilities which it
accords to heterosexual
couples. The state and amici, however, argued that the
fault in not furnishing same-sex couples with the possibility of regularising
and giving legal effect to their unions, lay outside the Marriage Act itself.
Instead, they contended, it stemmed from the failure
of the law to provide an
appropriate remedial mechanism that was alternative and supplementary to the
Marriage Act.
[81]
There is an immediate
answer to this proposition. A law that creates institutions which enable
heterosexual couples to declare their
public commitment to each other and
achieve the status, entitlements and responsibilities that flow from marriage,
but does not provide
any mechanism for same-sex couples to achieve the same,
discriminates unfairly against same-sex couples. It gives to the one and
not to
the other. The instruments created by the legal system exclude from their reach
persons entitled to be protected by them.
It is those instruments that stand to
be identified as being inconsistent with the Constitution, and not ‘the
law’ as
an abstraction. The law must be measured in the context of what
is provided for by the legal system as a whole. In this respect,
exclusion by
silence and omission is as effective in law and practice as if effected by
express language. Same-sex unions continue
in fact to be treated with the same
degree of repudiation that the state until two decades ago reserved for
interracial unions; the
statutory format might be different, but the effect is
the same. The negative impact is not only symbolic but also practical, and
each
aspect has to be responded to. Thus, it would not be sufficient merely to deal
with all the practical consequences of exclusion
from marriage. It would also
have to accord to same-sex couples a public and private status equal to that
which heterosexual couples
achieve from being
married.
[82]
The conclusion is that when
evaluated in the context of the legal regime as a whole, the common law
definition and section 30(1) are
under-inclusive and unconstitutional to the
extent that they make no appropriate provision for gay and lesbian people to
celebrate
their unions in the same way that they enable heterosexual couples to
do.
[83]
The matter does not end
there, however. The state and the amici contend that even if the Marriage Act
and common law are under-inclusive,
the remedy is not to be found in tampering
with them but in providing an appropriate alternative. Thus, they argue, given
that there
is discrimination against same-sex couples, and accepting that the
results may be harsh and need to be corrected, the remedy does
not lie in
radically altering the law of marriage, which by its very nature and as it has
evolved historically is concerned with
heterosexual relationships. The answer,
they say, is to provide appropriate alternative forms of recognition to same-sex
family
relationships. Several alternative arguments in support of this
proposition were advanced by the state and the amici. What they
have in common
is an objection to any remedial measures being assimilated into the traditional
institution of marriage, or permitting
the unions of same-sex couples to be
referred to as marriages. They submit that whatever remedy the state adopts
cannot include
altering the definition of marriage as contained in the common
law and as expressed in section 30(1) of the Marriage
Act.
[84]
Four main propositions were
advanced in support of the proposition that whatever remedy is adopted, it must
acknowledge the need to
leave traditional marriage intact. There was some
overlap between the arguments but for convenience they may be identified as: the
procreation rationale; the need to respect religion contention; the recognition
given by international law to heterosexual marriage
argument; and the necessity
to have recourse to diverse family law systems contained in section 15 of the
Constitution submission.
I consider each in
turn.
The procreation argument
[85]
The Marriage Alliance, with
the support of Cardinal Napier, contended that an essential, constitutive and
definitional characteristic
of marriage is its procreative potential. The
affidavit by Cardinal Napier asserts that marriage institutionalises and
symbolises,
as it has done across millennia and societies, the inherently
procreative relationship between a man and a woman, and it should be
protected
as such. Lacking such procreative potential same-sex unions could never be
regarded as marriages, whatever other form
of legal recognition could be given
to them.
[86]
This very argument was
considered in
Home Affairs
. The Court held in that matter that however
persuasive procreative potential might be in the context of a particular
religious world-view,
from a legal and constitutional point of view, it is not a
defining characteristic of conjugal relationships. To hold otherwise
would be
deeply demeaning to couples (whether married or not) who, for whatever reason,
are incapable of procreating when they commence
such relationship or become so
at any time thereafter. It is likewise demeaning to couples who commence such a
relationship at an
age when they no longer have the desire for sexual relations
or the capacity to conceive. It is demeaning to adoptive parents to
suggest
that their family is any less a family and any less entitled to respect and
concern than a family with procreated children.
It is even demeaning of a
couple who voluntarily decide not to have children or sexual relations with one
another; this being a
decision entirely within their protected sphere of freedom
and
privacy.
[85]
[87]
It is clear, then, that the
procreation argument cannot defeat the claim of same-sex couples to be accorded
the same degree of dignity,
concern and respect that is shown to heterosexual
couples. More particularly, it cannot prevail in the face of the claim of
same-sex
couples to be accorded the status, entitlements, and responsibilities
which heterosexual couples receive through marriage. It cannot
be an
insuperable bar to the claims advanced by the
applicants.
Respect for religion
arguments
[88]
The two amici submitted a
number of arguments from an avowedly religious point of view in support of the
view that by its origins
and nature, the institution of marriage simply cannot
sustain the intrusion of same-sex unions. The corollary is that such unions
can
never be regarded as marriages, or even marriage-like or equivalent to
marriages. To disrupt and radically alter an institution
of centuries-old
significance to many religions, would accordingly infringe the Constitution by
violating religious freedom in a
most substantial
way.
[89]
Their arguments raise
important issues concerning the relationship foreshadowed by the Constitution
between the sacred and the secular.
They underline the fact that in the open
and democratic society contemplated by the Constitution, although the rights of
non-believers
and minority faiths must be fully respected, the religious beliefs
held by the great majority of South Africans must be taken seriously.
As this
Court pointed out in
Christian Education
, freedom of religion goes beyond
protecting the inviolability of the individual
conscience.
[86]
For many believers,
their relationship with God or creation is central to all their activities. It
concerns their capacity to relate
in an intensely meaningful fashion to their
sense of themselves, their community and their universe. For millions in all
walks of
life, religion provides support and nurture and a framework for
individual and social stability and growth. Religious belief has
the capacity
to awaken concepts of self-worth and human dignity which form the cornerstone of
human rights. Such belief affects
the believer’s view of society and
founds a distinction between right and wrong. It expresses itself in the
affirmation and
continuity of powerful traditions that frequently have an
ancient character transcending historical epochs and national boundaries.
For
believers, then, what is at stake is not merely a question of convenience or
comfort, but an intensely held sense about what
constitutes the good and proper
life and their place in
creation.
[87]
[90]
Religious bodies play a
large and important part in public life, through schools, hospitals and poverty
relief programmes.
[88]
They command
ethical behaviour from their members and bear witness to the exercise of power
by state and private agencies; they
promote music, art and theatre; they provide
halls for community activities, and conduct a great variety of social activities
for
their members and the general public. They are part of the fabric of public
life, and constitute active elements of the diverse
and pluralistic nation
contemplated by the Constitution. Religion is not just a question of belief or
doctrine. It is part of a
people’s temper and culture, and for many
believers a significant part of their way of
life.
[89]
Religious organisations
constitute important sectors of national life and accordingly have a right to
express themselves to government
and the courts on the great issues of the day.
They are active participants in public affairs fully entitled to have their say
with
regard to the way law is made and applied.
[91]
Furthermore, in relation to
the extensive national debates concerning rights for homosexuals, it needs to be
acknowledged that though
religious strife may have produced its own forms of
intolerance, and religion may have been used in this country to justify the most
egregious forms of racial discrimination, it would be wrong and unhelpful to
dismiss opposition to homosexuality on religious grounds
simply as an expression
of bigotry to be equated to racism. As Ackermann J said in the
Sodomy
case:
“The issues in this case touch on deep convictions and evoke strong
emotions. It must not be thought that the view which holds
that sexual
expression should be limited to marriage between men and women with procreation
as its dominant or sole purpose, is held
by crude bigots only. On the contrary,
it is also sincerely held, for considered and nuanced religious and other
reasons, by persons
who would not wish to have the physical expression of sexual
orientation differing from their own proscribed by the
law.”
[90]
[92]
It is also necessary,
however, to highlight his qualification:
“It is nevertheless equally important to point out that such views,
however honestly and sincerely held, cannot influence what
the Constitution
dictates in regard to discrimination on the grounds of sexual
orientation.”
[91]
It
is one thing for the Court to acknowledge the important role that religion plays
in our public life. It is quite another to use
religious doctrine as a source
for interpreting the Constitution. It would be out of order to employ the
religious sentiments of
some as a guide to the constitutional rights of others.
Between and within religions there are vastly different and at times highly
disputed views on how to respond to the fact that members of their congregations
and clergy are themselves homosexual. 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.
[93]
One respects the sincerity
with which Mr Smyth cited passages in the Old and New Testaments in support of
his argument that what he
referred to as a change in the definition of marriage
would discriminate against persons who believed that marriage was a heterosexual
institution ordained of God, and who regarded their marriage vows as sacred.
Yet for the purpose of legal analysis, such appreciation
would not imply
accepting that those sources may appropriately be relied upon by a court.
Whether or not the Biblical texts support
his beliefs would certainly not be a
question which this Court could entertain. From a constitutional point of view,
what matters
is for the Court to ensure that he be protected in his right to
regard his marriage as
sacramental,
[92]
to belong to a
religious community that celebrates its marriages according to its own doctrinal
tenets,
[93]
and to be free to
express his views in an appropriate manner both in public and in
Court.
[94]
Further than that the
Court could not be expected to go.
[94]
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. Provided there is no prejudice to the fundamental rights
of any person or group, the law will legitimately acknowledge
a diversity of
strongly-held opinions on matters of great public controversy. I stress the
qualification that there must be no prejudice
to basic rights. Majoritarian
opinion can often be harsh to minorities that exist outside the
mainstream.
[95]
It is precisely the
function of the Constitution and the law to step in and counteract rather than
reinforce unfair discrimination
against a minority. The test, whether
majoritarian or minoritarian positions are involved, must always be whether the
measure under
scrutiny promotes or retards the achievement of human dignity,
equality and freedom.
[95]
The hallmark of an open and
democratic society is its capacity to accommodate and manage difference of
intensely-held world views
and lifestyles in a reasonable and fair
manner.
[96]
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.
[96]
The need for co-existence
and respect for diversity of belief is in fact expressly recognised by the
Marriage Act. The Act in terms
permits religious leaders to be designated as
marriage officers, religious buildings to be used for the solemnisation of
marriages,
the marriage formula usually observed by a religious denomination to
be employed and its religious marriage rites to be followed.
It is not only
permissible to solemnise marriages in these ways. All such marriages are
recognised and given legal force by the
state. Legal consequences flow from
them as from a civil marriage celebrated before a magistrate or other state
marriage officer.
The state interest in marriage ceremonies performed by
religious leaders is protected by empowering the Minister of Home Affairs
to
designate the ministers of religion concerned and to approve of the marriage
formula being followed.
[97]
State accommodation of
religious belief goes further. Section 31
provides:
“Certain marriage officers may refuse to solemnize certain
marriages.—Nothing in this Act contained shall be construed
so as to
compel a marriage officer who is a minister of religion or a person holding a
responsible position in a religious denomination
or organization to solemnize a
marriage which would not conform to the rites, formularies, tenets, doctrines or
discipline of his
religious denomination or
organization.”
[97]
The
effect of this provision is that no minister of religion could be compelled to
solemnise a same-sex marriage if such a marriage
would not conform to the
doctrines of the religion concerned. There is nothing in the matters before us
that either directly or
indirectly trenches in any way on this strong protection
of the right of religious communities not to be obliged to celebrate marriages
not conforming to their tenets.
[98]
It is clear from the above
that acknowledgement by the state of the right of same-sex couples to enjoy the
same status, entitlements
and responsibilities as marriage law accords to
heterosexual couples is in no way inconsistent with the rights of religious
organisations
to continue to refuse to celebrate same-sex marriages. The
constitutional claims of same-sex couples can accordingly not be negated
by
invoking the rights of believers to have their religious freedom
respected.
[98]
The two sets of
interests involved do not collide, they co-exist in a constitutional realm based
on accommodation of diversity.
The
international law argument
[99]
Considerable stress was
placed by the state on the contention that international law recognises and
protects heterosexual marriage
only. As such, the state contended, it could not
be regarded as unfair discrimination to exclude same-sex couples from the
institution
of marriage. The remedy to the plight of same-sex couples should
therefore be found outside of rather than inside marriage. Thus,
reference was
made to article 16 of the 1948 Universal Declaration of Human Rights (UDHR)
which states:
“16(1) Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and
to found a family. They
are entitled to equal rights as to marriage, during marriage and at its
dissolution.
16(2) Marriage shall be entered into only with the free and full consent of the
intending spouses.
16(3) The family is the natural and fundamental group unit of society and is
entitled to protection by society and the
State.”
Similar provisions from a number of different
instruments were referred to, as was a decision of the United Nations Human
Rights Committee
to the effect that a New Zealand law denying marriage licences
to same-sex couples does not violate the International Covenant on
Civil and
Political Rights
[99]
(ICCPR).
