at heart, ruling lacks courage

By Carmel Rickard (Sunday Times)

December 4, 2005: The ruling that gay and lesbian couples have the same constitutional right to a legally recognised marriage as anyone else can never have been in doubt.

In terms of its own logic and its interpretation of the Bill of Rights, the Constitutional Court had to come to the conclusion it reached, in 111 pages, about the right of same-sex couples to marry.

But, despite this certainty, the court managed to come up with two surprises, neither of them pleasant.

The first concerns length, both in terms of the number of pages it took to say what there was to say, and in terms of the time it took to finalise matters. The case was argued in May, but judgment was not handed down until December -- which may well indicate that something was awry.

The second surprise is of even more concern, because it deals with a matter of principle, a test of moral courage that, in my opinion, the court failed.

All nine of the judges who heard the case found that those denied the right to marry suffered in their most intimate private domain of dignity -- yet this flagrant contravention of constitutional rights will continue for another 12 months. This, to allow Parliament to fix the problem in its own way.

Another justification for their extraordinary lack of courage was the following: Yes, the court could amend the wording of the Marriage Act, thus permitting same-sex couples to marry in the interim while Parliament reworked the relevant legislation.

But this would mean these couples would be married in a twilight zone -- and the court presumed they would prefer to have their nuptials solemnised with the full warmth of the law. For this full warmth, they can wait for Parliament to change the law.

Frankly, this would not hold up as an argument even in a law school moot.
Imagine the issue was one of race instead of sexual orientation. The chances would be zero that those discriminated against in such an intimate and offensive way would be required by the court to wait another year before they could get the slightest relief.

The one bright light was Judge Kate O'Regan's decision, dissenting on the way forward. A model of brevity and courage, it may hint at a reason why her colleagues chose another outcome; perhaps they felt reluctant to shoulder the kind of public displeasure that resulted from the judgment in the death penalty case, and would prefer the "blame" for a controversial measure to lie with Parliament.

The court should not refuse to come to the help of litigants simply because a new law by Parliament might be thought to carry "greater democratic legitimacy than an order of this court", she wrote. The legitimacy of court orders comes from the Constitution, she stressed.

There will be many occasions on which members of the community do not want particular constitutional rights protected, "but that can never be a reason" for a court not to protect them.

She wrote: "In my view, the Court should make an order today which has immediate prospective effect. Such an order would ... immediately protect the constitutional rights of gay and lesbian couples, pending parliamentary action."
If there were a national award for judicial courage in the face of strong peer pressure, she would get my vote.

Rickard is legal editor of the Sunday Times