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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.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.”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.
CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 60/04 MINISTER OF HOME AFFAIRS First Applicant DIRECTOR-GENERAL OF HOME AFFAIRS Second Applicantversus MARIÉ ADRIAANA FOURIE First Respondent CECELIA JOHANNA BONTHUYS Second Respondentwith DOCTORS FOR LIFE INTERNATIONAL First amicus curiae JOHN JACKSON SMYTH Second amicus curiae THE MARRIAGE ALLIANCE OF SOUTH AFRICA Third amicus curiae Case CCT 10/05LESBIAN AND GAY EQUALITY PROJECTAND EIGHTEEN OTHERS Applicantsversus MINISTER OF HOME AFFAIRS First Respondent DIRECTOR-GENERAL OF HOME AFFAIRS Second Respondent MINISTER OF JUSTICE ANDCONSTITUTIONAL DEVELOPMENT Third Respondent Heard on : Decided on : 1 December 2005 JUDGMENT SACHS J: INTRODUCTION Finding themselves strongly attracted to each other, two people went out regularly and eventually decided to set up home together. here present have been lawfully married.’” (My emphasis.)The reference to wife (or husband) is said to exclude same-sex couples.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. that were set down for hearing on the same day in this Court. 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.Like many persons in their situation, they wanted to get married. Their complaint has been that the law excludes them from publicly celebrating their love and commitment to each other in marriage. ’, 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. “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.)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?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.
These issues are of importance not only to the applicants and the gay and lesbian community but also to society at large.”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.