Support for the argument was sought from the provision in our Constitution
requiring that customary international law be
recognised as part of the law in
the Republic
[100]
and that when
interpreting the Bill of Rights a court must consider international
law.
[101]
[100]
The reference to
“men and women” is descriptive of an assumed reality, rather than
prescriptive of a normative structure
for all time. Its terms make it clear
that the principal thrust of the instruments is to forbid child marriages,
remove racial,
religious or nationality impediments to marriage, ensure that
marriage is freely entered into and guarantee equal rights before,
during and
after marriage.
[101]
The statement in Article
16(3) of the UDHR that the family is the natural and fundamental group unit in
society, entitled to protection
by the state, has in itself no inherently
definitional implications. Thus, it certainly does not confine itself to the
nuclear monogamous
family as contemplated by our common law. Nor need it by its
nature be restricted intrinsically, inexorably and forever to heterosexual
family units. There is nothing in the international law instruments to suggest
that the family which is the fundamental unit of
society must be constituted
according to any particular model. Indeed, even if the purpose of the
instruments was expressly to accord
protection to a certain type of family
formation, this would not have implied that all other modes of establishing
families should
for all time lack legal
protection.
[102]
Indeed, rights by their
nature will atrophy if they are frozen. As the conditions of humanity alter and
as ideas of justice and equity
evolve, so do concepts of rights take on new
texture and meaning. The horizon of rights is as limitless as the hopes and
expectations
of humanity. What was regarded by the law as just yesterday is
condemned as unjust today. When the Universal Declaration was adopted,
colonialism and racial discrimination were seen as natural phenomena, embodied
in the laws of the so-called civilised nations, and
blessed by as many religious
leaders as they were
denounced.
[102]
Patriarchy, at
least as old as most marriage systems, defended as being based on biological
fact and which was supported by many
a religious leader, is no longer accepted
as the norm, at least in large parts of the world. Severe chastisement of women
and children
was tolerated by family law and international legal instruments
then, but is today considered
intolerable.
[103]
Similarly,
though many of the values of family life have remained constant, both the family
and the law relating to the family have
been utterly
transformed.
[103]
The decision of the United
Nations Human Rights Committee is clearly distinguishable. The Committee held
that there was no provision
in the ICCPR which forbade discrimination on sexual
orientation. This is a far cry from declaring that the ICCPR forbids the
recognition
of same-sex marriages and seals off same-sex couples from
participating in marriage or establishing families. Even more directly
to the
point, in contradistinction to the ICCPR, our Constitution explicitly proclaims
the anti-discriminatory right which was held
to lack support from the text of
the ICCPR. Indeed, discrimination on the grounds of sexual orientation is
expressly stated by our
Constitution to be presumptively
unfair.
[104]
It would be a strange
reading of the Constitution that utilised the principles of international human
rights law to take away a guaranteed
right. This would be the more so when the
right concerned was openly, expressly and consciously adopted by the
Constitutional Assembly
as an integral part of the first of all rights mentioned
in the Bill of Rights, namely, the right to
equality.
[105]
I conclude that while it
is true that international law expressly protects heterosexual marriage it is
not true that it does so in
a way that necessarily excludes equal recognition
being given now or in the future to the right of same-sex couples to enjoy the
status, entitlements, and responsibilities accorded by marriage to heterosexual
couples.
The family law pluralism
argument
[106]
Much reliance was placed
by the state and the amici on section 15(3) of the Constitution which, after
guaranteeing freedom of religion,
conscience and belief, and providing for the
circumstances in which religion may be observed in state institutions,
states:
“(a) This section does not prevent legislation
recognising—
(i) marriages concluded under any tradition, or a system of religious, personal
or family law; or
(ii)
systems of personal and family law under any tradition
, or adhered
to by persons professing a particular
religion.
(b) Recognition in terms of paragraph (a) must be consistent with this section
and the other provisions of the Constitution.”
(My emphasis.)
It was submitted that these provisions presupposed special
legislation governing separate systems of family law to deal with different
family situations. This, it was contended, had a double effect. In the first
place it entailed acknowledgement that it would be
the legislature and not the
courts that would be responsible for creating a legal regime to respond to the
needs of same-sex couples.
Secondly, the ability to cater for same-sex couples
through legislation adopted under section 15(3) showed that the Constitution
envisaged their rights being protected through special laws which would not
interfere with the hallowed institution of marriage.
[107]
Section 15(3) is
undoubtedly an important provision of the Constitution, the full significance of
which remains as yet undeveloped.
Consistent with the theme of diversity in
unity, it establishes that there is no hegemonic model of marriage inexorably
and automatically
applicable to all South Africans. Dealing with the
disparagement to which Muslim marriages were subjected in the past, Moseneke
J
said in
Daniels
:
[104]
“[The] ‘persisting invalidity of Muslim marriages’ is, of
course, a constitutional anachronism. It belongs to our
dim past. It originates
from deep-rooted prejudice on matters of race, religion and culture. True to
their worldview, Judges of
the past displayed remarkable ethnocentric bias and
arrogance at the expense of those they perceived different. They exalted their
own and demeaned and excluded everything else. Inherent in this disposition,
says Mahomed CJ, is ‘inequality, arbitrariness,
intolerance and
inequity’.
These stereotypical and stunted notions of marriage and family must now succumb
to the newfound and restored values of our society,
its institutions and diverse
people. They must yield to societal and constitutional recognition of expanding
frontiers of family
life and intimate relationships. Our Constitution
guarantees not only dignity and equality, but also freedom of religion and
belief.
What is more, section 15(3) of the Constitution foreshadows and
authorises legislation that recognises marriages concluded under
any tradition
or a system of religious, personal or family law. Such legislation is yet to be
passed in regard to Islamic
marriages.”
[105]
(Footnotes
omitted.)
[108]
The special provisions of
section 15(3) are anchored in a section of the Constitution dedicated to
protecting freedom of religion,
belief and opinion. In this sense they
acknowledge the right to be different in terms of the principles governing
family life.
The provision is manifestly designed to allow Parliament to adopt
legislation, if it so wishes, recognising, say, African traditional
marriages,
or Islamic or Hindu marriages, as part of the law of the land, different in
character from, but equal in status to general
marriage law. Furthermore,
subject to the important qualification of being consistent with the
Constitution, such legislation could
allow for a degree of legal pluralism under
which particular consequences of such marriages would be accepted as part of the
law
of the land. The section “does not prevent” legislation
recognising marriages or systems of family or personal law established
by
religion or tradition. It is not peremptory or even directive, but permissive.
It certainly does not give automatic recognition
to systems of personal or
family law not accorded legal status by the common law, customary law or
statute. Whether or not it could
be extended to same-sex marriages, which might
not easily be slotted into the concept of marriage or systems of personal or
family
law “under any tradition”, it certainly does not project
itself as the one and only legal portal to the recognition of
same-sex
unions.
[109]
Thus section 15(3) is
indicative of constitutional sensitivity in favour of acknowledging diversity in
matters of marriage. It does
not, however, in itself provide a gateway, let
alone a compulsory path, to enable same-sex couples to enjoy the status,
entitlements
and responsibilities which marriage accords to heterosexual
couples. At most, for present purposes, section 15(3) offers constitutional
guidance of a philosophical kind pointing in the direction of acknowledging a
degree of autonomy for different systems of family
law. Yet while it reinforces
a general constitutional propensity to favour diversity, it does not in itself
provide the remedy claimed
for it by the state and the amici, let alone
constitute a bar to the claims of the
applicants.
Justification
[110]
Having accepted that the
need to accord an appropriate degree of respect to traditional concepts of
marriage does not as a matter
of law constitute a bar to vindicating the
constitutional rights of same-sex couples, a further question arises: has
justification
in terms of section 36 of the Constitution been shown to exist for
the violation of the equality and dignity rights of these
couples?
[106]
The state made the
bald submission in its written submissions that there was justification, without
advancing considerations different
from those it had referred to in relation to
unfair discrimination. Mr Smyth on the other hand, devoted considerable
attention to
the argument that justification existed for the discrimination even
if it impacted harshly on same-sex couples. His key argument
was that the
purpose of the limitation on the rights of same-sex couples was to maintain
marriage as an acknowledged pillar of society,
and to protect the religious
beliefs and convictions of many South Africans. The Marriage Alliance similarly
contended that any
discrimination to which same-sex couples were subjected was
justified on the ground that the exclusion of same-sex couples from marriage
was
designed to protect and ensure the existence and vitality of marriage as an
important social institution. There are accordingly
two interrelated
propositions advanced as justification that need to be considered. The first is
that the inclusion of same-sex
couples would undermine the institution of
marriage. The second is that this inclusion would intrude upon and offend
against strong
religious susceptibilities of certain sections of the
public.
[111]
The first proposition was
dealt with by Ackermann J in
Home
Affairs
.
[107]
Referring to
possible justification in relation to exclusion of same-sex life partners from
benefits accorded to married couples
under immigration law, he
stated:
“There is no interest on the other side that enters the balancing process
[for justification]. It is true . . . that the protection
of family and family
life in conventional spousal relationships is an important governmental
objective, but the extent to which this
could be done would in no way be limited
or affected if same-sex life partners were appropriately included under the
protection of
[the
section].”
[108]
The
same considerations would apply in relation to enabling same-sex couples to
enjoy the status and benefits coupled with responsibilities
that marriage law
affords to heterosexual couples. Granting access to same-sex couples would in
no way attenuate the capacity of
heterosexual couples to marry in the form they
wished and according to the tenets of their religion.
[112]
The second proposition is
based on the assertion derived from particular religious beliefs that permitting
same-sex couples into the
institution of marriage would devalue that
institution. Whatever its origin, objectively speaking this argument is in fact
profoundly
demeaning to same-sex couples, and inconsistent with the
constitutional requirement that everyone be treated with equal concern and
respect.
[113]
However strongly and
sincerely-held the beliefs underlying the second proposition might be, these
beliefs cannot through the medium
of state-law be imposed upon the whole of
society and in a way that denies the fundamental rights of those negatively
affected.
The express or implied assertion that bringing same-sex couples under
the umbrella of marriage law would taint those already within
its protection can
only be based on a prejudgement, or prejudice against homosexuality. This is
exactly what section 9 of the Constitution
guards against. It might well be
that negative presuppositions about homosexuality are still widely entertained
in certain sectors
of our society. The ubiquity of a prejudice cannot support
its legitimacy. As Ngcobo J said in
Hoffmann
:
“Prejudice can never justify unfair discrimination. This country has
recently emerged from institutionalised prejudice. Our
law reports are replete
with cases in which prejudice was taken into consideration in denying the rights
that we now take for granted.
Our constitutional democracy has ushered in a new
era – it is an era characterised by respect for human dignity for all
human
beings. In this era, prejudice and stereotyping have no place. Indeed,
if as a nation we are to achieve the goal of equality that
we have fashioned in
our Constitution we must never tolerate prejudice, either directly or
indirectly. SAA, as a state organ that
has a constitutional duty to uphold the
Constitution, may not avoid its constitutional duty by bowing to prejudice and
stereotyping.”
[109]
(Footnote omitted.)
I conclude therefore that the arguments
tendered in support of justification cannot be upheld. The factors advanced
might have some
relevance in the search for effective ways to provide an
appropriate remedy that enjoys the widest public support, for the violation
of
the rights involved. They cannot serve to justify their
continuation.
Conclusion
[114]
I conclude that the
failure of the common law and the Marriage Act to provide the means whereby
same-sex couples can enjoy the same
status, entitlements and responsibilities
accorded to heterosexual couples through marriage, constitutes an unjustifiable
violation
of their right to equal protection of the law under section 9(1), and
not to be discriminated against unfairly in terms of section
9(3) of the
Constitution. Furthermore, and for the reasons given in
Home Affairs
,
such failure represents an unjustifiable violation of their right to dignity in
terms of section 10 of the
Constitution.
[110]
As this Court
said in that matter, the rights of dignity and equality are closely
related.
[111]
The exclusion to
which same-sex couples are subjected, manifestly affects their dignity as
members of society.
III. REMEDY
[115]
A notable and significant
development in our statute law in recent years has been the extent of express
and implied recognition that
the legislature has accorded to same-sex
partnerships. Yet as Ackermann J pointed out in
Home Affairs
, there is
still no appropriate recognition in our law of same-sex life partnership, as a
relationship, to meet the legal and other
needs of its
partners.
[112]
Since
Home
Affairs
was decided a number of other statutes have been adopted, the ambit
of which clearly include same-sex life partnerships. In some
cases there is
express reference to the inclusion of same-sex relationships, in others the term
‘life partner’ or ‘partner’
is
used.
[113]
They cover such
socially important areas as domestic violence, estate duty, employment equity,
and legislation to promote equality.
