The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II

National Coalition for Gay and Lesbian Equality [1999]

National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others  () SA  (CC) CASE SUMMARY Facts The National Coalition for Gay and Lesbian Equality, a voluntary association of South African gay, lesbian, bisexual, and transgendered people and organizations, brought an application to the High Court challenging both common law and statutory proscriptions that criminalized private, consensual, anal sex between men. The Coalition argued that the law unfairly discriminated against gay men on the ground of sexual orientation. Legal History The High Court declared the criminalization of consensual sodomy unconstitutional. Justice Heher concluded that the law discriminated on the basis of sexual orientation and was therefore presumptively unfair. The state could offer no compelling argument to justify the discrimination and thereby rebut the presumption of unconstitutionality . Issues Is the criminalization of consensual, anal sex between men constitutional? National Coalition for Gay and Lesbian Equality [] Decision of the Constitutional Court Justice Ackermann, for a unanimous court, held that the common law offence of sodomy unfairly discriminated against gay men on the ground of sexual orientation. He emphasized the serious impact that the law had on the dignity of homosexuals. It criminalized not only the act of anal sex but also the very status of being gay. The real and symbolic force of the law perpetuates the social marginalization and the economic disadvantage of gay people within South African society (paragraph ). The state could offer no other reason for the various offences remaining on the books than that they reinforce the moral views of a particular segment of society. That view of moral turpitude was insufficient to overcome section ()’s rebuttable presumption of unfairness (paragraph ). Justice Ackermann further held that punishing consensual anal sex also limited the rights to dignity and privacy. The infringement of the right to dignity flowed from the same reasons that rendered the discrimination unfair. As to privacy, Justice Ackermann held that sexual intimacy lay at the very core of the right to privacy and that consensual, nonharmful sexual activity was always protected. He also held that the limitations of dignity and privacy strengthened the conclusion that the discrimination was unfair. The court then discussed whether the serious limitations of equality, dignity, and privacy were justifiable under section .The primary reasons for the legal limitations were that various religions found homosexuality an abomination against God. While the court acknowledged that the Constitution respected the right of people to hold those views, Justice Ackermann held that those views did not and could not determine the meaning of other sections of the Constitution (paragraph ). Justice Sachs wrote a concurring judgment discussing the relationship between equality, dignity, and privacy. For Justice Sachs, dignity was the “leitmotif” of the Bill of Rights and thereby linked rights to equality and privacy. He also stressed that dignity—as a right, value or ideal—could not be understood in the abstract. It secured its content from the lived realities of various denizens of this country. Finally, and perhaps most intriguingly, Justice Sachs developed the concept of equality as a “right to be different.” Order The court upheld the High Court’s declarations of invalidity, but ensured that the declaration did not apply to nonconsensual anal sex. The order also allowed people who had been convicted of sodomy to approach the courts to have their sentence overturned. Comment Given the conservative cast of some of the court’s sexuality related judgments, for example, Jordan, isn’t the decriminalization of consensual, anal sex between men  National Coalition for Gay and Lesbian Equality [] surprising? How do you explain the outcome? How does the court use dignity to draw a line between homosexuality and prostitution? JUSTICE ACKERMANN The Constitutional Validity of the Common-law Offence of Sodomy [] I shall for the moment deal only with sodomy that takes place in private between consenting males. The long history relating to the ways in which the South African criminal common law differentiated in its treatment of gays as opposed to its treatment of heterosexuals and lesbians, prior to the passing of the Interim Constitution , has already been dealt with in at least three judgments of the High Court. The conclusions can be briefly stated. The offence of sodomy, prior to the coming into force of the Interim Constitution, was defined as “unlawful and intentional sexual intercourse per anum between human males,” consent not depriving the act of unlawfulness, “and thus both parties...