Fourie and other vs Home Affairs

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO. 17280/02

In the matter between -

MARIÉ ADRIAANA FOURIE 1^st Applicant

CECILIA JOHANNA BONTHUYS 2^nd Applicant

and

THE MINISTER OF HOME AFFAIRS 1^st Respondent

THE DIRECTOR-GENERAL: HOME AFFAIRS 2^nd Respondent

______________________________________________________________________

SUBMISSIONS ON BEHALF OF

THE LESBIAN AND GAY EQUALITY PROJECT

______________________________________________________________________

INTRODUCTION

1. In terms of Rule 16A(2) of the Rules of this Honourable Court, t he LESBIAN AND GAY EQUALITY PROJECT ("the Equality Project"), has been admitted as an amicus curiae in this matter.

2. In terms of Rule 16A(3), the written consent of the applicants and the respondents, required in terms of Rule 16A(2), was lodged with the Registrar of this Honourable Court on 29 July 2002.

3. The Equality Project, formerly known as the NATIONAL COALITION FOR GAY AND LESBIAN EQUALITY ("the NCGLE"), is a non-profit organisation that is committed to the protection and enforcement of human rights for lesbian and gay people and others in South Africa.

4. The Equality Project is a juristic person capable of instituting legal proceedings in its own name.

5. The objectives of the Equality Project include:

5.1. the promotion of equality before the law for all persons irrespective of their sexual orientation;

5.2. the reform and/or repeal of laws that discriminate on the basis of sexual orientation;

5.3. influencing the legislative process in order to secure legislation that gives full recognition to the right to equality for all people irrespective of their sexual orientation;

5.4. challenging all forms of discrimination on the basis of sexual orientation, by means of litigation, lobbying, advocacy, public education and political mobilisation;

5.5. promoting an understanding and commitment among lesbian and gay people and others that human rights and sustainable social development ought to be guaranteed for all; and

5.6. promoting a South Africa based on sustainable socio-economic justice and sustainable development for all.

6. In the furtherance of its aims and objectives, the Equality Project has been involved in several landmark cases, as applicant, amicus curiae or representative, including the following:

Du Toit v Minister of Welfare and Population Development (CC), case no. CCT 40/01,unreported judgment handed down on 10 September 2002, (as amicus curiae). A copy of the judgment will be included in the bundle of authorities (“the bundle”) to be filed together with these heads of argument. The judgment of the court a quo, where the Equality Project was not involved, is reported at 2001 (12) BCLR 1225 (T).

National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC).

National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC).

Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T), (as representative).

THE PERSPECTIVE OF THE EQUALITY PROJECT

7. Whilst the Equality Project supports the limited relief sought by the applicants, it is clear that the applicants are not in a position to provide this Honourable Court with the perspective of lesbian and gay people generally. On the contrary, it is submitted that the Equality Project is so placed.

Founding Affidavit, p.6, par. 12;

Founding Affidavit, p.8, par. 17.

8. It is further submitted that this matter requires a thorough re-appraisal of the common law prohibition of same-sex marriages. If the applicants are to succeed, this Honourable Court must declare the prohibition of same-sex marriages unconstitutional and develop the common law, in terms of section 39(2) of the Constitution, in such a way that it recognises the validity of all same-sex marriages.

THE COMMON LAW POSITION

9. The common law defines marriage as the voluntary union of one man and one woman to the exclusion of all others while it lasts.

Seedat's Executors v The Master (Natal) 1917 AD 302 at 309.

Joubert, The Law of South Africa-1^st re-issue, (1998), vol. 16, par. 12 and the authorities referred to in footnote 1.

Sinclair & Heaton, The Law of Marriage, Volume 1, (1996), p. 305.

Hahlo, The South African Law of Husband and Wife, (1975, 4ed), p. 28.

10. There is an express prohibition in the common law against same-sex marriages. Professor Hahlo put it thus at p. 66 of The South African Law of Husband and Wife :

“Marriage being the union of a man and a woman, two persons of the same sex cannot contract a valid marriage. If it is discovered after the marriage that the ‘spouses’ are of the same sex, the marriage is liable to annulment.”

11. The threat of annulment was realised in W v W 1976 (2) SA 308 (W) at 315F-G. In that case, the plaintiff sued for divorce on the ground of the defendant’s adultery with another woman. The plaintiff’s evidence revealed that, some time prior to her marriage to the defendant, the plaintiff, to the knowledge of the defendant, had undergone sex reassignment surgery. Nestadt J, holding (at 310E) that “two persons of the same sex cannot contract a valid marriage”, concluded (at 315E-F) that:

“[T]he plaintiff was a male prior to her operation and … in the absence of proof that such operation changed her sex, she has failed to prove that her marriage to the defendant was valid.”

12. The irony, of course, is that the plaintiff in W v W who “had the physical and psychological attributes of a female and was socially accepted as, and looked like, a woman” (at 313C-D), could legally have married another woman.

See, in this regard, Sinclair & Heaton, The Law of Marriage, Volume 1 at p. 310.

See, also, Simms v Simms 1981 (4) SA 186 (D), where the court declared the “purported marriage” between the parties to be null and void because the defendant was a male person and the plaintiff had been born a male person.

13. The common law definition has its roots in the Christian tradition that defined marriage as a sacramental union entered into permanently between one baptised man and one baptised woman. This monogamous marriage of the Roman-Dutch Law, which came to South Africa with the first Dutch settlers, was until recently the only form of marriage recognised in South African law.

Hahlo, The South African Law of Husband and Wife, (1975, 4ed), p. 29.

