Corte Costituzionale del Sud Africa

SACHS J:
INTRODUCTION
[1] Finding themselves strongly attracted to each other, two people went out regularly and eventually decided to set up home together. 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. Like many persons in their situation, they wanted to get married. There was one impediment. They are both women.

[2] Ms Marié Adriaana Fourie and Ms Cecelia Johanna Bonthuys are the applicants in the first of two cases 1 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. Far from enabling them to regularise their union, it shuts them out, unfairly and unconstitutionally, they claim.

[3] 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.” 2 The common law is not self-enforcing, and in order for such a union to be formalised and have legal effect, the provisions of the Marriage Act 3 have to be invoked. This, as contended for in the second case, 4 is where the further level of exclusion operates. The Marriage Act provides that a minister of religion who is designated as a marriage officer may follow the marriage formula usually observed by the religion concerned. 5 In terms of section 30(1) other marriage officers must put to each of the parties the following question:
“‘Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)?’, 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.B. and C.D. here present have been lawfully married.’” (My emphasis.)

The reference to wife (or husband) is said to exclude same-sex couples. 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.

[4] In the pre-democratic era same-sex unions were not only denied any form of legal protection, they were regarded as immoral and their consummation by men could attract imprisonment. 6 Since the interim Constitution came into force in 1994, however, the Bill of Rights has dramatically altered the situation. Section 9(1) of the Constitution now reads:

“Everyone is equal before the law and has the right to equal protection and benefit of the law.”

Section 9(3) of the Constitution expressly prohibits unfair discrimination on the grounds of sexual orientation. It reads:
“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.)
[5] 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? And if it does, what is the appropriate remedy that this Court should order?

I. HISTORY OF THE LITIGATION
The first challenge: the common law definition of marriage (the Fourie case)
[6] Pursuant to their desire to marry and thereby acquire the status, benefits and responsibilities which traditionally flow from marriage between heterosexual couples, the applicants went to the Pretoria High Court. They asked for an order declaring that the law recognises their right to marry, and a mandamus ordering the Minister of Home Affairs and the Director-General to register their marriage in terms of the Marriage Act. 7 It will be noted that they did not mount a challenge either to the common law definition of marriage or to the constitutionality of section 30(1) of the Marriage Act.
[7] Roux J in the High Court 8 attempted to ‘wring out’ of the parties a clear description of the constitutional issue in the matter. The applicants articulated the issue as follows:
“Whether the common law has so developed that it can be amended so as to recognise marriages of persons of the same sex as legally valid marriages in terms of the Marriage Act, 25 of 1961 provided that such marriages comply with the formality requisites set out in the Act.”
Roux J concluded that the marriage formula in section 30(1) of the Marriage Act, which contemplates marriage between a male and a female and no other, is peremptory. Consequently the applicants could not be married as required by the law. To compel the Minister of Home Affairs to register the “marriage” between the applicants, he added, would constitute a request to do what is unlawful. An omission to challenge the constitutionality of the provisions of the Marriage Act accordingly constituted an obstacle to granting the relief sought. On this basis he dismissed the application.

[8] The applicants then applied to the Pretoria High Court for leave to appeal to this Court, alternatively, to the Supreme Court of Appeal (SCA) against his judgment. Roux J having in the interim retired, the application was heard by Mynhardt J, who refused to grant a positive certificate, but 9 did grant them leave to appeal to the SCA. The applicants then approached the Constitutional Court for leave to appeal directly to it against the judgment and order of the High Court.
[9] This Court refused the application on the ground that the interests of justice required that the appeal first be heard by the SCA. Moseneke J 10 said that in their papers the applicants did not seek a declaration that any of the provisions of the legislation dealing with solemnising or recording of marriages was inconsistent with the Constitution, or if any was, what the appropriate relief would be in that regard. The applicants also omitted to address all the consequences that would flow from the recognition of such a union or how it should be dissolved. The appeal was likely to raise complex and important questions of the legal conformity of our common law and statutory rules of marriage in the light of our Constitution and its resultant jurisprudence. Moseneke J pointed out that
“[m]arriage and its legal consequences sit at the heart of the common law of persons, family and succession and of the statutory scheme of the Marriage Act. Moreover marriage touches on many other aspects of law, including labour law, insurance and tax. These issues are of importance not only to the applicants and the gay and lesbian community but also to society at large.” 11

[10] 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. The judgment emphasised that the views of the SCA on the matters that arose were of considerable importance. The nature of the dispute raised by the appeal was, as the High Court had correctly held in issuing a negative rule 18(2) certificate, pre-eminently suited to be considered first by the SCA. The application for leave to appeal directly to this Court was accordingly refused.