[116]
While this legislative
trend is significant in evincing Parliament’s commitment to its
constitutional obligation to remove discrimination
on the ground of sexual
orientation, and while these statutes are consistent with the judgment of this
Court in
Home Affairs
, the advances continue to be episodic rather than
global. Thus, however valuable they may be in dealing with particular aspects
of discrimination, and however much their cumulative effect contributes towards
changing the overall legal climate, they fall short
of what this Court called
for in
J
,
[114]
namely that
comprehensive legislation regularising relationships between gay and lesbian
persons was necessary; and that it was unsatisfactory
for the courts to grant
piecemeal relief to members of the gay and lesbian community as and when aspects
of their relationships are
found to be prejudiced by unconstitutional
legislation.
[117]
At the heart of legal
disabilities afflicting same-sex life partnerships today, then, is the lack of
general recognition by the law
of their relationships. The problem does not in
fact arise from anything constitutionally offensive in what the common law
definition
of marriage actually contains. Nor has there been any suggestion
that the formula in the Marriage Act intrinsically violates the
Constitution as
far as it goes. Indeed, there is no reason why heterosexual couples should not
be able to take each other as husband
and wife. The problem is not what is
included in the common law definition and the Act, but what is left out. The
silent obliteration
of same-sex couples from the reach of the law, together with
the utilisation of gender-specific language in the marriage vow, presupposes
that only heterosexual couples are contemplated. The formula makes no allowance
for an equivalent public declaration being made
by same-sex couples, with all
the legal and cultural consequences that would flow from
it.
[118]
As I have already
concluded, the common law and section 30(1) of the Marriage Act are inconsistent
with sections 9(1) and 9(3) and
10 of the Constitution to the extent that they
make no provision for same-sex couples to enjoy the status, entitlements and
responsibilities
it accords to heterosexual couples. In terms of section
172(1)(a) of the Constitution, this Court must that declare any law inconsistent
with the Constitution is invalid to that extent. Under section 172(1)(b) it is
then open to the Court to make any order that is
just and equitable. Such order
may include suspending the declaration of invalidity to give the legislature
time to cure the defect.
[119]
Before considering what
order would be just and equitable, it is important to note that the SCA decision
in
Fourie
that has been appealed against, has been overtaken and to a
considerable extent superseded by our decision to hear the
Equality
Project
case at the same hearing. The challenges to the common law
definition and to the Marriage Act now fall to be considered together
and in a
comprehensive rather than piecemeal way. This enables the Court to develop a
less attenuated remedy than was available
to the SCA. The challenge now mounted
by the Equality Project to the Marriage Act means that the question of whether
and how to
develop the common law need no longer be answered narrowly as an
independent and abstract matter separately from how to respond to
the defects of
the Marriage Act.
[120]
It is clear that just as
the Marriage Act denies equal protection and subjects same-sex couples to unfair
discrimination by excluding
them from its ambit, so and to the same extent does
the common law definition of marriage fall short of constitutional requirements.
It is necessary, therefore, to make a declaration to the effect that the common
law definition of marriage is inconsistent with the
Constitution and invalid to
the extent that it fails to provide to same-sex couples the status and benefits
coupled with responsibilities
which it accords to heterosexual couples. The
question then arises whether, having made such declaration, the Court itself
should
develop the common law so as to remedy the consequences of the common
law’s under-inclusive character.
[121]
The state submitted
categorically that the Court did not have the power itself to cure any
substantial and non-incremental defect
in the common law definition, arguing
that only the legislature had the competence to do so. Given the approach I
have adopted,
it is unnecessary to decide whether this Court has the power to
develop the common law in an incremental fashion only. This Court
has already
held that if a common law provision is inconsistent with the Constitution then
when appropriately challenged it will
be declared invalid and struck down. This
is what happened in the
Sodomy
case, where this Court abolished the
common law crime of sodomy. The Court emphasised that in striking down the
common law offence
of sodomy it was not developing the common law but exercising
a power under section
172(1)(a).
[115]
This was an
example of the direct application of the Bill of Rights which led to the
conclusion that the very core of the offence
was constitutionally
invalid.
[116]
[122]
In deciding on the
appropriate remedy in the present matter the possibility of altering the common
law through legislative action
so as to bring it into line with the Bill of
Rights becomes highly relevant. Having heard the
Fourie
matter together
with the
Equality Project
matter, we can take account of the impact that
any correction to the Act, or enactment of a separate statute, would
automatically
have on the common law. Thus a legislative intervention which had
the effect of enabling same-sex couples to enjoy the status, entitlements
and
responsibilities that heterosexual couples achieve through marriage, would
without more override any discriminatory impact flowing
from the common law
definition standing on its own. Thus corrected, the Marriage Act would then
have to be interpreted and applied
in a manner consistent with the
constitutional requirement that same-sex couples be treated with the same
concern and respect as
that accorded to heterosexual couples. The effect would
be that formal registration of same-sex unions would automatically extend
the
common law and statutory legal consequences to same-sex couples that flow to
heterosexual couples from marriage.
[123]
The Equality Project in
fact urged us to adopt the simple corrective statutory strategy of reading in
the words “or spouse”
after the reference to husband and wife in
section 30(1) of the Marriage Act. The state and the amici argued forcibly
against this
contention. In their view, to accept it would not merely modify a
well-established institution to bring it into line with constitutional
values.
It would completely restructure and possibly even destroy it as an institution.
Their argument was three-fold: first, that
time should be given for the public
to be involved in an issue of such great public interest and importance; second,
that it was
neither competent nor appropriate for the Court itself to
restructure the institution of marriage in such a radical way; and third,
that
only Parliament had the authority to create such a radical remedy, so that if
the Court should declare the Marriage Act to be
invalid because of its
under-inclusive nature, the declaration of invalidity should be suspended to
enable Parliament to correct
the defect.
[124]
I start with the argument
that the Court should not undertake what was said to be a far-reaching and
radical change without the general
public first having had an opportunity to
have its say. Then, I deal with the question of whether in the circumstances it
would
be just and equitable for the Court to suspend any declaration of
invalidity it might make so as to allow Parliament an opportunity
to remedy the
defect.
Has the public had an opportunity to
have its say?
[125]
For the purposes of the
present discussion I assume that the extent to which the public has been
consulted would be a relevant factor
in determining the appropriate remedy to be
ordered. Even making that assumption, the contention by the state and the amici
to the
effect that the matter is not ripe for determination by this Court,
cannot be sustained. The stark claim that the public has not
had an opportunity
to engage with the issue is not borne out by the facts. A recent memorandum by
the SALRC on Domestic
Partnerships
[117]
testifies to
prolonged and intensive engagement by the SALRC with the public. The memorandum
states that developments since
Home Affairs
had led to a patchwork of
laws that did not express a coherent set of family law rules. In order to
address this problem, the SALRC
states that it has approached the reform process
in what it considered to be a holistic, systematic, structured and consultative
way. The investigation was aimed at harmonising the applicable family law
principles with the provisions of the Bill of Rights and,
specifically, with the
constitutional value of equality. In order to achieve this, a new family law
dispensation for domestic partnerships
was being designed to supplement the
traditional marriage structure.
[126]
The memorandum summarises
the extensive work it has done in pursuance of achieving that harmonisation. In
October 2001 the SALRC
had published an Issue Paper in the form of a
questionnaire.
[118]
One hundred
and forty-five respondents had responded to the SALRC’s invitation and
submitted written comments. Submissions
had been received from various
organisations as well as ordinary members of the public. After these
submissions had been considered
and comparative research
done,
[119]
the SALRC had formed
various models for the reform of domestic
partnerships.
[127]
The memorandum points out
that during August 2003 the SALRC had published a Discussion Paper for
information and comment, which included
six options for reform. The first three
options had aimed to afford same-sex couples the same rights currently afforded
to opposite-sex
partners in marriage and in this regard the constitutionality of
the chosen option was the main consideration. These were the three
options
referred to by Farlam JA.
[120]
As
will be seen, the SALRC decided to replace them with a single new
proposal.
[121]
[128]
Interest groups and
members of the public were invited to submit comments on the proposed options.
A series of eight workshops were
held to discuss the proposals made in the
Paper. By the closing date for submissions on the Discussion
Paper
[122]
a total of 230
submissions and 50 worksheets had been
received.
[129]
It is clear from the above
summary of the work done by the SALRC that extensive opportunity has in fact
been given for all sides to
be canvassed, and over a lengthy period. The SALRC
states in the recent memorandum that it feels after considerable
research
[123]
it has reached a
position to produce draft legislation. This it is ready to submit to Parliament
as soon as it has had the opportunity
to take cognisance of the judgment of this
Court in the present matter.
[124]
[130]
The memorandum adds that
the final recommendations of the Project Committee of the SALRC will be included
in a report to be submitted
by it to the SALRC for consideration. Upon approval
of the report by the SALRC, it will be submitted to the Minister of Justice
and
Constitutional Development to be placed before Parliament at her discretion.
The ordinary parliamentary processes will then
commence. Attending to the
consequential amendments necessitated by this new dispensation would form a
secondary part of the investigation.
The memorandum concludes by observing
that, depending on the final recommendations, amendments to all legislation may
be required.
[131]
The memorandum establishes
three things. Firstly, there has been extensive public consultation over a
number of years. Secondly,
a final SALRC report can be placed before Parliament
within a relatively short period. Thirdly, the report can be expected to
contain
a comprehensive proposal intended to provide appropriate relief which is
in a format quite different from that which the applicants
propose. The matter
of the relief to which same-sex couples are entitled would therefore appear to
be ready for prompt consideration
by Parliament. The orders to be made by this
Court should take account of this
fact.
Should the order of invalidity be
suspended?
[132]
Having concluded that the
law of marriage as it stands is inconsistent with the Constitution and invalid
to the extent outlined above,
an appropriate declaration of invalidity needs to
be made. The question that arises is whether this Court is obliged to provide
immediate relief in the terms sought by the applicants and the Equality Project,
or whether it should suspend the order of invalidity
to give Parliament a chance
to remedy the defect. The test is what is just and equitable, taking account of
all the circumstances.
[133]
Ordinarily a successful
litigant should receive at least some practical relief. This, however, is not
an absolute rule. In
Fraser
(1)
[125]
this Court declared
invalid a provision of the Child Care
Act
[126]
to the extent that it
dispensed with the father’s consent for the adoption of a child born out
of marriage in all circumstances.
Mahomed DP held that the consent of some
fathers would be necessary, but not of all fathers. In deciding to give
Parliament an
opportunity to correct the defect, the Court took account of the
difficulties of distinguishing between meritorious and non-meritorious
fathers
in these circumstances and “the multifarious and nuanced legislative
responses which might be available to the
legislature”.
[127]
Mohamed
DP went on to point out that the applicant in that matter was not the only
person affected by the impugned provision and
that proper legislation was
required to regulate the rights of parents in relation to the adoption of any
children born out of a
relationship between them which had not been formalised
by marriage.
[128]
In the
meanwhile it would be chaotic and prejudicial to the interests of justice and
good government to invalidate any adoption
order previously
made.
[129]
What was called for
was an order allowing the section to survive pending its correction by
Parliament.
[130]
Regard being had
to the complexity and variety of the statutory and policy alternatives which
might have to be considered by Parliament,
such period should be two
years.
[131]
It should be noted
that pending the rectification by Parliament, the successful applicant and
persons in his position received no
relief from the
order.
[134]
In
Dawood
[132]
provisions in
immigration law concerning the granting of certain privileges to spouses and
other family members of South Africans
were held to be unconstitutional because
of lack of guidance to the officials concerned concerning the factors relevant
to the refusal
of temporary permits. O’Regan J pointed out
that:
“It would be inappropriate for this Court to seek to remedy the
inconsistency in the legislation under review. The task of
determining what
guidance should be given to decision-makers and, in particular, the
circumstances in which a permit may justifiably
be refused is primarily a task
for the Legislature and should be undertaken by it. There is a range of
possibilities that the Legislature
may adopt to cure the
unconstitutionality.”
[133]
(Footnote omitted.)
Her judgment went on, however, to provide
temporary guidance to the officials as to how their discretion should be
exercised.
[134]
The result was
that a temporary form of relief was fashioned, leaving it to the legislature to
determine the final text of the corrective
decisions.
[135]
What these cases highlight
is the need to look at the precise circumstances of each case with a view to
determining how best the values
of the Constitution can be promoted by an order
that is just and equitable. In the present matter I have considered ordering
with
immediate effect reading-in of the words “or spouse” after the
words “or husband” in section 30(1) of the
Marriage Act. This would
remedy the invalidity while at the same time leaving Parliament free, if it
chose, to amend the law so
as to provide an alternative statutory mechanism to
enable same-sex couples to enjoy their constitutional rights as outlined in this
judgment. For reasons which follow, however, I have come to the conclusion that
correction by the Court itself should be delayed
for an appropriate period so as
to give Parliament itself the opportunity to correct the
defect.
