Minister of Home Affairs and Another v Fourie and Another PDF

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This is a case summary for family law that has the facts, the issue, the principles, application and conclusion clearly marked....

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MINISTER OF HOME AFFAIRS AND ANOTHER V FOURIE AND ANOTHER; LESBIAN AND GAY EQUALITY PROJECT AND OTHERS V MINISTER OF HOME AFFAIRS AND OTHERS 2006 (1) SA524 (CC) PR EC E D EN T S E T: T H E C O MM O N LAW D E F IN I T IO N O F M A R RI AG E I S D EC L A R E D TO BE IN CO N S I ST E NT W I T H T H E C O NST I T U T IO N A N D I N VA L I D TO T HE EX T E N T T H AT I T D O E S N OT PE R M IT S A ME -SE X CO U P L ES TO E N J OY T H E S TATU S A N D TH E B EN E F I TS C O UP L E D W I T H RE S PO N S IB I L I T IE S I T A CCO R DS TO HE T E ROS E XUA L CO U PL E S .

FACTS OF THE CASE: Two separate constitutional challenges to the common law and statutory definitions of marriage in South Africa were consolidated. In the first case (a complaint that South African common law unconstitutionally excluded same-sex marriage), the South African government appealed lower court decisions that had found in favour of Marie Adriaana Fourie and Cecelia Johanna Bothuys had crossappealed the remedy of the lower court. In the second case, the Lesbian and Gay Equality Project challenged the statutory definition in the Marriage Act and were granted direct access to the Constitutional Court

LEGAL ISSUE: 1. Does the failure by the common law and the Marriage Act to provide the means whereby same-sex couples can marry, constitute unfair discrimination against them. 2. If the answer was that it did, what should the appropriate remedy for the unconstitutionality be [para 45]?

PRINCIPLES: Section 9(1) of the Constitution of the Republic of South Africa (the Constitution): “Everyone is equal before the law and has the right to equal protection and benefit of the law.” Section 9(3) of the Constitution: “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.” Section 10 of the Constitution: Everyone has inherent dignity and the right to have their dignity respected and protected. 30(1) of the Marriage Act 25 of 1961: In solemnizing any marriage any marriage officer designated under section 3 may follow the marriage formula usually observed by his religious denomination or organization if such marriage formula has been approved by the Minister, but if such marriage formula has not been approved by the Minister, or in the case of any other marriage officer, the marriage officer concerned shall put the following questions to each of the parties separately, each of whom shall reply thereto in the affirmative:

“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.” Section 31 of the Marriage Act: “Certain marriage officers may refuse to solemnize certain marriages.—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.” Section 15(3) of the Constitution: “(a) This section does not prevent legislation recognising— (i) marriages concluded under any tradition, or a system of religious, personal or family law; or (ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion. (b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.”

APPLICATION/RATIO: Does the failure by the common law and the Marriage Act to provide the means whereby samesex couples can marry, constitute unfair discrimination against them? The court had a long discussion on the fact that marriage is a very important institution in society as it had developed past its purpose in the common law of legitimizing sexual relations and securing succession of legitimate heirs to family property. The rights and obligations associated with marriage were determined to be vast [para 70]. Therefore the exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, was not a small and tangential inconvenience but succeeds in making same sex couples second class citizens. Given the centrality attributed to marriage and its consequences in our culture, to deny same-sex couples a choice in this respect is to negate their right to self-definition in a most profound way [para 71-72]. It constituted a denial to them of their right to equal protection and benefit of the law that was afforded to them under s9 of the constitution. It also violated their right to the dignity under s10 of the Constitution.