14. Another form of marriage, the polygamous marriage, was considered offensive to Christian tradition. It did not matter whether the marriage was in fact monogamous or not. The potential for the marriage being polygamous was sufficient to deny it recognition in the eyes of the law. In Seedat's Executors (1917 AD 302) at 308, Innes CJ stated that “polygamy is repugnant to the policy and the legal institutions both of Holland and of England.” Towards the end of page 308, the learned Chief Justice concluded:

“It is not surprising, therefore, that our Courts have approved the general principle that foreign polygamous marriages should not be recognised by South African tribunals.”

15. For many decades after this decision, our Courts continued to deny recognition to African customary marriages and religious Hindu and Muslim marriages because of their potentially polygamous nature.

16. As recently as 1983 it was held that claims for maintenance and deferred dowry brought by a woman against a man to whom she had been married by Muslim rites were not enforceable because they were intrinsic to a conjugal union between the parties which, being potentially polygamous (although in fact monogamous), was void on the grounds of public policy.

Ismail v Ismail 1983 (1) SA 1006 (A).

17. It was not only potentially polygamous marriages that were seen as being contrary to public policy. Monogamous marriages, where one of the parties was black and the other white, were also outlawed.

Prohibition of Mixed Marriages Act, No. 55 of 1949

18. Times, however, have changed. The Prohibition of Mixed Marriages Act was repealed in 1985. The Recognition of Customary Marriages Act, No. 120 of 1998 makes provision, in section 2 thereof and subject to certain conditions, for a marriage at customary law to be recognised “for all purposes … as a marriage.”

19. Furthermore, Ismail v Ismail is no longer binding authority in relation to marriages that are potentially, but not actually, polygamous. In Ryland v Edros 1997 (1) BCLR 77(C) Farlam J (at 94A-B) held that he was “satisfied that the Ismail decision no longer operates to preclude a court from enforcing claims such as those brought by the defendant in this case.” See, also, the discussion of the change in contemporary public policy on this point at 85E-H, 87B-94B.

20. The Ryland decision has been referred to with approval by both the Supreme Court of Appeal and the Constitutional Court.

Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA) at 1328D/E – 1332F/G, par. [21] – [29].

Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (8) BCLR 837 (CC) at 859F, par [33], n47.

21. In Dawood the Constitutional Court was called upon to consider the nature and importance of marriage, having regard to contemporary social values. See, in this regard, the observations of O’Regan J at 2000 (8) BCLR 837 (CC) 858E-859F, par. [30]-[33]. Of particular importance to this matter is the following discussion from paragraphs [31] and [32]:

“[31] … The importance of the family unit for society is recognised in the international human rights instruments referred to above when they state that the family is the “natural” and “fundamental” unit of our society. However, families come in many shapes and sizes. The definition of the family also changes as social practices and traditions change. In recognising the importance of the family, we must take care not to entrench particular forms of family at the expense of other forms.

[32] South African families are diverse in character and marriages can be contracted under several different legal regimes including African customary law, Islamic personal law and the civil or common law. However, full legal recognition has historically been afforded only to civil or common-law marriages. …”

22. Sinclair and Heaton (The Law of Marriage, Volume 1 at p. 422) point out that the traditional civil or common law marriage does not make husband and wife one in law. Instead it creates a physical, moral and spiritual community of life, a consortium omnis vitae. In Peter v Minister of Law and Order 1990 (4) SA 6 (E) at 9F/G-H, Erasmus J defined the consortium as:

“an abstraction comprising the totality of a number of rights, duties and advantages accruing to spouses of a marriage (Grobbelaar v Havenga 1964 (3) SA 522 (N) at 525D). These embrace intangibles, such as loyalty and sympathetic care and affection, concern etc; as well as the more material needs of life, such as physical care, financial support, the rendering of service in the running of the common household or in a support-generating business, etc.”

23. In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC) at 65F (par [46]), Ackermann J stated:

“For purposes of this case it is unnecessary to consider comprehensively the nature of traditional marriage and the spousal relationship. It is sufficient to indicate that under South African common law a marriage “creates a physical, moral and spiritual community of life, a consortium omnis vitae” … “

See also: Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (8) BCLR 837 (CC) at 859D/E-F, par [33].

WHAT IS SO DIFFERENT ABOUT SAME-SEX MARRIAGES?

24. Although this is the first case to challenge directly the common law prohibition against same-sex marriages, our Courts have already been required to consider the constitutional implications of permanent same-sex relationships.

25. In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC) (“the Home Affairs case”), Ackermann J stated the following at 60H to 61C:

“[36] … The law currently only recognises marriages that are conjugal relationships between people of the opposite sex. It is not necessary, for purposes of this judgment, to investigate other forms of life partnership. Suffice it to say that there is another form of life partnership which is different from marriage as recognised by law. This form of life partnership is represented by a conjugal relationship between two people of the same sex. The law currently does not recognise permanent same-sex life partnerships as marriages. …

[37] A notable and significant development in our statute law in recent years has been the extent of express and implied recognition the legislature has accorded same-sex partnerships. A range of statutory provisions have included such unions within their ambit. While this legislative trend is significant in evincing Parliament’s commitment to equality on the ground of sexual orientation, there is still no appropriate recognition in our law of the same-sex life partnership, as a relationship, to meet the legal and other needs of its partners.” (Footnote omitted.)

