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

Minister of Home Affairs and Lesbian and Gay Equality Project

Minister of Home Affairs v. Fourie (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v. Minister of Home Affairs  () SA  (CC) CASE SUMMARY Facts The first applicants—Ms. Fourie and Ms. Bonthuys—contended that the common law definition of marriage in South Africa as the “union of one man with one woman” excludes homosexual couples and unfairly discriminates against them in terms of section () of the Constitution. The Gay and Lesbian Equality Project— the second applicant—challenged section () of the Marriage Act. That section required that marriage officers must put to each of the parties the following question: “Do you X . . . call all here present to witness that you take Y as your lawful wife (or husband)?” This question, the applicants argued, unconstitutionally excluded samesex couples. Legal History The High Court held that the first applicants were barred from getting an order allowing them to marry because they had not challenged the constitutionality of the Marriage Act. The Supreme Court of Appeal held that the right of same-sex couples to celebrate a secular marriage would have to await a challenge to the Marriage Act. However, the common-law definition of marriage could be developed so as to Minister of Home Affairs and Lesbian and Gay Equality Project embrace same-sex couples. The Equality Project matter was initially brought in the High Court as a challenge to both the Marriage Act vow and the common law definition of marriage. However, the Constitutional Court granted the second applicant direct access so that its case could be heard together with the appeal and the crossappeal of the first applicants. Issues Is the common law definition of marriage and the question posed in section () of the Marriage Act inconsistent with sections () and () (the right to equality) and  (the right to dignity) of the Constitution to the extent that they make no provision for same-sex couples to enjoy the same status, entitlements, and responsibilities accorded to heterosexual couples? Decision of the Constitutional Court The court was unanimous on all matters—except in relation to the remedy. With respect to the remedy, Justice O’Regan dissented. The court acknowledged the long history of marginalization and persecution of gays and lesbians in South Africa. However, it then noted that the South African Constitution represents a radical rupture with a not-so-distant past in which marginalization, persecution, intolerance, and exclusion were the leitmotifs of the apartheid state. While the court has made notable inroads in a broad array of areas that effect that lives of gay and lesbian couples , the long history of domination and discrimination on the basis of sexual orientation has meant that no comprehensive legal regulation of the family law rights of gays and lesbians exists. It then found that the exclusion of same-sex couples from the benefits and responsibilities of marriage is no small and tangential inconvenience . It represents a harsh if oblique statement by the law that same-sex couples remain outsiders (paragraph ). Moreover, the allegedly intangible damage of withholding the recognition of marriage to same-sex life partners is as severe as the material deprivation engendered by these laws. The silent obliteration of same-sex couples from the reach of the law, together with the utilization of gender-specific language in the marriage vow, presupposes that only heterosexual couples were contemplated. The common law definition of marriage and section () of the Marriage Act were accordingly found inconsistent with sections (), (), and  of the Constitution to the extent that they make no provision for same-sex couples to enjoy the status, entitlements, and responsibilities they accord to heterosexual couples. Order As to the remedy, the majority, per Justice Sachs, preferred a legislative intervention which would have the effect of enabling same-sex couples to enjoy the status, entitlements , and responsibilities that heterosexual couples achieve through marriage and would override any discriminatory impact that flowed from the current common law definition standing on its own. He also believed that more than one legislative  Minister of Home Affairs and Lesbian and Gay Equality Project solution existed. He therefore suspended the decision for twelve months to allow Parliament to craft a suitable remedy. If they failed to do so within twelve months the common-law definition would include homosexual couples and the words “or spouse” would be added after the words “or husband...