[136]
This is a matter involving
status that requires a remedy that is secure. To achieve security it needs to
be firmly located within
the broad context of an extended search for
emancipation of a section of society that has known protracted and bitter
oppression.
The circumstances of the present matter call out for enduring and
stable legislative appreciation. A temporary remedial measure
would be far less
likely to achieve the enjoyment of equality as promised by the Constitution than
would lasting legislative action
compliant with the
Constitution.
[137]
The claim by the
applicants in
Fourie
of the right to get married should, in my view, be
seen as part of a comprehensive wish to be able to live openly and freely as
lesbian
women emancipated from all the legal taboos that historically have kept
them from enjoying life in the mainstream of society. The
right to celebrate
their union accordingly signifies far more than a right to enter into a legal
arrangement with many attendant
and significant consequences, important though
they may be. It represents a major symbolical milestone in their long walk to
equality
and dignity. The greater and more secure the institutional imprimatur
for their union, the more solidly will it and other such unions
be rescued from
legal oblivion, and the more tranquil and enduring will such unions ultimately
turn out to be.
[138]
This is a matter that
touches on deep public and private sensibilities. I believe that Parliament is
well-suited to finding the best
ways of ensuring that same-sex couples are
brought in from the legal cold. The law may not automatically and of itself
eliminate
stereotyping and prejudice. Yet it serves as a great teacher,
establishes public norms that become assimilated into daily life and
protects
vulnerable people from unjust marginalisation and abuse. It needs to be
remembered that not only the courts are responsible
for vindicating the rights
enshrined in the Bill of Rights. The legislature is in the frontline in this
respect. One of its principal
functions is to ensure that the values of the
Constitution as set out in the Preamble and section 1 permeate every area of the
law.
[139]
This judgment serves to
vindicate the rights of the applicants by declaring the manner in which the law
at present fails to meet their
equality claims. At the same time, it is my view
that it would best serve those equality claims by respecting the separation of
powers and giving Parliament an opportunity to deal appropriately with the
matter. In this respect it is necessary to bear in mind
that there are
different ways in which the legislature could legitimately deal with the gap
that exists in the law. On the papers,
at least two different legislative
pathways have been proposed. Although the constitutional terminus would be the
same, the legislative
formats adopted for reaching the end-point would be vastly
different. This is an area where symbolism and intangible factors play
a
particularly important role. What might appear to be options of a purely
technical character could have quite different resonances
for life in public and
in private. Parliament should be given the opportunity in the first place to
decide how best the equality
rights at issue could be achieved. Provided that
the basic principles of equality as enshrined in the Constitution are not
trimmed
in the process, the greater the degree of public acceptance for same-sex
unions, the more will the achievement of equality be
promoted.
[140]
Thus, Parliament could
decide that the best way of achieving equality would be to adopt the first
option placed before it, namely,
the simple reading-in of the words “or
spouse” in section 30(1) of the Marriage Act. This would be consistent
with the
position of the SALRC at the time when the proceedings were initiated,
which indicated that it regarded reading-in of suitable words
into the Marriage
Act as one of three permissible options for public and legislative
consideration.
[135]
[141]
The second possibility
which Parliament could consider is canvassed in the SALRC
memorandum.
[136]
The memorandum
makes it clear that as a result of further consultations the SALRC decided to
move away from the three options it
had originally offered for public debate,
and come forward with a single proposal for submission to Parliament. This
proposal is
comprehensive in character and is based upon Parliament adopting a
legislative scheme for marriage and family law based on express
acknowledgement
of the diverse ways in which conjugal unions have come to be established in
South Africa. One of its features is
that it would provide for equal status
being accorded to all marriages, whatever the system under which they were
celebrated.
[142]
In developing its new
single proposal, the SALRC memorandum referred to the responses it had received
to the three options it had
formerly placed before the
public.
[137]
It observed that the
last round of comments it had received in the course of its consultations on
these three options could be divided
into two categories. The first category of
respondents was strongly and totally opposed to the legal recognition of
same-sex relationships
and other domestic partnerships on religious and moral
grounds. The second category was in favour of the legal recognition of same-sex
relationships and other domestic partnerships or accepted that legal recognition
was unavoidable.
[138]
The
memorandum adds that submissions received by the SALRC and those following the
workshops were collated and further research
emanating from these responses was
conducted. Follow-up meetings with specific interest groups were
held.
[139]
[143]
From the inputs received,
the memorandum continues, the SALRC felt that it was clear that the challenge
facing it would be to reconcile
the constitutional right to equality of same and
opposite-sex couples on the one hand, with religious and moral objections to the
recognition of these relationships on the other. Although no ostensibly valid
legal objection was proffered against the merits of
legal recognition of
same-sex rights, the memorandum observes that the Project
Committee
[140]
of the SALRC
nevertheless considered it advisable from a policy viewpoint, not to disregard
the strong objections against recognition.
The concern for these objections was
an important consideration in the Project Committee’s striving to
accommodate religious
sentiments to the extent possible in the development of a
further proposal. This proposal would embody a single comprehensive legislative
scheme and not set out a range of options for the
legislature.
[141]
[144]
The memorandum states that
in terms of this proposal a new generic marriage act (to be called the Reformed
Marriage Act) would be
enacted to give legal recognition to all marriages,
including those of same and opposite-sex couples and irrespective of the
religion,
race or culture of a couple. However, the current Marriage Act would
not be repealed, but renamed only (to be called the Conventional
Marriage Act).
For the purposes of this Act, the status quo would be retained in all respects
and legal recognition in terms of
this Act would only be available to
opposite-sex
couples.
[142]
[145]
The SALRC memorandum
expresses the view that these Acts would aim to give effect to both the right to
equality in section 9 of the
Constitution and the right to freedom of religion,
belief and opinion in section 15 of the Constitution. They would entail no
separation
of the religious and civil aspects of marriage, and ministers of
religion (or religious institutions) would have the choice to decide
in terms of
which Act they wish to be designated as marriage officers. The state would
designate its marriage officers in terms
of the Reformed Marriage
Act.
[143]
[146]
The SALRC memorandum adds
that the family law dispensation in South Africa would therefore make provision
for a marriage act of general
application together with a number of additional,
specific marriage acts for special interest groups such as couples in customary
marriages, Islamic marriages, Hindu marriages and now also opposite-sex specific
marriages. Choosing a marriage act, the memorandum
concludes, will be regarded
as the couple’s personal choice, taking account of the couple’s
religion, culture and sexual
preference.
[144]
[147]
There are accordingly two
firm proposals for legislative action that would appear to be ripe for
consideration by Parliament. The
simple textual change pleaded for by the
Equality Project and the comprehensive legislative project being finalised by
the SALRC,
do not, however, necessarily exhaust the legislative paths which
could be followed to correct the defect. In principle there is
no reason why
other statutory means should not be found. Given the great public significance
of the matter, the deep sensitivities
involved and the importance of
establishing a firmly-anchored foundation for the achievement of equality in
this area, it is appropriate
that the legislature be given an opportunity to map
out what it considers to be the best way forward. The one unshakeable criterion
is that the present exclusion of same-sex couples from enjoying the status and
entitlements coupled with the responsibilities that
are accorded to heterosexual
couples by the common law and the Marriage Act, is constitutionally
unsustainable. The defect must
be remedied so as to ensure that same-sex
couples are not subjected to marginalisation or exclusion by the law, either
directly or
indirectly.
[148]
It would not be
appropriate for this Court to attempt at this stage to pronounce on the
constitutionality of any particular legislative
route that Parliament might
choose to follow. At the same time I believe it would be helpful to Parliament
to point to certain guiding
principles of special constitutional relevance so as
to reduce the risk of endless adjudication ensuing on a matter which both evokes
strong and divided opinions on the one hand, and calls for firm and clear
resolution on the other.
[149]
At the heart of these
principles lies the notion that in exercising its legislative discretion
Parliament will have to bear in mind
that the objective of the new measure must
be to promote human dignity, the achievement of equality and the advancement of
human
rights and freedoms.
[145]
This means in the first place taking account of the fact that in overcoming the
under-inclusiveness of the common law and the Marriage
Act, it would be
inappropriate to employ a remedy that created equal disadvantage for all. Thus
the achievement of equality would
not be accomplished by ensuring that if
same-sex couples cannot enjoy the status and entitlements coupled with the
responsibilities
of marriage, the same should apply to heterosexual couples.
Levelling down so as to deny access to civil marriage to all would not
promote
the achievement of the enjoyment of equality. Such parity of exclusion rather
than of inclusion would distribute resentment
evenly, instead of dissipating it
equally for all. The law concerned with family formation and marriage requires
equal celebration,
not equal marginalisation; it calls for equality of the
vineyard and not equality of the
graveyard.
[146]
[150]
The second guiding
consideration is that Parliament be sensitive to the need to avoid a remedy that
on the face of it would provide
equal protection, but would do so in a manner
that in its context and application would be calculated to reproduce new forms
of marginalisation.
Historically the concept of ‘separate but
equal’ served as a threadbare cloak for covering distaste for or
repudiation
by those in power of the group subjected to segregation. The very
notion that integration would lead to miscegenation, mongrelisation
or
contamination, was offensive in
concept
[147]
and wounding in
practice. Yet, just as is frequently the case when proposals are made for
recognising same-sex unions in desiccated
and marginalised forms, proponents of
segregation would vehemently deny any intention to cause insult. On the
contrary, they would
justify the apartness as being a reflection of a natural or
divinely ordained state of
affairs.
[148]
Alternatively they
would assert that the separation was neutral if the facilities provided by the
law were substantially the same
for both
groups.
[149]
In
S v
Pitje
[150]
where the
appellant, an African candidate attorney employed by the firm Mandela and Tambo,
occupied a place at a table in court that
was reserved for “European
practitioners” and refused to take his place at a table reserved for
“non-European practitioners”,
Steyn CJ upheld the appellant’s
conviction for contempt of court as it was “. . . clear [from the record]
that a practitioner
would in every way be as well seated at the one table as at
the other, and that he could not possibly have been hampered in the slightest
in
the conduct of his case by having to use a particular
table.”
[151]
[151]
The above approach is
unthinkable in our constitutional democracy today not simply because the law has
changed dramatically, but because
our society is completely different. What
established the visible or invisible norm then is no longer the point of
reference for
legal evaluation today. Ignoring the context, once convenient, is
no longer permissible in our current constitutional democracy
which deals with
the real lives as lived by real people today. Our equality jurisprudence
accordingly emphasises the importance
of the impact that an apparently neutral
distinction could have on the dignity and sense of self-worth of the persons
affected.
[152]
It is precisely
sensitivity to context and impact that suggest that equal treatment does not
invariably require identical treatment.
Thus corrective measures to overcome
past and continuing discrimination may justify and may even require differential
treatment.
[152]
Similarly,
measures based on objective biological or other constitutionally neutral
factors, such as those concerning toilet facilities
or gender-specific search
procedures, might be both acceptable and
desirable.
[153]
The crucial
determinant will always be whether human dignity is enhanced or diminished and
the achievement of equality is promoted
or undermined by the measure concerned.
Differential treatment in itself does not necessarily violate the dignity of
those affected.
It is when separation implies repudiation, connotes distaste or
inferiority and perpetuates a caste-like status that it becomes
constitutionally
invidious.
[153]
In the present matter,
this means that whatever legislative remedy is chosen must be as generous and
accepting towards same-sex couples
as it is to heterosexual couples, both in
terms of the intangibles as well as the tangibles
involved.
[154]
In a context of
patterns of deep past discrimination and continuing homophobia, appropriate
sensitivity must be shown to providing
a remedy that is truly and manifestly
respectful of the dignity of same-sex
couples.
Should there be an interim
remedy?
[154]
In coming to the
conclusion that the declaration of invalidity should be suspended I am not
unmindful of the fact that this case started
simply with the desire of two
people, who happen to be of the same-sex, to get married. The effect of the
suspension of the order
of invalidity will be to postpone the day when they can
go to a registry and publicly say “I do.” I have considered
whether
interim arrangements should be ordered similar to those provided for in
Dawood
.
[155]
I have come
to the conclusion, however, that such an arrangement would not be appropriate in
the present matter. It is necessary
to remember at all times that what is in
issue is a question of status. Interim arrangements that would be replaced by
subsequent
legislative determinations by Parliament would give to any union
established in terms of such a provisional scheme a twilight and
impermanent
character out of keeping with the stability normally associated with marriage.
The dignity of the applicants and others
in like situation would not be enhanced
by the furnishing of what would come to be regarded as a stop-gap
mechanism.
[155]
Lying at the heart of this
case is a wish to bring to an end, or at least diminish, the isolation to which
the law has long subjected
same-sex couples. It is precisely because marriage
plays such a profound role in terms of the way our society regards itself, that
the exclusion from the common law and Marriage Act of same-sex couples is so
injurious, and that the foundation for the construction
of new paradigms needs
to be steadily and securely laid. It is appropriate that Parliament be given a
free hand, within the framework
established by this judgment, to shoulder its
responsibilities in this respect.
