The following media summary is provided to assist in reporting this case and is not binding on the Constitutional Court or any member of the Court.Ms Marié Adriaana Fourie and Ms Cecelia Johanna Bonthuys, of Pretoria, are the applicants in the first of two cases (the Fourie case) that were set down for hearing on the same day in this Court. Their complaint has been that the law excludes them from publicly celebrating their love and commitment to each other in marriage. They contend that the exclusion comes from the common law definition which states that marriage in South Africa is a union of one man with one woman, to the exclusion, while it lasts, of all others. In the second case, (the Equality Project case) the Gay and Lesbian Equality Project challenge section 30(1) of the Marriage Act, which provides that marriage officers must put to each of the parties the following question: “Do you AB…call all here present to witness that you take CD as your lawful wife (or husband)??? The reference to wife (or husband), they contend, unconstitutionally excludes same-sex couples.The two cases raised the question whether the fact that no provision is made for the applicants, and all those in like situation, to marry each other, amounts to denial of equal protection of the law and unfair discrimination by the state against them because of their sexual orientation, contrary to the provision of the Constitution guaranteeing the right to equality and dignity. And if it does, what is the appropriate remedy that this Court should order?
In the Fourie case the High Court held that theapplicants were barred from getting an order allowing them to marrybecause they had not challenged the constitutionality of the MarriageAct. The majority in the Supreme Court of Appeal held that the right ofsame-sex couples to celebrate a secular marriage would have to await achallenge to the Marriage Act; in the meanwhile the common lawdefinition of marriage should be developed so as to embrace same-sexcouples. The minority judgment held both that the common law should bedeveloped and that the Marriage Act could and should be read there andthen in updated form so as to permit same-sex couples to pronounce thevows. It held further, however, that the development of the common lawto bring it into line with the Constitution should be suspended toenable Parliament to enact appropriate legislation. The Equality Project case in the meantime was brought as achallenge to the Marriage Act vow as well as to the common lawdefinition. Originally due to be heard in the High Court in Octoberthis year, it was eventually set down for January next year. TheEquality Project then applied for direct access to this Court to enabletheir case to be heard together with the appeal and the cross-appealnoted in the Fourie case. The state contended that the Equality Project was incorrect inseeking an order from this Court declaring the common law definition ofmarriage and the prescribed marriage formula in section 30(1) of theMarriage Act to be unconstitutional. It argued further that if theCourt ruled otherwise, any declaration of invalidity should besuspended to enable Parliament to correct the defect. Doctors for Life and their legal representative Mr John Smyth, wereadmitted as amicus curiae, and made written and oral submissions tothis Court, as did the Marriage Alliance of South Africa, supported onaffidavit by Cardinal Wilfred Napier. Writing for a Court that was unanimous on all matters except inrelation to the remedy, Sachs J held that it was clearly in theinterests of justice that the Fourie and the Equality Project mattersbe heard together. He observed that this Court had in five consecutivedecisions highlighted that South Africa has a multitude of familyformations that are evolving rapidly as our society develops, so thatit is inappropriate to entrench any particular form as the onlysocially and legally acceptable one; there was an imperativeconstitutional need to acknowledge the long history in our country andabroad of marginalisation and persecution of gays and lesbians althougha number of breakthroughs have been made in particular areas; there isno comprehensive legal regulation of the family law rights of gays andlesbians; and finally, our Constitution represents a radical rupturewith the past based on intolerance and exclusion, and the movementforward to the acceptance of the need to develop a society based onequality and respect by all for all. He pointed out that at issue wasthe need to affirm the character of our society as one based ontolerance and mutual respect. The test of tolerance is not how onefinds space for people with whom, and practices with which, one feelscomfortable, but how one accommodates the expression of what isdiscomforting. The exclusion of same-sex couples from the benefits andresponsibilities of marriage was not a small and tangentialinconvenience resulting from a few surviving relics of societalprejudice destined to evaporate like the morning dew. It represented aharsh if oblique statement by the law that same-sex couples areoutsiders, and that their need for affirmation and protection of theirintimate relations as human beings is somehow less than that ofheterosexual couples. It signifies that their capacity for love,commitment and accepting responsibility is by definition less worthy ofregard than that of heterosexual couples. The intangible damage tosame-sex couples is as severe as the material deprivation. They are notentitled to celebrate their commitment to each other in a joyous publicevent recognised by the law. They are obliged to live in a state oflegal blankness in which their unions remain unmarked by the showeringof presents and the commemoration of anniversaries so celebrated in ourculture. If heterosexual couples have the option of deciding whether tomarry or not, the judgment continued, so should same-sex couples havethe choice as to whether to seek to achieve a status and a set ofentitlements and responsibilities on a par with those enjoyed byheterosexual couples. By both drawing on and reinforcing discriminatorysocial practices, the law has failed to secure for same-sex coupes thedignity, status, benefits and