[11] The result was that the applicants pursued their appeal in the SCA. 12 They did so on the same basis on which they had litigated in the Pretoria High Court, namely, that the common law needed to be developed, without linking this to a challenge to the Marriage Act.
[12] The SCA upheld the appeal in part. Two separate judgments were delivered. All five judges held that the exclusion of same-sex couples from the common law definition of marriage constituted unfair discrimination against them. The reasons for coming to this conclusion diverged in certain significant respects, however, resulting in different approaches being taken as to the order to be made.
[13] Writing for the majority, Cameron JA 13 held that the Constitution grants powers to the Constitutional Court, the SCA and the High Courts to develop the common law, taking into account the interests of justice. 14 The Bill of Rights provides 15 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. 16 Taken together, these provisions create an imperative normative setting that obliges courts to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights. Doing so is not a choice. Where the common law is deficient, the courts are under a general obligation to develop it appropriately. This provided the background to the task in the appeal.

[14] Cameron JA went on to state that developing the common law involves a creative and declaratory function in which the court puts the final touch on the process of incremental legal development that the Constitution has already ordained. The task of applying the values in the Bill of Rights to the common law thus requires the courts to put its faith in both the values themselves, as well as in the people whose duly elected representatives created a visionary and inclusive constitutional structure that offered acceptance and justice across diversity to all. He said that South Africans and their elected representatives have for the greater part accepted the sometimes far-reaching decisions in regard to sexual orientation and other constitutional rights over the past ten years. It is not presumptuous to believe that they will accept also the further incremental development of the common law that the Constitution requires in this case.
[15] Cameron JA pointed out that our equality jurisprudence had taken great strides in respect of gays and lesbians in the last decade. The cases articulate far-reaching doctrines of dignity, equality and inclusive moral citizenship. 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.” 17

[16] 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.

[17] Legislative developments, he continued, have ameliorated but not eliminated the disadvantages same-sex couples suffer. 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. The applicants’ wish was not to deprive others of any rights. It was to gain access for themselves, without limiting that enjoyed by others. 18

[18] The majority judgment went on to state that the Marriage Act prescribes a verbal formula that must be uttered if the legal consequences of the lawful marriage are to follow. The legislature prescribed this formula, and its words cannot be substituted by ‘updating’ interpretation. 19 If the Court, and not Parliament, is to make a constitutionally necessary change to such a formula, that must be done not by interpretation but by the constitutional remedy of ‘reading-in’. The applicants’ legal advisors, however, had overlooked the question of the Marriage Act.