26. The concept of a consortium omnis vitae was revisited in paragraph [53] of the Home Affairs judgment (p.68C/D-J). Ackermann J listed certain “facts concerning gays and lesbians and their same-sex partnerships which must be accepted”, namely:

“(i) Gays and lesbians have a constitutionally entrenched right to dignity and equality;

(ii) Sexual orientation is a ground expressly listed in section 9(3) of the Constitution and under section 9(5) discrimination on it is unfair unless the contrary is established;

(iii) Prior criminal proscription of private and consensual sexual expression between gays, arising from their sexual orientation and which had been directed at gay men, has been struck down as unconstitutional;

(iv) Gays and lesbians in same-sex life partnerships are as capable as heterosexual spouses of expressing and sharing love in its manifold forms including affection, friendship, eros and charity;

(v) They are likewise as capable of forming intimate, permanent, committed, monogamous, loyal and enduring relationships; of furnishing emotional and spiritual support; and of providing physical care, financial support and assistance in running the common household;

(vi) They are individually able to adopt children and in the case of lesbians to bear them;

(vii) In short, they have the same ability to establish a consortium omnis vitae;

(viii) Finally, and of particular importance for the purposes of this case, they are capable of constituting a family, whether nuclear or extended, and of establishing, enjoying and benefiting from family life which is not distinguishable in any significant respect from that of heterosexual spouses.” (Underlining added.)

27. Similar sentiments were expressed by Roux J in Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T). At 316F-H the learned Judge stated:

“I would ignore my experience and knowledge of several same-sex couples who have lived together for years. The stability and permanence of their relationships is no different from the many married couples I know. Both types of union are deserving of respect and protection. If our law does not accord protection to the type of union I am dealing with, then I suggest it is time it does so. This is how I understand what s39(2) of the Constitution has in mind.”

28. In Du Toit v Minister of Welfare and Population Development 2001 (12) BCLR 1225 (T), Kgomo J found certain sections of the Child Care Act, No. 74 of 1983 to be unconstitutional in that they had the effect that same-sex life partners could not jointly adopt a child. The Constitutional Court has now confirmed the findings and the order of Kgomo J.

29. In recognising that there really is no difference between permanent same-sex partners and married heterosexual couples, Kgomo J noted the following (at 1227I/J-1228A/B) about the applicants in Du Toit:

“In short, for all intents and purposes they are a couple and a family and are regarded as such by their relatives, friends and acquaintances. If they could marry each other, they certainly would. See Langemaat v Minister of Safety and Security and Others 1998 (3) SA 312 (T) at 316G.”

30. A judge in a permanent same-sex life partnership was the applicant in Satchwell v President of the Republic of South Africa 2002 (9) BCLR 986 (CC). The judgment of the court a quo is reported at 2001 (12) BCLR 1284 (T).

31. Madala J, with whom all the other Justices concurred, stated the following at 2002 (9) BCLR 992A-B, par. [12]:

“In certain African traditional societies woman-to-woman marriages are not unknown, this being prevalent in families that are childless because the woman is barren or where the woman is in a powerful position in her community, like being a queen or a chieftainness, or where she is very wealthy.” (Footnote omitted.)

32. In the Satchwell decision the Constitutional Court declared that, with effect from 25 July 2002, the partner of a judge in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support will be entitled to the same benefits as the married spouse of any other judge (at 998H-999F, par. [37]).

33. It is submitted that our courts have clearly and repeatedly recognised that there is no significant difference between permanent same-sex partnerships and heterosexual marriages. The consortium omnis vitae that is created in heterosexual marriages is just as present in permanent same-sex partnerships. It must follow that there really is nothing significantly different about same-sex marriages.

IS THE COMMON LAW PROHIBITION CONSTITUTIONAL?

34. It is our submission that the common law prohibition on same-sex marriages is unconstitutional because it limits sections 9(1), 9(3), 10 and 14 of the Constitution of the Republic of South Africa, 1996 and such limitations are not capable of being saved by section 36 of the Constitution.

35. The relevant parts of sections 9, 10 and 14 of the Constitution provide as follows:

"Equality

9(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

9(3) 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.

9(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair."

“Human dignity

10 Everyone has inherent dignity and the right to have their dignity respected and protected."

“Privacy

14 Everyone has the right to privacy … ”

Equality

36. In Harksen v Lane NO 1997 (11) BCLR 1489 (CC), the Constitutional Court (per Goldstone J) set out “the stages of enquiry which become necessary where an attack is made on a provision in reliance on section 8 of the interim Constitution.” (at 1511E, par. [53]) Section 8 of the interim Constitution dealt with the right to equality, now contained in section 9 of the Constitution. The Constitutional Court has held that, for all intents and purposes, the analysis in Harksen is equally applicable to section 9 of the Constitution: National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC) at 1530F-G, par. [15]. In Harksen, Goldstone J tabulated the stages of enquiry as follows (at 1511E to 1512B, par. [53]):

“(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of section 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.

(b) Does the differentiation amount to unfair discrimination? This requires a two stage analysis:

(i) Firstly, does the differentiation amount to “discrimination”? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend on whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

(ii) If the differentiation amounts to “discrimination”, does it amount to “unfair discrimination”? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. If at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section 8(2).

(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (section 33 of the interim Constitution).”

37. In National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC) at 1531E to 1532B, par. [17], Ackermann J clarified the Harksen formulation of the enquiry as follows (at 1532B-E, par. [18]):

"This does not mean, however, that in all cases the rational connection inquiry of stage (a) must inevitably precede stage (b). The stage (a) rational connection enquiry would be clearly unnecessary in a case in which a court holds that the discrimination is unfair and unjustifiable. I proceed with the enquiry as to whether the differentiation on the ground of sexual orientation constitutes unfair discrimination. Being a ground listed in section 9(3) it is presumed, in terms of section 9(5), that the differentiation constitutes unfair discrimination “unless it is established that the discrimination is fair.” Although nobody in this case contended that the discrimination was fair, the Court must still be satisfied, on a consideration of all the circumstances, that fairness has not been established.”