responsibilities that it accords toheterosexual couples. Although considerable progress has been made inspecific cases through constitutional interpretation and by means oflegislative intervention, the default position of gays and lesbians isstill one of exclusion and marginalisation. Sachs J stated that Judgeswould be placed in an intolerable situation if they were called upon toconstrue religious texts and take sides on issues which have causeddeep schisms within religious bodies. In the open and democraticsociety contemplated by the Constitution there must be mutuallyrespectful co-existence between the secular and the sacred. Thefunction of the Court is to recognise the sphere which each inhabits,not to force the one into the sphere of the other. The objective of theConstitution is to allow different concepts about the nature of humanexistence to inhabit the same public realm, and to do so in a mannerthat is not mutually destructive and that at the same time enablesgovernment to function in a way that shows equal concern and respectfor all. Acknowledgement by the state of the right of same-sex
couples toenjoy the same status, entitlements and responsibilities as marriagelaw accords to heterosexual couples, is in no way inconsistent with therights of religious organisations to continue to refuse to celebratesame-sex marriages. The two sets of interests involved do not collide,they co-exist in a constitutional realm based on accommodation ofdiversity. Granting access to same-sex couples would in no wayattenuate the capacity of heterosexual couples to marry in the formthey wished and according to the tenets of their religion. The silent obliteration of same-sex couples from the reach of thelaw, together with the utilisation of gender-specific language in themarriage vow, presupposes that only heterosexual couples werecontemplated. The common law and section 30(1) of the Marriage Act areaccordingly inconsistent with sections 9(1) and 9(3) [equality] and 10[dignity] of the Constitution to the extent that they make no provisionfor same-sex couples to enjoy the status, entitlements andresponsibilities they accord to heterosexual couples. Dealing with the remedy to be provided, Sachs J stated thatlegislative intervention which had the effect of enabling same-sexcouples to enjoy the status, entitlements and responsibilities thatheterosexual couples achieve through marriage, would without moreoverride any discriminatory impact flowing from the common lawdefinition standing on its own. The effect would be that formalregistration of same-sex unions would automatically extend the commonlaw and statutory legal consequences to same-sex couples that flow toheterosexual couples from marriage. It was accordingly not necessary todecide whether the Court could or should develop the common lawstanding alone. A notable and significant development in our statute law in recentyears has been the extent of express and implied recognition that thelegislature has accorded to same-sex partnerships. Yet there was stillno appropriate recognition in our law of same-sex life partnership, asa relationship, to meet the legal and other needs of its partners. The claim by the applicants in Fourie of the right to get marriedshould be seen as part of a comprehensive wish to be able to liveopenly and freely as lesbian women emancipated from all the legaltaboos that historically have kept them from enjoying life in themainstream of society. The right to celebrate their union accordinglysignified far more than a right to enter into a legal arrangement withmany attendant and significant consequences, important though they maybe. It represented a major symbolical milestone in their long walk toequality and dignity. The greater and more secure the institutionalimprimatur for their union, the more solidly would it and other suchunions be rescued from legal oblivion, and the more tranquil andenduring would such unions ultimately turn out to be. The matter touched on deep public and private sensibilities.Parliament was well-suited to finding the best ways of ensuring thatsame-sex couples are brought in from the legal cold. The law may notautomatically and of itself eliminate stereotyping and prejudice. Yetit serves as a great teacher, establishes public norms that becomeassimilated into daily life and protects vulnerable people from unjustmarginalisation and abuse. It needs to be remembered that not only thecourts are responsible for vindicating the rights enshrined in the Billof Rights. The legislature is in the frontline in this respect. One ofits principal functions is to ensure that the values of theConstitution as set out in the Preamble and section 1 permeate everyarea of the law. Provided that the basic principles of equality asenshrined in the Constitution are not trimmed in the process, thegreater the degree of public acceptance for same-sex unions, the morewill the achievement of equality be promoted. There were at least two different ways in which the legislaturecould possibly deal with the gap that exists in the law. The first wasto follow the simple proposal of the Equality Project to read in thewords ‘or spouse’ after the words ‘or husband’ in the Marriage Act. The second possibility was a more complex and comprehensiveproposal put forward in a memorandum by the South African Law ReformCommission. Arrived at after extensive public consultation over severalyears, this would embody a single comprehensive legislative scheme andnot set out a range of options for the Legislature. It calls for a newgeneric marriage act (to be called the Reformed Marriage Act) thatwould be enacted to give legal recognition to all marriages, includingthose of same and opposite-sex couples and irrespective of thereligion, race or culture of a couple. However, the current MarriageAct would not be repealed, but renamed only (to be called theConventional Marriage Act). For the purposes of this Act, the statusquo would be retained in all respects and legal recognition in terms ofthis Act would only be available to opposite-sex couples. It wouldentail no separation of the religious and civil aspects of marriage,and ministers of religion (or religious institutions) would have thechoice