[19] This did not, however, constitute a complete obstacle to granting them some portion of the relief they sought. The Marriage Act permits the Minister to approve variant marriage formulae for ministers of religion and others holding a ‘responsible position’ within religious denominations. Cameron JA noted that there are currently many religious societies that approve same-sex marriages. Even without amendment to the statute, the Minister is now at liberty to approve religious formulae that encompass same-sex marriages.
[20] Cameron JA stated that it is important to emphasise that neither the Court’s decision, nor the ministerial grant of such a formula, in any way impinges on religious freedom. The extension of the common law definition of marriage does not compel any religious denomination or minister of religion to approve or perform same-sex marriages.
[21] Turning to the appropriate remedy, he stated that once the court concludes that the Bill of Rights requires the development of the common law, it is not engaging in a legislative process. Nor in fulfilling that function is the court intruding on the legislative domain. In his view, successful litigants should be awarded relief; the order of the SCA developing the common law trenched on no statutory provision, and deference to Parliament did not require that the order be suspended; and the applicants should be awarded the benefit of an order regarding the common law of marriage that would take effect immediately. Cameron JA indicated that when the Minister approved appropriate religious formulae, the development of the common law would take practical effect. Religious orders whose use of such formulae are approved, will at their option be able to perform gay and lesbian marriages. But, he concluded, gay and lesbian couples seeking to have a purely secular marriage would have to await the outcome of proceedings which were launched in the Johannesburg High Court in July 2004, designed to secure comprehensive relief challenging the provisions of the Marriage Act and other statutes.
[22] Cameron JA accordingly limited his order to declaring that in terms of sections 8(3), 39(2) and 173 of the Constitution, the common law concept of marriage is developed to embrace same-sex partners as follows: “Marriage is the union between two persons to the exclusion of all others for life.”
[23] In his minority judgment, Farlam JA dealt broadly with the history of the institution of marriage in our law. He emphasised that during the classical Roman law period marriage was a purely private institution which did not involve the state. No religious or ecclesiastical rite was essential, even after Christianity became the official religion of the Roman Empire in 313 AD. All that was required for the existence of a marriage was reciprocally expressed consent of parties. After the disintegration of the Roman Empire in the West, when the Church began to control marriage, parties were encouraged to declare their consent before a priest and to receive a blessing. Such marriages were regarded as “regular” marriages. There were also so-called “irregular” marriages which were based on the consent of the parties alone. Parties to “irregular” marriages were often subjected to ecclesiastical and secular penalties, but their marriages were nonetheless as valid as the “regular” ones.
[24] The present Marriage Act consolidated the laws governing the formalities of marriage and the appointment of marriage officers, and repealed some 47 Union and pre-Union statutes from the Marriage Order in Council of 7 September 1838 onwards. A study of the provisions of the Marriage Act makes it clear that it builds on the foundations laid by the Council of Trent in 1563 and by the States of Holland in 1580. It is solely concerned with marriage as a secular institution. Many may see a religious dimension to marriage, but this is not something that the law is concerned with.
[25] Farlam JA then went on to hold that
“[i]t will be recalled that s 9(1) of the Constitution provides that everyone has the right to equal protection and benefit of the law, while s 9(3) lists among the proscribed grounds of discrimination sexual orientation. Homosexual persons are not permitted in terms of the common-law definition to marry each other, however strong their yearning to establish a conjugal society of the kind described. As a result they are debarred from enjoying the protection and benefit of the law on the ground of their sexual orientation. This clearly constitutes discrimination within the meaning of s 9 of the Constitution.” 20

[26] He added that the effect of the common law prohibition of same-sex marriages was clearly unfair because it prevented parties to same-sex permanent relationships, who are as capable as heterosexual spouses of establishing a consortium omnis vitae, of constituting a family and of establishing, enjoying and benefiting from family life, from entering into a legally protected relationship from which substantial benefits conferred and recognised by the law flowed. 21 He went on to say that the common law definition of marriage not only gave rise to an infringement of the appellants’ constitutional right not to be the victims of unfair discrimination in terms of section 9 of the Constitution but also to their right to human dignity in terms of section 10. 22

[27] Farlam JA was of the view that the omission to challenge the marriage formula in the Marriage Act did not constitute a basis for denying the applicants relief. The finding by Roux J that the parties cannot be married as required by the law was wrong. The applicants’ true case was that they intended to enter into a marriage with each other and that they sought a declaration that such marriage, when entered into in accordance with the formalities in the Marriage Act, would be valid and registerable under the Marriage Act and the Identification Act.
[28] The judgment observes that counsel for the applicants had referred to the Discussion Paper 104 published by the South African Law Reform Commission (SALRC), which is devoted to the topic of Domestic Partnerships. The Paper contains proposals prepared by the SALRC aimed at harmonising family law with the provisions of the Bill of Rights and the constitutional values of equality and dignity. The SALRC considers as unconstitutional the fact that there is currently no legal recognition of same-sex relationships. It proposes that same-sex relationships should be acknowledged by the law and identifies three alternative ways of effecting legal recognition to such relationships, viz (a) opening up the common law definition of marriage to same-sex couples by inserting a definition to that effect in the Marriage Act; (b) separating the civil and religious elements of marriage, by amending the Marriage Act to the extent that it will only regulate the civil aspect of marriage, namely the requirements and the consequences prescribed by law and by providing in it for civil marriage of both same- and opposite-sex couples; and (c) providing what is called a ‘marriage-like alternative’ according same-sex couples (and possibly opposite sex couples) the opportunity of concluding civil unions with the same legal consequences as marriage. 23