See also par. [19] at 1532E to 1533E, dealing with the impact of the discrimination on the complainant or the members of the affected group.

38. In an earlier decision of the Constitutional Court, Prinsloo v Van der Linde 1997 (6) BCLR 759 (CC) at 772A-C, par. [26]-[27], Ackermann, O’Regan and Sachs JJ articulated the test thus:

“[26] Accordingly, before it can be said that mere differentiation infringes section 8 [now section 9] it must be established that there is no rational relationship between the differentiation in question and the governmental purpose which is proffered to validate it. In the absence of such rational relationship the differentiation would infringe section 8. But while the existence of such a rational relationship is a necessary condition for the differentiation not to infringe section 8, it is not a sufficient condition; for the differentiation might still constitute unfair discrimination if that further element, referred to above, is present.

[27] It is to section 8(2) [now section 9(3)] that one must look in order to determine what this further element is. …”

39. It is submitted that the common law prohibition against same-sex marriages clearly differentiates between heterosexual people on the one hand, and lesbian and gay people on the other. No government purpose, whether legitimate or not, has been put forward by the respondents for this differentiation. Nor can the Equality Project conceive of one. It is therefore submitted that the common law ban on same-sex marriages constitutes a clear violation of section 9(1) of the Constitution.

40. It is further clear that lesbian and gay people are denied the right to marry simply because of their sexual orientation. This differentiation, being based on one of the specified grounds in section 9(3) of the Constitution, is presumed to be unfair discrimination, in terms of section 9(5), “unless it is established that the discrimination is fair.”

41. Important factors to be assessed in elaborating and giving precision to the constitutional test of unfairness include:

"(a) the position of complainants in society and whether they have suffered in the past from patterns of disadvantage;

(b) the nature of the provision or power and the purpose sought to be achieved by it. If its purpose is manifestly not directed, in the first instance, at impairing the complainants in their fundamental human dignity or in a comparably serious respect, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether the complainants have in fact suffered the impairment in question.

(c) with due regard to (a) and (b) above, and any other relevant factors, the extent to which the discrimination has affected the rights or interests of complainants and whether it has led to an impairment of their fundamental human dignity or constitutes an impairment of a comparably serious nature".

(per Ackermann J, in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC) at 63A-E, par. [41])

42. No basis has been laid in the respondents’ affidavits for an argument that it is fair to prohibit lesbian and gay people from entering into same-sex marriages. However, in order to satisfy this Honourable Court that this discrimination against lesbian and gay people is not fair, the following submissions are made:

42.1. In National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC) at 1535E, par. [25], Ackermann J stated:

“The impact of discrimination on gays and lesbians is rendered more serious and their vulnerability increased by the fact that they are a political minority not able on their own to use political power to secure favourable legislation for themselves. They are accordingly almost exclusively reliant on the Bill of Rights for their protection.”

42.2. Later, in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC) at 64B-E, par. [42], Ackermann J continued as follows:

“The sting of past and continuing discrimination against both gays and lesbians is the clear message that it conveys, namely, that they, whether viewed as individuals or in their same-sex relationships, do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships. This discrimination occurs at a deeply intimate level of human existence and relationality. It denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity, which at this point are closely intertwined, namely that all persons have the same inherent worth and dignity as human beings, whatever their other differences may be. The denial of equal dignity and worth all too quickly and insidiously degenerates into a denial of humanity and leads to inhuman treatment by the rest of society in many other ways. This is deeply demeaning and frequently has the cruel effect of undermining the confidence and sense of self-worth and self-respect of lesbians and gays.”

42.3. These dicta of Ackermann J apply with equal force to the denial of the right of every lesbian and gay person to marry the person of her or his choice.

42.4. Like heterosexual people, not every lesbian or gay person will choose to get married. Similarly, those lesbian and gay people who do desire to get married, do so for precisely the same reasons as heterosexual people, including the desire to formalise their union in the eyes of their families, society and the law.

42.5. In our law, the spouses to a marriage are entitled to certain benefits by virtue of their being married. Furthermore, certain obligations also arise simply because of the marriage. Sinclair and Heaton refer to these rights and obligations as “the invariable consequences of marriage” and include: the reciprocal duty of support; the reciprocal duty to contribute to the upkeep of the matrimonial home; the privilege covering communications between spouses; the protection of the marriage relationship against third parties; and the power of one spouse to bind the other in contract.

Sinclair & Heaton, The Law of Marriage, Volume 1, (1996), pp. 417-487.

42.6. In addition, certain invariable consequences also arise upon termination of a marriage, whether upon death or divorce. These include: rights of intestate succession; claims for loss of support and other death benefits; division of the joint estate (where the marriage is in community of property); and interim rights to maintenance and custody pending divorce proceedings.

42.7. By contrast, “the general rule of our law is that cohabitation does not give rise to special legal consequences, no matter how long the relationship has endured. Apart from limited statutory interventions which have conferred on cohabitants some of the rights and duties which attach to spouses, the law has largely ignored cohabitation. Cohabitants may make use of the ordinary rules and remedies of the law, such as those relating to property and contract, but no family-law consequences flow automatically from their relationship. They can invoke none of the protective, adjustive and supportive measures available to spouses.”