The period
of suspension of invalidity
[156]
As I have shown,
Parliament has already undertaken a number of legislative initiatives which
demonstrate its concern to end discrimination
on the ground of sexual
orientation.
[156]
Aided by the
extensive research and specific proposals made by the SALRC, there is no reason
to believe that Parliament will not
be able to fulfil its responsibilities in
the light of this judgment within a relatively short time. As was pointed out
in argument,
what is in issue is not a fundamental new start in legislation but
the culmination of a process that has been underway for many years.
In the
circumstances it would be appropriate to give Parliament one year from the date
of the delivery of this judgment to cure
the
defect.
What should happen if Parliament
fails to cure the defect?
[157]
Attention needs to be
given to the situation that would arise if Parliament fails timeously to cure
the under-inclusiveness of the
common law and the Marriage Act. Two equally
untenable consequences need to be avoided. The one is that the common law and
section
30(1) of the Marriage Act cease to have legal effect. The other
unacceptable outcome is that the applicants end up with a declaration
that makes
it clear that they are being denied their constitutional rights, but with no
legal means of giving meaningful effect to
the declaration; after three years of
litigation Ms Fourie and Ms Bonthuys will have won their case, but be no better
off in practice.
[158]
What justice and equity
would require, then, is both that the law of marriage be kept alive and that
same-sex couples be enabled to
enjoy the status and benefits coupled with
responsibilities that it gives to heterosexual couples. These requirements are
not irreconcilable.
They could be met by reading into section 30(1) of the
Marriage Act the words “or spouse” after the words “or
husband”, as the Equality Project
proposes.
[159]
Reading-in of the words
“or spouse” has the advantage of being simple and direct. It
involves minimal textual alteration.
The values of the Constitution would be
upheld. The existing institutional mechanisms for the celebration of marriage
would remain
the same. Budgetary implications would be
minimal.
[157]
The long-standing
policy of the law to protect and enhance family life would be sustained and
extended.
[158]
Negative
stereotypes would be
undermined.
[159]
Religious
institutions would remain undisturbed in their ability to perform marriage
ceremonies according to their own tenets, and
thus if they wished, to celebrate
heterosexual marriages only. The principle of reasonable accommodation could be
applied by the
state to ensure that civil marriage officers who had sincere
religious objections to officiating at same-sex marriages would not
themselves
be obliged to do so if this resulted in a violation of their
conscience.
[160]
If Parliament
wished to refine or replace the remedy with another legal arrangement that met
constitutional standards, it could
still have the last
word.
[161]
[160]
Before I conclude this
judgment I must stress that it has dealt solely with the issues directly before
the Court. I leave open for
appropriate future legislative consideration or
judicial determination the effect, if any, of this judgment on decisions this
Court
has made in the past concerning same-sex life partners who did not have
the option to marry. Similarly, this judgment does not pre-empt
in any way
appropriate legislative intervention to regulate the relationships (and in
particular, to safeguard the interests of vulnerable
parties
[162]
) of those living in
conjugal or non-conjugal family units, whether heterosexual or gay or lesbian,
not at present receiving legal
protection. As the SALRC has indicated, there
are a great range of issues that call for legislative attention. The difficulty
of
providing a comprehensive legislative response to all the many people with a
claim for legal protection cannot, however, be justification
for denying an
immediate legislative remedy to those who have successfully called for the
furnishing of relief as envisaged by the
Constitution. Whatever comprehensive
legislation governing all domestic partnerships may be envisaged for the future,
the applicants
have established the existence of clearly identified
infringements of their rights, and are entitled to specific appropriate
relief.
[161]
In keeping with this
approach it is necessary that the orders of this Court, read together, make it
clear that if Parliament fails
to cure the defect within twelve months, the
words “or spouse” will automatically be read into section 30(1) of
the Marriage
Act. In this event the Marriage Act will, without more, become the
legal vehicle to enable same-sex couples to achieve the status
and benefits
coupled with responsibilities which it presently makes available to heterosexual
couples.
Costs
[162]
The applicants in the
cross-appeal and the applicants in the application for direct access to this
Court, have both been substantially
successful. It is appropriate that they
should receive their costs, such costs to include the costs of two
counsel.
THE ORDER
1. In the matter between
the Minister of Home Affairs and the Director-General of Home Affairs and
Marié Adriaana Fourie and
Cecelia Johanna Bonthuys, CCT 60/04, the
following order is made:
a) The application for leave to appeal against the judgment of the Supreme Court
of Appeal by the Minister of Home Affairs and the
Director-General of Home
Affairs is granted.
b) The application for leave to cross-appeal against the judgment of the Supreme
Court of Appeal by Marié Adriaana Fourie
and Cecelia Johanna Bonthuys is
granted.
c) The order of the Supreme Court of Appeal is set aside and replaced by the
following order:
(i) The common law definition of marriage is
declared to be inconsistent with the Constitution and invalid to the extent that
it does
not permit same-sex couples to enjoy the status and the benefits coupled
with responsibilities it accords to heterosexual couples.
(ii) The declaration of invalidity is suspended for twelve months from the
date of this judgment to allow Parliament to correct the
defect.
d) The Minister of Home Affairs and the Director-General of Home Affairs are
ordered to pay the costs of the respondents, including
the costs of two counsel,
in the High Court, the Supreme Court of Appeal and in respect of the appeal
heard in the Constitutional
Court.
2. In the matter between
the Lesbian and Gay Equality Project and Eighteen Others and the Minister of
Home Affairs, the Director General
of Home Affairs and the Minister of Justice
and Constitutional Development, CCT 10/05, the following order is made:
a) The application by the Lesbian and Gay Equality Project and Eighteen Others
for direct access is granted.
b) The common law definition of marriage is declared to be inconsistent with the
Constitution and invalid to the extent that it does
not permit same-sex couples
to enjoy the status and the benefits coupled with responsibilities it accords to
heterosexual couples.
c) The omission from section 30(1) of the Marriage Act 25 of 1961 after the
words “or husband” of the words “or
spouse” is declared
to be inconsistent with the Constitution, and the Marriage Act is declared to be
invalid to the extent
of this inconsistency.
d) The declarations of invalidity in paragraphs (b) and (c) are suspended for 12
months from the date of this judgment to allow Parliament
to correct the
defects.
e) Should Parliament not correct the defects within this period, Section 30(1)
of the Marriage Act 25 of 1961 will forthwith be read
as including the words
“or spouse” after the words “or husband” as they appear
in the marriage formula.
f) The Minister and Director-General of Home Affairs and the Minister of Justice
and Constitutional Development are ordered to pay
the applicants’ costs,
including the costs of two counsel in the Constitutional
Court.
Langa CJ, Moseneke DCJ, Mokgoro J, Ngcobo J,
Skweyiya J, Van der Westhuizen J and Yacoob J concur in the judgment of Sachs
J.
O’REGAN J:
[163]
There
is very little in the comprehensive and careful judgment of Sachs J with which I
disagree. I agree that the application for
direct access should be granted.
The issues raised by the Equality Project are inextricably intertwined with the
issues raised in
the application for leave to appeal and the decision on the
application for leave to appeal will inevitably determine many of the
issues in
the Equality Project application. In addition, granting direct access will
assist the resolution of the issues in the
application for leave to appeal.
Finally, there are no disputes of fact to be determined that would deter the
grant of direct access.
[164]
I also agree with Sachs J,
for the reasons given by him, as well as for the reasons given in both judgments
in the Supreme Court of
Appeal, that the common-law definition of marriage in
excluding gay and lesbian couples from marriage constitutes unfair
discrimination
on the grounds of sexual orientation in breach of section 9 of
the Constitution. Similarly, and for the same reasons, section 30
of the
Marriage Act, 25 of 1961, is in conflict with the same constitutional provision.
I need add nothing to the comprehensive judgment
of Sachs J on this
score.
[165]
The difference between his
judgment and this, therefore, lies solely in one significant area, namely, that
of remedy. How best should
these clear constitutional infringements be remedied
by this Court? In
S v Bhulwana; S v
Gwadiso
[163]
this
Court held that it is an important principle of the law of constitutional
remedies that successful litigants should ordinarily
obtain the relief they
seek. Without doubt there are exceptions to this rule. A court must consider
in each case whether there
are other considerations of justice or equity which
would warrant an exception to this key
precept.
[164]
In this case, Sachs
J concludes that this case does involve considerations which warrant such an
exception, and he accordingly proposes
an order suspending the declaration of
invalidity for twelve months. The effect of this order is that gay and lesbian
couples will
not be permitted to marry during this
period.
[166]
His main reasons for this
order are firstly, that there are at least two ways in which the
unconstitutionality can be remedied, as
recommended by the South African Law
Reform Commission; and that given these alternatives, and the important
democratic and legitimating
role of the legislature in our society, it is
appropriate to leave it to Parliament to choose between these courses of action,
or
any other which might be constitutional. A second and equally important
reason that he gives is that, as marriage involves a question
of personal
status, it would lead to greater stability if such matters were to be regulated
by an Act of Parliament rather than the
courts.
[167]
I am not persuaded that
these considerations can weigh heavily in the scales of justice and equity. We
are concerned in this case
with a rule of the common law developed by the
courts, the definition of marriage. The provisions of section 30 of the
Marriage
Act rest on that definition, the definition does not arise from the
provisions of the legislation. As a definition of the common
law, the
responsibility for it lies, in the first place, with the courts. It is the duty
of the courts to ensure that the common
law is in conformity with the
Constitution, as this Court held in
Carmichele
.
[165]
This is
not to say that both the common law definition and the provisions of the Act
could not be altered by appropriate legislative
intervention. The question is,
however, whether it is appropriate in this case for a court to suspend an order
of invalidity, thus
denying successful litigants immediate relief, in order to
give Parliament an opportunity to enact legislation to do
both.
[168]
In my view, it is not. It
is true that there is a choice for the legislature to make, but on the reasoning
of the majority judgment,
there is not a wide range of options. If as Sachs J
correctly concludes, it is not appropriate to deny gays and lesbians the right
to the same status as heterosexual couples, the consequence is that, whatever
the legislative choice, it is a narrow one which will
affect either directly or
indirectly all marriages. The choice as to how regulate to these relationships
will always lie with Parliament
and will be unaffected by any relief we might
grant in this case.
[169]
In my view, this Court
should develop the common-law rule as suggested by the majority in the Supreme
Court of Appeal, and at the
same time read in words to section 30 of the Act
that would with immediate effect permit gays and lesbians to be married by civil
marriage officers (and such religious marriage officers as consider such
marriages not to fall outside the tenets of their religion).
Such an order
would mean simply that there would be gay and lesbian married couples at common
law which marriages would have to
be regulated by any new marital regime the
legislature chooses to adopt. I cannot see that there would be any greater
uncertainty
or instability relating to the status of gay and lesbian couples
than in relation to heterosexual couples. The fact that Parliament
faces
choices does not, in this case, seem to me to be sufficient for this Court to
refuse to develop the common law and, in an ancillary
order, to remedy a
statutory provision, reliant on the common law definition, which is also
unconstitutional.
[170]
The doctrine of the
separation of powers is an important one in our
Constitution
[166]
but I cannot see
that it can be used to avoid the obligation of a court to provide appropriate
relief
[167]
that is just and
equitable
[168]
to litigants who
successfully raise a constitutional complaint. The exceptions to the principle
established in
Bhulwana
’s case must arise in other circumstances,
where the relief cannot properly be tailored by a
court,
[169]
or where even though a litigant would otherwise be successful, other interests
or matters would preclude an order in his or her
favour,
[170]
or where an order
would otherwise produce such disorder or administrative difficulties that the
interests of justice served by an
order in favour of a successful litigant are
outweighed by the social dislocation such an order might
occasion.
[171]
The importance of
the principle that a successful litigant should obtain the relief sought has
been acknowledged by this Court through
the grant of interim relief where an
order of suspension is made to ensure that constitutional rights are infringed
as little as
possible in the period of
suspension.
[172]
[171]
There can be no doubt that
it is necessary that unconstitutional laws be removed from our statute book by
Parliament. It is equally
necessary that provisions of the common law which
conflict with the Constitution are developed in a manner that renders them in
conformity
with it. It would have been desirable if the unconstitutional
situation identified in this matter had been resolved by Parliament
without
litigation. The corollary of this proposition, however, is not that this Court
should not come to the relief of successful
litigants, simply because an Act of
Parliament conferring the right to marry on gays and lesbians might be thought
to carry greater
democratic legitimacy than an order of this Court. The power
and duty to protect constitutional rights is conferred upon the courts
and
courts should not shrink from that duty. The legitimacy of an order made by the
Court does not flow from the status of the institution
itself, but from the fact
that it gives effect to the provisions of our Constitution. Time and again,
there will be those in our
broader community who do not wish to see
constitutional rights protected, but that can never be a reason for a court not
to protect
those rights.