[29] Farlam JA stated that only the first option is available to the courts, but only if it can be regarded as an incremental step. In the year 2004, and in the present circumstances the development of the common law cannot be regarded as a fundamental change. He said that Parliament has over the years since 1994 enacted numerous provisions giving recognition, in some cases expressly and in others impliedly, to same-sex partnerships. These enactments evidence an awareness on the part of Parliament of the changing nature of the concept of the family in our society. He added that until recently the principle of legal equality between the spouses had not been enshrined in our law. The rules forming part of our matrimonial relations which put the husband in a superior position and the wife in an inferior one are no longer part of our law. 24
[30] In respect of the contention that applicants are debarred from seeking relief because they did not challenge the constitutional validity of section 30(1) of the Marriage Act, he held that there is no section in the Marriage Act that expressly approves the common law definition of marriage. Section 30(1), according to Farlam JA, cannot be regarded as placing what may be called a ‘legislative imprimatur’ on that definition. What has happened is that the marriage formula contained in the Act was framed on the assumption that the common law definition of marriage was correct, which it was in 1838 255 and in 1961. He found that the formula can be changed by a process of innovative and ‘updating’ statutory interpretation by reading “wife (or husband)” in this provision as “spouse”.
[31] Farlam JA therefore supported an order declaring that the intended marriage between the applicants, provided that it complies with the formalities set out in the Marriage Act, would be capable of being recognised as a legally valid marriage. He would suspend the declaration of invalidity of the common law for two years, however, to enable Parliament to enact legislation to ensure the applicants’ rights to equality and human dignity are not unjustifiably infringed. Furthermore, the declaration would fall away only if such legislation was timeously enacted.

[32] To summarise: both judgments were in agreement that the SCA could and should rule that the common law definition discriminated unfairly against same-sex couples. The majority judgment by Cameron JA held, however, that although the common law definition should be developed so as to embrace same-sex couples, the Marriage Act could not be read in such a way as to include them. In the result, the only way the parties could marry would be under the auspices of a religious body that recognised same-sex marriages, and whose marriage formula was approved by the Minister of Home Affairs. The right of same-sex couples to celebrate a secular marriage would have to await a challenge to the Marriage Act. The minority judgment of Farlam JA, on the other hand, 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. In his view, however, the development of the common law to bring it into line with the Constitution should be suspended to enable Parliament to enact appropriate legislation. In support of an order of suspension he pointed out that the SALRC had indicated that there were three possible legislative responses to the unconstitutionality, and, in his view, it should be Parliament and not the judiciary that should choose. 26

Appeal and cross-appeal
[33] None of the parties to the litigation were satisfied with the outcome. The state noted an appeal on several grounds, revolving mainly around the proposition that it was not appropriate for the judiciary to bring about what it regarded as a momentous change to the institution of marriage, something, it contended, that should be left to Parliament. The applicants for their part were unhappy because although the newly developed definition of the common law included them in its terms, they were still prevented from getting married by the phrasing of the marriage vows in the Marriage Act. The only possible route enabling them to marry under the Act was a tenuous one, namely, to find a sympathetic religious denomination with an inclusive marriage vow that was approved by the Minister of Home Affairs. In their application to cross-appeal they accordingly supported the reasoning of Farlam JA regarding updating the Marriage Act, while objecting to his suspension of the development of the common law. At the same time they supported Cameron JA’s finding that immediate relief should be granted to them, but objected to his decision that the Marriage Act barred them from taking the vows except in the limited circumstances to which he referred. The overall result was that the state has sought leave to appeal against the SCA’s decision on the basis that it went too far, while the applicants have sought leave to cross-appeal on the grounds that it did not go far enough. It was common cause that the application in the Fourie matter by the state for leave to appeal and by the applicants for leave to cross-appeal, raise questions of considerable constitutional significance and social importance. It is in the interests of justice that they both be granted.