Sinclair & Heaton, The Law of Marriage, Volume 1, (1996), p. 274. See also pp. 274-302, especially at pp. 299-300.

42.8. Besides the material consequences that arise upon marriage, even more importantly, our law accords married persons an elevated status. Society takes its cue from the law. Being married is regarded as a social achievement. We applaud when unmarried people announce their intention to get married. We congratulate newly-weds when they marry and we celebrate their status for as long as they stay married.

42.9. The law at present reserves that status for heterosexual people. Lesbian and gay people are not entitled to attain that status because of their sexual orientation. Same-sex partners should, as the law stands, know their place; being married is not for them.

43. It is therefore submitted that the common law prohibition against same-sex marriages constitutes a clear case of unfair discrimination.

Dignity

44. It is submitted that the common law prohibition against same-sex marriages also infringes section 10 of the Constitution, the right to dignity.

45. The right to dignity is one of the primary rights of the Bill of Rights. Section 7(1) of the Constitution provides that: “This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.” See also section 36(1).

46. In S v Makwanyane 1995 (6) BCLR 665 (CC) at 777H-778A, par. [328], O’Regan J stated:

“The importance of dignity as a founding value of the new Constitution cannot be overemphasised. Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched in Chapter 3 [now Chapter 2].”

47. More recently, in Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (8) BCLR 837 (CC) at 860E/F-861C, par. [35], O’Regan J stated:

“The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it too to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings. Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. This Court has already acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhuman or degrading way, and the right to life. Human dignity is also a constitutional value that is of central significance in the limitations analysis. Section 10, however, makes it plain that dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour.” (Underlining added and footnotes omitted.)

48. By denying lesbian and gay people the right to marry, our law relegates permanent same-sex partnerships to a category below that of heterosexual relationships. As far as the law is concerned, lesbian and gay relationships are not as worthy of recognition and legal protection as heterosexual relationships. This is not only a manifestation of unequal treatment but also a violation of the right to human dignity of lesbian and gay people everywhere.

49. In Dawood at 861E-F, par. [37], O’Regan J concluded:

“The decision to enter into a marriage relationship and to sustain such a relationship is a matter of defining significance for many if not most people and to prohibit the establishment of such a relationship impairs the ability of the individual to achieve personal fulfilment in an aspect of life that is of central significance. In my view, such legislation would clearly constitute an infringement of the right to dignity.”

The relationship between equality and dignity

50. In his concurring judgment in National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC), Sachs J made the point (at 1572F, par. [125]) that the rights to dignity and equality should not be seen as competitive, but rather as complimentary. In the context of that case, Sachs J held (at 1573G, par. [128]) that “the question of dignity [was] … central to the question of equality”. The same is true of this case. At 1574A-C, par. [129] Sachs J stated:

“At the heart of equality jurisprudence is the rescuing of people from a cast-like status and putting an end to their being treated as lesser human beings because they belong to a particular group. The indignity and subordinate status may flow from institutionally imposed exclusion from the mainstream of society or else from powerlessness within the mainstream; they may also be derived from the location of difference as a problematic form of deviance in the disadvantaged group itself, as happens in the case of the disabled. In the case of gays it comes from compulsion to deny a closely held personal characteristic. To penalise people for being what they are is profoundly disrespectful of the human personality and violatory of equality.” (Underlining added, footnote omitted)

Privacy

51. It is further submitted that the common law prohibition against same-sex marriages is an infringement of section 14 of the Constitution, the right to privacy.

52. In National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC), at 1568A-C, par. [116], Sachs J noted:

“It has become a judicial cliché to say that privacy protects people, not places. Blackmun J in Bowers, Attorney General of Georgia v Hardwick et al made it clear that the much-quoted “right to be left alone” should be seen not simply as a negative right to occupy a private space free from government intrusion, but as a right to get on with your life, express your personality and make fundamental decisions about your intimate relationships without penalisation. Just as “liberty must be viewed not merely ‘negatively or selfishly as a mere absence of restraint, but positively and socially as an adjustment of restraints to the end of freedom of opportunity’”, so must privacy be regarded as suggesting at least some responsibility on the State to promote conditions in which personal self-realisation can take place.” (Footnotes omitted.)

53. By refusing to recognise same-sex marriages, the common law denies those lesbian and gay people who choose to marry, the right to get on with their lives, to make fundamental decisions about their intimate relationships and to express their personalities in the process.

The relationship between equality and privacy

54. In National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC) at 1565E-F, par. [111] Justice Sachs also stressed the inter-relationship, on the facts of the case before him, of the right to equality and the right to privacy. Quoting from the judgment in Bernstein v Bester N.O. 1996 (4) BCLR 449 (CC) at 484C-D, par. [67]: “In the context of privacy this would mean that it is only the inner sanctum of the person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community”, Sachs J stated (at 1569A-C, par. [117]):

“Viewed this way autonomy must mean far more than the right to occupy an envelope of space in which a socially detached individual can act freely from interference by the State. What is crucial is the nature of the activity, not its site. While recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is as an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined. It is not for the State to choose or to arrange the choice of partner, but for the partners to choose themselves.” (Underlining added and footnote omitted.)

55. In Minister of Justice the issue was the denial of the right of gay men to express their sexuality with partners of the same sex. The law as it stood enabled the State to insist that gay men could not express their sexuality with their partners of choice.

