From: The Registrar, Supreme Court of Appeal

Please note that the media summary is intended for the benefit of the media and does not form part of the judgment of the Supreme Court of Appeal

Fourie & Bonthuys v Minister of Home Affairs & Director-General of Home Affairs

In a judgment delivered today, the Supreme Court of Appeal has granted two women appellants a declaration that under the Constitution the common law of marriage has been developed to include same-sex unions. The SCA held that the Constitution’s equality guarantee, which expressly prohibits discrimination on the ground of sexual orientation, together with several major decisions of the Constitutional and other Courts over the last ten years, meant that the Constitution required the development of the common law definition of marriage to embrace same-sex couples.

The SCA decision does not mean that gay and lesbian marriages can immediately take place. The appellants did not attack any statutory provisions that assume that marriage is confined to opposite-sex couples. They applied only for common law relief. In the Pretoria High Court, the judge dismissed their application because he thought that the Marriage Act of 1961 precluded any relief.

The SCA set this decision aside. The Court pointed out that the Marriage Act requires that a default formula be recited when a marriage takes place. That formula refers to a ‘husband (or wife)’. But this formula applies only to civil marriages (those conducted by a magistrate) and to religious ceremonies where the Minister of Home Affairs has not approved a different formula at the request of a religious organisation.

The SCA pointed out that the Minister is free to approve different marriage formulas for religious organisations that approve and wish to perform gay and lesbian marriages. This meant that the appellant couple were entitled to a declaration regarding the common law of marriage.

But until the Minister approves different religious formulas – or until the Constitutional Court sets aside the statutory default formula – no gay and lesbian marriages can take place.

The SCA emphasised in its judgment that neither its decision about the common law definition, nor the ministerial grant of a variant religious 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. The Marriage Act specifically provides that:

‘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 organisation to solemnize a marriage which would not conform to the rites, formularies, tenets, doctrines or discipline of his religious denomination or organisation’ (s 31).

The SCA was unanimous that the previous common law definition of marriage, which excluded same-sex unions, constituted unfair and unjustifiable discrimination under the Constitution.

One member of the Court considered that the appellants should not get immediate declaratory relief, but that the Court’s order should be suspended for two years to permit Parliament to consider the options before it. He said that the Law Reform Commission in its report had identified three possible ways of resolving the problem caused by the unconstitutionality of the common law definition of marriage. The Court had been able to consider only one of these options, and then without regard to possible important and wide-ranging policy implications. These were a matter for Parliament. If the Court’s order were not suspended, he said, it was likely that many same-sex couples would get married and this would make it difficult, if not impossible, for Parliament to adopt one of the other options. He said that the Court, consisting of unelected judges, should not do anything to prejudice or even possibly pre-empt the decision of Parliament, which should be given a free hand without being subject to pressure flowing from the fact that one of the options had already been implemented by judicial decision.

The majority considered that specific provisions of the Constitution envisaged the situation before the Court. The Constitution therefore obliged the Court to issue declaratory relief regarding the common law position. Development of the common law was a specifically judicial function that did not stray into the legislature’s domain. The majority also pointed out that the Constitutional Court in comparable cases had not suspended its order, but had laid down the principle that constitutional litigants were entitled to effective relief. In this case, these principles required that the Court issue a declaration regarding the common law definition of marriage. The legislature remained free to enact legislation within constitutional norms.

The appeal therefore succeeded with costs.