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 Mari� Adriaana Fourie and Ms Cecelia Johanna
Bonthuys, of Pretoria, are the applicants in the first of two cases
(the Fourie case) that were set down for hearing on the same day in
this Court. Their complaint has been that the law excludes them from
publicly celebrating their love and commitment to each other in
marriage. They contend that the exclusion comes from the common law
definition which states that marriage in South Africa is a union of one
man with one woman, to the exclusion, while it lasts, of all others. In
the second case, (the Equality Project case) the Gay and Lesbian
Equality Project challenge section 30(1) of the Marriage Act, which
provides that marriage officers must put to each of the parties the
following question: �Do you AB�call all here present to witness that
you take CD as your lawful wife (or husband)?� The reference to wife
(or husband), they contend, unconstitutionally excludes same-sex
couples.
The two cases raised the question whether the fact that no provision
is made for the applicants, and all those in like situation, to marry
each other, amounts to denial of equal protection of the law and unfair
discrimination by the state against them because of their sexual
orientation, contrary to the provision of the Constitution guaranteeing
the right to equality and dignity. And if it does, what is the
appropriate remedy that this Court should order?
In the Fourie case the High Court held that the applicants
were barred from getting an order allowing them to marry because they
had not challenged the constitutionality of the Marriage Act. The
majority in the Supreme Court of Appeal held that the right of same-sex
couples to celebrate a secular marriage would have to await a challenge
to the Marriage Act; in the meanwhile the common law definition of
marriage should be developed so as to embrace same-sex couples. The
minority judgment held both that the common law should be developed and
that the Marriage Act could and should be read there and then in
updated form so as to permit same-sex couples to pronounce the vows. It
held further, however, that the development of the common law to bring
it into line with the Constitution should be suspended to enable
Parliament to enact appropriate legislation.
The Equality Project case in the meantime was brought as a
challenge to the Marriage Act vow as well as to the common law
definition. Originally due to be heard in the High Court in October
this year, it was eventually set down for January next year. The
Equality Project then applied for direct access to this Court to enable
their case to be heard together with the appeal and the cross-appeal
noted in the Fourie case.
The state contended that the Equality Project was incorrect in
seeking an order from this Court declaring the common law definition of
marriage and the prescribed marriage formula in section 30(1) of the
Marriage Act to be unconstitutional. It argued further that if the
Court ruled otherwise, any declaration of invalidity should be
suspended to enable Parliament to correct the defect.
Doctors for Life and their legal representative Mr John Smyth, were
admitted as amicus curiae, and made written and oral submissions to
this Court, as did the Marriage Alliance of South Africa, supported on
affidavit by Cardinal Wilfred Napier.
Writing for a Court that was unanimous on all matters except in
relation to the remedy, Sachs J held that it was clearly in the
interests of justice that the Fourie and the Equality Project matters
be heard together. He observed that this Court had in five consecutive
decisions highlighted that South Africa has a multitude of family
formations that are evolving rapidly as our society develops, so that
it is inappropriate to entrench any particular form as the only
socially and legally acceptable one; there was an imperative
constitutional need to acknowledge the long history in our country and
abroad of marginalisation and persecution of gays and lesbians although
a number of breakthroughs have been made in particular areas; there is
no comprehensive legal regulation of the family law rights of gays and
lesbians; and finally, our Constitution represents a radical rupture
with the past based on intolerance and exclusion, and the movement
forward to the acceptance of the need to develop a society based on
equality and respect by all for all. He pointed out that at issue was
the need to affirm the character of our society as one based on
tolerance and mutual respect. The test of tolerance is not how one
finds space for people with whom, and practices with which, one feels
comfortable, but how one accommodates the expression of what is
discomforting.
The exclusion of same-sex couples from the benefits and
responsibilities of marriage was not a small and tangential
inconvenience resulting from a few surviving relics of societal
prejudice destined to evaporate like the morning dew. It represented a
harsh if oblique statement by the law that same-sex couples are
outsiders, and that their need for affirmation and protection of their
intimate relations as human beings is somehow less than that of
heterosexual couples. It signifies that their capacity for love,
commitment and accepting responsibility is by definition less worthy of
regard than that of heterosexual couples. The intangible damage to
same-sex couples is as severe as the material deprivation. They are not
entitled to celebrate their commitment to each other in a joyous public
event recognised by the law. They are obliged to live in a state of
legal blankness in which their unions remain unmarked by the showering
of presents and the commemoration of anniversaries so celebrated in our
culture.