56. It is similarly submitted that the common law prohibition on same-sex marriages enables the State to insist that lesbian and gay people who elect to marry, choose their marriage partners from amongst the members of the opposite sex. According to the extract from the judgment of Sachs J (quoted above), the Constitution does not countenance such a role for the State.

57. It is therefore submitted that the denial of the right of lesbian and gay people to marry a partner of the same sex infringes their rights to equality, to dignity and to privacy. It is further submitted that this infringement is aggravated by the fact that not only one right, but a combination of three, have been infringed.

58. In Minister of Justice (at 1566A-C, par. [113]) Justice Sachs observed:

“One consequence of an approach based on context and impact would be the acknowledgement that grounds of unfair discrimination can intersect, so that the evaluation of discriminatory impact is done not according to one ground of discrimination or another, but a combination of both, that is, globally and contextually, not separately and abstractly. The objective is to determine in a qualitative rather than a quantitative way if the group concerned is subject to scarring of a sufficiently serious nature as to merit constitutional intervention.”

59. It is therefore submitted that the common law prohibition against same-sex marriages gives “rise to multiple, overlapping and mutually reinforcing violations of constitutional rights”. It is further submitted that the scarring of the lesbian and gay community by these violations “touches the deep, invisible and intimate side of people’s lives” and is serious enough to warrant constitutional intervention. Compare: Minister of Justice at 1567B-E, par. [114].

IS THERE ANY JUSTIFICATION FOR THE PROHIBITION?

60. Section 36 of the Constitution provides for the limitation of any right in the Bill of Rights “to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.”

61. In S v Makwanyane 1995 (6) BCLR 665 (CC) at 708C-G, par. [104], Chaskalson P (as he then was) established the principles to be applied in the limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society. It should be noted that the Court was interpreting section 33 of the interim Constitution and not its successor, section 36 of the Constitution. Despite this, the Makwanyane analysis informed the formulation of section 36 and has been considered and applied by the Court in cases decided after the repeal of the interim Constitution.

See, for example, National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC) at 1538F-1539E, par. [33], [34] and [35]; National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC) at 70D-71D, par. [58], [59] and [60].

62. In par. [58] of the Home Affairs judgment, Ackermann J stated:

“… The rights limited, namely equality and dignity, are important rights going to the core of our constitutional democratic values of human dignity, equality and freedom. The forming and sustaining of intimate personal relationships of the nature here in issue are for many individuals essential for their own self-understanding and for the full development and expression of their human personalities. …”

63. Ackermann J concluded, in par. [59] that: “There is no interest on the other side that enters the balancing process. … There is in my view no justification for the limitation in the present case and it therefore follows that the provisions of section 25(5) are inconsistent with the Constitution and invalid."

64. It is submitted that the position in the present case is the same as the position in the Home Affairs case. The respondents have not sought to rely on any opposing interest that would justify the limitation of the rights in issue. It is submitted that there is none.

65. For the sake of completeness, however, two commonly used arguments against same-sex marriages are considered below so as to satisfy this Honourable Court that no justification exists to limit the right of lesbian and gay people to marry.

Procreation and the rearing of children

66. The argument that lesbian and gay people should not be allowed to marry because same-sex unions have no prospect of bearing children is flawed. The common law has never regarded the ability to procreate as an essential requirement of a valid marriage. Nor could it ever be. The reasons for this were restated by the Constitutional Court in the Home Affairs judgment.

National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC) at 67E-68C/D, par. [50], [51] and [52].

67. It should also be pointed out that, since the amendment to the regulations promulgated in terms of the Human Tissue Act, No. 65 of 1983, single women regardless of sexual orientation have the right to be artificially inseminated for the purposes of raising children.

Regulations Regarding The Artificial Insemination Of Persons, And Related Matters, published under Notice No. R.1182 in Government Gazette No. 10283, dated 20 June 1986, as amended by Notice No. R.1354, published in Government Gazette No. 18362, dated 17 October 1997. Specifically regulations 6(2)(b), 8(1), 9(e)(i) and 9(e)(i)(bb).

68. Furthermore, this Honourable Court has declared as unconstitutional the statutory provisions that prevent the joint adoption of a child by the partners in a permanent same-sex relationship. On 10 September 2002, the Constitutional Court confirmed the order of this Honourable Court. A copy of the judgment of the Constitutional Court will be included in the bundle.

Du Toit v Minister of Welfare and Population Development 2001 (12) BCLR 1225 (T).

69. It is submitted that the most important parenting needs of children are love, care, nutrition, shelter, clothing and emotional support. To suggest that lesbian and gay parents are incapable of satisfying these needs is absurd and insulting.

V v V 1998 (4) SA 169 (C) at 192C.

Religion

70. It is often argued that same-sex marriages ought to be outlawed because homosexuality is considered to be against certain religious teachings. It is submitted, for the reasons set out below, that this objection is without merit.

71. Section 9(3) of the Constitution expressly forbids the State from unfairly discriminating against its citizens on the ground of sexual orientation.

72. This case is concerned with the right of lesbian and gay people to marry and to have their marriages registered in terms of section 29A of the Marriage Act, No. 25 of 1961.

73. This case is only concerned with the validity of same-sex civil marriages and the duty of the State to solemnize and register such marriages.

74. It is correct that certain ministers of religion have also been designated as marriage officers in terms of sections 2 and 3 of the Marriage Act, No. 25 of 1961. However, those ministers who do not wish to solemnize same-sex marriages would be entitled to invoke the provisions of section 31 of the Act, read with section 15 of the Constitution. Section 31 of the Act reads as follows:

“Nothing in this Act contained shall be construed so as to compel a marriage officer who is a minister of religion or a person holding a responsible position in a religious denomination or organization to solemnize a marriage which would not conform to the rites, formularies, tenets, doctrines or discipline of his religious denomination or organization.”