to decide in terms of which Act they wish to be designated asmarriage officers. The state would designate its marriage officers interms of the Reformed Marriage Act. According to the SALRC the family law dispensation in South Africawould therefore make provision for a marriage act of generalapplication together with a number of additional, specific marriageacts for special interest groups such as couples in customarymarriages, Islamic marriages, Hindu marriages and now also opposite-sexspecific marriages. Sachs J held that given the great public significance of thematter, the deep sensitivities involved and the importance ofestablishing a firmly-anchored foundation for the achievement ofequality in this area, it was appropriate that the legislature be givenan opportunity to map out what it considers to be the best way forward. Whatever legislative remedy is chosen, however, must be as generousand accepting towards same-sex couples as it is to heterosexualcouples, both in terms of the intangibles as well as the tangiblesinvolved. In a context of patterns of deep past discrimination andcontinuing homophobia, appropriate sensitivity must be shown toproviding a remedy that is truly and manifestly respectful of thedignity of same-sex couples. Parliament has already undertaken a number of legislativeinitiatives which demonstrate its concern to end discrimination onground of sexual orientation. Aided by the extensive research andspecific proposals made by the SALRC, there was no reason to believethat Parliament would not be able to fulfil its responsibilities in thelight of the judgment within a relatively short time. What was in issuewas not a fundamental new start in legislation but the culmination of aprocess that had been underway for many years. In the circumstances itwould be appropriate to give Parliament one year from the date of thedelivery of this judgment to cure the defect. If, however, Parliament fails to cure the defect within twelvemonths, the words “or spouse?? will automatically be read into section30(1) of the Marriage Act. In this event the Marriage Act will, withoutmore, become the legal vehicle to enable same-sex couples to achievethe status and benefits coupled with responsibilities which itpresently makes available to heterosexual couples. If Parliament wishedto refine or replace the remedy with another legal arrangement that metconstitutional standards, it could still have the last word. Religiousinstitutions would remain undisturbed in their ability to performmarriage ceremonies according to their own tenets, and thus if theywished, to celebrate heterosexual marriages only. The principle ofreasonable accommodation could be applied by the state to ensure thatcivil marriage officers who had sincere religious objections toofficiating at same-sex marriages woul
d not themselves be obliged to doso if this resulted in a violation of their conscience. The order of the Supreme Court of Appeal has accordingly been set aside and replaced by orders stating that: • The common law definition of marriage is declared to beinconsistent with the Constitution and invalid to the extent that itdoes not permit same-sex couples to enjoy the status and the benefitscoupled with responsibilities it accords to heterosexual couples. • The omission from section 30(1) of the Marriage Act 25 of 1961after the words “or husband?? of the words “or spouse?? is declared to beinconsistent with the Constitution, and the Marriage Act is declared tobe invalid to the extent of this inconsistency. • These declarations of invalidity are suspended for 12 months fromthe date of this judgment to allow Parliament to correct the defects. • Should Parliament not correct the defects within this period,Section 30(1) of the Marriage Act 25 of 1961 will forthwith be read asincluding the words “or spouse?? after the words “or husband?? as theyappear in the marriage formula.• The Minister and Director-General of Home Affairs and theMinister of Justice and Constitutional Development must pay theapplicants’ costs. This judgment was concurred in by Langa CJ, Moseneke DCJ, MokgoroJ, Ngcobo J, Skweyiya J, Van der Westhuizen J, Yacoob J In a separatejudgment O’Regan J expresses her agreement with the findings of themain judgment on unconstitutionality, but dissents on the remedy. Shestates that this Court should develop the common-law rule as suggestedby the majority in the Supreme Court of Appeal, and at the same timeread in words to section 30 of the Act that would with immediate effectpermit gays and lesbians to be married by civil marriage officers (andsuch religious marriage officers as consider such marriages not to falloutside the tenets of their religion). Such an order would mean simplythat there would be gay and lesbian married couples at common law,which marriages would have to be regulated by any new marital regimethe legislature chooses to adopt. The fact that Parliament faceschoices does not, in this case, seem to be sufficient for this Court torefuse to develop the common law and remedy a statutory provision whichis also unconstitutional. She further states that the doctrine of the separation of powers isan important one in our Constitution but it cannot be used to avoid theobligation of a court to provide appropriate relief that is just andequitable to litigants who successfully raise a constitutionalcomplaint. The importance of the principle that a successful litigantshould obtain the relief sought has been acknowledged by this Courtthrough the grant of interim relief where an order of suspension ismade to ensure that constitutional rights are infringed as little aspossible in the period of suspension. She concludes that the power and duty to protect constitutionalrights is conferred upon the courts and courts should not shrink fromthat duty. The legitimacy of the Court’s order does not flow from thestatus of the institution itself, but from the fact that it giveseffect to the provisions of our Constitution. Permitting those who havebeen excluded from marrying to marry, can only foster a society basedon respect for human dignity and human difference.Technorati Tags: marriage, same-sex
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