[172]
There is one further
comment I wish to add. It does not seem to me that an order developing the
common law, as ordered by the majority
in the Supreme Court of Appeal, coupled
with an order reading in the words “or spouse” to the relevant
provisions of
the Marriage Act would undermine the institution of marriage at
all. This Court has noted on several occasions the important role
that
institution plays in our
society.
[173]
Permitting those
who have been excluded from marrying to marry can only foster a society based on
respect for human dignity and
human difference. Nor will it undermine the
special role of marriage as recognised by different religions. Such marriages
draw
their strength and character from religious beliefs and practices. The
fact that gay and lesbian couples are permitted to enter
civil marriages should
not undermine the strength or meaning of those
beliefs.
[173]
In sum, I dissent from the
judgment of Sachs J in one respect. I would not suspend the order of invalidity
as proposed by Sachs J.
In my view, the Court should make an order today which
has immediate prospective effect. Such an order would not preclude Parliament
from addressing the law of marriage in the future, and would simultaneously and
immediately protect the constitutional rights of
gay and lesbian couples pending
parliamentary action.
Minister of Home Affairs
and Another v Marié Adriaana Fourie and Another:
For the
applicants: MTK Moerane SC and S Nthai instructed by the State Attorney,
Johannesburg.
For the respondents: P Oosthuizen and T Kathri instructed
by M van den Berg Attorneys.
For the first amicus curiae: John Jackson
Smyth QC. (Written argument only.)
For the second amicus curiae: John
Jackson Smyth QC.
For the third amicus curiae: GC Pretorius SC, DM
Achtzehn, PG Seleka and JR Bauer instructed by Motla Conradie
Attorneys
Lesbian and Gay Equality Project and Eighteen Others v
Minister of Home Affairs and Others:
For the applicants: DI Berger SC
and F Kathree instructed by Nicholls, Cambanis and Associates.
For the
respondents: M Donen SC instructed by the State Attorney, Johannesburg.
[1]
Minister of Home Affairs and
Another v Fourie and Another, with Doctors For Life International (first amicus
curiae), John Jackson
Smyth (second amicus curiae) and Marriage Alliance of
South Africa (third amicus curiae)
CCT 60/04.
[2]
As articulated by Innes CJ in
Mashia Ebrahim v Mahomed Essop
1905 TS 59
at 61. In other cases the
exclusion is said to be “for life”. See for example
Hyde v Hyde
and Woodmansee
1866 LR 1 P and D 130 at 133;
Seedat’s Executors v
The Master (Natal)
1917 AD 302
at 309 and
Ismail v Ismail
1983 (1) SA
1006
(A) at 1019. Given the high degree of divorce this would seem to be a
misnomer.
[3]
Act 25 of 1961.
[4]
Lesbian and Gay Equality
Project and Eighteen Others v Minister of Home Affairs and Others
CCT
10/05.
[5]
Section 30(1) states in this
regard:
“[A]ny marriage officer designated under section 3 may follow the marriage
formula usually observed by his religious denomination
or organization if such
marriage formula has been approved by the Minister . . .
.”
[6]
National Coalition for Gay and Lesbian Equality v Minister of Justice
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC). (The
Sodomy
case.)
[7]
They also sought to have their
marriage registered in terms of the
Identification Act 68 of 1997
.
[8]
Fourie and Another v
Minister of Home Affairs and Another (The Lesbian and Gay Equality Project
intervening as amicus curiae)
, Case No 17280/02, handed down on 18 October
2002. Unreported.
[9]
In terms of Rule 18 of the
Constitutional Court Rules as they then were, which provided that the Court
hearing the matter had to
state whether it thought the application should be
heard by this Court.
[10]
Fourie and Another v
Minister of Home Affairs and Another
[2003] ZACC 11
;
2003 (5) SA 301
(CC);
2003 (10) BCLR
1092
(CC). [
Fourie
(CC).]
[11]
Id at para 12.
[12]
Fourie and Another v
Minister of Home Affairs and Others
2005 (3) SA 429
(SCA);
2005 (3) BCLR 241
(SCA). [
Fourie
(SCA).]
[13]
His judgment was concurred
in by Mthiyane and Van Heerden JJA and Ponnan AJA.
[14]
Section 173 of the
Constitution.
[15]
Section 8(3).
[16]
Section 39(2).
[17]
Fourie
(SCA) above n
12 at para 13.
[18]
Quoting Marshall CJ in the
Massachusetts Supreme Judicial Court, he held that to deny them access to
marriage, “works a deep
and scarring hardship on a very real segment of
the community for no rational reason”. Id at para 18.
[19]
See para 32 below.
[20]
Fourie
(SCA) above n
12 at para 86.
[21]
Id at para 93.
[22]
Id at para 94.
[23]
Fourie
(SCA) above n
12 at para 110.
[24]
He pointed out that the law
could thus not easily accommodate same-sex unions because, unless the partners
thereto agreed as to who
was to be the “husband” and who the
“wife”, these rules could not readily be applied to their union.
Sections 29
and
30
of the
General Law Fourth Amendment Act 132 of 1993
, however,
abolished the husband’s marital power over his wife’s person and
property in respect of all marriages to which
it applied, and also his power
flowing from his position as head of the family. The only common law rule which
makes it necessary
to be able to identify the husband and which still forms part
of our law of matrimonial law, is the rule which provides that the
proprietary
consequences of a marriage are determined, where prospective spouses have
different domiciles, by the law of the domicile
of the husband at the time of
the marriage. All other rules apply equally to spouses. Farlam JA stated that
he does not believe
that the impossibility of applying this rule to same-sex
unions would give rise to insoluble problems. The existence of this problem,
he
held, would not constitute a reason for refusing to extend the definition in the
way that the SCA had been asked to do.
[25]
The Marriage Order in
Council. See para 24 above.
[26]
Above n 12 at para 142.
[27]
On 8 July 2004.
[28]
As contemplated by section
167(6) of the Constitution, which reads:
“National legislation or the rules of the Constitutional Court must allow
a person, when it is in the interests of justice
and with leave of the
Constitutional Court−
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other
court.”
[29]
Section 167(4) of the Constitution sets out the circumstances where this
Court alone may hear certain matters. Other constitutional
matters may first be
heard in a high court [section 169(a)(i)] and on appeal in the SCA [section
168(3)].
[30]
Mkontwana v Nelson
Mandela Metropolitan Municipality and Another; Bissett and Others v Buffalo City
Municipality and Others; Transfer
Rights Action Campaign and Others v MEC, Local
Government and Housing, Gauteng, and Others (KwaZulu Natal Law Society and
Msunduzi
Municipality as amici curiae)
[2004] ZACC 9
;
2005 (1) SA 530
(CC);
2005 (2) BCLR
150
(CC).
[31]
Id at para 11.
[32]
Bhe and Others v
Magistrate, Khayelitsha, and Others (Commission for Gender Equality as amicus
curiae); Shibi v Sithole and Others;
South African Human Rights Commission and
Another v President of the Republic of South Africa and Another
[2004] ZACC 17
;
2005 (1) SA
580
(CC);
2005 (1) BCLR 1
(CC).
[33]
Both courts found certain
sections of the Black Administration Act 38 of 1927, and the
Intestate
Succession Act 81 of 1987
, as well as a regulation of the Regulations for the
Administration and Distribution of the Estates of Deceased Blacks (R200)
published
in Government Gazette No. 10601, to be unconstitutional.
[34]
Acting in their own interest
as well as in the public interest.
[35]
Above n 32 at paras
33-4.
[36]
At the hearing counsel for
the Minister of Home Affairs raised a preliminary challenge to the competence on
the papers before it
of the SCA to develop the common law. He pointed to the
fact that in their notice of motion the applicants had merely asked for
a
declarator that stated that they had a right to marry, and that went on to
require the responsible officials to marry them. In
their founding affidavits,
however, the applicants clearly referred to the need to develop the common law
so as to enable same-sex
couples to marry. The case brought by the applicants
concerning the common law, and the one launched by the Equality Project
challenging
the statute as well, are being dealt with together in this Court.
The state suffered no prejudice as a result of the way the issues
were formally
presented at the outset of the
Fourie
application. Its preliminary
objection cannot be sustained.
[37]
Certification of the
Constitution of the Republic of South Africa, 1996, In Re: Ex parte Chairperson
of the Constitutional Assembly
[1996] ZACC 26
;
1996
1996 (4) SA 744
(CC);
1996 (10)
BCLR 1253
(CC).
[38]
Id at para 99.
[39]
Id
[40]
Id at para 100.
[41]
Id
[42]
Id
[43]
The
Sodomy
case above
n 6 at paras 20-7.
[44]
National Coalition for
Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC). (The
Home Affairs
case.) At
para 42.
[45]
Id at para 44.
[46]
Id
[47]
Id at para 46, where
Ackermann J quoted Erasmus J in
Peter v Minister of Law and Order
1990
(4) SA 6
(E) at 9G.
[48]
Home Affairs
above n
44 at para 47.
[49]
Id at para 49.
[50]
Id
[51]
The judgment cites Timothy E
Lin “Social Norms and Judicial Decisionmaking: Examining the Role of
Narratives in Same-Sex Adoption
Cases”:
“[T]here is the story of lesbians and gays that centres on their
sexuality. Whether because of disgust, confusion, or ignorance
about
homosexuality, lesbian and gay sexuality dominates the discourse of not only
same-sex adoption, but all lesbian and gay issues.
The classification of
lesbians and gays as ‘exclusively sexual beings’ stands in stark
contrast to the perception of
heterosexual parents as ‘people who, along
with many other activities in their lives, occasionally engage in sex.’
Through
this narrative, lesbians and gays are reduced to one-dimensional
creatures, defined by their sex and sexuality.” (Footnote
omitted.)
Home Affairs
above n 44
at para
49.
[52]
Home
Affairs
above n 44 at para 53.
[53]
Id at para 54.
[54]
Id at para 55.
[55]
Id at para 60.
[56]
Satchwell v President of
the Republic of South Africa and Another
[2002] ZACC 18
;
2002 (6) SA 1
(CC);
2002 (9) BCLR
986
(CC).
[57]
Id at para 22.
[58]
Id
[59]
Id at para 23.
[60]
Du Toit and Another v
Minister of Welfare and Population Development and Others (Lesbian and Gay
Equality Project as amicus curiae)
[2002] ZACC 20
;
2003 (2) SA 198
(CC);
2002 (10) BCLR 1006
(CC).
[61]
Id at para 19.
[62]
Id at para 32.
[63]
Id
[64]
Id
[65]
J and Another v Director
General, Department of Home Affairs, and Others
[2003] ZACC 3
;
2003 (5) SA 621
(CC);
2003
(5) BCLR 463
(CC).
[66]
Id at para 23.
[67]
See further the Introduction
by myself to Eekelaar and Nhlapo (eds)
The Changing Family: Family Forms
and Family Law
(Juta, Cape Town, 1998) at xi:
“[A]s far as family law is concerned, we in South Africa have it all. We
have every kind of family: extended families, nuclear
families, one-parent
families, same-sex families, and in relation to each one of these there are
[controversies, difficulties] and
cases coming before the courts or due to come
before the courts. This is the result of ancient history and recent history. I
am
not proposing to go through the few hundred thousand years ever since Lucy
[the African common ancestor of all humanity], but one
can say that family law
in South Africa or the problems of family law are the product of the way our
subcontinent was peopled, the
way we were colonised, the way the colonists were
subsequently colonised, the way we were separated and the way we came together
again. Our families are suffused with history, as family law is suffused with
history, culture, belief and personality. For researchers
it’s a
paradise, for judges a
purgatory.”
[68]
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC)
at para 262.
[69]
Sodomy
case above n 6
at para 129.
[70]
Id
[71]
Minow argues that equality
for those deemed different is precluded by five unstated and unacceptable
assumptions namely that: difference
is intrinsic not a comparison; the norm need
not be stated; the observer can see without a perspective; other perspectives
are irrelevant;
and the status quo is natural, uncoerced and good. Her focus
was principally on disability rights, but the critique would seem to
apply to
the manner in which gay and lesbian conduct has been characterised. Minow
Making all the Difference: Inclusion, Exclusion, and American Law
(Cornell University Press, Ithaca and London, 1990) at 53-74.
[72]
See the
Sodomy
case
above n 6 at para 135.
[73]
Christian Education South
Africa v Minister of Education
[2000] ZACC 11
;
2000 (4) SA 757
(CC); 2000 (10) 1051 (CC) at
para 24.
[74]
Id at para 24. See too
S
v Lawrence; S v Negal; S v Solberg
1997 (4) SA 1176
(CC);
1997 (10) BCLR
1348
(CC) at para 146-7, and the
Sodomy
case above n 6 at paras 107 and
134-5.