The second challenge: section 30(1) of the Marriage Act as well as the common law definition (the Equality Project case)
[34] In the meantime, accepting the need to challenge the Marriage Act as well as the common law, the Lesbian and Gay Equality Project (the Equality Project) and eighteen others had launched an application in the Johannesburg High Court 27 for the following relief:
“1. Declaring that the common law definition of marriage and the prescribed marriage formula in section 30(1) of the Marriage Act 25 of 1961 (‘the Marriage Act’) are unconstitutional in that they violate the rights of lesbian and gay people to:
1.1. equality in terms of section 9 of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’);
1.2. dignity in terms of section 10 of the Constitution; and
1.3. privacy in terms of section 14 of the Constitution;
2. Declaring that the common law definition of marriage is henceforth to be read as follows:
‘Marriage is the lawful and voluntary union of two persons to the exclusion of all others while it lasts’;
3. Declaring that the words ‘or spouse’ are to be read into the prescribed marriage formula in section 30(1) of the Marriage Act immediately after the words ‘or husband’;
4. Ordering those of the respondents who oppose this application to pay the applicants’ costs of suit; and
5. Granting the applicants such further and/or alternative relief as this Court deems appropriate in the circumstances.”

The case was originally due to be heard in the High Court in October this year, but was eventually set down for January next year. The Equality Project then applied for direct access to this Court to enable their challenge to the statute as well as to the common law definition of marriage to be heard together with the appeal and the cross-appeal relating to the SCA judgment in the Fourie case.
[35] The Minister of Home Affairs, the Director-General of Home Affairs and the Minister of Justice and Constitutional Development (I refer to them collectively as the state), opposed the application on the ground that direct access was not in the interests of justice. 28 The state agreed with the SCA that the primary issue was whether same-sex partners should be granted access to the existing common law institution of marriage, but disputed the finding that same-sex couples were entitled to such access. The state submitted that the SCA had misdirected itself in concluding that the common law definition of marriage violates the constitutional rights of lesbian and gay people to equality. Instead, it contended that it was the lack of legal recognition of their same-sex family relationships and the absence of legal consequences, which violated their rights, and not the exclusion from the institution of marriage.

[36] The state accordingly acknowledged that partners to same-sex relationships suffer discriminatory effects and violations of dignity and privacy and that such violations should be removed. It contended, however, that granting same-sex couples access to common law marriage is not the answer, constitutionally or otherwise. Appropriate relief from the discriminatory consequences, invasions of privacy and dignity involves
“an exercise of coherent, all embracing law making, which may have to overtake and undo existing Constitutional Court decisions. It may therefore be counterproductive for the [Constitutional Court] to make far-reaching revision of the common law by redefining marriage in this case.”

It followed, 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. Any previous concession on behalf of government that the exclusion of same-sex couples from marriage was unconstitutional, was retracted. Should the Court find, however, that the exclusion was unconstitutional, the state argued in the alternative that any order of invalidity should be suspended to enable Parliament, after extensive public debate, to deal with the matter through appropriate legislation. The relief sought, the state contended, went beyond the powers of the Court.

Amici curiae
[37] Prior to the hearing, applications were made by Doctors For Life International and its legal representative Mr John Smyth, to be admitted as amici curiae. They sought to lead further evidence and to make written submissions, while Mr Smyth in addition requested leave to make oral submissions. Their application to adduce further evidence was refused, but they were granted leave to make written submissions and Mr Smyth was authorised to address the Court orally.
[38] Application to be admitted as amicus curiae was also made by the Marriage Alliance of South Africa, supported on affidavit by Cardinal Wilfred Napier. The application, which included a request for the right to make both written and oral representations, was granted.

The application for direct access in the Equality Project matter
[39] The application by the Equality Project for direct access to this Court was resisted by the state, and requires special consideration. This Court has frequently stated that as a general rule it should not act as a court of first and final instance in relation to constitutional matters that may be heard in other courts. 29 In Mkontwana 30 Yacoob J emphasised that the importance and complexities of the issues raised in an application for direct access would weigh heavily against this Court being a court of first and final instance. 31 Not only is the jurisprudence of this Court greatly enriched by being able to draw on the considered opinion of another court. Proper evidential foundations, where appropriate, can be laid. Issues, both in relation to substantive law and appropriate orders to be made, are crystallised out for focused research and attention. There is no doubt, therefore, that a judgment by the High Court on the application made to it by the Equality Project would be of great assistance.