75. Marriage officers who are also ministers of religion already refuse to solemnize marriages that do not conform to the tenets or doctrines of their respective religious denominations.

75.1. For example, under the Sharia and all modern Islamic laws, a marriage of a Muslim woman to a non-Muslim man is null and void. By contrast, a Muslim man can enter into a valid marriage with a Christian or Jewish woman, but not with any other non-Muslim woman. These issues are covered in chapter 3 of the book entitled The Islamic Law of Personal Status, a copy of which will be included in the bundle. See, in particular, pages 84 to 85 of the extract.

75.2. Jewish law, too, has its own restrictions. For example, a Rabbi will not solemnize a marriage between a Jewish person and a non-Jewish person. Also, Orthodox Jewish law does not allow a marriage between a Jewish man who is a member of the priestly lineage and a Jewish woman who has been divorced. Nor can a Jewish child of an adulterous union marry any Jew at all. These issues are covered in Encyclopaedia Judaica (volume 2), a copy of which will be included in the bundle. See, in particular, pages 1051 to 1054 of the extract.

75.3. According to certain Christian traditions, a divorced woman cannot remarry. This principle is based on the teachings of the Apostle Paul in I Corinthians, chapter 7, verses 10 and 11, which state:

“10 For married people I have a command which is not my own but the Lord’s: a wife must not leave her husband; 11 but if she does, she must remain single or else be reconciled to her husband; and a husband must not divorce his wife.”

76. The fact that Islam, Judaism and Christianity refuse to marry certain categories of people does not relieve the State of its duty to solemnize and register such marriages. Similarly, the fact that certain religious teachings do not recognise the validity of lesbian and gay relationships does not relieve the State of its duty to solemnize and register same-sex marriages.

77. It is therefore submitted that there is no justification for refusing to recognise the lawfulness of same-sex marriages, thereby limiting the rights of lesbian and gay people to equality, to dignity and to privacy.

THE DEVELOPMENT OF THE COMMON LAW

78. It may be argued that it is not appropriate to apply the Harksen enquiry to the common law prohibition on same-sex marriages and that the correct approach would be to develop the common law in terms of section 39(2) of the Constitution.

Harksen v Lane NO 1997 (11) BCLR 1489 (CC) at 1511E to 1512B, par. [53].

79. In Carmichele v Minister of Safety and Security 2001 (10) BCLR 995 (CC) at 1008A/B-C/D, par. [40], the Constitutional Court set out the approach to be followed when it is alleged that the common law has to be developed beyond existing precedent. Ackermann and Goldstone JJ described the approach as follows:

“In such a situation there are two stages to the enquiry a court is obliged to undertake. They cannot be hermetically separated from one another. The first stage is to consider whether the existing common law, having regard to the section 39(2) objectives, requires development in accordance with these objectives. This inquiry requires a reconsideration of the common law in the light of section 39(2). If this enquiry leads to a positive answer, the second stage concerns itself with how such development is to take place in order to meet the section 39(2) objectives.”

80. The Supreme Court of Appeal has recently developed the common law of delictual liability in terms of section 39(2) of the Constitution. A copy of the judgment in Minister of Safety and Security v Van Duivenboden (case no. 209/2001) will be included in the bundle. The case concerned the liability of the police for failing to take steps to deprive a person of firearms. Nugent JA, writing for the majority, held (at pages 26-27, par. [22] of the typed judgment) that:

“There is no effective way to hold the state to account in the present case other than by way of an action for damages, and in the absence of any norm or consideration of public policy that outweighs it the constitutional norm of accountability requires that a legal duty be recognised. The negligent conduct of police officers in those circumstances is thus actionable and the state is vicariously liable for the consequences of any such negligence.”

See also pages 18-19, par. [17]-[18] and pages 25-27, par. [22] of the typed judgment.

81. The objectives of section 39(2) of the Constitution are to “promote the spirit, purport and objects of the Bill of Rights”.

82. There can be no doubt that the rights to equality, dignity and privacy lie at the very core of the Bill of Rights. Furthermore, in view of the argument set out above, it is submitted that it is clear that the common law position on same-sex marriages requires development if it is to be harmonised with the spirit, purport and objects of the Bill of Rights.

83. It is further submitted that the only way in which the common law can be developed in this context is to redefine the common law definition of marriage as “the lawful and voluntary union of two persons to the exclusion of all others while it lasts”.

84. It would then be for the Legislature to undertake a thorough review of all statutory provisions that refer to “husband”, “wife”, “father”, “mother”, “widow” and “widower” and to effect whatever changes are required in context. It is submitted that it is neither necessary nor desirable for this Honourable Court to undertake such an exercise.

Compare National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC) at 79E-F, par. [84].

85. Nor is the Legislature’s task as daunting as it might appear to be. The process has already begun. See National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC) at 61B-C, par. [37], footnote 42. See also the 1996 definition of “marriage” in section 1 of the Child Care Act, No. 74 of 1983 which reads as follows:

“’marriage’ means any marriage which is recognised in terms of South African law or customary law, or which was concluded in accordance with a system of religious law subject to specified procedures, and any reference to a husband, wife, widower, widow, divorced person, married person or spouse shall be construed accordingly;” (Underlining added.)