[75]
The summary that follows
below is reproduced (without footnotes) from the judgment of Mokgoro and
O’Regan JJ in
Volks NO v Robinson and Others
[2005] ZACC 2
;
2005 (5) BCLR 446
(CC)
at paras 112-8.
[76]
Act 116 of 1998.
Interestingly, the Act is unusual in modern statutes in that it not only extends
its provisions to life partners
generally, but expressly includes same-sex
partnerships within its ambit. See section 1(b).
[77]
Section 15
of the
Matrimonial Property Act 88 of 1984
.
[78]
Volks
above n 75 at
para 117.
[79]
Id, see judgment of Skweyiya
J at paras 53 and 59, and judgment of Ngcobo J at para 93.
[80]
In this respect it should be
borne in mind that since the abolition of the patriarchal powers once vested by
the common law in the
husband, spouses enjoy equality in marriage. Same-sex
marriages therefore would not be required to replicate between the partners
the
formerly unequal or divergently stereotyped roles of husband and wife in
marriage. The achievement of heterosexual equality
thus removed a potentially
serious barrier to homosexual equality. In all material respects, then, sexual
orientation survives as
a neutral factor as far as the conjugal family law
interests are concerned. See also the judgment of Farlam JA,
Fourie
(SCA) above n 12 at para 122.
[81]
For example De Vos
“Gay and Lesbian Legal Theory” in
Jurisprudence
Roederer and
Moellendorf (eds) (Juta, Cape Town, 2004) at 349-50, raises the question of why
the state should provide special legal
recognition to only those relationships
which conform to a heterosexual stereotype, thereby further marginalising and
oppressing
those whose relationships are less traditional in form. See also
Cheshire Calhoun
Feminism, the Family, and the Politics of the Closet:
Lesbian and Gay Displacement
(Oxford University Press, Cape Town, 2000) at
113, who points out that the argument that same-sex marriage rights depend on
the view
that the state ought to promote one normative ideal for intimacies,
plays directly into queer theorists’ and lesbian feminists’
worst
fears:
“Queer theorists worry that pursuing marriage rights is assimilationist,
because it rests on the view that it would be better
for gay and lesbian
relationships to be as much like traditional heterosexual intimate relationships
as possible. To pursue marriage
rights is to reject the value of pursuing
possibly more liberating, if less conventional, sexual, affectional,
care-taking, and economic
intimate arrangements. Feminists worry that pursuing
marriage rights will have the effect of endorsing gender-structured heterosexual
marriage . . .
.”
[82]
The
literature suggests, however, that most gay people in South Africa dream of
getting married. See Gevisser “Mandela’s
stepchildren: homosexual
identity in post-apartheid South Africa” in
Different Rainbows
Peter Drucker (ed) (Gay Men’s Press, London, 2000) at 135. For many the
dream is attenuated by present reality. See Ruth Morgan
and Saskia Wieringa
Tommy Boys, Lesbian Men and Ancestral Wives: Female same-sex practices in
Africa
(Jacana, Johannesburg, 2005) at 321. Writing about gay identity in a
black township on the outskirts of Ermelo, Reid “‘A
man is a man
completely and a wife is a wife completely’: Gender classification and
performance amongst ‘ladies’
and ‘gents’ in Ermelo,
Mpumalanga” in
Men Behaving Differently
Graeme Reid and Liz Walker
(eds) (Double Storey, Cape Town, 2005) write that
“[s]ame-sex engagement and marriage ceremonies which take place in the
region are events where traditions are both evoked and
reinvented. They
constitute significant social occasions where the performance of gender is
enacted in a particular, ritualised
way. These events are also topics for
seemingly endless speculation, rumour, gossip and fantasy.” (At
221.)
He goes on to write that that while Bhuti (one of his
informants) may have fantasised about a white wedding and honeymoon, Zakhi
aspired
towards a more traditionally African engagement and wedding ceremony,
which includes lobola negotiations between the families and
an umhlambiso
engagement followed by a white wedding.
“Marriage signals a pinnacle of social acceptance and equality before the
law. The fact that individuals are getting married
in spite of the law suggests
that social acceptance and the quest for respectability is a primary motivating
factor.”
One organiser complained that in gay weddings
there was far too much emphasis placed on superficial things such as rings, food
and
especially clothing at the expense of more substantial issues such as the
quality of the relationship. (At 223.)
[83]
The literature also
indicates that the gay and lesbian experience in South Africa is extremely
varied. Thus in the Introduction
to
Sex and Politics in South Africa
Hoad, Martin and Reid (ed) (Double Storey, Cape Town, 2005), Hoad writes:
“Letties, moffies, stabanes, skesanas, injongas . . . make their own
history but under conditions that are not of their making.
Our list of
identifying terms is far from comprehensive and each item on that list indicates
a different configuration of identity,
desire, practice, possibility, held
together by the phrase ‘sexual orientation’ in the South African
Constitution –
the meaning of which is continually being revised by the
South African courts.”
He adds that significant legislative victories have been won,
also affecting the meaning of the phrase. (At 19.)
[84]
De Vos recounts the joke
that an African-American does not have to come home and say: “Mommy,
Daddy, there’s something
I’ve got to tell you – I’m
black.” Above n 81 at 339.
[85]
Per Ackermann J in
Home
Affairs
above n 44 at para 51.
[86]
Christian Education
above n 73 at para 36.
[87]
Id at para 37.
[88]
Id at para 33.
[89]
Id at para 33 referring to
the comments in this Court in
Ex Parte Gauteng Provincial Legislature: In re
Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng
School
Education Bill of
[1996] ZACC 4
;
1995
1996 (3) SA 165
(CC);
1996 (4) BCLR 537
(CC)
at paras 49 and 52. See also
S v Lawrence; S v Negal; S v Solberg
above
n 74 at paras 146-7;
Sodomy
above n 6 at paras 107 and 134-5.
[90]
Sodomy
above n 6 at
para 38.
[91]
Id
[92]
See section 15 of the
Constitution.
[93]
See section 31(1) of the
Constitution.
[94]
See section 16 of the
Constitution.
[95]
See
Hoffmann v South
African Airways
2001 (1) SA 1
(CC);
2000 (11) BCLR 1211
(CC) where this
Court ordered that the conduct of SA Airways in not employing the applicant as a
steward because of his HIV positive
status amounted to unfair discrimination.
Ngcobo J said: “People living with HIV constitute a minority. Society has
responded
to their plight with intense prejudice. They have been subjected to
systematic disadvantage and discrimination.” (Footnotes
omitted.) At para
28. As the US Supreme Court has pointed out in the context of religious speech,
the support of the great majority
for a policy does not lessen the offence to or
isolation of the objectors; at best it narrows their number, at worst it
increases
their sense of isolation and affront. See
Lee v Weisman
[1992] USSC 104
;
505 US
577
(1992) at 594. Quoted with approval in
Santa Fe Independent School
District v Doe
[2000] USSC 56
;
530 US 290
(2000) at 301-2.
[96]
In the 2002 René
Cassin lecture published in
Recognising Religion in a Secular Society: Essays
in Pluralism, Religion, and Public Policy
Douglas Farrow (ed), Canadian
Chief Justice Beverley McLachlin points out that the law faces the seemingly
paradoxical task of asserting
its own ultimate authority while carving out a
space within itself in which individuals and communities can manifest alternate,
and
often competing, sets of ultimate commitments. (At 16.) She refers to the
tension between the rule of law and the claims of religion
as a dialectic of
normative commitments:
“What is good, true, and just in religion will not always comport with the
law’s view of the matter, nor will society
at large always properly
respect conscientious adherence to alternate authorities and divergent
normative, or ethical commitments.
Where this is so, two comprehensive
worldviews collide. It is at this point that the question of law’s
treatment of religion
becomes truly exigent. The authority of each is
internally unassailable. What is more, both lay some claim to the whole of human
experience. . . . This clash of forces demands a resolution from the courts.
The reality of litigation means that cases must be
resolved. The dialectic must
reach synthesis.” (At 21-2.)
She then goes on to show how the Canadian Charter of Rights and
Freedoms provides the courts with a context for reconciling the competing
world
views. (At 28-33.) For a critique of what is referred to as triumphalistic
secular fundamentalism that seeks to impose secular
dogma on the whole of
society, see Benson “Considering Secularism” in
Recognising
Religion in a Secular Society
id at 95.
[97]
Similarly section 34
provides:
“Religious rules and regulations.—Nothing in this Act contained
shall prevent—
(a) the making by any religious denomination or organization of such rules or
regulations in connection with the religious blessing
of marriages as may be in
conformity with the religious views of such denomination or organization or the
exercise of church discipline
in any such case; or
(b) the acceptance by any person of any fee charged by such religious
denomination or organization for the blessing of any
marriage,
provided the exercise of such authority is not in conflict with the civil rights
and duties of any
person.”
[98]
See too
Sodomy
above n 6 at para 137:
“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.”
It should be added that, conversely, the
Constitution does not allow the state to impose an orthodoxy of secular beliefs
on the whole
of society, including religious organisations conducting religious
activities as protected by the Constitution.
[99]
In
Joslin v New
Zealand
(Communication No 902/1999) (17 July 2002), the Committee
stated:
“The treaty obligation of States . . . is to recognise as marriage only
the union between a man and a woman wishing to be married
to each
other.”
[100]
Section 232 of the Constitution states that:
“Customary international law is law in the Republic unless it is
inconsistent with the Constitution or an Act of
Parliament.”
[101]
Section 39(1)(b) of the Constitution states that:
“(1)  When interpreting the Bill of Rights, a court, tribunal or
forum—
. . .
(b) must consider international law . .
.”
[102]
Similarly, the rights to a fair trial, workers’ rights, language rights
and the rights of migrants and minorities, to mention
but a few, have all
expanded enormously since then. Though the language of the instruments
proclaiming these rights might be the
same, the significance and impact of the
words used is vastly different. Free speech rights and rights of movement have
advanced
in equal measure. Punishments that had been regarded as self-evidently
necessary for centuries are now forbidden as barbarous.
[103]
The list of changes is
endless. The fact that environmental rights and disability rights were not
expressly mentioned in the Declaration
did not mean that they were to be treated
as excluded from, or somehow hostile, to the specified rights. What was
considered free,
fair, dignified or equal then, is a far cry from what would be
accepted as such today.
[104]
Daniels v Campbell NO
and Others
[2004] ZACC 14
;
2004 (5) SA 331
(CC);
2004 (7) BCLR 735
(CC).
[105]
Id at paras 74-5.
[106]
Section 36 of the
Constitution states:
“(1) The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account
all relevant factors,
including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the
purpose.
(2) Except as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in
the Bill of
Rights.”
See
Harksen v Lane NO and Others
[1997] ZACC 12
;
1998 (1)
SA 300
(CC) at paras 53-4;
1997 (11) BCLR 1489
(CC) at paras 52-3.
[107]
Above n 44 at para
59.
[108]
Id
[109]
Hoffmann
above n
95 at para 37. The Court ordered SA Airways to employ the applicant, who was
HIV positive, as a steward for as long as his
immune system was strong enough
for him to carry on working efficiently. See too
Home Affairs
above n 44
at paras 58-60.
[110]
I do not find it
necessary to consider whether it in addition constitutes a violation of their
right to privacy in terms of section
14 of the Constitution. See the discussion
on privacy in the
Sodomy
case above n 6 at paras 28-57, 65-7 of the
judgment of Ackermann J and paras 108-19 of my judgment in that matter.
[111]
Home Affairs
above
n 44 at para 31.
[112]
Id at paras 28-9.
[113]
See
Volks
above n
75 at footnote 171 of the judgment of Sachs J. There are four statutes of
particular relevance to the present matter. The
first two deal with issues
which traditionally have been directly connected with marriage law and both
expressly refer to same-sex
relationships. Thus the
Domestic Violence Act 116
of 1998
defines a domestic relationship as a relationship between a complainant
and a respondent who are of the same or opposite sex and
who live/lived together
in a relationship in the nature of marriage, although they are not married to
each other. The Estate Duty
Act 45 of 1955 provides that a “spouse”
in relation to any deceased person, includes a person who at the time of the
death of such deceased person was the partner of such person in a same-sex or
heterosexual union which the Commissioner is satisfied
is intended to be
permanent. The second two are concerned with the need to achieve equality. The
Employment Equity Act 55 of 1998
provides that the definition of “family
responsibility” includes “responsibility of the employees in
relation to
their spouse or partner, their dependent children or other members
of their immediate family who need their care or support.”
Similarly, the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
provides that “family responsibility”
means “responsibility in
relation to a complainant’s spouse, partner, dependant, child or other
members of his or her
family in respect of whom the member is liable for care
and support.” It goes on to state that “‘marital
status’
includes the status or condition of being single, married,
divorced, widowed or in a relationship, whether with a person of the same
or the
opposite sex, involving a commitment to reciprocal support in a
relationship.”