If heterosexual couples have the option of deciding whether to marry
or not, the judgment continued, so should same-sex couples have the
choice as to whether to seek to achieve a status and a set of
entitlements and responsibilities on a par with those enjoyed by
heterosexual couples. By both drawing on and reinforcing discriminatory
social practices, the law has failed to secure for same-sex coupes the
dignity, status, benefits and responsibilities that it accords to
heterosexual couples. Although considerable progress has been made in
specific cases through constitutional interpretation and by means of
legislative intervention, the default position of gays and lesbians is
still one of exclusion and marginalisation. Sachs J stated that Judges
would be placed in an intolerable situation if they were called upon to
construe religious texts and take sides on issues which have caused
deep schisms within religious bodies. In the open and democratic
society contemplated by the Constitution there must be mutually
respectful co-existence between the secular and the sacred. The
function of the Court is to recognise the sphere which each inhabits,
not to force the one into the sphere of the other. The objective of the
Constitution is to allow different concepts about the nature of human
existence to inhabit the same public realm, and to do so in a manner
that is not mutually destructive and that at the same time enables
government to function in a way that shows equal concern and respect
for all.
Acknowledgement by the state of the right of 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 two sets of interests involved do not collide,
they co-exist in a constitutional realm based on accommodation of
diversity. 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.
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 were
contemplated. The common law and section 30(1) of the Marriage Act are
accordingly inconsistent with sections 9(1) and 9(3) [equality] and 10
[dignity] 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.
Dealing with the remedy to be provided, Sachs J stated that
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. 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. It was accordingly not necessary to
decide whether the Court could or should develop the common law
standing alone.
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 there was 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.
The claim by the applicants in Fourie of the right to get married
should 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
signified far more than a right to enter into a legal arrangement with
many attendant and significant consequences, important though they may
be. It represented 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 would it and other such
unions be rescued from legal oblivion, and the more tranquil and
enduring 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 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. 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.
There were at least two different ways in which the legislature
could possibly deal with the gap that exists in the law. The first was
to follow the simple proposal of the Equality Project to read in the
words �or spouse� after the words �or husband� in the Marriage Act.
The second possibility was a more complex and comprehensive proposal
put forward in a memorandum by the South African Law Reform Commission.
Arrived at after extensive public consultation over several years, this
would embody a single comprehensive legislative scheme and not set out
a range of options for the Legislature. It calls for a new generic
marriage act (to be called the Reformed Marriage Act) that 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. It 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.
According to the SALRC 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.
Sachs J held that 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 was appropriate that the legislature be given an opportunity
to map out what it considers to be the best way forward.
Whatever legislative remedy is chosen, however, 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. 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.
Parliament has already undertaken a number of legislative
initiatives which demonstrate its concern to end discrimination on
ground of sexual orientation. Aided by the extensive research and
specific proposals made by the SALRC, there was no reason to believe
that Parliament would not be able to fulfil its responsibilities in the
light of the judgment within a relatively short time. What was in issue
was not a fundamental new start in legislation but the culmination of a
process that had 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.
If, however, 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. If Parliament wished
to refine or replace the remedy with another legal arrangement that met
constitutional standards, it could still have the last word. 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.
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 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.
� 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.
� These declarations of invalidity are suspended for 12 months
from the 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 as including the words �or spouse� after the words �or husband� as
they appear in the marriage formula.
� The Minister and Director-General of Home Affairs and the
Minister of Justice and Constitutional Development must pay the
applicants� costs.
This judgment was concurred in by Langa CJ, Moseneke DCJ, Mokgoro
J, Ngcobo J, Skweyiya J, Van der Westhuizen J, Yacoob J
In a separate judgment O�Regan J expresses her agreement with the
findings of the main judgment on unconstitutionality, but dissents on
the remedy. She states that 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. The fact that
Parliament faces choices does not, in this case, seem to be sufficient
for this Court to refuse to develop the common law and remedy a
statutory provision which is also unconstitutional.
She further states that the doctrine of the separation of
powers is an important one in our Constitution but it cannot be used to
avoid the obligation of a court to provide appropriate relief that is
just and equitable to litigants who successfully raise a constitutional
complaint. 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.
She concludes that the power and duty to protect
constitutional rights is conferred upon the courts and courts should
not shrink from that duty. The legitimacy of the Court�s order does not
flow from the status of the institution itself, but from the fact that
it gives effect to the provisions of our Constitution. Permitting those
who have been excluded from marrying to marry, can only foster a
society based on respect for human dignity and human difference. |