THE POSITION INTERNATIONALLY

86. The Superior Court of Justice in the Canadian province of Ontario has recently held that the Canadian common law definition of marriage, namely “the lawful and voluntary union of one man and one woman to the exclusion of all other”, violates the equality provisions of section 15(1) of the Canadian Charter of Rights and Freedoms.

Halpern v Canada (A.G.); Metropolitan Community Church of Toronto v Canada (A.G.), unreported decision of the Ontario Superior Court of Justice (Divisional Court), court files numbered 684/00 and 39/2001 respectively. A copy of the judgment will be included in the bundle.

87. It is submitted that this decision is significant for two reasons:

87.1. The similarities between our Bill of Rights and the Canadian Charter are striking; many of the earlier decisions of our Constitutional Court are based on Canadian constitutional jurisprudence. See section 39(1)(c) of our Constitution; and

87.2. The Canadian Court was able to rule in favour of same-sex marriages because section 15 of the Canadian Charter had previously been interpreted to include a prohibition against discrimination on the ground of sexual orientation.

Egan v Canada (1995) 29 CRR (2d) 79. A copy of this judgment will be included in the bundle.

88. Since 1 April 2001 it has been possible in the Netherlands for two men or two women to marry. The law governing such marriages, the Same-Sex Marriage Act, came into force on that date. A copy of a booklet produced by the Dutch government to assist lesbian and gay people who want to marry in the Netherlands will be included in the bundle.

89. In Baehr v Lewin 852 P.2d 44 (Haw. 1993) the Supreme Court of the American state of Hawaii held that prohibiting same-sex couples from marrying would violate a provision of the Hawaii Constitution that prohibited discrimination based on sex unless there existed a compelling reason to justify the discrimination. The matter was referred back to the trial court for evidence. In December 1996 the trial judge ruled that the state had failed to demonstrate a compelling reason: Baehr v Miike 1996 WL 694235 (Haw. Cir. Ct. 1996). Copies of both Baehr judgments will be included in the bundle.

90. Before the Supreme Court of Hawaii could hear the matter for the second time on appeal, the Constitution of Hawaii was amended in 1998 to allow the state legislature to limit marriage to persons of the opposite sex.

APPROPRIATE RELIEF

91. Our Constitution, like the Canadian Charter, expressly protects the rights of all our country’s citizens against unfair discrimination. Our Bill of Rights expressly affirms the rights of all people in our country to derive protection and benefits from the values of human dignity, equality and freedom. (See section 7 of the Constitution.)

92. It is submitted that this Honourable Court ought to grant the relief sought by the applicants.

93. It is further submitted that it would be appropriate, just and equitable for this Honourable Court to declare the common law prohibition against same-sex marriages to be unconstitutional and to develop the common law definition of marriage so that it reads as follows:

“Marriage is the lawful and voluntary union of two persons to the exclusion of all others while it lasts.”

Compare: Fose v Minister of Safety and Security 1997 (7) BCLR 851 (CC) at 862A-F, par. [18]-[19]; Du Toit v Minister for Welfare and Population Development (CC) at pages 23-25 of the typed judgment, par. [38]-[43].

___________________________

D. I. BERGER

___________________________

R. THULARE

Counsel for the Equality Project

Chambers

Johannesburg

19 September 2002

LIST OF AUTHORITIES

1. Du Toit v Minister of Welfare and Population Development (CC), case no. CCT 40/01,unreported judgment handed down on 10 September 2002.

2. Du Toit v Minister of Welfare and Population Development 2001 (12) BCLR 1225 (T).

3. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC).

4. National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC).

5. Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T).

6. Seedat's Executors v The Master (Natal) 1917 AD 302.

7. Joubert, The Law of South Africa-1^st re-issue, (1998), vol. 16.

8. Sinclair & Heaton, The Law of Marriage, Volume 1, (1996).

9. Hahlo, The South African Law of Husband and Wife, (1975, 4ed).

10. W v W 1976 (2) SA 308 (W).

11. Simms v Simms 1981 (4) SA 186 (D).

12. Ismail v Ismail 1983 (1) SA 1006 (A).

13. Ryland v Edros 1997 (1) BCLR 77 (C).

14. Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA).

15. Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (8) BCLR 837 (CC).

16. Peter v Minister of Law and Order 1990 (4) SA 6 (E).

17. Satchwell v President of the Republic of South Africa 2002 (9) BCLR 986 (CC).

18. Satchwell v President of the Republic of South Africa 2001 (12) BCLR 1284 (T).

19. Harksen v Lane NO 1997 (11) BCLR 1489 (CC).

20. Prinsloo v Van der Linde 1997 (6) BCLR 759 (CC).

21. S v Makwanyane 1995 (6) BCLR 665 (CC).

22. Bernstein v Bester N.O. 1996 (4) BCLR 449 (CC).

23. V v V 1998 (4) SA 169 (C).

24. Carmichele v Minister of Safety and Security 2001 (10) BCLR 995 (CC).

25. Minister of Safety and Security v Van Duivenboden (SCA) (case no. 209/2001, unreported decision of the Supreme Court of Appeal.)

26. Halpern v Canada (A.G.); Metropolitan Community Church of Toronto v Canada (A.G.), unreported decision of the Ontario Superior Court of Justice (Divisional Court), court files numbered 684/00 and 39/2001 respectively.

27. Egan v Canada (1995) 29 CRR (2d) 79.

28. Baehr v Lewin 852 P.2d 44 (Haw. 1993).

29. Baehr v Miike 1996 WL 694235 (Haw. Cir. Ct. 1996).

30. Fose v Minister of Safety and Security 1997 (7) BCLR 851 (CC).