[114]
Above n 65 at para
23.
[115]
Per Ackermann J above n 6
at paras 90-1.
[116]
Id at para 69.
[117]
Memorandum on progress
achieved concerning Project 118, made available on 19 May 2005 on request by the
Court.
[118]
Issue Paper no. 17
(Project 118).
[119]
The models researched
varied from civil marriage (The Netherlands and Belgium), no special legal
status for domestic partners (UK),
de facto recognition (Australia) and civil
unions (Vermont). The fact that none of the models researched emanated in a
constitutional
dispensation such as the South African one with specific
protection of sexual orientation in an equality clause, indicated the need
for a
uniquely South African solution.
[120]
Fourie
(SCA) above
n 12 at paras 110-1. See paras 28-31 above.
[121]
At para 141 below.
[122]
31 March 2004.
[123]
One aspect of the
research indicated that although many same-sex couples were in favour of
same-sex marriage, others saw it as an
oppressive institution that is wrongly
presented by a heterosexual society as the norm against which all other
relationships should
be measured. Many of them might also deliberately choose
not to get married because they did not desire the consequences attached
to
marriage. In this context it was argued that the legislature should respect the
autonomy of these partners and make provision
for both these groups.
[124]
It should be added that
the SALRC memorandum noted that this Court’s judgment would ultimately
assist the SALRC in recommending
legislation that might pass constitutional
scrutiny and which would put an end to ad hoc applications to enforce rights on
a piecemeal
basis.
[125]
Fraser v
Children’s Court, Pretoria North, and Others
1997 (2) SA 261
(CC);
1997 (2) BCLR 153
(CC). [
Fraser (1)
.]
[126]
Act 74 of 1983.
[127]
Fraser (1)
above n
125 at para 50.
[128]
Id
[129]
Id at para 51.
[130]
Id
[131]
Id
[132]
Dawood, Shalabi and
Thomas v Minister of Home Affairs
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC).
[133]
Id at para 63.
[134]
Id at 70.
[135]
The second option which
it adopted at that stage was to abolish secular marriage as a legal institution
and replace it with a civil
union which would produce effects similar to
marriage but be available for both heterosexual and same-sex couples. The third
option
which it then proposed was to establish a form of registered partnerships
for same-sex couples which would operate alongside of and
have the same legal
status and consequences as marriage for heterosexual couples. It was the
availability of these three options
that led Farlam JA to decide to suspend the
order of invalidity he would have made, so as to allow Parliament to make the
choice.
He made no pronouncement on their constitutionality.
Fourie
(SCA) above n 12 at paras 139-41.
[136]
Above n 117.
[137]
Id
[138]
Id
[139]
Id
[140]
Appointed on request of
the SALRC by the Minister of Justice to assist the Commission with its task.
The Minister appointed the
following persons to the Committee: The Honourable
Justice Craig Howie, now President of the SCA (Chairperson), Professor Cora
Hoexter,
Ms Beth Goldblatt, Professor Ronald Louw and Professor Tshepo
Mosikatsana.
[141]
Above n 117.
[142]
Id
[143]
Id
[144]
Id
[145]
See section 1(a) of the
Constitution.
[146]
See Ackermann J in
Home Affairs
above n 44 at para 77. It could have been considerations
such as these that encouraged the SALRC to drop the option of replacing
civil
marriage for heterosexual couples only, with the notion of abolishing civil
marriage altogether and replacing it with a civil
union available both to
heterosexual and same-sex couples. This is a matter which this Court is not
obliged to consider at this
stage.
[147]
Justifying the exclusion
of a child whose mother was referred to as a coloured woman from a school for
children of European parentage
or extraction, de Villiers CJ in
Moller v
Keimos School Committee and Another
1911 AD 635
at 643-4:
“As a matter of public history we know that the first civilized
legislators in South Africa came from Holland and regarded
the aboriginal
natives of the country as belonging to an inferior race . . . . Believing, as
these whites did, that intimacy with
the black or yellow races would lower the
whites without raising the supposed inferior races in the scale of civilization,
they condemned
intermarriage or illicit intercourse between persons of the two
races. Unfortunately the practice of many white men has often been
inconsistent
with that belief . . . . These prepossessions, or, as many might term them,
these prejudices, have never died out .
. . . We may not from a philosophical
or humanitarian point of view be able to approve this prevalent sentiment, but
we cannot,
as judges who are called upon to construe an Act of Parliament,
ignore the reasons which must have induced the legislature to adopt
the policy
of separate education for European and non-European
children.”
[148]
See
Loving v Virginia
388 US 1
(1966) at 2-3 Warren CJ states that a
Negro woman and a white man were sentenced to a year in jail for their
interracial marriage.
The trial court judge, however, suspended the sentence
for a period of 25 years on the condition that the Lovings leave the State
and
not return to Virginia together for 25 years. The trial court judge stated
that:
“Almighty God created the races white, black, yellow, malay and red, and
he placed them on separate continents. And but for
interference with his
arrangement there would be no cause for such marriages. The fact that he
separated the races shows that he
did not intend for the races to
mix.”
In South Africa the Prohibition of Mixed Marriages Act 55 of
1949 prohibiting marriage across the colour line, and repealed only in
1985 was
based on similar offensive notions.
[149]
Thus in
Minister of
Posts and Telegraphs v Rasool
1934 AD 167
, which dealt with a challenge to a
post office regulation requiring Europeans and non-Europeans to be attended to
at separate counters,
Stratford ACJ held that “[i]t would surely seem at
first sight that the admission . . . to equality of service destroys at
once the
idea of partiality or inequality.” (At 173.) He went on to say:
“[A] division of the community on differences of race or language for the
purpose of postal service seems,
prima facie
, to be sensible and make for
the convenience and comfort of the public as a whole, since appropriate
officials conversant with the
customs, requirements and language of each section
will conceivably serve the respective sections.” (At
175.)
De Villiers JA likened division on the ground of race
to division on the ground of initial letters of one’s name. Only Beyers
JA and Gardiner JA confronted the racist social reality involved. Supporting
the regulation, Beyers JA held that in the Transvaal
Europeans and non-Europeans
had never been treated as equal in the eyes of the law. “Afskeiding loop
deur ons ganse maatskaplik
lewe in die hele Unie”. (Separation is to be
found in all of social life in the whole of the Union [of South Africa]”.

My translation.) (At 177.) Gardiner JA, on the other hand, regarded the
regulation as invalid:
“In view of the prevalent feeling as to colour, in view of the numerous
statutes treating non-Europeans as belonging to an
inferior order of
civilisation, any fresh classification on colour lines can, to my mind, be
interpreted only as a fresh instance
of relegation of Asiatics and natives to a
lower order, and this I consider humiliating treatment.” (At
190-1.)
[150]
1960
(4) 709 (A).
[151]
Id at 710.
[152]
See
Minister of
Finance and Another v Van Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC);
2004 (11) BCLR 1125
(CC).
[153]
See
Weatherall v
Canada (Attorney General)
[1993] 2 S.C.R 872
at 874 where it was held that
it does not follow from the fact that female prison inmates are not subject to
cross-gender frisk searches
and surveillance that these practices result in
discriminatory treatment of male inmates. Equality does not necessarily connote
identical treatment; in fact, different treatment may be called for in certain
cases to promote equality. Equality, in that context,
does not demand that
practices which are forbidden where male officers guard female inmates must also
be banned where female officers
guard male inmates. Given the historical,
biological and sociological differences between men and women, it was clear that
the effect
of cross-gender searching is different and more threatening for women
than for men. The important government objectives of inmate
rehabilitation and
security of the institution are promoted as a result of the humanising effect of
having women in these positions.
Moreover, Parliament's ideal of achieving
employment equity was given a material application by way of this initiative.
The proportionality
of the means used to the importance of these ends would thus
justify any breach of equality.
[154]
In the landmark case of
Brown v Board of Education
347 US 483
(1954), the United States Supreme
Court overturned the notorious separate but equal doctrine as affirmed in
Plessy v Ferguson
that had authorised segregated facilities for persons
classified as Negroes. Chief Justice Warren stated:
“We come then to the question presented: Does segregation of children in
public schools solely on the basis of race, even though
that physical facilities
and other ‘tangible’ factors may be equal, deprive the children of
the minority group of equal
educational opportunities? We believe it
does.” (At
493.)
[155]
Above n
132. When suspending a declaration of invalidity of a provision concerning
certain privileges of immigrants married to South
Africans, this Court provided
in the order for a set of interim guidelines to fill the gap. At paras
64-8.
[156]
See para 115 of this
judgment.
[157]
Home Affairs
above
n 44 at para 74.
[158]
Id at paras 74-5.
[159]
Id
[160]
In
Christian
Education
above n 73 at para 35, this Court held that:
“The underlying problem in any open and democratic society based on human
dignity, equality and freedom in which conscientious
and religious freedom has
to be regarded with appropriate seriousness, is how far such democracy can and
must go in allowing members
of religious communities to define for themselves
which laws they will obey and which not. Such a society can cohere only if all
its participants accept that certain basic norms and standards are binding.
Accordingly, believers cannot claim an automatic right
to be exempted by their
beliefs from the laws of the land. At the same time,
the State should,
wherever reasonably possible, seek to avoid putting believers to extremely
painful and intensely burdensome choices
of either being true to their faith or
else respectful of the law
.” (My emphasis.)
[161]
Home
Affairs
above n 44 at para 76.
[162]
See
Volks
above n
75 at paras 67-8.
[163]
S v Bhulwana; S v
Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 32.
[164]
See
Fraser v
Children’s Court, Pretoria North, and Others
1997 (2) SA 261
(CC);
1997 (2) BCLR 153
(CC) at paras 26-29 and para 50; also see the judgment of
Sachs J at para 133.
[165]
Carmichele v Minister
of Safety and Security and Another (Centre for Applied Legal Studies
Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 33.
[166]
De Lange v Smuts NO
and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at paras 60-63,
S
v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC);
2001 (5) BCLR 423
(CC) at para 33,
Minister
of Defence v Potsane and Another; Legal Soldier (Pty) Ltd and Others v Minister
of Defence and Others
2002 (1) SA 1
(CC);
2001 (11) BCLR 1137
(CC) at para
37.
[167]
Section 38 of the
Constitution:
“Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights has
been infringed or
threatened, and the court may grant appropriate relief, including a declaration
of rights. The persons who may
approach a court are−
(a) anyone acting in their own
interest;
(b) anyone acting on behalf of another person who cannot act in their own
name;
(c) anyone acting as a member of, or in the interest of, a group or class of
persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its
members.”
[168]
Section 172 of the Constitution:
“(1) When deciding a constitutional matter within its power, a
court–
(a) must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency;
and
(b) may make any order that is just and equitable,
including–
(i) an order limiting the retrospective effect
of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on
any conditions, to allow the competent authority to correct
the defect.
(2) (a) The Supreme Court of Appeal, a High Court or a court of similar status
may make an order concerning the constitutional validity
of an Act of
Parliament, a provincial Act or any conduct of the President, but an order of
constitutional invalidity has no force
unless it is confirmed by the
Constitutional Court.
(b) A court which makes an order of constitutional invalidity may grant a
temporary interdict or other temporary relief to a party,
or may adjourn the
proceedings, pending a decision of the Constitutional Court on the validity of
that Act or conduct.
(c) National legislation must provide for the referral of an order of
constitutional invalidity to the Constitutional Court.
(d) Any person or organ of state with a sufficient interest may appeal, or
apply, directly to the Constitutional Court to confirm
or vary an order of
constitutional invalidity by a court in terms of this
subsection.”
[169]
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another
v Minister of Home Affairs and Others; Thomas and Another
v Minister of Home
Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at paras
63-64;
Fraser v Naude and Others
1999 (11) BCLR 1357
(CC) at paras
9-10.
[170]
Fraser
id.
[171]
Tsotetsi v Mutual and
Federal Insurance Co Ltd
[1996] ZACC 19
;
1997 (1) SA 585
(CC);
1996 (11) BCLR 1439
(CC) at
para 10.
[172]
See for example,
Dawood
above n
169
at paras
66-67,
Janse van Rensburg NO and Another v Minister of Trade and Industry and
Another NNO
2001 (1) SA 29
(CC);
2000 (11) BCLR 1235
(CC) at para 29-30,
Zondi v MEC for Traditional and Local Government Affairs and Others
[2004] ZACC 19
;
2005
(3) SA 589
(CC);
2005 (4) BCLR 347
(CC) at paras 130-31.
[173]
National Coalition for
Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 58,
Dawood
above n
169
at paras 30-31,
Satchwell v
President of the Republic of South Africa and Another
[2002] ZACC 18
;
2002 (6) SA 1
(CC);
2002 (9) BCLR 986
(CC) at para 22.