[40] At the same time it has to be borne in mind that the hearing in the High Court would only take place next year. The broad question of the right of same-sex couples to marry is already before us in the Fourie matter. It was first considered in the High Court and then in a comprehensive judgment of the SCA. Although the challenge to section 30(1) of the Marriage Act as such was not before the SCA, the SCA devoted considerable attention to interpreting its terms and evaluating its significance in relation to the common law. Furthermore, there has been no suggestion that evidence of significance to the outcome would or could have been led in the High Court in the Equality Project matter. The issues are matters of law which fall to be determined in a social context that has already frequently been dealt with by this Court.
[41] In Bhe 32 this Court was confronted with a not dissimilar situation. When considering separate applications for orders of constitutional invalidity made by the Cape High Court and the Pretoria High Court respectively, 33 it was asked also to consider an application by the South African Human Rights Commission and the Women’s Legal Centre Trust 34 for direct access seeking relief that was wider than that granted in the Cape and Pretoria High Courts. In granting direct access Langa DCJ said:
“The submissions sought to be made by the applicants relate to substantive issues that were already before the Court. The direct access application, however, quite helpfully broadens the scope of the constitutional investigation, given the need to deal effectively with the unwelcome consequences of the Act in the shortest possible time. The application further adds fresh insights on difficult issues, including the question of the appropriate remedy.
From the description of the two applicants, it is clear that they are both eminently qualified to be part of the debate on the issues before the Court. By reason of the above considerations, this Court concluded that it was in the interests of justice that the application for direct access should be granted.” 35

[42] In the present matter, the appeal from the SCA decision in the Fourie matter is already before us. The direct access application fills a gap in the Fourie case referred to by the High Court, this Court and the SCA. The common law in relation to marriage has been overtaken by statute in a great number of respects. To deal with it as if the Marriage Act did not exist would be highly artificial and abstract. The overlap between the issues raised and their strong interconnectedness requires them to be dealt with in an integrated and comprehensive fashion. There would be grave disadvantages to all concerned if the issues raised were to be decided in a piecemeal way.

[43] In opposing direct access the state did not contend that the High Court should first pronounce on the matter, but rather fired the first salvos of its new approach to the substantive issues raised. Its contentions will be dealt with in the course of this judgment, and it will suffer no prejudice from having the two matters consolidated. On the contrary, like all the parties it will gain from having the pieces of the puzzle placed together as would happen if the application for direct access is granted.
[44] In essence the enquiry into the common law definition of marriage and the constitutional validity of section 30(1) of the Marriage Act is the same. Are gay and lesbian people unfairly discriminated against because they are prevented from achieving the status and benefits coupled with responsibilities which heterosexual couples acquire from marriage? If they are, both the common law definition as well as section 30(1) must have the effect of limiting the rights contained in section 9 of the Constitution. If not, both will be good. It must be emphasised that it is not possible for one of the two provisions concerning marriage that are under attack in this case to be consistent with the Constitution, and for the other to be constitutionally invalid. In the circumstances, a refusal to consider both together would amount to no more than technical nicety. In the circumstances of this case, therefore, it is clearly in the interests of justice that the application for direct access be granted and that the Fourie and the Equality Project matters be heard together. 36

II. THE ISSUES
[45] At the hearing two broad and interrelated questions were raised: The first was whether or not the failure by the common law and the Marriage Act to provide the means whereby same-sex couples can marry, constitutes unfair discrimination against them. If the answer was that it does, the second question arose, namely, what the appropriate remedy for the unconstitutionality should be. These are the central issues in this matter, and I will start with the first.

Does the law deny equal protection to and discriminate unfairly against same-sex couples by not including them in the provisions of the Marriage Act?
[46] Counsel for the Minister of Justice argued that the Constitution did not protect the right to marry. It merely guaranteed to same-sex couples the right to establish their own forms of family life without interference from the state. This was a negative liberty, not to be equated with a right to be assimilated into the institution of marriage, which in terms of its historic genesis and evolution, was heterosexual by nature. International law recognised and protected marriage as so understood. Same-sex couples accordingly had no constitutional right to enter into or manipulate that institution. If their form of family life suffered from particular disadvantages, then these should be dealt with by appropriate legal remedies in response to each of the identified problems, not by entry into the global set of rights and entitlements established by marriage. Marriage law appropriately confined itself to marriage, it was contended, and not to all forms of family relationship.
[47] The initial proposition of the state’s argument is undoubtedly correct inasmuch as the Bill of R