Their omission from the benefits of marriage law is a direct consequence of prolonged discrimination based on the fact that their sexual orientation is different from the norm. This result is in direct conflict with section 9(3) of the Constitution. The common law and section 30(1) of the Marriage Act continue to deny to same-sex couples equal protection and benefit of the law, in conflict with section 9(1) of the Constitution, and taken together result in same-sex couples being subjected to unfair discrimination by the state in conflict with section 9(3) of the Constitution. The conclusion is that when evaluated in the context of the legal regime as a whole, the common law definition and section 30(1) are under-inclusive and unconstitutional to the extent that they make no appropriate provision for gay and lesbian people to celebrate their unions in the same way that they enable heterosexual couples to do [para 82]. Lola’s note: this is the end of the answer to the first issue. What comes next is the way in which the court handled the arguments made by the people who DID NOT want to legalise gay marriage. I felt the need to include it because it is such a huge case in our history and I wanted you to be able to keep these notes and refer to them at a later date. This is a VERY brief overview of the process the court undertook. Skip to the next bold for the second issue if you don’t want to read this part now. The respondents submitted that whatever remedy the state adopts cannot include altering the definition of marriage as contained in the common law and as expressed in section 30(1) of the Marriage Act. There were four main arguments that they made and how the court addressed them:  Procreation argument – Basically the argument was something along the lines of gay people can’t procreate and should therefore not get married.(Yeah, this argument is really stupid) It was dismissed because it was offensive not only to same sex couples but also those heterosexual couples who choose not to have children [paras 85 – 87]. 

Respect for religion arguments –Yes, religion is a central part of most people’s lives and holds great place in society it must be acknowledged that it was used to justify the most abhorrent forms of racial discrimination and using it as a grounds.”It is one thing for the Court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution [para 92]”. This is because while there is a need for society to balance the secular and the sacred this is only to the extent that the majority is not being prejudicial to the minority, in this case same sex relationships. The test, whether majoritarian or minoritarian positions are involved, must always be whether the measure under scrutiny promotes or retards the achievement of human dignity, equality and freedom. The need for co-existence and respect for diversity of belief is in fact already expressly recognised by the Marriage Act as s31 allows marriages officers to choose who the solemnise [para 96]. The two sets of interests involved do not collide; they co-exist in a constitutional realm based on accommodation of diversity. [paras 88 – 98]

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The international law argument –the judge concluded that while it is true that international law expressly protects heterosexual marriage it is not true that it does so in a way that necessarily excludes equal recognition being given now or in the future to the right of same-sex couples to enjoy the status, entitlements, and responsibilities accorded by marriage to heterosexual couples [paras 99-105].

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The family law pluralism argument –Much reliance was placed by the state and the amici on section 15(3) of the Constitution. This was all about the fact that this provision in s15(3)

provided that the right to freedom of religion didn’t “prevent legislation from recognizing… systems of personal and family law under any tradition, or adhered to by persons professing a particular religion”. The state tried to say that this meant that the same-sex marriages had to be dealt with by the legislature, not the courts and was to be handled separately from marriage law. However the court declared that the provision itself didn’t provide the remedy for religion that the state and the amici were claiming it did, let alone constitute a reason to bar the claims of the applicants [Para 106 – 109]. Has justification in terms of section 36 of the Constitution been shown to exist for the violation of the equality and dignity rights of these couples? So the judge in this case did conduct a quick s36 justification analysis. The arguments made by the state were that: 1. the inclusion of same-sex couples would undermine the institution of marriage. 2. that this inclusion would intrude upon and offend the strong religious susceptibilities of certain sections of the public. To that, the judge responded that “the express or implied assertion that bringing same-sex couples under the umbrella of marriage law would taint those already within its protection can only be based on a prejudgement, or prejudice against homosexuality. This is exactly what section 9 of the Constitution guards against. He concluded therefore that the arguments tendered in support of justification cannot be upheld [paras 110 – 113]. If the answer was that it did, what should the appropriate remedy for the unconstitutionality be? It had already been determined that the common law and s30(1) of the marriage act were unconstitutional to the extent that they excluded same-sex couples. Therefore in terms of section 172(1)(a) of the Constitution, the Court had to declare any law inconsistent with the Constitution invalid and under section 172(1)(b) it is the court had to make an order that was just and equitable to fix it. Time was given for public opinion to be had and ultimately the court decided that parliament was to be given twelve months to cure the defect. If they failed to act within that time, the words “or spouse” would automatically be read into the Marriage Act

CONCLUSION: The order of the Supreme Court of Appeal was set aside and replaced by the following orders: 

In both Case CCT 60/04 and Case CCT 10/5, the common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it does not permit samesex couples to enjoy the status and the benefits coupled with responsibilities it accords to heterosexual couples.

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In Case CCT 10/5, the omission from section 30(1) of the Marriage Act 25 of 1961 after the words “or husband” of the words “or spouse” is declared to be inconsistent with the Constitution, and the Marriage Act is declared to be invalid to the extent of this inconsistency.

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The declarations of invalidity are suspended for twelve months from the date of this judgment to allow Parliament to correct the defect....